01/17/2007 Agreement
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
BRANCH OFFICE
MARATHON SUB COURTHOUSE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL. (305) 289-6027
FAX (305) 289-1745
MONROE COUNTY COURTHOUSE
500 WHITEHEAD STREET, SUITE 101
KEY WEST, FLORIDA 33040
TEL. (305) 292-3550
FAX (305) 295-3663
BRANCH OFFICE
PLANTATION KEY
GOVERNMENT CENTER
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 852-7146
Memorandum
To:
Mayra Tezanos,
Executive Assistant
Isabel C. DeSantis" V
Deputy Clerk ~
From:
Date:
Tuesday, January 30, 2007
At the BOCC meeting on January 17, 2007, the Board granted approval and
authorized execution of the following:
Substitution of a corrected 3-party contract with Otak Group, Inc. and the State of
Florida Department of Environmental Protection (DEP), Office of Greenways and Trails
to perform construction services for completion of fishing platform on an existing bridge
on that portion ofthe Florida Keys Overseas Heritage Trail in the area known as Tom's
Harbor Cut located at Mile Marker 61.7.
Enclosed please find four (4) duplicate originals of the above document executed
by Monroe County for your handling. Please be sure that the sets marked Monroe
Countv Clerk's Office Orillinal and Monroe Countv Finance Devartment's Orillinal
are returned to this office as quickly as possible. Should you have any questions, please
do not hesitate to contact this office.
cc: Finance, memo only
County Attorney, memo only
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DEP Contract No. DC646
CONTRACT
TillS CONTRACT (the "Contract") is entered into between the STATE OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION, OFFICE OF GREENWAYS AND TRAILS, whose address is 3900
Commonwealth Boulevard, MS #795, Tallahassee, Florida 32399-3000 (hereinafter referred to as the
"Department"), MONROE COUNTY, FLORIDA, c/o Monroe County Growth Management Division, 2798
Overseas Highway, Suite 410, Marathon, Florida 33050 (hereinafter referred to as the "County") and OT AK
GROUP, INC., a Florida corporation, whose address is 850022 U.S. Highway 17, Yulee, Florida 32097 (hereinafter
referred to as the "Contractor").
In consideration of the mutual benefits to be derived herefrom, the Department, the County and Contractor do
hereby agree as follows:
I. A. The Department and the County do hereby retain the Contractor to perform construction services
for the proper execution and completion of the construction of fishing platforms on an existing
bridge on that portion of the Florida Keys Overseas Heritage Trail located in the area known as
Tom's Harbor Cut located at Mile Marker 61.7 (the "project"). The Contractor does hereby agree
to perform such work upon the terms and conditions set forth in this Contract, Attachment A,
Attachment B, all attachments and exhibits named herein, Bid No. BD&C 10-05/06, all addenda
and the completed bid form which are all incorporated by reference as part of this Contract.
B. In the event of conflict in the provisions of said contract documents named above, the provisions
of this Contract shall control over the General Conditions of the Contract for Construction AlA
Document A-20 I, 1997 Edition, (hereinafter referred to as AlA Document A-20 I).
2. The Contractor shall perform the services in a proper and satisfactory manner as determined by the
Department. Any and all equipment, products, labor and materials necessary to perform this Contract
shall be supplied by the Contractor, unless otherwise specified herein.
3. The Contractor shall perform as an independent contractor and not as an agent, representative, or
employee of the Department or the County.
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4. A. As consideration for the services r~ndered by the Contractor under the terms of this Contract, the
Department shall pay the Contractor on a lump sum basis as specified in Attachment A. All bills
for amounts due under this Contract shall be submitted in detail sufficient for a proper pre-audit
and post-audit thereol: No travel expenses shall be authorized under the terms of this Contract.
In accordance with Section 215.422, Florida Statutes, the Department shall pay the Contractor
interest at a rate as established by Section 55.03(1), Florida Statutes, on the unpaid balance if a
warrant in payment of an invoice is not issued within forty (40) days after receipt of a correct
invoice and receipt, inspection, and approval ofthe goods and services. Interest payments ofless
than $1 will not be enforced unless a contractor requests payment. The interest rate established
pursuant to Section 55.03(1), Florida Statutes, may be obtained by calling the State of Florida
Department of Financial Services, vendor ombudsman at the telephone number provided above or
the Departmenfs Procurement Section at (850) 245-2361.
DEP Contract No. DC646 Page 1 of 12
"
R As consideration for the services rendered by the Contractor under the terms of this Contract the
County shall pay the Contractor on a lump sum basis as specified in Attachment A. Request for
payment must be in a form satisfactory to the County Clerk (the "Clerk"). The request must
describe in detail the services performed and the payment amount requested, The consultant as
specified in Attachment A (the "Consultant") must submit request for payment and progress
reports to the Department's project manager, who reviews the request, shall note their approval on
the request and forward it to the Clerk for payment. If request for payment is not approved, the
Department's project manager must inform the Consultant in a writing that must include an
explanation of the deficiency that caused the disapproval of the request. When the Clerk receives
a request for payment, the Clerk shall pay the request in the amount approved by the Department's
project manager pursuant to Chapter 218, Part VII, Florida Statutes, the Local Government
Prompt Payment Act.
C. Contractor acknowledges and agrees that the Department shall not be responsible for the County's
portion of the contract sum as specified in Attachment A. Contractor shall hold harmless the
Department against any liability, claims, judgments or cost of whatsoever kind and nature related
to the County's portion of the contract sum as specified in Attachment A.
5. This Contract shall begin upon execution and end 12 months after final completion. During this 12
month period after final completion, the Contractor shall repair or replace any defective materials or
workmanship free of charge to the Department and the County. Work shall not begin before the date
established in the Notice to Proceed. In accordance with Section 287.058(2), Florida Statutes, the
Contractor shall not be eligible for reimbursement for services rendered (such as labor for preparation
and execution of the bid or travel necessitated by the bid process) prior to the execution date of this
Contract.
6. A. THE STATE OF FLORIDA'S PERFORMANCE AND OBLIGATION TO PAY UNDER THIS
CONTRACT IS CONTINGENT UPON AN ANNUAL APPROPRIATION BY THE
LEGlSLA TURB.
B. MONROE COUNTY'S PERFORMANCE AND OBLIGATION TO PAY UNDER THIS
CONTRACT IS CONTINGENT UPON AN ANNUAL APPROPRIATION BY THE COUNTY
COMMISSION.
7. Pursuant to Section 215.422, Florida Statutes, the Department's Project Manager shall have five (5)
working days, unless otherwise specified herein, to inspect and approve the services for payment. The
Department must submit a request for payment to the State of Florida Department of Financial
Services within twenty (20) days, and the State of Florida Department of Financial Services is given
ten (10) days to issue a warrant. Days are calculated from the date the invoice is received or the date
the services are received, inspected, and approved, whichever is later. Invoice payment requirements
do not start until a proper and correct invoice has been received. Invoices which have to be retumed to
the Contractor for correction(s) will result in a delay in the payment. A vendor ombudsman has been
established within the State of Florida Department of Banking and Finance who may be contacted if
the Contractor is experiencing problems in obtaining timely payment( s) from a State of Florida
agency. The vendor ombudsman may be contacted at (850) 410-9724 or l-80Q..848-3792.
8. The Contractor shall indemniry, protect, defend, save and hold harmless the State of Florida, the
Department, the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida and
the County against any and all liability, claims, judgments or costs of whatsoever kind and nature for
injury to, or death of any person or persons and for the loss or damage to any property resulting from
the use, service, operation or performance of work under the terms of this Contract, resulting from the
negligent acts of the Contractor, his subcontractor, or any of the employees, agents or representatives
of the Contractor or subcontractor.
DEP Contract No. DC646 Page 2 of 12
9. A. The Department or the County may terminate this Contract at any time in the event of the failure
of the Contractor to fulfill any of its obligations under this Contract. Prior to termination, the
Department or the County shall provide ten (10) calendar days written notice of its intent to
terminate and shall provide the Contractor an opportunity to meet with the Department or the
County regarding the reason(s) for termination within thirty (30) days. If the meeting does not
result in agreement or the Contractor fails to request such meetings, the Contract will be
considered terminated the day after the meeting was scheduled.
B. The Department or the County may terminate this Contract without cause and for its convenience
by giving thirty (30) calendar days written notice to the Contractor. When notified of such
termination, Contractor shall present all fmal invoices for all work performed on the project that is
authorized by this Contract within thirty (30) days of receipt of such notice. Any invoice not
timely or properly submitted shall not be paid.
C. In the event of early termination by the Department or the County, the County shall evaluate the
degree of project completion which can be achieved through only the County's contractual
responsibility for funding and the County's ability to provide the inspection services committed
herein by the Department. Should County determine that continuation of this Contract between
the two remaining parties is not in the best interests of the public, the County may, after providing
the Contractor with ten (10) days proper written notice terminate its obligations under this
Contract. When notified of such termination, Contractor shall present all final invoices for all
work performed on the project that is authorized by this Contract within thirty (30) days of receipt
of such notice. Any invoice not timely or properly submitted shall not be paid. In no event shall
the County make payment for any work performed after the effective termination date.
D. The County may terminate this Contract at any time in the event of the failure of the Department
to fulfill any of its obligations under this Contract. Prior to termination, the County shall provide
ten (10) calendar days written notice of its intent to terminate and shall provide the Department an
opportunity to meet with the County regarding the reason(s) for termination within thirty (30)
days after receiving notice of County's intent to terminate this Contract. If the meeting does not
result in agreement or if the Department fails to request a meeting, this Contract will be
considered terminated the day after this meeting was scheduled. When notified of such
termination, Contractor shall present all final invoices for all work performed on the project that is
authorized by this Contract within thirty (30) days of receipt of such notice. Any invoice not
timely or properly submitted shall not be paid. In no event shall the County make payment for
any work performed after the effective termination date.
E. The Department or the County may terminate this Contract because of the failure of the other
party to perform its obligations under this Contract. If the County terminates this Contract
because of the Department's failure to perform, then the County must pay the Department the
amount due for all work satisfactorily completed as determined by the County up to the date of the
Department's failure to perform by minus any damages the County suffered as a result of the
Department's failure to perform. The damage amount must be reduced by the amount saved by the
County as a result of the Contract termination. When notified of such termination, Contractor
shall present all final invoices for all work performed on the project that is authorized by this
Contract within thirty (30) days of receipt of such notice. Any invoice not timely or properly
submitted shall not be paid. In no event shall the County make payment for any work performed
after the effective termination date.
F. Notice shall be sufficient if delivered personally or by certified mail to the address set forth in
paragraph 10.
DEP Contract No. DC646 Page 3 of 12
10. Any an all notices shall be hand delivered or sent by certified mail return receipt requested to the
parties at the following addresses:
Contractor
Aaron T.Kato., President
OT AK Group, Inc.
850022 U.S. Highway 17
Y ulee, Florida 32097
Deoartment
Michael Renard, Contract Manager
State of Florida
Department of Environmental Protection
hand delivery to:
Alfred B. Maclay Gardens State Park
3540 Thomasville Road
Thomasville Road, Building B-1
Tallahassee, Florida 32309
or by mail to:
3900 Commonwealth Boulevard
MS# 520
Tallahassee, Florida 32399-3000
AND
Randy Smith, Project Manager
Office of Greenways and Trails
Department of Environmental Protection
3900 Commonwealth Boulevard
MS#795
Tallahassee, Florida 32399-3000
AND
Jose Papa, AICP
Bicycle-Pedestrian Planning Coordinator
Monroe County Planning Department
2798 Overseas Highway, Suite #410
Marathon, Florida 33050
AND
Suzanne Hutton, Esq.
County Attorney, Monroe County
P.O. Box 1026
Key West, Florida 33041
Any change in address shall be provided by the changing party within ten (10) days after the change.
II. This Contract may be unilaterally canceled by the Department or the County for refusal by the
Contractor to allow reasonable public access to all documents, papers, letters, or other material made
or received by the Contractor in conjunction with this Contract, unless the records are exempt from
Section 24(a) of Article I of the Florida Constitution and Section 119.07(1), Florida Statutes.
12. The Contractor shall maintain books, records and documents directly pertinent to performance under
this Contract in accordance with generally accepted accounting principles, consistently applied. The
Department, the State of Florida, the County, or their authorized representatives shall have access to
such records for audit purposes during the term of this Contract and for five years following Contract
completion or if there is a pending claim, dispute, or litigation, for three years following final
determination of such matter. In the event any work is subcontracted, the Contractor shall similarly
require each subcontractor to maintain and allow access to such records for audit purposes for the
same time period.
13. The Department's project manager is Randy Smith (telephone number 850-245-2989) or his successor.
The Contractor's project manager is Aaron Kato, (telephone number 904-225-2588) or his successor.
All matters shall be directed to the project managers for appropriate action or disposition.
DEP Contract No. DC646 Page 4 of 12
14. A. The Contractor covenants that it presently as no interest and shall not acquire any interest which
would contlict in any manner or degree with the performance of setvices required.
B. No member, officer or employee of the Contractor or the locality during his tenure, or for two
years thereafter, shall have any interest, direct or indirect, in this contract or the proceeds thereof.
The Contractor shall be responsible for including this provision in all subcontracts issued as a
result of this Contract.
15. This Contract has been delivered in the State of Florida and shall be construed in accordance with the
laws of Florida. Wherever possible, each provision of this Contract shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this Contract shall be
prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision or the remaining
provisions of this Contract. Any action hereon or in connection herewith shall be brought in Leon
County, Florida.
16. No delay or failure to exercise any right, power or remedy accruing to either party upon breach or
default by either party under this Contract shall impair any such right, power or remedy of either party;
nor shall such delay or failure be construed as a waiver of any such breach or default, or any similar
breach or default thereafter.
17. The Contractor recognizes that the State of Florida and the County, by virtue of sovereignty, are not
required to pay any taxes on the services or goods purchased under the terms of this Contract.
18. This Contract is neither intended nor shall it be construed to grant any rights, privileges or interest in
any third party without the mutual written agreement ofthe parties hereto.
19. With reaard to the Deoartment: No person, on the grounds of race, creed, color, national origin, age,
sex, or disability, shall be excluded from participation in; be denied the proceeds or benefits of; or be
otherwise subjected to discrimination in performance of this Contract. The Contractor also agrees to
comply with the following non-discrimination requirements:
A. Title VI of the Civil Rights Act of 1964 (42 USC SS 2000d et seq.) and the regulations of the
Federal Department of Transportation issued hereunder, which prohibit discrimination on the
grounds of race, color or national origin under programs or activities receiving Federal financial
assistance; and,
B. The Americans with Disabilities Act of 1990 (42 USC SS 12101 et seq.) prohibiting
discrimination on the basis of disability under programs, activities, and services provided or made
available by state and local governments or instrumentalities or agencies thereto, as well as public
or private entities that provide transportation.
With re2ard to the County: Contractor agrees that there will be no discrimination against any person,
and it is expressly understood that upon a determination by a court of competent jurisdiction that
discrimination has occurred, this Contract automatically terminates without any further action on the
part of any party, effective the date of the court order. Contractor agrees to comply with all federal
and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These
include but are not limited to: 1) Title VI of the Civil Rights Action of 1964 (PL 88-352) which
prohibits discrimination on the basis of race, color, or national origin; 2) Title IX of the Education
Amendment of 1972 as amended (20 USC ss. 1681-1683, and 1685-1686), which prohibits
discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973 as amended (20
USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act
of 1975, as amended (42 USC ss. 6101-6107), which prohibits discrimination on the basis ofage; 5)
The Drug Abuse Office and Treatment Act of 1972 (PL 92-255), as amended, relating to
nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism
DEP Contract No. DC646 Page 5 of12
Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of
1912 ss. 523 and 527 (42 USC ss. 69Odd-3 an 290 e0-3), as amended, relating to confidentiality of
alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of 1%8 (42 USC s. et.
Seq.) as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The
Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as maybe amended from time to time,
relating to nondiscrimination on the basis of disability; 10) Monroe County Code Ch. 13, Art. VI
prohibiting discrimination on the basis of race, color, sex. Religion, disability, national origin,
ancestry, sexual orientation, gender identity or expression, familial status or age; and II) any other
nondiscrimination provisions in any federal or state statutes which may apply to the parties to, or the
subject matter of, this Contract.
20. The Contractor agrees to ensure that Disadvantaged Business Enterprises as defined in applicable
federal and state regulations, have the opportunity to participate in the performance of this Contract.
In this regard, the Contractor shall take all necessary and reasonable steps in accordance with
applicable federal and state regulations, to ensure that the Disadvantaged Business Enterprises have
the opportunity to compete for and perform subcontracts.
21. An entity or affiliate who has been placed on the discriminatory vendor list may not submit a bid on a
contract to provide goods or services to a public entity, may not submit a bid on a contract with a
public entity for the construction or repair of a public building or public work, may not submit bids on
leases of real property to a public entity, may not award or perform work as a contractor, supplier,
subcontractor, or consultant under contract with any public entity, and may not transact business with
any public entity. The State of Florida Department of Management Services is responsible for
maintaining the discriminatory vendor list and intends to post the list on its website. Questions
regarding the discriminatory vendor list may be directed to the State of Florida Department of
Management Services, Office of Supplier Diversity at telephone number (850) 487-0915.
22. This Contract is an exclusive contract for services and may not be assigned in whole or in part without
the prior written approval of the Department and the County.
23. A. The Contractor shall not subcontract, assign, or transfer any work under this Contract without the
prior written consent of the Department's contract manager. The Contractor agrees to be
responsible for the fulfillment of all work elements included in any subcontract consented to by
the Department and agrees to be responsible for the payment of all monies due under any
subcontract. It is understood and agreed by the Contractor that the Department and the County
shall not be liable to any subcontractor for any expenses or liabilities incurred under the
subcontract and that the Contractor shall be solely liable to the subcontractor for all expenses and
liabilities incurred under the subcontract.
B. The Department supports diversity in its procurement program and requests that all subcontracting
opportunities afforded by this Contract embrace diversity enthusiastically. The award of
subcontracts should reflect the full diversity of the citizens of the State of Florida. The
Department will be glad to furnish a list of minority owned businesses for consideration in
subcontracting opportunities.
24. It is expressly understood and agreed that any articles which are the subject of, or required to carry
out, this Contract shall be purchased from the corporation identified under Chapter 946, Florida
Statutes, if available, in the same manner and under the same procedures set forth in Section
946.515(2) and (4), Florida Statutes; and for purposes of this Contract the person, firm or other
business entity carrying out the provisions of this Contract shall be deemed to be substituted for this
agency insofar as dealings with such corporation are concerned.
DEP Contract No. DC646 Page 6 of 12
The "corporation identified" is Prison Rehabilitative Industries and Diversified Enterprises, Inc.
(p.R.I.D.E.) which may be contacted at:
P.R.I.D.E.
12425 28" Street North
St. Petersburg, Florida 33716-1826
Telephone: 1-800-643-8459
Website: www.oridefl.com
25. It is expressly understood and agreed that any articles that are the subject of, or required to carry out,
this Contract shall be purchased from a nonprofit agency for the blind or for the severely handicapped
that is qualified pursuant to Chapter 413, Florida Statutes, in the same manner and under the same
procedures set forth in Section 413.036(1) and (2), Florida Statutes; and for purposes of this Contract
the person, firm, or other business entity carrying out the provisions of this Contract shall be deemed
to be substituted for the state agency insofar as dealing with such qualified nonprofit agency are
concerned.
The "nonprofit agency" identified is RESPECT of Florida which may be contacted at:
RESPECT of Florida
2475 Apalachee Parkway, Suite 205
Tallahassee, Florida 32301-4946
(850) 487-1471
Website: www.rescectofflorida.ora
26. A. To the extent required by law, the Contractor will be self-insured against, or will secure and
maintain during the life of this Contract, workers' compensation insurance for all of his employees
connected with the work of this project and, in case any work is subcontracted, the Contractor
shall require the subcontractor similarly to provide workers' compensation insurance for all of the
latter's employees unless such employees are covered by the protection afforded by the
Contractor. Such self-insuranc,e program or insurance coverage shall comply fully with the
Florida workers' compensation law. In case any class of employees engaged in hazardous work
under this Contract is not protected under workers' compensation statutes, the Contractor shall
provide, and cause each subcontractor to provide, adequate insurance satisfactory to the
Department, for the protection of his employees not otherwise protected.
B. Prior to the commencement of work governed by this Contract, the Contractor shall obtain
Workers' Compensation Insurance with limits sufficient to respond to the applicable state statutes.
C. In addition, the Contractor shall obtain Employers' Liahility Insurance with limits of not less than:
$500,000 Bodily Injury by Accident
$500,000 Bodily Injury by Disease, policy limits
$500,000 Bodily Injury by Disease, each employee
27. A. The Contractor shall secure and maintain commercial general liability insurance including bodily
injury, property damage, personal and advertising injury, and products and completed operations.
This insurance will provide coverage for all claims that may arise from the services and/or
operations completed under this Contract, whether such services and/or operations are by the
Contractor or anyone directly or indirectly employed by the Contractor. Such insurance shall
include a hold harmless provision in favor of the State of Florida, the Department, the Board of
Trustees of the Internal Improvement Trust Fund and the County and also include the State of
Florida, the Department, the Board of Trustees of the Internal Improvement Trust Fund and the
County as additional named insureds for the entire term of this Contract. The minimum limits of
liability shall be $1,000,000.00 for each occurrence and $2,000,000.00 in the aggregate.
DEP Contract No. DC646 Page 7 of 12
B. The Contractor shall secure and maintain commercial automobile liability insurance for all claims
which may arise from the services and lor operations under this Contract, whether such services
and/or operations are by the Contractor or by anyone directly, or indirectly employed by him. The
minimum limits of liability shall be as follows:
$1,000,000.00 automobile liability combined single limit for company owned
vehicles, if applicable
$1,000,000.00 hired and non-owned liability coverage
C. The County shall be named as additional insured on all policies issued to satisfY insurance
requirements.
D. The Contractor shall secure and maintain, if applicable, during the life of this Contract a "Builders
Risk Policy," All Risks Form issued on a completed value basis. Installation floaters and other
inland marine forms may be utilized where applicable when they are in the best interest of the
State of Florida.
E. All insurance policies shall be insurers licensed or eligible to do business in the State of Florida.
The Contractor~s current certificate of insurance shall contain a provision that the insurance will
not be cancelled for any reasnn except afler thirty (30) days written notice to the Department's
Contract Administrator, Bureau of General Services, Procurement Section, State of Florida
Department of Environmental Protection, 3900 Commonwealth Boulevard, MS#93, Tallahassee,
Florida 32399-3000 and to Monroe County Department of Risk Management, 1100 Simonton
Street, Key West, Florida 33040.
28. The Department may at any time, by written order designated to be a change order, make any change
in the work within the general scope of this Contract (e.g., specifications, time, method or manner of
performance, requirements, etc.). All change orders are subject to the mutual agreement of both
parties as evidenced in writing. Any change order which causes an increase or decrease in the
Contractor's cost or time shall require a formal amendment to this Contract.
29. No member or delegate to the Congress of the United States shall be admitted to any share or part of
the Contract or any benefit arising therefrom.
30. The employment of unauthorized aliens by the Contractor/vendor is considered a violation of8 U.S.c.
~ 1324a. If the Contractor/vendor knowingly employs unauthorized aliens, such violation shall be
cause for unilateral cancellation of this Contract. The Contractor shall be responsible for including
this provision in all subcontracts with private organizations issued as a result of this Contract.
31. A person or affiliate who has been placed on the convicted vendor list following a conviction for a
public entity crime may not perform work as a grantee, contractor, supplier, subcontractor, or
consultant under a contract with any public entity, and may not transact business with any public entity
in excess of the threshold amount provided in Section 287.017, Florida Statutes, for Category Two, for
a period of36 months from the date of being placed on the convicted vendor list. If the Contractor is
placed on said list, af1er this Contract is executed, the Department may terminate the Contract in
accordance with Section 287.133, Florida Statutes, and paragraph 10 of this Contract.
32. A. If the Contractor brings to the performance of this Contract a pre-existing patent or copyright, the
Contractor shall retain all rights and entitlements to that pre-existing patent or copyright.
Othervvise. it is expressly agreed that the work performed under this Contract is a work for hire.
B. If any discovery or invention arises or is developed in the course of, or as a result of, work or
services performed under this Contract, or in any way connected herewith, the Contractor shall
refer the discovery or invention to the Department's Contract Manager for a determination
DEP Contract No. DC646 Page 8 of 12
"
whether patent protection will be sought in the name of the State of Florida. Any and all patent
rights accruing under or in connection with the performance of this Contract are hereby reserved
to the State of Florida. In the event that any books, manuals, films, or other copyrightable
material are produced, the Contractor shall notifY the Department. Any and all copyrights
accruing under or in connection with the performance under this Contract are hereby reserved to
the State of Florida. All materials to which the Department is to have patent rights or copyrights
shall be marked and dated by the Contractor in such a manner as to preserve and protect the legal
rights of the Department.
C. Prior to the initiation of services under this Contract. the Contractor shall disclose, in writing, all
intellectual properties relevant to the performance of this Contract which the Contractor knows or
should know, could give rise to a patent or copyright. The Contractor shall retain all rights and
entitlements to any pre-existing intellectual property which is so disclosed. Failure to disclose
will indicate that no such property exists. The Department shall then, under paragraph B above,
have the right to all patents and copyrights which arise as a result of performance under this
Contract.
D. The terms and conditions specified in paragraphs A, B, and C above shall also apply to any
subcontract made under this Contract. The Contractor shall be responsible for informing the
subcontractor of the provisions of this section and obtaining disclosures.
33. A. All rights and title to works for hire under this Contract, whether patentable or copyrightable or
not, shall belong to the Department and shall be subject to the terms and conditions of this
Contract.
B. The computer programs, materials and other information furnished by the Department to the
Contractor hereunder shall be and remain the sole and exclusive property of the Department, free
from any claim or right of retention by or on behalf of the Contractor. The services and products
listed in Attachment A shall become the property of the Department upon the Contractor's
performance and delivery thereof. The Contractor hereby acknowledges that said computer
programs, materials and other information provided by the Department to the Contractor
hereunder, shall be and remain confidential and proprietary in nature to the extent provided by
Chapter 119, Florida Statutes, and that the Contractor shall not disclose, publish or use same for
any purpose other than the purposes provided in this Contract; provided, however, upon the
Contractor first demonstrating to the Department's satisfaction that such information, in part or in
whole, (1) was already known as the Contractor prior to its receipt from the Department; (2)
became known to the Contractor from a source other than the Department; or (3) has been
disclosed by the Department to third parties without restriction, the Contractor shall be free to use
and disclose same without restriction. Upon completion of the Contractor's performance or
otherwise cancellation or termination of this Contract, the Contractor shall surrender and deliver
to the Department, freely and voluntarily, all of the above-described information remaining in the
Contractor's possession.
C. The Contractor warrants that all materials produced hereunder will be of original development by
the Contractor and will be specifically developed for the fulfillment of this Contract and will not
knowingly infringe upon or violate any patent, copyright, trade secret or other property right of
any third party, and the Contractor shall indemnifY, protect. defend, save and hold the Department
harmless from and against any loss, cost, liability or expense arising out of any breach or claimed
breach of this warranty.
34. The Contractor shall comply with all applicable federal, state and local rules, regulations and
ordinances in providing services to the Department under this Contract. The Contractor acknowledges
that this requirement includes compliance with all applicable federal, state and local health and safety
rules and regulations. The Contractor further agrees to include this provision in all subcontracts issued
as a result of this Contract.
DEP Contract No. DC646 Page 9of12
-'
35. Time is of the essence in performance of each and every term or condition of this Contract
36 The Contractor shall stop work and immediately notily the Department's project manager when
archaeological material (human remains, bones, pottery, arrowheads, building foundations, etc.) are
found during construction.
37. A. In accordance with Executive Order 12549, Debarment and Suspension (43 CFR 12), the
Contractor shall agree and certifY that neither it, nor its principals, is presently debarred,
suspended, proposed for debarment, declared ineligible, or voluntarily from participation in this
transaction by any Federal department or agency; and that the Contractor shall not knowingly
enter into any lower tier contract, or other covered transaction, with a person who is similarly
debarred or suspended from participating in this covered transaction, unless authorized in writing
to the Department.
B. Upon execution of this Agreement by the Contractor, the Contractor shall complete, sign and
return a copy of the form entitled "Certification Regarding Debarments, Suspension, Ineligibility
and Voluntary Exclusion - Lower Tier Federally Funded Transactions", attached hereto and made
a part hereof as Exhibit 1 to Attachment B.
C. As required by paragraphs A and B above, the Contractor shall include the language of this
section, and Exhibit 1 to Attachment B in all subcontract or lower tier agreements executed to
support the Contractor's work under this Contract.
38. The Contractor certifies that no federal appropriated funds have been paid or will be paid, on or after
December 22, 1989, by or on behalf of the Contractor, to any person for influencing or attempting to
influence an officer or employee of an agency, a Member of Congress, an officer or employee of
Congress. or an employee of a Member of Congress in connection with the awarding, renewal,
amending or modifYing of any Federal contract, grant, or cooperative agreement. If any non-Federal
funds are used for lobbying activities as described above, the Contractor shall submit Attachment C,
Standard Form-LLL, "Disclosure Form to Report Lobbying" (attached hereto and made a part hereof),
and shall file quarterly updates of any material changes. The Contractor shall require the language of
this certification to be included in all subcontracts, and all subcontractor shall certifY and disclose
accordingly.
39. The Contractor and all subcontractors shall comply with the Copeland "AntiKickhack" Act 18 USC
~ 874.
40. This Contract represents the entire agreement of the parties. Any alterations, variations, changes,
modifications or waivers of provisions of this Contract shall only be valid when they have been
reduced to writing, duly signed by each of the parties hereto, and attached to the original of this
Contract, unless otherwise provided herein.
41. The Contractor hereby agrees that he has carefully examined the project site for which he shall provide
services and has made investigations to fully satisfY himself that such site(s) is (are) correct and
suitable for this work and he assumes full responsibility therefor. The provisions of this Contract.shall
control any inconsistent provisions contained in the Scope of Work which is attached hereto as
Attachment A. The Scope of Work has been read and carefully considered by the Contractor, who
understands the same and agrees to its sufficiency for the work to be done. Under no circumstances,
conditions, or situations shall this Contract be more strongly construed against the County or
Department than against the Contractor.
42. Any ambiguity or uncertainty in the specifications shall be interpreted and construed by the
Department and County, and their decision shall be final and binding upon all parties.
DEP Contract No. OC646 Page to of 12
43. The passing, approval, and/or acceptance by the Department and/or County of any of the services
furnished by the Contractor shall not operate as a waiver by the Department and/or County of strict
compliance with the terms of this Contract and Scope of Work. Failure on the part of the Contractor,
immediately after Notice to Correct, shall entitle Department and/or County, to correct the same and
recover the reasonable cost of such replacement and/or repair from the Contractor, who in any event
shall be jointly and severally liable to the Department and County for all damage, loss, and expense
caused to the Department and County by reason of the Contractor's breach of this Contract and/or its
failure to comply strictly and in all things with this Contract and with the specifications.
44. The Contractor shall not pledge the Department's or County's credit or make it a guarantor of payment
or surety for any contract, debt, obligation, judgment, lien, or any fonn of indebtedness. The
Contractor further warrants and represents that it has no obligation or indebtedness that would impair
its ability to fulfill the tenns ofthis Contract.
45. If any tenn, covenant, condition or provision of this Contract (or the application thereof to any
circumstance or person) shall be declared invalid or unenforceable to any extent by a court of
competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Contract
shall not be affected thereby; and each remaining term, covenant, condition and provision of this
Contact shall be valid and shall be enforceable to the fullest extent pennitted by law unless the
enforcement of the remaining terms, covenants, conditions and provisions of this Contract would
prevent the accomplishment of the original intent of this Contract. The County, Department, and
Contractor agree to reform this Contract to replace any stricken provision with a valid provisions that
comes as close as possible to the intent of the stricken provision.
REMAINDER OF PAGE INTENTIONAllY LEFT BLANK
DEP Contract No. DC646 Page II of 12
, ,
The parties have caused this Contract to be duly executed, the day and year last written below.
OT AK GROUP, INC., a Florida corporation
By: ()tVJ~? JwIu
(Contractor's Authorized Signatory')
-EatOnl JC'c.-1-o. (Jt.t'S iclo J
(Print Signatory's Name and Title)
Date:
(CORPORATE SEAL)
J2h~/Gl.o
<g "9:JO?.;7. V- S Hw\{ If
(Company Address)
YI.-I la.e f L 320Cj,
(City, State and Zip Code)
FEIO No.
5'1 3(0 ~()WZ... 7
Contractor's Remittance Address:
<t; Slrrl..-Z U ~ Hw\{ I (
(Address)
Yu. ~ -=tL ?!2(Y17
(City, State and Zip Code)
STATE OF FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
OFFIFF GREE~ A 'fj AND TRAILS
BY:~
Secretary or Designee for the State of Florida
Department of Environmental Protection
3900 Commonwealth Boulevard
Tallahassee, Florida 32399
Title:L-J'I'n Jc'lJ_ J ~
Date: --1 . 3/ . 01
as to form ~d le~
sistant General Counsel
MONROE COUNTY, FLORIDA
::1;::~7rs~L
, Mayor Milirio Dl.Gennaro
(OFFICIAL SEAL)
Date:
IS.....
ATTEST' DANNY c. r<DLHAGE ClBlIC
6> .J);./'J~.~ t"'. )
DEPUTY !!' /
I /'/07
*For contracts with governmental boards/commissions: If someone other than the Chairman signs this Contract, a
resolution, statement or other document authorizing that person to sign the Contract on behalf of the Contractor
must accompany the Contract.
List of attachments/exhibits included as part of this Contract:
Attachment A Scope of Work ( 6 Pages)
Attachment B Federal Requirements For Projects Receiving Federal Highway Funds (22 Pages)
Exhibit I Certification Regarding Debarments, Suspension, Ineligibility and Voluntary
Exclusion-Lower Tier Federally Funded Transactions (2 Pages)
Guidelines for Utilization of Disadvantaged Business Enterprises (8 Pages)
FHW A Publication 1273 (22 Pages)
Minimum wage table (3 Pages)
Certification Regarding Use of Contract Funds For Lobbying Activities (2 pages)
Additional Requirements (2 Pages)
Florida Prompt Payment Act (7 Pages)
Exhibit
Exhibit
Exhibit
Attachment
Attachment
Exhibit
2
3
4
C
D
I
MONROE COUNTY ATTORNEY
PPROVED AS T ORM:
~
NATILEENE . CASSEL
ASSISTANT COUNTY ATTORNEY
Date 1-:;2- D7
DEP Contract No. OC646 Page 12 of 12
ATTACHMENT A
Scope of Work
ARTICLE I. THE WORK
1.1 The Contractor shall perform all the work required by the con\ract documents and provide for the proper
execution and completion of the construction of fishing platforms on an existing bridge on that portion of
the Florida Keys Overseas Heritage Trail known as Tom's Harbor Cut located at Mile Marker 61.7.
1.2 All modifications pursuant to executed change orders processed as stipulated in the con\ract documents
shall become part of the Contract. The original contract, the bid documents, all amendments thereto, and
all change orders are hereinafter referred to as the "Contract."
ARTICLE 2. THE CONSULTANT
The Consultant for this project is The LP A Group Incorporated, a South Carolina corporation.
ARTICLE 3. TIME OF COMMENCEMENT AND COMPLETION AND LIQUIDATED DAMAGES
3.1 The work to be performed under this Contract shall commence upon notification within ten (l0) calendar
days after the date of the Department's Notice to Proceed, at which time the Contractor shall mobilize on
site and proceed with construction. The Contractor shall execute the work with diligence and dispatch so
as to maintain such schedules and milestones as established by the progress schedules. The work shall be
substantially completed within one hundred eighty (l80) calendar days after the date of the Notice to
Proceed and shall be finally completed within thirty (30) calendar days after the date of substantial
completion.
3.2 Liauidated Dama~es For Failure to Comolete On Time
Because failure to complete the project within the time fixed in Article 3.1 will result in substantial injury
to the Department and to the County, and as damages arising from such failure cannot be calculated with
any degree of certainty, the Contractor agrees that if the project is not substantially completed, according
to the definition of "Substantial Completion" as contained in the specification terminology, unless a later
time, is agreed to by the parties in accordance with the Con\ract, the Contractor shall pay to the
Department and to the County liquidated damages for such delay, and not as a penalty, two hundred fifty
dollars ($250.00) for each and every calendar day elapsing between the date fixed for substantial
completion in Article 3.1 and the date such substantial completion shall have been accomplished. The
Contractor also agrees that if this project is not finally eontpleted, in accordance with the Con\ract the
Contractor shall pay the Department and the County, as liquidated damages for such delay, and not as a
penalty, one-half of the rate indicated above. Said liquidated damages, not to exceed twenty percent
(20"....) of the total cost of the project, shall be payable in addition to any excess expenses or costs payable
by the Contractor to the Department and to the County under the provisions of Article 14 AlA Document
A-201, and shall not exclude the recovery of damages by the Department and the County under the
Con\ract except for Contractor's delays. The Department and the County shall each be entitled to receive
fifty percent (50"....) of all liquidated damages paid by the Contractor pursuant to this Article 3.2.
This provision for liquidated damages for delay shall not affect the Department's or the County's right to
terminate the Contract. The Department's or the County's exen:ise of the right to terminate shall not
release the Contractor from his obligation to pay said liquidated damages in the amount set out herein.
The Contractor further agrees that the Department and the County may deduct from the balance retained
by the Department and the County under the Contract the liquidated damages stipulated herein or in
Article 3.3, or such portion thereof as the said retained halance will cover.
DEP Cootno<t No. DC646. Attachment A. Pltge I of6
3.3 Liauidated Damlll!es When DeDartment or County Terminates Contract
The Department and the County are entitled to completion of the project within the time fixed in Article
3.1 hereof or within such further time, if any, as may be allowed in accordance with the Contract. In the
event of termination of the Contract by the Department or the County prior to completion as provided in
Article 14.2 AlA Document A-20I or elsewhere in the Contract, the Contractor shall be liable to the
Department and the County for the expenses for additional managerial and administrative services
provided in said Article 14.2 and also for the per diem liquidated damages agreed upon in Article 3.2
hereof:
(a) For each day the Contractor is arrears in his work at the time of said termination as
determined by the Consultant; and
(b) For each day of thirty (30) additional calendar days hereby stipulated and agreed to be
the time it will require the Department and the County to effect another Contract for
completion of the project and for resumption of work thereon.
Provided, however, that the sum as calculated under 3.3 (a) and (b), above, shall not exceed the number of
days beyond the original agreed completion date, or any extension thereof as herein provided, reasonably
required for completion of this project.
ARTICLE 4. CONTRACT SUM
The Department shall pay the Contractor for the performance of work, subject to additions and deduction
by Change Order as provided in the contract documents, the sum of $234,000.00.
The County shall pay the Contractor for the performance of the work, subject to additions and deduction
by Change Order as provided in the contract documents, the sum of$424,500.00.
The Contract Sum is comprised of the base bid from bid number BD&C 10-05/06 for a total of
$658,500.00.
ARTICLE 5. PAYMENTS TO CONTRACTOR
5.1 Indemnification Rider
In addition to the Contract Sum, the Department and the County shall pay the Contractor ten dollars
($10.00) for the Indemnification Rider prescribed in Section D-3 of the contract documents. Application
for this payment shall be submitted to the Department and the County by the Contractor simultaneously
with the Contractor's execution and delivery of the Contract to the Department and the County. Within
forty-five (45) calendar days from the Department and the County's receipt of said Application, the
Department and the County shall payor cause to be paid to the Contractor said amount.
5.2 PrOllreSS Pavments AlIainst Contract Sum
Based upon Application for Payment submitted by the Contractor to the Consultant and Certificate of
Payment issued by the Consultant and accepted by the Department, the County shall make progress
payments to the Contractor in accordance with the following:
5.2.1 Upon receipt, review, and approval of the work, supporting documentation and the Certificate of Payment
the County shall process partial payments up to ninety percent (90"10) of that portion of the Contract Sum
properly allocable to labor, materials, and subcontractors, less the aggregate of previous payments.
The Department shall have 30 days for inspection and approval of the work, and to receive supporting
documentation, after receipt of the Certificate of Payment.
DEP Contract No. OC646, Attachment A. Page 2 of 6
(a) Upon receipt of payment from the Department or the County the Contractor shall
promptly pay each subcontractor the amount to which said subcontractor is then
entitled, less the percentage actually retained, by the County for such work, if any,
from payments to the Contractor.
(b) The Consultant or his agent may. upon request, at his or her discretion, furnish to a
subcontractor, if practicable, information regarding the percentage the Contractor
requested and the percentage allocated to the subcontractor by the Consultant.
(c) Neither the Department, the County nor the Consultant shall have any obligation to pay
or see to the payment of any monies to any subcontractor except as may otherwise be
required by law.
(d) No Certificate for Payment, whether partial or final, shall constitute an acceptance of
any work not performed in accordance with the Contract.
5.3 Pavments Withheld From Contract Sum
The Consultant may decline to certiry payment or, because of subsequently discovered evidence or
subsequent observations, he may nulliry the whole or any part of any Certificate for Payment previously
issued, to such extent as may be necessary, in his/her opinion, to protect the Department from loss
resulting from:
(a) Defective work not remedied;
(b) Third party claims filed or reasonable evidence indicating probable filing of such
claims;
(c) Reasonable proof of failure of the Contractor to make payments properly to
subcontractors or for labor, materials or equipment;
(d) Reasonable evidence that the work cannot be completed for the unpaid balance of the
Contract Sum;
(e) Damage to the Department or another Contractor;
(t) Reasonable evidence that the work will not be completed within the time allowed in
Article 3.1; or
(g) Persistent failure to carry out the work in accordance with the Contract.
When the grounds for which payment was withheld are remedied by the Contractor payment shall be
made for such amount.
ARTICLE 6. FINAL PAYMENT AGAINST CONTRACT SUM
The Department and the County shall process payment for the entire unpaid balance ofthe Contract Sum,
less the amount of any sums which continue to be retained to satisfY the cost of performing any change in
the work which is the subject of any claim or dispute and which has not yet been satisfactorily performed
by the Contractor, provided that the parties have not otherwise stipulated in the Certificate of Substantial
Completion, and provided further that the work has been satisfactorily completed, the Contractor's
obligations Wlder the Contract have been fully performed, the Contractor's lien waiver furnished and a
final Certificate for Payment has been issued by the Consultant.
ARTICLE 7. MISCELLANEOUS PROVISIONS
7.1 Terms used in the Contract which are defined in the bid specifications shall have the meaning designated
therein.
DEP Contract No. OC646, Attacrunent A, Page 3 of 6
7.2 Hannonv
The Contractor is advised and hereby agrees to exert every reasonable and diligent effort to assure that all
labor employed by the Contractor and its subcontractors for work on the project shall work in harmony
with and be compatible with all other labor being used by building and construction contractors now or
hereafter on the site of the project. The Contractor further agrees that this provision will be included in all
subcontracts of the Contractor. Provided, however, that this provision shall not be interpreted or enforced
so as to deny or abridge, on account or membership or nonmembership in any labor union or labor
organization, the right of any person to work as guaranteed by Article I, Section 6 of the Florida
Constitution.
7.3 Annrentices
If the Contractor employs apprentices on the project, the behavior of the Contractor and the Department
shall be governed by the provisions of Chapter 446, Florida Statutes, and by all applicable standards and
policies governing apprentice programs and agreements established by the Division of Workforce
Development of the State of Florida Department of Education. The Contractor shall include a provision
similar to the foregoing sentence in each subcontract.
7.4 Contractor Reoresentative
The Contractor represents and warrants that the information provided by the Contractor on Department's
Form DBC 5085 "Experience Questionnaire and Contractor's Financial Statement," which was submitted
by the Contractor to qualifY for award of this Contract, and is hereby made a part of the Contract by
reference, is true, accurate and correct. The Contractor understands and agrees that materially inaccurate
information may result in immediate termination of this Contract at the Department's option.
7.5 Contractor's Work Force
The Contractor agrees to perform no less than fifteen percent (15%) of the project construction work
utilizing its own employees. The percentage shall be calculated on the basis of the cost of materials and
labor utilized by the prime Contractor's own forces to the original Contract Sum, and may exceed 15%.
7.6 Contractor's Sunervision ofProiect
The Contractor shall provide, as a minimum, field (on site) supervision (through a named superintendent)
of each of the general, concrete forming and placement, masonry, mechanical, plumbing, electrical and
roofing trades, either through the use of his employees, or in the instance of mechanical, plumbing and
electrical trades through tbe use of employees of the subcontractor as shown in the Contractor's response
to Bid No. BD&C 10-05/06 and the "Experience Questionnaire and Contractor's Financial Statement".
The Contractor shall not change or deviate from these principal and supervisory personnel without the
written consent of the Department.
ARTICLE 8. CLAIMS AND DISPUTES
8.1 Arbitration Provisions Deleted
The provisions for Arbitration conditions in AlA Document A-201, are hereby eliminated.
The purpose of deleting these provisions is to exclude in their entirety each portion of the cited provisions
which relate to the arbitration of claims, so that the administrative remedy provided in Article 8.3 of this
Contract shall be exclusive, in lieu of arbitration proceedings.
8.2 Delavs: ChanlZes In the Work
Article 8.3 of the AlA Document AZOI, General Conditions, is deleted and Cootractor's remedies for
delays in the progress of the work, or for changes in the work, shall be limited to those provided in this
DEP Contract No. DC646. Attachment A, Page 4 of 6
Article. The Contractor's exclusive remedy for delays in performance of the Contract caused by events
beyond its control shall be a claim for equitable adjustment in the Contract period provided, however,
inasmuch as the parties expressly agree that overhead costs incurred by the Contractor for delays in
performing the work cannot be determined with any degree of certainty, it is hereby agreed that in the
event the Contractor is delayed in the progress if the work after the Notice to Proceed to Mobilize of Site
and to Proceed With Construction for causes beyond its control and attributable only to acts or omissions
of Department, the Contractor shal1 be entitled to compensation for overhead and profit costs either (a) as
a fixed percentage of the actual cost of the change in the work, if the delay results from a change in the
work, as calculated in Section D, Contractual Conditions in the bid specifications or (b) if the delay
results from other than a change in the work, at an amount for each day of delay calculated by dividing an
amount equal to two and one-half percent (2\1,%) of the original Contract Sum by the number of calendar
days of the original Contract period.
In the event of a change in the work, Contractor's claim for adjustment in Contract Sum are limited
exclusively to its actual costs for such changes plus fixed percentages for overhead, additional profit and
bond costs, as specified in Section D, Contractual Conditions of the bid specifications.
No provision of the contract documents makes or is intended to make provisions for recovery by
Contractor of damages for delay or for breach of this Contract. All claims, disputes or controversies
under this Contract shall be determined and settled provided in Article 8.3 of this Contract. No claim for
breach of this Contract shal1 be submitted, determined, or settled under Article 8.3 of this Contract.
8.3 Disputes
Disputes shall be resolved as follows:
8.3.1 The parties shall make a good faith attempt to resolve disagreements which may arise from time to
time by informal conference within ten (10) days of the date the matter requiring resolution arises.
8.3.2 In the event that the matter is not resolved at informal conference, the complaining party shall give
written notice of dispute to the other party within five (5) days after the informal conference. The
notice shall set out in detail all aspects of the matter to be resolved, including relief sought.
8.3.3 Within ten (10) days of receipt of the notice of dispute, the party shall deliver its detailed written
response to the complaining party, and a formal conference shall be convened no later that thirty
(30) days following the matter requiring resolution.
8.3.3.1 All persons necessary to resolution of the matter shall attend the formal conference.
8.3.3.2 Minutes of the formal conference shall be taken, transcribed, and signed off on by the Department
and the County and shall be copied to the Contractor. Contractur shall send, in writing any dispute
to the minutes within five (5) days.
8.34 In the event that the matter is not resolved at formal conference, if the parties agree in writing, the
parties may choose to mediale the matter using a certified mediator, preferably one who is
experienced with contract and construction law, agreed upon by both parties. The parties may
choose binding or non-binding mediation. If binding mediation is chosen, the decision of the
mediator shall be final and neither party may proceed to any other legal remedy. If mediation is
chosen, the parties shall equally split the cost of the mediator, including any travel expenses he or
she may incur.
8.35 In the event that the matter is not resolved at nonbinding mediation, complaining party shall within
twenty-one (21) days file and serve an appropriate claim as prescribed by Chapter 120, Florida
Statutes.
8.36 In no event shall a dispute arising under this Contract be part of any claim or count in a complaint
filed in any court until all remedies afforded in Chapter 120, Florida Statutes, have been
exhausted.
DEP Contract No. DC646, Attachment A, Page 5 of 6
8.37 Venue for any formal claim and hearing or trial in any forum shall be Leon County, Florida.
8.38 The parties hereby waive the right to a jury trial on all issues that arise under this Contract.
8.4 Interest Provision Deleted
Article 13.6.1, AlA Document A-201 relating to interest, is deleted. Any monies not paid when due to
either party under this Contract shall not bear interest except as may be required by Section 2] 5.422(3)(b),
Florida Statutes.
8.5 Contractor Insolvencv and Nelrlect
Should the Contractor become insolvent, or at any time refuse or neglect to supply a sufficient number of
properly skilled workers, or equipment and materials of the proper quality, or fail in any respect to
prosecute the work with promptoess and diligence, the Department or the County shall be at liberty, after
forty-eight (48) hours written notice to the Contractor, to provide any such labor, equipment, and
materials and the Department or the County shall deduct the cost thereof, from any money then due or
thereafter to become due to the Contractor. under this Contract.
If such refusal, neglect, or failure is sufficient grounds for such action, the Department shall also be at
liberty to terminate the employment of the Contractor. Consequently, the Department and the County
may enter upon the premises to take possession, for the purpose of completing the work included under
this Contract, of all materials, tools and appliances thereon and to employ any other person or persons to
finish the work and provide the materials therefor. In case of such discontinuance of the employment, the
Contractor shall not be entitled to receive any further payment under this Contract until the said work
shall be wholly finished.
If the unpaid balance of the amount to be paid under this Contract shall exceed the expense incurred by
the Department and the County in finishing the work, such excess shall be paid by the Department and the
County to the Contractor. If such expense shall exceed such unpaid balance, the Contractor shall pay the
difference to the Department and the County. The expense incurred by the Department and the County, as
herein provided, either for furnishing materials of finishing the work, and any damage incurred through
such default, shall be chargeable to the Contractor.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
DEP Contract No. DC646, Attachment A, Page 6 of 6
ATTACHMENT B
FEDERAL REQUIREMENTS FOR PROJECTS RECEIVING FEDERAL
HIGHWAY FUNDS (FEDERAL HIGHWAYS/STATE HIGHWAYS)
Contractor understands and agrees that the following conditions shall apply to
this federal-aid project. Should any of the provisions in the main body of the
Contract or in Attachment A conflict with these conditions, these conditions shall
prevail. To the extent possible, these conditions shall be read to be in harmony
with Florida law. This means Contractor shall follow both federal and Florida
laws whenever possible. Where these conditions may conflict with Florida law,
federal law on the same subject supersedes Florida law.
1. AUDITS: Contractor understands that the Department is required to
annually audit the project, and Contractor agrees to fully cooperate with auditors
to this end.
2. CONTROL OF MATERIALS (ROADS only): Contractor agrees to the
following requirements for road materials, if a state or federal road is involved:
6-1 Acceptance Criteria.
6-1.1 General: Acceptance of materials is based on the following criteria. All
requirements may not apply to all materials. Use only materials in the work that
meet the requirements of these Specifications. The Engineer may inspect and
test any materials, at points of production, distribution and use.
6-1.2 Sampling and Testing: Use the Department's current sample
identification and tracking system to provide related information and attach such
information to each sample. Restore immediately any site from which material
has been removed for sampling purposes to the pre-sampled condition with
materials and construction methods used in the initial construction, at no
additional cost to the Department.
Ensure when a material is delivered to the location as described in the Contract,
there is enough material delivered to take samples, at no expense to the
Department.
6-1.2.1 Pretest by Manufacturers: Submit certified manufacturer's test
results to the Engineer for qualification and use on Department projects. Testing
will be as specified in the Contract Documents. The Department may require that
manufacturers submit samples of materials for independent verification
purposes.
1
6-1-.2.2 Point of Production Test: Test the material during production as
specified in the Contract Documents.
6-1.2.3 Point of Distribution Test: Test the material at Distribution facilities
as specified in the Contract Documents.
6-1.2.4 Point of Use Test: Test the material immediately following placement
as specified in the Specifications. After delivery to the project, the Department
may require the retesting of materials that have been tested and accepted at the
source of supply, or may require the testing of materials that are to be accepted
by producer certification. The Department may reject all materials that, when
retested, do not meet the requirements of these Specifications.
6-1.3 Certification:
6-1.3.1 Producer Certification: Ensure completeness and correlate
certification(s) of materials provided. Furnish to the Engineer for approval,
certification from the producer for all products listed on the Department's
Qualified Products List (QPL) and when required by the applicable material
Specification(s). Do not incorporate any manufactured product(s) or material(s)
into the project without approval from the Engineer. Materials will not be
considered for payment when not accompanied by Producer Certification.
Producers may obtain sample certification forms through the Department's
website. Ensure that the certification is provided on the producer's letterhead
and is signed by a legally responsible person from the producer.
6-1.3.1.1 Qualified Products List: The Product Evaluation Section in the State
Specifications Office publishes and maintains a Qualified Products List (QPL). The
list provides assurance to Contractors, consultants, designers, and Department
personnel that specific products and materials are approved for use on
Department facilities. The Department will limit the Contractor's use of products
and materials that require pre-approval to items listed on the QPL effective at
the time of placement. Manufacturers seeking evaluation in accordance with
Departmental procedures of an item must submit a Product Evaluation
Application with a certified test report from an independent test laboratory that
shows that the material meets all applicable specifications, to the Product
Evaluation Section in Tallahassee. Manufacturers successfully completing the
Department's evaluation are eligible for inclusion on the QPL. The Department
will consider any marked variations from original test values for a material or any
evidence of inadequate field performance of a material as sufficient evidence
that the properties of the material have changed, and the Department will
remove the material from the QPL.
2
6-1.3.1.2 Approved Products List: The State Traffic Operations Office
maintains the Approved Products List (APL) of Traffic Control Signal Devices.
Traffic Monitoring Site Equipment and Materials are also included on the APL.
This list provides assurance to Maintaining Agencies, Contractors, consultants,
designers, and Department personnel that the specific items listed are approved
for use on Department facilities. The Department will limit the Contractor's
procurement and use of Traffic Control Signal Devices, and Traffic Monitoring
Site equipment and materials to only those items listed on the APL that is
effective at the time of procurement, except as provided in Section 603.
The approval process is described in detail on the State Traffic Operation
website, www.dot.stateJl.us/trafficoperations/terljapI2.htm . Manufacturers
seeking evaluation of a speCific device must submit an application on form
number 750-010-12, which can be obtained from the Department's State Traffic
Operations Office.
6-1.3.2 Contractor Installation Certification: Provide installation
certifications as required by the Specifications.
6-2. Designation of a Specific Product as a Criterion ("Or Equal"
Clause).
Reference in the Contract Documents to any proprietary article, device, product,
material or fixture, or any form or type of construction, by name, make, or
catalog number, with or without the words "or equal", establishes a standard of
quality and is not intended to limit competition. The Contractor may use any
article, device, product, material or fixture, or any form or type of construction,
that, in the judgment of the Engineer (expressed in writing), is equal, for the
purpose intended, to that named.
6-3 Applicable Documented Authorities other than Specifications.
6-3.1 General: Details on individual materials are identified in various material
specific Sections of the Specifications. These Specifications may refer to other
documented authorities for requirements. When specified, meet the
requirements as defined in such references.
6-3.2 Test Methods: Methods of sampling and testing materials are in
accordance with the Florida Methods (FM). If a Florida Method does not exist for
a particular test, perform the testing in accordance with the method specified in
the Specification. When test methods or other standards are referenced in the
Specifications without identification of the specific time of issuance, use the most
current issuance, including interims or addendums thereto, at the time of bid
opening.
6-3.3 Construction Aggregates: Aggregates used on Department projects
must be in accordance with Rule 14-103, FAC.
3
6-4 Documentation.
6-4.1 Submission of Materials Certification and Reporting Test Results:
Provide certifications prior to placement of materials. Report test results at
completion of the test and meet the requirements of the applicable
Specifications.
6-4.2 Database(s): Obtain access to the Department's database(s) prior to
testing and/or material placement. Database access information is available
through the Department's website. Enter all required and specified
documentation and test results in the Department database(s).
6-4.3 Worksheets: Make available to the Department, when requested,
worksheets used for collecting test information. Ensure the worksheets as a
minimum contain the following:
a. Project Identification Number,
b. Time and Date,
c. Laboratory Identification and Name,
d. Training Identification Numbers (TIN) and initials,
e. Record details as specified within the test method.
6-4.4 Retention: Meet the requirements of Section 105.
6-5 Inspections to Assure Compliance with Acceptance Criteria.
6-5.1 General: The Department is not obligated to make an inspection of
materials at the source of supply, manufacture, or fabrication. Provide the
Engineer with unrestricted entry at all times to such parts of the facilities that
concern the manufacture, fabrication, or production of the ordered materials.
Bear all costs incurred in determining whether the material meets the
requirements of these Specifications.
6-5.2 Quality Control (QC) Inspection: Provide all necessary inspection to
assure effective QC of the operations related to materials acceptance. This
includes but is not limited to sampling and testing, production, storage, delivery,
construction and placement. Ensure that the equipment used in the production
and testing of the materials provides accurate and precise measurements in
accordance with the applicable Specifications. Maintain a record of all
inspections, including but not limited to, date of inspection, results of inspection,
and any subsequent corrective actions taken.
6-5.3 Notification of Placing Order: Order materials sufficiently in advance of
their incorporation in the work to allow time for sampling, testing and inspection.
Provide notification, to the Engineer prior to placing orders for materials.
4
Submit to the Engineer a fabrication schedule for all items requiring commercial
inspection, before or at the pre-construction meeting These items include, but is
not limited to steel bridge components, overhead cantilevered sign supports with
cantilevered arms exceeding 41 feet [12 m], moveable bridge components or
any other item identified as an item requiring commercial inspection in the
Contract Documents. Notify the Engineer at least 30 days before beginning any
production and include a production schedule.
6-6 Additional Requirements for Lump Sum Projects.
Prepare and submit to the Engineer a project-specific list of material items and
quantities to be used on the project as a Job Guide Schedule (JGS) in the same
format as the Department's current Sampling, Testing, and Reporting Guide
(STRG), 21 calendar days prior to commencement of Construction. Provide an
up-to-date Job Guide Schedule to the Engineer with each monthly progress
estimate. The Department may not authorize payment of any progress estimate
not accompanied by an up-to-date Job Guide Schedule. Maintain the Job Guide
Schedule throughout the project including the quantity placed since the previous
submittal, and total to date quantity and any additional materials placed. Do not
commence work activities that require testing until the Job Guide Schedule has
been reviewed and accepted by the Engineer. At final acceptance, submit final
Job Guide Schedule that includes all materials used on the project in the same
format as the monthly reports.
6-7 Personnel Qualification Programs.
Meet the requirements of Section 105 and ensure that qualifications are
maintained during the course of sampling, testing and inspection. Continued
personnel qualifications are subject to satisfactory results from the Department's
Independent Assurance evaluations.
6-8 Quality Control Program.
6-8.1 General: Meet the requirements of the Department's approved Quality
Control Program for the production and construction of Asphalt Mix, Portland
Cement Concrete (Structural), Earthwork, Cementitious Materials, Timber, Steel
and Miscellaneous Metals, Galvanized Metal Products, Prestressed and/or Precast
Concrete Products and Drainage Products. Also include transportation, storage,
placement and other related construction operations required by the Contract.
When accreditation or certification is required, make supporting documents from
the two previous inspections performed by the accrediting or certifying agency
available to the Department upon request.
Obtain Department approval prior to beginning production. Meet and maintain
the approved QC Program requirements at all times. Production and construction
of these products without the Department's prior approval of a Quality Control
Program may result in rejection of the products. Continued approval will be
subject to satisfactory results from Department evaluations, including the
5
Independent Assurance program. In cases of non-compliance with the approved
Quality Control Program, identify all affected material and do not incorporate or
supply to the Department projects. The following conditions may result in
suspension of a QC Program:
a. Failure to timely supply information required.
b. Repeated failure of material to meet Standard Specification requirements.
c. Failure to take immediate corrective action relative to deficiencies in the
performance of the QC program.
d. Certifying materials that are not produced under an approved QC program for
use on Department projects.
e. Failure to correct any deficiencies related to any requirement of the QC
program, having received notice from the Department, within the amount of time
defined in the notice.
6-8.2. Producers of Asphalt Mixes, Portland Cement Concrete
(Structural), Earthwork, Cementitious Materials, Timber, Steel and
Miscellaneous Metals, Galvanized Metal Products, Prestressed and/or
Precast Concrete Products and Drainage Products: Have an approved
Quality Control Program, developed in accordance with the guidelines in Section
105, during the production of materials to be used on Department projects. In
addition to meeting the requirements of Section 105, the producers of Portland
Cement Concrete will meet the requirements Chapter 9.2, Concrete Production
Facility Guidelines, of the Department's Materials Manual.
6-8.3 Prestressed Concrete Plants: Ensure that prestressed concrete plants
participating in the Department's Acceptance Program are qualified. Obtaining
qualification will require a current Precast/Prestressed Concrete Institute (PCI)
certification and an approved Quality Control Plan, developed in accordance with
the guidelines specified in Section 105.
6-8.4 Quality Control Program Approval: Producers of cementitious
materials and aggregates must submit their proposed Quality Control Program to
the State Materials Office for approval.
Producers of Asphalt Mixes, Portland Cement Concrete (Structural), Earthwork,
Timber, Steel and Miscellaneous Metals, Galvanized Metal Products, Prestressed
and/or Precast Concrete Products and Drainage Products must submit their
proposed Quality Control Program to the local District Materials Office for
acceptance. Producers located outside the State must contact the State Materials
Office for address information of the District Materials Office responsible for the
review of the proposed Quality Control Program.
Steel and Miscellaneous Metal products are steel bridge components, movable
bridge components, overhead cantilevered sign supports, ladders and platforms,
bearings, end wall grates, roadway gratings, metal drainage components, steel
6
expansion joint and components, shear connectors, pipe handrails, galvanized
steel woven wire farm fence, and guardrail.
The Department will respond to the producer within 21 calendar days of receipt
of the proposed Quality Control Program. The Department may perform
evaluation activities to verify compliance with submitted documents prior to
acceptance.
If the Quality Control Program must be revised for any reason, including non-
compliance, submit the revision to the Department. The Department will respond
to the producer within 7 calendar days of receipt of the revised Quality Control
Program.
6-8.5 Contractor's Quality Control Plan. Have an approved Quality Control
Plan meeting the requirements of Section 105 for the transportation, storage,
placement, and other related construction operations required by the Contract.
6-9 Lab Qualification Program.
Testing Laboratories participating in the Department's Acceptance Program must
meet one of the following requirements. In addition to the following they must
have current Department qualification when testing materials that are used on
Department projects: a. Current AASHTO (AAP) accreditation.
b. Inspected on a regular basis per ASTM D 3740 for earthwork, ASTM D 3666
for asphalt and ASTM C 1077 for concrete for test methods used in the
Acceptance Program, with all deficiencies corrected, and under the supervision of
a Specialty Engineer.
c. Current Construction Materials Engineering Council (CMEC) program
accreditation or other independent inspection program accreditation acceptable
to the Engineer and equivalent to a. or b. above.
After meeting the criteria described above, submit a Laboratory Qualification
Application to the Department. The application is available from the
Department's website. Obtain the Department's qualification prior to beginning
testing. The Department may inspect the laboratory for compliance with the
accreditation requirements prior to issuing qualification.
Meet and maintain the qualification requirements at all times. Testing without
Department's qualification may result in a rejection of the test results. Continued
qualifications are subject to satisfactory results from Department evaluations,
including Independent Assurance evaluations. In case of suspension or
disqualification, prior to resumption of testing, resolve the issues to the
Department's satisfaction and obtain reinstatement of qualification. The following
conditions may result in suspension of a laboratory's qualified status:
a. Failure to timely supply required information.
b. Loss of accredited status.
c. Failure to correct deficiencies in a timely manner.
d. Unsatisfactory performance.
e. Changing the laboratory's physical location.
7
f. Delays in reporting the test data in the Department's database.
g. Incomplete or inaccurate reporting.
h. Using unqualified technicians performing testing.
It is prohibited for a non-Department laboratory to perform Contractor Quality
Control testing and any other Acceptance Program testing on the same contract.
6-10 Storage of Materials and Samples.
6-10.1 Method of Storage: Store materials in such a manner as to preserve
their quality and fitness for the work, to facilitate prompt inspection, and to
minimize noise impacts on sensitive receivers. More detailed specifications
concerning the storage of specific materials are prescribed under the applicable
Specifications. The Department may reject improperly stored materials.
6-10.2 Use of Right-of-Way for Storage: If the Engineer allows, the
Contractor may use a portion of the right-of-way for storage purposes and for
placing the Contractor's plant and equipment. Use only the portion of the right-
of-way that is outside the clear zone, which is the portion not required for public
vehicular or pedestrian travel. When used, restore the right-of-way to pre-
construction condition at no additional cost to the Department or as specified in
the contract. Provide any additional space required at no expense to the
Department.
6-10.3 Responsibility for Stored Materials: Accept responsibility for the
protection of stored materials. The Department is not liable for any loss of
materials, by theft or otherwise, or for any damage to the stored materials.
6-10.4 Storage Facilities For Samples: Provide facilities for storage of
samples as described in the contract and warranted by the test methods and
Specifications.
6-11 Defective Materials.
All materials not meeting the requirements of these Specifications; segregated
materials, even though previously tested and approved; materials that are or
have been improperly stored; and materials that are mixed with an excess of
clay, coal, sticks, burlap, hay, straw, loam or earth, or other debris will be
considered defective. Do not use defective materials. The Engineer will reject all
such materials, whether in place or not. Remove all rejected material
immediately from the site of the work and from storage areas, at no expense to
the Department.
Do not use material that has been rejected and the defects corrected, until the
Engineer has approved the material's use. Upon failure to comply promptly with
any order of the Engineer made under the provisions of this Article, the Engineer
will remove and replace defective material and deduct the cost of removal and
replacement from any moneys due or to become due the Contractor.
8
As an exception to the above, the Contractor may submit, upon approval of the
Engineer, an engineering and/or laboratory analysis to evaluate the effect of
defective in place materials. A Specialty Engineer, who is an independent
consultant shall perform any such analysis. The Engineer will determine the final
disposition of the material after review of the information submitted by the
Contractor. No additional monetary compensation or time extension will be
granted for the impact of any such analysis or review.
6-12 Products and Source of Supply.
6-12.2 Source of Supply - Steel (Federal-Aid Contracts Only): For
Federal-aid Contracts, only use steel and iron produced in the United States, in
accordance with the Buy America provisions of 23 CFR 635.410, as amended.
Ensure that all manufacturing processes for this material occur in the United
States. As used in this specification, a manufacturing process is any process that
modifies the chemical content, physical shape or size, or final finish of a product,
beginning with the initial melding and mixing and continuing through the
bending and coating stages. A manufactured steel or iron product is complete
only when all grinding, drilling, welding, finishing and coating have been
completed. If a domestic product is taken outside the United States for any
process, it becomes foreign source material. When using steel and iron as a
component of any manufactured product incorporated into the project (e.g.,
concrete pipe, prestressed beams, corrugated steel pipe, etc.), these same
provisions apply, except that the manufacturer may use minimal quantities of
foreign steel and iron when the cost of such foreign materials does not exceed
0.1 % of the total Contract amount or $2,500, whichever is greater. These
requirements are applicable to all steel and iron materials incorporated into the
finished work, but are not applicable to steel and iron items that the Contractor
uses but does not incorporate into the finished work. Provide a certification from
the producer of steel or iron, or any product containing steel or iron as a
component, stating that all steel or iron furnished or incorporated into the
furnished product was manufactured in the United States in accordance with the
requirements of this specification and the Buy America provisions of 23 CFR
635.410, as amended. Such certification shall also include (1) a statement that
the product was prOduced entirely within the United States, or (2) a statement
that the product was produced within the United States except for minimal
quantities of foreign steel and iron valued at $ (actual value). Furnish each such
certification to the Engineer prior to incorporating the material into the project.
When FHWA allows the use of foreign steel on a project, furnish invoices to
document the cost of such material, and obtain the Engineer's written approval
prior to incorporating the material into the project.
6-12.3 Unfit, Hazardous, and Dangerous Materials: Do not use any
material that, after approval and/or placement, has in any way become unfit for
9
use. Do not use materials containing any substance that has been determined to
be hazardous by the State of Florida Department of Environmental Protection or
the u.s. Department of Environmental Protection. Provide workplaces free from
serious recognized hazards and to comply with occupational safety and health
standards, as determined by the u.s. Department of Labor Occupational Safety
and Heath Administration.
3. BUY AMERICA:
See section 6-12.2, above in paragraph 2.
4. STATE EQUIPMENT. LABOR: Contractor shall not purchase any
equipment for state ownership under this Contract. No state equipment or state
labor shall be used.
5. SUSPENSION AND DEBARMENT: Contractor agrees to execute the
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion. The form of the Certification is attached hereto as Exhibit 1.
6. DISADVANTAGED BUSINESS ENTERPRISE: Contractor agrees to
abide by the Disadvantaged Business Enterprise Program. FOOT gUidelines for
utilization of Disadvantaged Business Enterprises are contained in Exhibit 2,
attached hereto and incorporated herein by reference.
7. EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS. Contractor
agrees to the following:
7-25 Equal Employment Opportunity Requirements.
7-25.1 Equal Employment Opportunity Policy: Accept as the operating
policy, the following statement which is designed to further the provision of
equal employment opportunity to all persons without regard to their age, race,
color, religion, national origin, sex, or disability and to promote the full realization
of equal employment opportunity through a positive continuing program:
"It is the policy of this Company to assure that applicants are employed, and that
employees are treated during employment, without regard to their age, race,
religion, color, national origin, sex, or disability. Such action must include:
employment, upgrading, demotion, or transfer; recruitment or recruitment
advertising; layoff or termination; rates of payor other forms of compensation;
and selection for training, including apprenticeship, preapprenticeship, and/or
on-the-job training."
7-25.2 Equal Employment Opportunity Officer: Designate and make known
to the Department's contracting officers an equal employment opportunity officer
(hereinafter referred to as the EEO Officer) who must be capable of effectively
administering and promoting an active Contractor program employment
10
opportunity and who must be assigned adequate authority and responsibility to
do so.
7-25.3 Dissemination of Policy: All members of the Contractor's staff who
are authorized to hire, supervise, promote, and discharge employees, or who
recommend such action, or who are substantially involved in such action, will be
made fully cognizant of, and will implement, the Contractor's equal employment
opportunity policy and contractual responsibilities.
7-25.4 Recruitment: When advertising for employees, include in all
advertisements for employees the notation "An Equal Opportunity Employer".
7-25.5 Personnel Actions: Establish and administer wages, working
conditions, employee benefits, and personnel actions of every type, including
hiring, upgrading, promotion, transfer, demotion, layoff, and termination without
regard to age, race, color, religion, national origin, sex, or disability.
Follow the following procedures:
(1) Conduct periodic inspections of project sites to insure that working conditions
and employee facilities do not indicate discriminatory treatment of project site
personnel.
(2) Periodically evaluate the spread of wages paid with each classification to
determine any evidence of discriminatory wage practices.
(3) Periodically review selected personnel actions in depth to determine whether
there is evidence of discrimination. Where evidence is found, promptly take
corrective action. If the review indicates that the discrimination may extend
beyond the actions reviewed, such corrective action must include all affected
persons.
(4) Investigate all complaints of alleged discrimination made in connection with
obligations under this Contract, attempt to resolve such complaints, and take
appropriate corrective action. If the investigation indicates that the discrimination
may affect persons other than the complainant, such corrective action must
include such other persons. Upon completion of each investigation inform every
complainant of all of the avenues of appeal.
7-25.6 Subcontracting: Use the best efforts to ensure subcontractor
compliance with their equal employment opportunity policy.
7-25.7 Records and Reports: Keep such records as are necessary to
determine compliance with the equal employment opportunity obligations. The
records kept will be designed to indicate the following:
(1) The number of minority and nonminority group members employed in each
work classification on the project.
11
(2) The progress and efforts being made in cooperation with unions to increase
minority group employment opportunities (applicable only to Contractors who
rely in whole or in part on unions as a source of their work force).
(3) The progress and efforts being made in locating, hiring, training, qualifying,
and upgrading minority group employees as deemed appropriate to comply with
their Equal Employment Opportunity Policy.
(4) The progress and efforts being made in securing the services of minority
group subcontractors or subcontractors with meaningful minority group
representation among their employees as deemed appropriate to comply with
their Equal Employment Opportunity Policy.
All such records must be retained for a period of three years following
completion of the contract work and be available at reasonable times and places
for inspection by authorized representatives to the Department and the Federal
Highway Administration. Upon request, submit to the Department a report of the
number of minority and nonminority group employees currently engaged in each
work classification required by the Contract work.
8. EOUIPMENT RENTAL RATES:
8-1 Guidelines
8-1.1 General. In 1986, an Office of the Inspector General (OIG) audit of
rental rates used by state agencies (STAs) found that a significant number of
contractors were being reimbursed for equipment usage based on predetermined
rates which included ineligible costs. Ineligible costs* included use of
contingencies and replacement cost escalator factors, and premium rental rates
for rental periods less than one month.
The FHWA subsequently advised all field offices on August 22, 1986, that STAs
which use predetermined rate guides must modify the equipment rental rates to
eliminate the identified ineligible costs. PRIMEDIA Information Inc., San Jose,
CA, the publisher of the Rental Rate Blue Book (Blue Book), responded by
developing rate adjustment tables which corrected the discovered shortcomings.
The adjustment tables were subsequently found acceptable by the OIG. The
FHWA field offices were advised of this determination on December 23, 1986.
Further rental rate guidance was issued by Headquarters' memorandum dated
November 7, 1988. The Department accepts the Rental Rate Blue Book as the
maximum rental rate allowable under this contract.
8-1.2 Federal policy requires that actual costs be used to determine extra work
payments; however, typically actual equipment costs are not readily available.
Therefore, the FHWA permits the STAs to specify in their construction contracts
12
the predetermined rate gUides as well as equipment rate schedules developed by
STAs which are in conformance with the Federal cost principles and the FHWA's
policy contained herein.
The Federal cost principles applicable to rental rates for contractor furnished
equipment are contained in 48 CFR, Part 31. The provisions in OMB Circular 87
apply when State-owned equipment is used.
8-1.3 Rental Rate Guides: Department must make the determination that
the equipment rental rates developed or adopted fairly estimate a contractor's
actual cost to own and operate the equipment within its State. The FDOT will
review their State's rates for compliance with the policy.
8-1.4 Adjustment Factors: Equipment is not expected to operate for 12
consecutive months. Maps at the beginning of each Blue Book equipment section
indicate adjustment factors based on climate and regional costs. Rate adjustment
tables indicate adjustment factors based on equipment age. The adjustment
factors in the maps and tables are to be applied when determining the eligible
rate.
8-1.5 Maximum Rate: The Blue Book adjusted rates cover all eligible
equipment related costs. Therefore, they are considered to be the maximum
eligible rates for Federal-aid participation purposes.
8-1.6 Hourly Rates: The developer of the Blue Book accumulates all
contractor costs for owning a piece of equipment on an hourly basis. The
monthly rate displayed in the rental guide is determined by multiplying the
hourly accumulated costs by the monthly standard of 176 hours. Therefore, for
periods of equipment use less than the standard 176 hours per month, Federal-
aid participation shall be limited to the hourly rate obtained by dividing the
monthly rate by 176. Premium rates contained in the rate gUides shall not be
used.
8-1.7 Standby Equipment Rates: The contractor continues to incur certain
ownership costs when equipment is required to be on standby. The use of a
standby rate is appropriate when equipment has been ordered to be available for
force account work but is idle for reasons which are not the fault of the
contractor. While an industry standard does not exist for standby rates, it has
been the normal practice of the courts to reduce published ownership rental
guide rates by 50 percent for standby rate usage. Therefore, the FHWA will
accept use of 50 percent of the ownership rental rates of an approved guide as
the standby rate in lieu of a contractor's actual standby costs. There should be
13
no operating costs included in the rate used and standby time should not exceed
8 hours per day, 40 hours per week, or the annual usage hours as established by
the rate guide.
8-1.8 Mobilization: The costs required to mobilize and demobilize equipment
not available on the project is eligible for reimbursement. Standby rates should
be used for equipment while being hauled to and from the project. This will be in
addition to applicable rates for the hauling equipment. All costs associated with
the assembly and disassembly of the equipment for transport should also be
considered in the mobilization costs.
8-1.9 Overhead: Equipment overhead includes such items as insurance,
property taxes, storage, licenses and record keeping. The Blue Book rates
include all equipment overhead costs. Therefore, when a project or home office
overhead rate is applied to a Blue Book rate, the State must assure that it
contains no equipment overhead cost factors. The Department shall determine
the reasonableness of such a rate.
8-1.10 Profit: Profit on equipment rental is not provided for in the Blue Book
published rates. There is no Federal regulation which prevents the addition of an
amount for profit. If a State has a policy for the payment of profit, it should be
followed on Federal-aid contracts. If a profit amount is to be used, the
reasonableness must be determined by the Department based on experience.
8-1.11 Contractor Leased Equipment: When a contractor obtains
equipment through a third party rental agreement for use in a force account
situation, the cost will normally be the invoice cost. The invoice cost should be
comparable with other rental rates of the area. The Associated Equioment
Distributors (AED) Rental Rate and Soecifications may be used to evaluate the
costs for such equipment rental. Since rental agreements vary, the specific
operating costs included in the rental agreement may need to be determined.
There may be additional eligible operating costs not covered by the agreement
which the contractor incurs and should be reimbursed (i.e., fuel, lubrication, field
repairs, etc).
[Note: The AED book is not acceptable as a rate guide for contractor owned
equipment. The AED rates are based on national averages of rates charged by
equipment distributors and do not reflect the contractors cost of owning and
operating the equipment.]
9. FOREIGN CONTRACTOR AND SUPPLIER RESTRICTION.
14
, .
There are no restrictions at this time. However, if restrictions occur in the
future, Contractor agrees to amend the Contract to reflect such restrictions.
10. STATE OR LOCAL HIRING PREFERENCE:
State or local hiring preference is not allowed.
11. CHANGED CONDITIONS:
004 SCOPE OF THE WORK.
4-3.2 Increase, Decrease or Alteration in the Work: The Engineer reserves
the right to make alterations in the character of the work which involve a
substantial change in the nature of the design or in the type of construction or
which materially increases or decreases the cost or time of performance. Such
alteration shall not constitute a breach of Contract, shall not invalidate the
Contract or release the Surety.
Notwithstanding that the Contractor shall have no formal right whatsoever to any
extra compensation or time extension deemed due by the Contractor for any
cause unless and until the Contractor follows the procedures set forth in 5-12.2
for preservation, presentation and resolution of the claim, the Contractor may at
any time, after having otherwise timely provided a notice of intent to claim or
preliminary time extension request pursuant to 5-12.2 and 8-7.3.2, submit to the
Department a request for equitable adjustment of compensation or time or other
dispute resolution proposal. The Contractor shall in any request for equitable
adjustment of compensation, time, or other dispute resolution proposal certify
under oath and in writing, in accordance with the formalities required by Florida
law, that the request is made in good faith, that any supportive data provided
are accurate and complete to the Contractor's best knowledge and belief, and
that the amount of the request accurately reflects what the Contractor in good
faith believes to be the Department's responsibility. Such certification must be
made by an officer or director of the Contractor with the authority to bind the
Contractor. Any such certified statements of entitlement and costs shall be
subject to the audit provisions set forth in 5-12.14. While the submittal or review
of a duly certified request for equitable adjustment shall neither create, modify,
nor activate any legal rights or obligations as to the Contractor or the
Department, the Department will review the content of any duly certified request
for equitable adjustment or other dispute resolution proposal, with any further
action or inaction by the Department thereafter being in its sole discretion. Any
request for equitable adjustment that fails to fully comply with the certification
requirements will not be reviewed by the Department.
The monetary compensation provided for below constitutes full and complete
payment for such additional work and the Contractor shall have no right to any
additional monetary compensation for any direct or indirect costs or profit for
15
any such additional work beyond that expressly provided below. The Contractor
shall be entitled to a time extension only to the extent that the performance of
any portion of the additional work is a controlling work item and the performance
of such controlling work item actually extends completion of the project due to
no fault of the Contractor. All time related costs for actual performance of such
additional work are included in the compensation already provided below and
any time extension entitlement hereunder will be without additional monetary
compensation. The Contractor shall have no right to any monetary compensation
or damages whatsoever for any direct or indirect delay to a controlling work item
arising out of or in any way related to the circumstances leading up to or
resulting from additional work (but not relating to the actual performance of the
additional work, which is paid for as otherwise provided herein), except only as
provided for under 5-12.6.2.1.
4-3.2.1 Allowable Costs for Extra Work: The Engineer may direct in writing
that extra work be done and, at the Engineer's sole discretion, the Contractor will
be paid pursuant to an agreed Supplemental Agreement or in the following
manner:
(a) Labor and Burden: The Contractor will receive payment for actual costs of
direct labor and burden for the additional or unforeseen work. Labor includes
foremen actually engaged in the work; and will not include project supervisory
personnel nor necessary on-site clerical staff, except when the additional or
unforeseen work is a controlling work item and the performance of such
controlling work item actually extends completion of the project due to no fault
of the Contractor. Compensation for project supervisory personnel, but in no
case higher than a Project Manager's position, shall only be for the pro-rata time
such supervisory personnel spent on the contract. In no case shall an officer or
director of the Company, nor those persons who own more than 1 % of the
Company, be considered as project supervisory personnel, direct labor or
foremen hereunder.
Payment for burden shall be limited solely to the following:
Table 4-3.2.1
Item
Rate
Rate established by Law
Rate established by Law
Actual
Actual
FICA
FUTAjSUTA
Medical Insurance
Holidays, Sick &
Vacation benefits
Retirement
benefits
Actual
Workers
Compensation
Rates based on the National Council on Compensation
Insurance basic rate tables adjusted by Contractor's actual
experience modification factor in effect at the time of the
...J'J' _. I. __ I: _ I.
16
additional work or unforeseen work.
Per Diem Actual but not to exceed State of Florida's rate
Insurance* Actual
*Compensation for Insurance is limited solely to General Liability Coverage and
does not include any other insurance coverage (such as, but not limited to,
Umbrella Coverage, Automobile Insurance, etc.).
At the Pre-construction conference, certify to the Engineer the following:
(1) A listing of on-site clerical staff, supervisory personnel and their pro-rated
time assigned to the contract,
(2) Actual Rate for items listed in Table 4-3.2.1,
(3) Existence of employee benefit plan for Holiday, Sick and Vacation benefits
and a Retirement Plan, and,
(4) Payment of Per Diem is a company practice for instances when compensation
for Per Diem is requested.
Such certification must be made by an officer or director of the Contractor with
authority to bind the Contractor. Timely certification is a condition precedent to
any right of the Contractor to recover compensations for such costs, and failure
to timely submit the certification will constitute a full, complete, absolute and
irrevocable waiver by the Contractor of any right to recover such costs. Any
subsequent changes shall be certified to the
Engineer as part of the cost proposal or seven calendar days in advance of
performing such extra work.
(b) Materials and Supplies: For materials accepted by the Engineer and used on
the project, the Contractor will receive the actual cost of such materials
incorporated into the work, including Contractor paid transportation charges
(exclusive of equipment as hereinafter set forth). For supplies reasonably needed
for performing the work, the Contractor will receive the actual cost of such
supplies.
(c) Equipment: For any machinery or special equipment (other than small tools),
including fuel and lubricant, the Contractor will receive 100% of the "Rental Rate
Blue Book" for the actual time that such equipment is in operation on the work,
and 50% of the "Rental Rate Blue Book" for the time the equipment is directed
to standby and remain on the project site, to be calculated as indicated below.
The equipment rates will be based on the latest edition (as of the date the work
to be performed begins) of the "Rental Rate Blue Book for Construction
Equipment" or the "Rental Rate Blue Book for Older Construction Equipment,"
whichever is applicable, as published by Machinery Information Division of
PRIMEDIA Information, Inc. (version current at the time of bid), using all
instructions and adjustments contained therein and as modified below. On all
17
projects, the Engineer will adjust the rates using regional adjustments and Rate
Adjustment Tables according to the instructions in the Blue Book.
Allowable Equipment Rates will be established as set out below:
(1) Allowable Hourly Equipment Rate = Monthly Ratej176 x Adjustment Factors x
100%.
(2) Allowable Hourly Operating Cost = Hourly Operating Cost x 100%.
(3) Allowable Rate Per Hour = Allowable Hourly Equipment Rate + Allowable
Hourly Operating Cost.
(4) Standby Rate = Allowable Hourly Equipment Rate x 50%.
The Monthly Rate is The Basic Machine Rate Plus Any Attachments. Standby
rates will apply when equipment is not in operation and is directed by the
Engineer to standby at the project site when needed again to complete work and
the cost of moving the equipment will exceed the accumulated standby cost.
Standby rates will not apply on any day the equipment operates for eight or
more hours. Standby payment will be limited to only that number of hours which,
when added to the operating time for that day equals eight hours. Standby
payment will not be made on days that are not normally considered work days
on the project.
The Department will allow for the cost of transporting the equipment to and from
the location at which it will be used. If the equipment requires assembly or
disassembly for transport, the Department will pay for the time to perform this
work at the rate for standby equipment.
Equipment may include vehicles utilized only by Labor, as defined above.
(d) Indirect Costs, Expenses, and Profit: Compensation for all indirect costs,
expenses, and profit of the Contractor, including but not limited to overhead of
any kind, whether jobsite, field office, division office, regional office, home office,
or otherwise, is expressly limited to the greater of either (1) or (2) below:
(1) Solely a mark-up of 17.5% on the payments in (a) through (c), above.
(i) Bond: The Contractor will receive compensation for any premium for acquiring
a bond for such additional or unforeseen work; provided, however, that such
payment for additional bond will only be paid upon presentment to the
Department of clear and convincing proof that the Contractor has actually
provided and paid for separate bond premiums for such additional or unforeseen
work in such amount.
(ii) The Contractor will be allowed a markup of 10% on the first $50,000 and a
markup of 5% on any amount over $50,000 on any subcontract directly related
to the additional or unforeseen work. Any such subcontractor mark-up will be
allowed only by the prime Contractor and a first tier subcontractor, and the
Contractor must elect the markup for any eligible first tier subcontractor to do
so.
(2) Solely the formula set forth below and only as applied solely as to such
number of calendar days of entitlement that are in excess of ten cumulative
calendar days as defined below.
BCADx=
18
Where A = Original Contract Amount
B = Original Contract Time
C= 8%
D = Average Overhead Per Day
Cumulative Calendar Days is defined as the cumulative total number of calendar
days granted for time extension due to delay of a controlling work item caused
solely by the Department is, or the cumulative total number of calendar days for
which entitlement to a time extension due to delay of a controlling work item
caused solely by the Department is otherwise ultimately determined in favor of
the Contractor to be.
Further, in the event there are concurrent delays to one or more controlling work
items, one or more being caused by the Department and one or more being
caused by the Contractor, the Contractor shall be entitled to a time extension for
each day that a controlling work item is delayed by the Department but shall
have no right to nor receive any monetary compensation for any indirect costs
for any days of concurrent delay. No compensation, whatsoever, will be paid to
the Contractor for any jobsite overhead and other indirect impacts when the total
number of calendar days granted for time extension due to delay of a controlling
work item caused solely by the Department is, or the total number of calendar
days for which entitlement to a time extension due to delay of a controlling work
item caused solely by the Department is otherwise ultimately determined in favor
of the Contractor to be, equal to or less than ten calendar days and the
Contractor also fully assumes all monetary risk of any and all partial or single
calendar day delay periods, due to delay of a controlling work item caused solely
by the Department, that when cumulatively totaled together are equal to or less
than ten calendar days and regardless of whether monetary compensation is
otherwise provided for hereunder for one or more calendar days of time
extension entitlement for each calendar day exceeding ten calendar days. All
calculations under this provision shall exclude weather days, and days granted
for performing additional work.
4-3.2.2 Subcontracted Work: For work performed by a subcontractor,
compensation for the additional or unforeseen work shall be solely limited to as
provided for in 4-3.2.1 (a), (b), (c) and (d)(l), with the exception of, in the
instance of subcontractor performed work only, the subcontractor may receive
compensation for any premium for acquiring a bond for the additional or
unforeseen work; provided, however, that such payment for additional
subcontractor bond will only be paid upon presentment to the Department of
clear and convincing proof that the subcontractor has actually provided and paid
for separate bond premiums for such additional or unforeseen work in such
amount.
The Contractor shall require the subcontractor to provide a certification, in
accordance with 4-3.2.1(a), as part of the cost proposal and provide such to the
Engineer. Such certification must be made by an officer or director of the
19
subcontractor with authority to bind the subcontractor. Timely certification is a
condition precedent to any right of the Contractor to recover compensation for
such subcontractor costs, and failure to timely submit the certification will
constitute a full, complete, absolute and irrevocable waiver by the Contractor of
any right to recover such subcontractor costs.
005 CONTROL OF THE WORK.
5-1.4.4.1 Drawings: Furnish two clearly legible photographic or xerographic
copies of all shop drawings that are necessary to complete the structure in
compliance with the design shown on the plans. Prepare all shop drawings using
the same units of measure as those used in the Department's plans. Use sheets
no larger than 11 by 17 inches [280 by 432 mm]. Consecutively number each
sheet in the submittal series, and indicate the total number in the series (I.e., 1
of 12, 2 of 12, . . ., 12 of 12). Include on each sheet the following items as a
minimum requirement: the complete Financial Project Identification Number,
Bridge Number(s), drawing title and number, a title block showing the names of
the fabricator or producer and the Contractor for which the work is being done,
the initials of the person(s) responsible for the drawing, the date on which the
drawing was prepared, the location of the item(s) within the project, the
Contractor's approval stamp with date and initials, and, when applicable, the
signature and embossed seal of the Specialty Engineer. A re-submittal will be
requested when any of the required information is not included.
5-5 Authority of the Engineer.
Perform all work to the satisfaction of the Engineer.
The Chief, Bureau of Design and Construction, will decide all questions,
difficulties, and disputes, of whatever nature, that may arise relative to the
interpretation of the plans, construction, prosecution, and fulfillment of the
Contract, and as to the character, quality, amount, and value of any work done,
and materials furnished, under or by reason of the Contract.
5-6 Authority and Duties of Engineer's Assistants.
The Chief, Bureau of Design and Construction, may appoint such assistants and
representatives as he desires. These assistants and representatives are
authorized to inspect all work done and all materials furnished. Such inspection
may extend to all or any part of the work and to the manufacture, preparation,
or fabrication of the materials to be used. Such assistants and representatives
are not authorized to revoke, alter, or waive any requirement of these
Specifications. Rather, they are authorized to call to the attention of the
Contractor any failure of the work or materials to meet the Contract Documents,
and have the authority to reject materials or suspend the work until any
questions at issue can be referred to and decided by the Engineer. The Engineer
will immediately notify the Contractor in writing of any such suspension of the
work, stating in detail the reasons for the suspension. The presence of the
20
inspector or other assistant in no way lessens the responsibility of the
Contractor.
5-10.2 Inspection for Acceptance: Upon notification that all Contract Work,
or all Contract Work on the portion of the Contract scheduled for acceptance, has
been completed, the Engineer will make an inspection for acceptance. The
inspection will be made within seven days of the notification. If the Engineer
finds that all work has been satisfactorily completed, the Department will
consider such inspection as the final inspection. If any or all of the Work is found
to be unsatisfactory, the Engineer will detail the remedial work required to
achieve acceptance. Immediately perform such remedial work. Subsequent
inspections will be made on the remedial work until the Engineer accepts all
Work.
Upon satisfactory completion of the Work, the Department will provide written
notice of acceptance, either partial or final, to the Contractor.
Until final acceptance in accordance with 5-11, replace or repair any damage to
the accepted Work.
5-10.4 Conditional Acceptance: The Engineer will not make, or consider
requests for conditional acceptance of a project.
5-12.6 Compensation for Extra Work or Delay:
5-12.6.1 Compensation for Extra Work: Notwithstanding anything to the
contrary contained in the Contract Documents, the Contractor shall not be
entitled to any compensation beyond that provided for in 4-3.2.
5-12.6.2 Compensation for Delay: Notwithstanding anything to the contrary
contained in the Contract Documents, the additional compensation set forth in 5-
12.6.2.1 shall be the Contractor's sole monetary remedy for any delay other than
to perform extra work caused by the Department unless the delay shall have
been caused by acts constituting willful or intentional interference by the
Department with the Contractor's performance of the work and then only where
such acts continue after Contractor's written notice to the Department of such
interference. The parties anticipate that delays may be caused by or arise from
any number of events during the term of the Contract, including, but not limited
to, work performed, work deleted, change orders, supplemental agreements,
disruptions, differing site conditions, utility conflicts, design changes or defects,
time extensions, extra work, right-of-way issues, permitting issues, actions of
suppliers, subcontractors or other contractors, actions by third parties,
suspensions of work by the Engineer pursuant to 8-6.1, shop drawing approval
process delays, expansion of the physical limits of the project to make it
functional, weather, weekends, holidays, special events, suspension of Contract
time, or other events, forces or factors sometimes experienced in construction
work. Such delays or events and their potential impacts on the performance by
21
the Contractor are specifically contemplated and acknowledged by the parties in
entering into this Contract, and shall not be deemed to constitute willful or
intentional interference with the Contractor's performance of the work without
clear and convincing proof that they were the result of a deliberate act, without
reasonable and good-faith basis, and specifically intended to disrupt the
Contractor's performance.
5-12.6.2.1 Compensation for Direct Costs, Indirect Costs, Expenses,
and Profit thereon, of or from Delay: For any delay claim, the Contractor
shall only be entitled to monetary compensation for the actual idle labor and
equipment, and indirect costs, expenses, and profit thereon, as provided for in 4-
3.2(d) and solely for costs incurred beyond what reasonable mitigation thereof
the Contractor could have undertaken.
12. FWHA PUBLICATION 1273 INCORPORATED: The Contractor shall
comply with all required contract provisions for federal-aid construction
contracts, as stated in FHWA-1273, attached hereto as Exhibit 3, and
incorporated herein by reference. The wage table required by Part IV of FHWA-
1273 is attached as Exhibit 4.
13. NON-COLLUSION PROVISION: Contractor hereby certifies, by
execution of this Contract, that to the best of his or her knowledge and belief,
that on behalf of the person, firm, association, or corporation submitting the bid
certifying that such person, firm, association, or corporation has not, either
directly or indirectly, entered into any agreement, participated in any collusion,
or otherwise taken any action, in restraint of free competitive bidding in
connection with the submitted bid.
14. PROHIBITION AGAINST CONVICT PRODUCED MATERIALS: The
Contractor will not use convict-produced materials for this project, in accordance
with 23 CFR 635.417.
15. PROHIBITION AGAINST PUBLIC AGENCIES FROM BIDDING: No
Public agencies will be allowed to bid on the project or enter into a subcontract
with a private contractor.
16. PROHIBITION AGAINST PUBLICLY OWNED EQUIPMENT: The use
of publicly owned equipment will not be allowed on the project.
17. STATE OR LOCAL HIRING PREFERENCE: State or local hiring
preference is not allowed.
18. STATE OR LOCAL OWNED/FURNISHED MATERIALS: The
Contractor will not use any materials furnished by the State of Florida or Monroe
County.
22
Exhibit 1 to Attachment B
CERTIFICATION REGARDING DEBARMENTS, SUSPENSION, INELIGIBILITY AND
VOLUNTARY EXCLUSION-LOWER TIER FEDERALLY FUNDED TRANSACTIONS
Required for all contractors and subcontractors under
DEP CONTRACT NO.: lx:646
1. The undersigned hereby certifies that neither it nor its principals is presently debarred,
suspended, proposed for debarment, declared ineligible, 'or voluntarily excluded from
particip'ation in this transaction by any Federal department or agency.
2. The undersigned also certifies that it and its principals:
(a) Have not within a tlrree~year period preceding this response been, convicted of or had a
criminal offense in connection with obtaining, attempting to obtain, or performing a public
(Federal, State, or local) transaction or contract under a public transaction; violation of
Federal or State anti~trust statutes or commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, or receiving stolen property.
(b) Are not presently indicted by or otherwise criminally or civilly charged by a government
entity (Federal, State, or local) with- commission of any of the' offenses enumerated in
paragraph 2.(a) of this Certification; and
(c) Have not within a three-year period preceding this certification had one or more public
transactions (Federal, State or local) terminated for cause or default.
3. Where the undersigned is unable to certify to any of the statements in this
certification, an explanation shall be attached to this certification.
Datedthis t'lBY daYOf~:~2Q)~
Authorized Signature/Contractor
Oartm T Krtf6, PI-<'''})C0J
Typed Namerritle
b-rO(~ J..i1C
Contractor's Fi Name
OIP<<
'g 'XXl7-Z
u<;
Street Address
Hu.JL/ / 7
.
Vu Gu
q{[l{--
Building, Suite Number
pc. 3Z097
City/StatelZip Code
-z,Z:5 2 S-~}f
Area Coderreleph'one Number
DEP FORM 11-043 Rev(05/95)
DEP Contract No. DC646, Exhibit 1 to Attachment B, Page 1 of 2
INSTRUCTIONS FOR CERTIFICATION REGARDING DEBARMENT, SUSPENSION,
INELIGIBILITY, AND VOLUNTARY EXCLUSION-LOWER TIER FEDERALLY FUNDED
TRANSACTIONS
1. By signing and submitting this form, the certifying party is prqviding the certification set below.
2. The certifiqation in this clause us a material representation of fact upon which reliance was placed
when this transaction was entered into. If it is later determined that the certifying party knowingly
rendered an erroneous certificatiou,.in addition to other remedies available to the Federal Government,
the Department of Environmental Protection (DEP) or agencies with which this transaction originated
may pursue available remedies, including suspension and/or debarment.
3. The certifying party shall provide inunediate written notice to the person to which this contract is
Submitted. if at any time the certifying party learns that its certification was erroneous when submitted
or has become erroneous by reason of changed circumstances.
4. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction,
Participant, person, primary covered transaction, principal, proposal, and voluntarily excluded, as used
in this clause, have the meanings set out in the Definitions of Coverage sections of rules implementing
Executive Order 12549. You may contact the person to which this contract is submitted for assistance
in obtaining a copy of those regulations.
5. The certifying party agrees by submitting this contract that, should the proposed covered transaction be
entered into, it shall not knowingly enter into lower tier contract, or other covered transaction with a
person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in
this covered transaction, unless authorized by the DEP br agency with this transaction originated.
6. The certifying party further. agrees by executing this contract that it will include this clause entitled
"Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion-Lower Tier
covered Transactions and in all solicitations for lower tier covered transactions and in all solicitations
for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a certification of a prospective participant in a
lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded
from the covered transaction, unless it knows that the certification is erroneous. A participant may
decide the method and frequency by which it determines the eligibility of its principles. Each
participant may, but is not required to, check the Nonprocurement List (Telephone No. (202) 501-4740
or (202) 501-4873).
8. Nothing contained in the foregoing shall be construed to require establishment if a system of records in
order to render in good faith the certification required by this clause. The knowledge and information
of a participant is not required to exceed that which is normally possessed by a prudent person in the
ordinary course of business dealings.
9. Except for transactions authorized under paragraph 5 of these instructions, if a participant in a covered
transaction knowingly enters into a lower tier covered transaction with a person who is suspended,
debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other
remedies available to the Federal Government, the DEP or agency with which this transaction
originated may pursue available remedies, including suspension and/or debarment.
DEP FORM 11-043 (12/94)
DEP Contract No. DC646, Exhibit I to Attachment B, Page 2 of 2
Exhibit 2 to Attachment B
21'5oQ;J).11
S:CIUA1.~(llItTUNI"'V Oll'.I'1oS
"""
Qee UtIl1utlon . ....,..
The Depertment began its DBE race neutral program Janullly 1, 2000. Contrllct SpllClftc goals ant not
ptaeecl on Fedlll'llllSlate contnlctll; however, the DeP8l1ment has an overallS.1 % DBE goal n must achieve.
In order to assist contractors In determining their DBE commijment level, the Department has reviewed the
estimates for this letting.
As you prepars your bid, please monD patentiel or snticipated OBE utilizlltion for contracts. Vllhen the low
bidder executes the COIdlatt wllh the Department, information will be requested of the contractor's anticipated
oaE participation for the project. 'MIile the uti~zation Is not mandatory in order to be awarded the project,
continuing utilization of DBE fll'll1$ on contracts supports the success of Florida's Voluntllly DBE Program, and
supports contractors' Equal Employment OppOrtunity and oee AfIlrmatlve ActIOn Programs.
NOTE: Any project 118led as 0% OBE availability does not mesn that a DBE may not be used on thaI project. A
0% cae availability may hevCl been esll!lbliahed due to "'1 of the followtng reasons: limne<l iOentlfle<l
subcontradlng opportunities, mlnllnal contract days, and/or small contract dollar amoum. Contractors are
encouraged to identify any opportunities to subcontract to OBEs.
If you have any questions regarding this information, plea$8 contact the Equal Opportunity O1'Iice at (850)
414-4747,
DBE ReDO~na
If you are the prime contractor on a project, complete the attached Anticipated DBE Participation Stalement
and submij the informstlon at the pr&-ccnstructlon or pre-work COnference for al federal and $lale funded
projects, this Will not become a mandatory part of the con1ract. 11 will assist the Department in tracking and
reporting planned or estimated DeE utilization. Durlno the contract, the prime contractor Is required to report
eclual payments to all suboontractors through the web-based Equal Opportunny Reponing System (EORS),
alzWeb,
All oae payments must be reported Wi1e1her or nol you In~lally planned to utilize the company, In order for our
race neutral OBE Program to be successful, your cooperation is imperatiVe. If you have any questions
concemlng the completion or submission of this Information, contact the FOOT EOO at (850) 414-4747.
Bi~ ODDOrtuoitv List
The Federal DBE Program requires Stales to maintain a database of all firms thaI are participating or
attempting 10 participate on FOOT-assisted contracts. The list must Include all firms that bid on prlme
contrads or bid or quote suboontracts on FOOT-assisted projects, Including bOth DBEs and non-DBEs.
A form 16 Inciuded to record bidders' information for All subcontractors or sub-consultants who quoted to you
for specific prOjects for this ietling,
If a contractor quoted to you for more than one project you only need list that contractor once. If you have
submitted a bidder's list to the Depaf1ll1ent previously. you need only list new companies who have quoted to
you or requested to be on specific projects. If you do not know the answers to numbers 2, 3, 4, or 5 you may
leave them blank and the Department will complele them. This information should be retumed wllh your bid
package or proposal package or submltted to the EqUal OppOrtunny OffICe w~hin three days of your
SUbmiSSion. It can be mailed or faxed.
Please reply to: Florida Department of Transportation
Equal Oppoltunity Office
805 Suwannee StrHt, MS 65
Tallahassee, FL 32399-0450
(850) 414-4747
(8501414-48711
.
....."
--"""'"
-
"-'2vtO
ANTICIPATED DBE PAR1'lClPAnoN STATEMENT
F"-.:lat ProjtoptNumbeI: Em CU S 5Dl - l
COlllracl Nulnber: ()(1.- lo tf l,
F_ AId Pr<lject Nll/IlIlGr (If appIkIable):
Prirr1eConlr_!feme: {)[f\'L (...q(',l_~ 1~'Y\f:....
COlllracl CoII8r AIlIounI: ~ to'SZ I 5lS'b ..m;
IsIho!,.~e"""b3dor. FIcdcIa ~OfT_.~ _. Ce1tified Dllladv<ltllBged _.....~ (lJBI!)1
(yeS)ll ) (no 0 )
Elcpecled liITlOllnl of COf1iI!lcl dolIarll to be ~ II> OBE(s): $
It lsourinWIIID _"'&.1 % allhe<:onfr8ct4ol/ars IDOBE(s). I.fcleij _ _lIle ~ D8E
~
DBR (G Nam.
naeat6.'lA._1.l'R.. ......111
DoIIM~IG.....
SUbn>>ltedIly: (lfLAtm J'/4.~ 11tIe:. PrJl8/kJ
e_Ad<hss: O-nw AC&.>-fD \1J~'~NumlleI: Otcfll 7,,'7..-5 Z :)S2r
F~ Number: o,6lJ U"5 I ro ) tlale: / 2- h.-I( I~
NOle: ThIs IrlfonnadOn is useclb:l lIad< - repoot~ D8E .....P..iIl_l\ In aII_ _ ~ltylilncle.d FOOT
~ Thelllllk~AUDBE"'I"'ll."_"T """'.l*tor..._...~_ .
Tlllsfarm_Iles<.I. \llW at_..,.. ""1I11l~ ar......~.:____ oor_m__rdthl$10 lite
Equal Oppau-t.lly ClIIiCe, IllI ~...... Me _ Tda........ e. FL 1I231S 0450 Offal( fo (&SOl M4-4lI79. If
you '-1lIlY question", pIlIllae contaaIthe EOO at (8lID) 414-4747.
. ,
27S001Oo11
eoUAJ. OPl"ClRi\Jt.IIT'I' OR'1CE
'...
p...aofl
Eqlllll Opportunity Reporting System Information
To comply w~h changes In the Disadvantaged Business Enterprise (DBE) Program, the Departmenl is eoIleeting bOth
actuII payments m.do to subcon1ra<:tors end sub-clonsultanls, and DBE commitment amount.. Actual Davrnents will be
collected throuOh the web-baNd Eaual ODPOrtunllv Rloortino Svstem flOORS) and commitments wm be collected throuoh
the AnticiDated DB!; Partieiaation Statements
It ia extremely Important that you continue to submit the Anticipated D8E Partldpatlan Statement at the pre-construCtion
confereneo for all fede"'l and state funded projects. This primary information is used by the State and Federel
Government to evalulte our performance In the DBE Program.
In addition, for foderal and state funded projects, you muela'so report actual paymenta In the Equal Opportunity
Reporting System. Revisions were made to the soeciflcations beginning w~h the October 2000 letting that stales in
section Q-6.7: '
The Conlr2ctor Is required to report mOnthly. through the Department's Equal Opportunity Repol1ing System on
the Internet al www.dot.state.fi.u..actualpayments.retain.ge. minority slatus. and the war!< type at all
subcontractors and suppll""'.
Since the spectfleations were reviSed, we have made some additional modiflcatlPrnlto ease the burden on the contractor
We will pu...ue making the pennanent modifications to the specifications. In the interim, eaC/1 month you must report
adual payments to all D8E suboontractOl'$, sul>-coMultants and suppliers. Pavments to all non-D8E subcontractors and
sub-consultants will need to ba reported either monthlY or et tha and oIths prolee!. Pavments to non.QBE suooiers need
not be "corted at all. This information can be submitted In hard coov form if necessarY
InstruCtions for accessing the EORS are Included, If you have any questions, please contact the Equal Opportunity Office
al(85O) 414-4747.
INSTRUCTIONS FOR ACCESSING THE
EQUAl. OPPORTUNITY REPORTING SYSTEM
Purpose
The Florida Department of Transportation. Equal Opportunity Offica has been charged with requirements of reporting
Disadvantaged Business Enterprise InformatiOn to the U.S. Department 01 Transportation, Federel HighWey
Administration (FHWA) according to the new 4e Code of Federal Regulations Pert 26. The Equal Opportunity Reporting
system wes developed as a solution to collect'thlslnformation.
Objective
The Equal Opportunity Reporting system will collact information of actual payments and retainage paid to the Prime
ConsultanVContraclor by the Department of Transportation and the Prime ConsullanVContracto(s actual payments and
retainage paid to thair subs and suppliers, by the type of war!< they performed. The repol1ing of this infOllTlation will be
performed by the Prime on a monthly basis for an Invoice or estimate number per contract.
To establish access 10 the new Equal Opportunity Reporting System (BIzWllb),
contact Bu.iness Imovatians Plus tOil-free at 1-1177-249-8725.
The site location is ht1p;/Iwww.blplncweb8ppa.com/bizwebflorldal
:'1S.tIa6.1,
I.QUAL OPPOIil'71..lHITV omeE
,-
"-P<I....
INSTRUCTIONs FOR COMPLETING DBElAA PLAN
NOTE: THE DBElAA PLAN MUST BE APPROVED BY THE EQUAL OPPORTUNITY
OFFice AND COMPLETED IN ACCORDANCE WITH CHAPTER 14-78, FLORIDA
ADMINISTRATIVE CODE
DBElAA PLANS
DBEfAA Plans must be submitl9d by the prime contractor, be submitted on company
letl9rhead (first page only), sIgned by a company official, dated and contain all elements
of an etfec;tiye DBElAA Plan (sample enclOsed).
Plans that do not meet th_ mandatory requirements may not be approved. Approvals
are for . {3) th,.. yeer period and should be updatlld at anytime there is a change in the
company's OBi Liaison Ol'Iicer and/or President.
DBElAA Plans must be received with the contrac:tors bid or received by the Equal
Opportunity Office prior to the letting for the contract to be awarded.
MAIL PLANS TO:
. Florida Department of Transportation
Equal Opportunity Office
Contract Compliance Section
605 Suwannee Street, MS 65
Tallahassee, Florida 32399-0450
Questions concerning the DBElAA Plan may be directed to the Contract Compliance
Section by calling (850) 414-4747
'.
17~1I
I'CUAL OPfleATUNlTY O~,
,alOI
f"IVnCl!l
DBE AFFIRMAllVE ACTION PLAN
POUCYSTATEMENT
II is tile po/Icy Of that diSlldvantllged businesses.
as defined by 49 CFR Part 26, Subpart 0 and implemented under Rule Chapter 14-78. F.A.C., shall have the
opportunity to participate liS subcontractors and supptiers on all centrad. .w.rded by the Florida Department
of Transportation.
The requirements or Rule Chapter 14-78, F.A.C., shall apPlv to all contracts enlered into between the
Florida Depar1ment of Transportation and
Subcontractors and/or suppliers 10
will also be bound by IIle requirements of Rule Chapter 14-78 F.A.C.
, and lis subeontractors shall take
all necessary lIr1d reasonable steps in accordance wilh Chapter 14-78, FA C., to 8nsure that disadvantaged
businesses have the opportunity to compete and perform work contracted with the Florida Department or
T ransporlation.
, and its subcontractors shall
not disa1mlnate on \he basis of race, color, religion, nl!ltional origin, disabllty. sex, or age in the administration
or contracts with the Department of Transportation.
. hes designated and appointed
a liaison OffICer 10 d8llelop, maintain, and monitor the DBE Affirmative AllIion Plan implemenlalion. The
Liaison Olllcer will be responsible for disseminating this policy slalemen\ tI1roughout
and 10 disadvantaged controlled
businesses. The statementls posted on notice boards of the Company.
x
. President
x
27f.0..,i
eQIJAL.O~NI""'OfIlIl'ta!
,-
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I. DESIGNA nON OF UAlS0N OFFICER
will aggressively recruit
disadvantaged businesses as sulx;ontractors and suppliers fOf all contractJl with the Florida Department of
Transportation. The Company has appointed a Uaison Officer to de\lelop and maintain this AlIlrmative Action
Plan In lIC;COl'clanoe with the requirements of Rule Chapter 14-78, F.AC,
The Ualson 0fIIcer will haw primary responslbll11y fOf developing, maintaining, and mon~orlng the
Company's utilization of disadvantaged subcontractors in add~ion 10 the foUowfng specific duties;
(1) Th"liaison OIftcer shllllllllgresslvely solicit bids from disadvantaged business
subcontractors fOf all Florida Department of Transportation contracts;
(2) The liaison Officer will submit all recon:Is, reports, Md documents required by the Florida
Department of Transportation, and shall maintain such records for a period of not less than three
years, Of as directed by any specific contractual requirements of the Aorida Department of
Transportation,
The follOWIng Individual has been designated LIaison Officer with responsibility for implementing the
Company's alIlrFlllllive action program In 80CQrdance with the requirements of the FloIida Department
Transportation.
II. AFFIRMATIVE ACTION METHODS
In order to formulate a realistic Affirmative Action Plan,
has Identified the follOWIng known barriers to participation by disadvantaged subcontractors, before describing
~s proposed affirmative action methods:
1, LIICk of qualilled disadvantaged sulx;ontradors In our specific geographical areas of work;
2. LIICk of certified disadVllntaged subcontractOfS who seek to perfonm FIOfida Department of
TransportatJon work;
3. Lack of interest in performing on Florida Department of Transportlllion contracts;
4. Lack of response when requested 10 bid:
5. Urnlted kncwfedge of FloIida Department of Transportstlon plans and specifications to
prepare a I'llSpOnslble bid.
In View of tile barriers to disadvantaged businesses stated aboIIe, II shall be the policy of
. to provide opportunity by
utilizing the fOllowing affinm8llve action methods to ensure particioatJon on the contracts with the Flolida
Department of Transportation. will;
1. Provide written notice to all certified DBE 8ubcontractors in the geographical area where the
wor1< Is 10 be subcontracted by the Company;
2. Advertise In minority focused media concerning subcontract opportunities with the Company;
3. Select Portions of the work to be perfon'ned by DBEs In order to increase the likelihood of meeting
contract goals (Indudlng, where appropriste, breaking down contracts into economically feasible
units to fadlitate DBE participation);
2~'1
IiQIJAt. OJlPORTLINITY OFFICI!
11."
Plttt'dl.
4. Provide adequate information about the plans, specifications, and requirements of the contract, not
rejectJng subcontractors without sound reasons based on a thorough Investigation of their
capabllltles;
5. Wlllve requirements r:I performance bonds where it is practical to do so;
6. Attend pre-bid meetings held by the Florida Department of Transportation to apprise disadvantaged
subcontractors r:I opportunities with the Company;
7. Follow up on initial soliatations of interest to DBE subcontnsclors to determine with certainty
whether the DBE company is interested in the subcontract opportunity.
understands that this list
of aIlirmalive action methods is not exhaustive and wi" inClude addnional approaches after halIing established
familiarity with the dsadvanl~ed subcontracting oommunny and/or determined the stated approaches to be
ineffective.
'". IMPLEMENTA110N
On contracts with specific DBE goals. .
will make every efforllo meet oontract goals as stated by utilizing its affirmative action methods. On projects
with no specific 90l11s,the Co~ny wiD, as an expression of good faith, seek to utilize DBE subcontractors
where work is to be subcontracted,
IV. REPOR11NG
shall keep and maintain
such records as are nec:easary to determine the Coll1Pllny's compliance with its DBE Amrmative Action Plan.
The Company will design ns reoord keeping system to indica/e:
1. The number of DBE subcontractors and suppliers used by the Company. identifying ltte items
of work.. materials and services provided;
2. The efforts and progress being made in obtaining DBE subcontractors through local and
community sources;
3. Documentation of all oontracts, to include oorresponden<:e. telephone calls, newspaper
advertisements, etc.. to obtain DBE participation on all Florida Department of Transportation projects;
4. The Company shall comPlY with Florida Department of Transportation's requirements
regarding payments to subconlTactors includin9 DBEs for each month (estimate period) in
which the companies have worked.
V. D8E DIRECTORY
will utll/;z:e the DBE Directory
published by the Florida Department of Transportation.
The Company will distribute Form Number 275-030-01, Schedule A Certification Form Number 1, to
potential DBE contractors and assist in their completion.
FLORIDA DEPARTMENT OF TRANSPORTATION
BID OPPORTUNITY LIST
;n~~o-I'
EQUIL OPPORTUNTV 0WlC&
'...
.......611
Please complete and mail or fax to:
Equal Opportun~y otIIce
605 Suwannee St., MS 65
Tallahassee, Fl 32399-0450
TELEPHONE: (850) 414-4747
FAX: (850) 414-4879
This Information may also be included in your bid or proposal package.
Prime ContraetorlConsultant:
AddresSfTelephone Number
BidlProposal Number:
Quote Submitted MMIYR:
49 CFR Part 26.11 requires tile Florida Department of Transportation to develop and maintain a 'bid opportunity list.-
The list is intended to be a listing of all finn. tIlet alii particlpatlnQ, or attempting to participate, on DOT ....i.ted
contracts. The 1i.1 must Include all firms that bid on prime contraCtS, or bid or quote ...bcontracts and materta's suppiie.
on DOT """sled projects, including both D6es and non-08Es. For consulting companies thl. Ii., must include all
subconsullants con18cting you and expressing an Interest In teaming wltll you on a specific DOT aSSisted project. Prtme
oontractol$ and consultants must provide information lor NOS.l, 2, 3 and 4' and .hould provide any information they have
aVllilable on Numb.... 5, 6, 7, and 8 farthemsalves, and thair subcontractors and subconsullants.
1. Federal Tax 10 Number:
2. Firm Name:
3. Phone:
4. Address:
5, Year Firm Established:
1. Federal Tex 10 Number:
2. Firm Name:
3. Phone:
4. Address:
5. Year Firm Established:
1. Federal Tax 10 Number.
2. Firm Name:
3. Phone:
4. Address:
5. Year Firm !;stabllshed:
6. [JOllt: 8. Annual Gross Receipts
[J Non-OBE [J Le.s than SI nilIon
[J Between $1 - 55 milion
a Bet.......n S5 - $10 milion
7. [J Sub<ontractor [J _en $10-$15mlUlon
[J Subeonsyllant a More lt1an $15 million
6. OOBe 8. Annual Gross Receipts
[J Non.OBE [J Le.. than 51 milion
C Between $1 .. ~ million
o Between S5. $10 million
7. a Subcontractor [J Between $fO - $15 million
C Suboon.u~ant [J Mo", then $15 ""11100
8. [JOBE 8. Annual Gross Receipts
o Non-DBE a Les. thin $1 million
a Between $1 - 55 milNon
[J Between 55.510 million
7. [J Subcontrootor [J Between 510 -$15 million
a Suboon.ullant a MOl1llhan $15 million
Exhibit 3 to Attachment B
Required Contract Provisions Federal-Aid Construction Contracts
I. General
II. Nondiscrimination
III. Nonseqreqated Facilities
IV. Payment of Predetermined Minimum Waqe
V. Statements and Payrolls
VI. Record of Materials. Supplies. and Labor
VII. Sublettinq or Assiqninq the Contract
VIII. Safety: Accident Prevention
IX. False Statements Concerninq Hiqhway Projects
X. Implementation of Clean Air Act and Federal Water Pollution Control Act
XI. Certification Reqardinq Debarment. Suspensionlneliqibllity. and Voluntary Exclusion
XII. Certification Reqardinq Use of Contract Funds for Lobbyinq
Attachments
A. Employment Preference for Appalachian Contracts (included in Appalachian contracts only)
I. GENERAL
1. These contract provisions shall apply to all work performed on the contract by the
contractor's own organization and with the assistance of workers under the contractor's
immediate superintendence and to all work performed on the contract by piecework,
station work, or by subcontract.
2. Except as otherwise provided for in each section, the contractor shall insert in each
subcontract all of the stipulations contained in these Required Contract Provisions, and
further require their inclusion in any lower tier subcontract or purchase order that may in
turn be made. The Required Contract Provisions shall not be incorporated by reference in
any case. The prime contractor shall be responsible for compliance by any subcontractor
or lower tier subcontractor with these Required Contract Provisions.
3. A breach of any of the stipulations contained in these Required Contract Provisions shall
be sufficient grounds for termination of the contract.
4. A breach of the following clauses of the Required Contract Provisions may also be
grounds for debarment as provided in 29 CFR 5.12:
Section I, paragraph 2;
Section IV, paragraphs 1, 2, 3, 4, and 7;
Section V, paragraphs 1 and 2a through 2g.
5. Disputes arising out of the labor standards provisions of Section IV (except paragraph 5)
and Section V of these Required Contract Provisions shall not be subject to the general
disputes clause of this contract. Such disputes shall be resolved in accordance with the
procedures of the U.S. Department of Labor (DOL) as set forth in 29 CFR 5, 6, and 7.
Disputes within the meaning of this clause include disputes between the contractor (or
DEP Contract No. DC646, Exhibit 3 to Attachment B
any of its subcontractors) and the contracting agency, the DOL, or the contractor's
employees or their representatives.
6. Selection of labor: During the performance of this contract, the contractor shall not:
a. discriminate against iabor from any other State, possession, or territory of the
United States (except for employment preference for Appalachian contracts,
when applicable, as specified in Attachment A), or
b. employ convict labor for any purpose within the limits of the project unless it is
labor performed by convicts who are on parole, supervised release, or probation.
II. NONDISCRIMINATION
(Applicable to all Federal-aid construction contracts and to all related subcontracts of $10,000 or
more.)
1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements
not to discriminate and to take affirmative action to assure equal opportunity as set forth
under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR
60) and orders of the Secretary of Labor as modified by the provisions prescribed herein,
and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative
action standards for the contractor's project activities under this contract. The Equal
Opportunity Construction Contract Specifications set forth under 41 CFR 60-4.3 and the
provisions of the American Disabilities Act of 1990 (42 U.S.C. 12101 et seQ.) set forth
under 28 CFR 35 and 29 CFR 1630 are incorporated by reference in this contract. In the
execution of this contract, the contractor a9rees to comply with the following minimum
specific requirement activities of EEO:
a. The contractor will work with the State highway agency (SHA) and the Federal
Government in carrying out EEO obligations and in their review of his/her
activities under the contract.
b. The contractor will accept as his operating policy the following statement:
"It is the policy of this Company to assure that applicants are employed,
and that employees are treated during employment, without regard to
their race, religion, sex, color, national origin, age or disability. Such
action shall include: employment, upgrading, demotion, or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay
or other forms of compensation; and selection for training, including
apprenticeship, preapprenticeship, and/or on-the-job training."
2. EEO Officer: The contractor will designate and make known to the SHA contracting
officers an EEO Officer who will have the responsibility for and must be capable of
effectively administering and promoting an active contractor program of EEO and who
must be assigned adequate authority and responsibility to do so.
3. Dissemination of Policy: All members of the contractor's staff who are authorized to
hire, supervise, promote, and discharge employees, or who recommend such action, or
who are substantially involved in such action, will be made fully cognizant of, and will
DEP Contract No. DC646, Exhibit 3 to Attachment 8
implement, the contractor's EEO policy and contractual responsibilities to provide EEO in
each grade and classification of employment. To ensure that the above agreement will be
met, the following actions will be taken as a minimum:
a. Periodic meetings of supervisory and personnel office employees will be
conducted before the start of work and then not less often than once every six
months, at which time the contractor's EEO policy and its impiementation will be
reviewed and explained. The meetings will be conducted by the EEO Officer.
b. All new supervisory or personnel office employees will be given a thorough
indoctrination by the EEO Officer, covering all major aspects of the contractor's
EEO obligations within thirty days following their reporting for duty with the
contractor.
c. All personnel who are engaged in direct recruitment for the project will be
instructed by the EEO Officer in the contractor's procedures for iocating and
hiring minority group employees.
d. Notices and posters setting forth the contractor's EEO policy will be placed in
areas readily accessible to employees, applicants for employment and potential
employees.
e. The contractor's EEO policy and the procedures to implement such policy will be
brought to the attention of employees by means of meetings, employee
handbooks, or other appropriate means.
4. Recruitment: When advertising for employees, the contractor will include in all
advertisements for employees the notation: "An Equal Opportunity Employer." All such
advertisements will be placed in publications having a large circuiation among minority
groups in the area from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid bargaining agreement, conduct
systematic and direct recruitment through public and private employee referral
sources likely to yield qualified minority group applicants. To meet this
requirement, the contractor will identify sources of potential minority group
employees, and establish with such identified sources procedures whereby
minority group applicants may be referred to the contractor for employment
consideration.
b. In the event the contractor has a valid bargaining agreement providing for
exclusive hiring hall referrals, he is expected to observe the provisions of that
agreement to the extent that the system permits the contractor's compliance with
EEO contract provisions. (The DOL has held that where implementation of such
agreements has the effect of discriminating against minorities or women, or
obligates the contractor to do the same, such implementation violates Executive
Order 11246, as amended.)
c. The contractor will encourage his present employees to refer minority group
applicants for employment. Information and procedures with regard to referring
minority group applicants will be discussed with employees.
DEP Contract No. DC646, Exhibit 3 to Attachment B
5. Personnel Actions: Wages, working conditions, and empioyee benefits shall be
established and administered, and personnel actions of every type, including hiring,
upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without
regard to race, color, religion, sex, national origin, age or disability. The following
procedures shall be followed:
a. The contractor will conduct periodic inspections of project sites to insure that
working conditions and employee facilities do not indicate discriminatory
treatment of project site personnel.
b. The contractor will periodically evaluate the spread of wages paid within each
classification to determine any evidence of discriminatory wage practices.
c. The contractor will periodically review selected personnel actions in depth to
determine whether there is evidence of discrimination. Where evidence is found,
the contractor will promptly take corrective action. If the review indicates that the
discrimination may extend beyond the actions reviewed, such corrective action
shall include all affected persons. .
d. The contractor will promptly investigate all complaints of alleged discrimination
made to the contractor in connection with his obligations under this contract, will
attempt to resolve such complaints, and will take appropriate corrective action
within a reasonable time. If the investigation indicates that the discrimination may
affect persons other than the complainant, such corrective action shall include
such other persons. Upon compietion of each investigation, the contractor will
inform every complainant of all of his avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and increasing the skills of
minority group and women employees, and applicants for empioyment.
b. Consistent with the contractor's work force requirements and as permissible
under Federal and State regulations, the contractor shall make full use of training
programs, i.e., apprenticeship, and on-the-job training programs for the
geographical area of contract performance. Where feasible, 25 percent of
apprentices or trainees in each occupation shall be in their first year of
apprenticeship or training. In the event a speciai provision for training is provided
under this contract, this subparagraph will be superseded as indicated in the
special provision.
c. The contractor will advise employees and applicants for employment of available
training programs and entrance requirements for each.
d. The contractor will periodically review the training and promotion potential of
minority group and women employees and will encourage eligibie employees to
apply for such training and promotion.
7. Unions: If the contractor relies in whoie or in part upon unions as a source of employees,
the contractor will use his/her best efforts to obtain the cooperation of such unions to
increase opportunities for minority groups and women within the unions, and to effect
referrals by such unions of minority and female employees. Actions by the contractor
DEP Contract No. DC646, Exhibit 3 to Attachment B
either directly or through a contractor's association acting as agent will include the
procedures set forth below:
a. The contractor will use best efforts to develop, in cooperation with the unions,
joint training programs aimed toward qualifying more minority group members
and women for membership in the unions and increasing the skills of minority
group employees and women so that they may qualify for higher paying
employment.
b. The contractor will use best efforts to incorporate an EEO clause into each union
agreement to the end that such union will be contractually bound to refer
applicants without regard to their race, color, religion, sex, national origin, age or
disability.
c. The contractor is to obtain information as to the referrai practices and policies of
the iabor union except that to the extent such information is within the exclusive
possession of the labor union and such labor union refuses to furnish such
information to the contractor, the contractor shall so certify to the SHA and shall
set forth what efforts have been made to obtain such information.
d. In the event the union is unable to provide the contractor with a reasonable flow
of minority and women referrals within the time limit set forth in the collective
bargaining agreement, the contractor will, through independent recruitment
efforts, fill the employment vacancies without regard to race, color, religion, sex,
national origin, age or disability; making full efforts to obtain qualified and/or
qualifiable minority group persons and women. (The DOL has held that it shall be
no excuse that the union with which the contractor has a collective bargaining
agreement providing for exclusive referral failed to refer minority empioyees.) In
the event the union referral practice prevents the contractor from meeting the
obligations pursuant to Executive Order 11246, as amended, and these special
provisions, such contractor shall immediately notify the SHA.
8. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment:
The contractor shall not discriminate on the grounds of race, coior, religion, sex, national
origin, age or disability in the seiection and retention of subcontractors, including
procurement of materials and ieases of equipment.
a. The contractor shall notify all potential subcontractors and suppliers of his/her
EEO obligations under this contract.
b. Disadvantaged business enterprises (DBE), as defined in 49 CFR 23, shall have
equal opportunity to compete for and perform subcontracts which the contractor
enters into pursuant to this contract. The contractor will use his best efforts to
solicit bids from and to utilize DBE subcontractors or subcontractors with
meaningful minority group and female representation among their employees.
Contractors shall obtain lists of DBE construction firms from SHA personnel.
c. The contractor will use his best efforts to ensure subcontractor compliance with
their EEO obligations.
9. Records and Reports: The contractor shall keep such records as necessary to
document compliance with the EEO requirements. Such records shall be retained for a
DEP Contract No. DC646, Exhibit 3 to Attachment B
period of three years following completion of the contract work and shall be available at
reasonable times and places for inspection by authorized representatives of the SHA and
the FHW A.
a. The records kept by the contractor shall document the following:
1. The number of minority and non-minority group members and women
employed in each work classification on the project;
2. The progress and efforts being made in cooperation with unions, when
applicable, to increase employment opportunities for minorities and
women;
3. The progress and efforts being made in iocating, hiring, training,
qualifying, and upgrading minority and female employees; and
4. The progress and efforts being made in securing the services of DBE
subcontractors or subcontractors with meaningful minority and femaie
representation among their employees.
b. The contractors will submit an annual report to the SHA each July for the
duration of the project, indicating the number of minority, women, and non-
minority group employees currently engaged in each work classification required
by the contract work. This information is to be reported on Form FHW A-1391. If
on-the-job training is being required by special provision, the contractor will be
required to collect and report training data.
III. NONSEGREGATED FACILITIES
(Applicable to all Federal-aid construction contracts and to all related subcontracts of $10,000 or
more.)
a. By submission of this bid, the execution of this contract or subcontract, or the
consummation of this material supply agreement or purchase order, as appropriate, the
bidder, Federal-aid construction contractor, subcontractor, material supplier, or vendor,
as appropriate, certifies that the firm does not maintain or provide for its employees any
segregated facilities at any of its establishments, and that the firm does not permit its
employees to perform their services at any location, under its control, where segregated
facilities are maintained. The firm agrees that a breach of this certification is a violation of
the EEO provisions of this contract. The firm further certifies that no employee will be
denied access to adequate facilities on the basis of sex or disability.
b. As used in this certification, the term "segregated facilities" means any waiting rooms,
work areas, restrooms and washrooms, restaurants and other eating areas, timeclocks,
iocker rooms, and other storage or dressing areas, parking lots, drinking fountains,
recreation or entertainment areas, transportation, and housing facilities provided for
employees which are segregated by explicit directive, or are, in fact, segregated on the
basis of race, color, religion, national origin, age or disability, because of habit, local
custom, or otherwise. The only exception will be for the disabled when the demands for
accessibility override (e.g. disabled parking).
DEP Contract No. DC646, Exhibit 3 to Attachment B
c. The contractor agrees that it has obtained or will obtain identical certification from
proposed subcontractors or material suppliers prior to award of subcontracts or
consummation of material supply agreements of $10,000 or more and that it will retain
such certifications in its files.
IV. PAYMENT OF PREDETERMINED MINIMUM WAGE
(Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related
subcontracts, except for projects located on roadways classified as local roads or rural minor
collectors, which are exempt.)
1 . General:
a. All mechanics and laborers employed or working upon the site of the work will be
paid unconditionally and not less often than once a week and without subsequent
deduction or rebate on any account [except such payroll deductions as are
permitted by regulations (29 CFR 3) issued by the Secretary of Labor under the
Copeland Act (40 U.S.C. 276c)] the full amounts of wages and bona fide fringe
benefits (or cash equivalents thereof) due at time of payment. The payment shall
be computed at wage rates not less than those contained in the wage
determination of the Secretary of Labor (hereinafter "the wage determination")
which is attached hereto and made a part hereof, regardless of any contractual
relationship which may be alleged to exist between the contractor or its
subcontractors and such laborers and mechanics. The wage determination
(including any additional classifications and wage rates conformed under
paragraph 2 of this Section IV and the DOL poster (WH-1321) or Form FHWA-
1495) shall be posted at all times by the contractor and its subcontractors at the
site of the work in a prominent and accessible place where it can be easily seen
by the workers. For the purpose of this Section, contributions made or costs
reasonably anticipated for bona fide fringe benefits under Section 1 (b )(2) of the
Davis-Bacon Act (40 U.S.C. 276a) on behalf of laborers or mechanics are
considered wages paid to such laborers or mechanics, subject to the provisions
of Section IV, paragraph 3b, hereof. Also, for the purpose of this Section, regular
contributions made or costs incurred for more than a weekly period (but not less
often than quarterly) under plans, funds, or programs, which cover the particular
weekly period, are deemed to be constructively made or incurred during such
weekly period. Such laborers and mechanics shall be paid the appropriate wage
rate and fringe benefits on the wage determination for the classification of work
actually performed, without regard to skill, except as provided in paragraphs 4
and 5 of this Section IV.
b. Laborers or mechanics performing work in more than one classification may be
compensated at the rate specified for each classification for the time actually
worked therein, provided, that the employer's payroll records accurately set forth
the time spent in each classification in which work is performed.
c. All rulings and interpretations of the Davis-Bacon Act and related acts contained
in 29 CFR 1, 3, and 5 are herein incorporated by reference in this contract.
2. Classification:
DEP Contract No. DC646, Exhibit 3 to Attachment B
a. The SHA contracting officer shall require that any class of laborers or mechanics
employed under the contract, which is not listed in the wage determination, shall
be classified in conformance with the wage determination.
b. The contracting Dfficer shall approve an additiDnal classification, wage rate and
fringe benefits only when the fDllowing criteria have been met:
1. the work tD be perfDrmed by the additiDnal classificatiDn requested is nDt
perfDrmed by a classificatiDn in the wage determination;
2. the additiDnal classificatiDn is utilized in the area by the cDnstructiDn
industry;
3. the prDpDsed wage rate, including any bona fide fringe benefits, bears a
reasonable relatiDnship tD the wage rates cDntained in the wage
determinatiDn; and
4. with respect to helpers, when such a classificatiDn prevails in the area in
which the wDrk is performed.
c. If the cDntractor Dr subcontractDrs, as apprDpriate, the labDrers and mechanics (if
knDwn) tD be emplDyed in the additiDnal classificatiDn or their representatives,
and the contracting Dfficer agree on the c1assificatiDn and wage rate (including
the amDunt designated fDr fringe benefits where appropriate), a repDrt Df the
actiDn taken shall be sent by the cDntracting officer tD the DOL, AdministratDr Df
the Wage and HDur DivisiDn, EmplDyment Standards AdministratiDn,
WashingtDn, D.C. 20210. The Wage and HDur Administrator, or an authDrized
representative, will approve, modify, Dr disapprove every additiDnal classification
action within 30 days of receipt and SD advise the cDntracting Dfficer or will nDtify
the cDntracting officer within the 3D-day periDd that additional time is necessary.
d. In the event the cDntractDr or subcDntractDrs, as apprDpriate, the labDrers Dr
mechanics to be emplDyed in the additiDnal classification Dr their representatives,
and the cDntracting officer do not agree Dn the propDsed classification and wage
rate (including the amDunt designated for fringe benefits, where appropriate), the
cDntracting officer shall refer the questiDns, including the views of all interested
parties and the recommendation Df the cDntracting officer, tD the Wage and HDur
AdministratDr fDr determinatiDn. Said AdministratDr, or an authDrized
representative, will issue a determinatiDn within 30 days Df receipt and SD advise
the cDntracting Dfficer Dr will notify the cDntracting Dfficer within the 3D-day periDd
that additional time is necessary
e. The wage rate (including fringe benefits where apprDpriate) determined pursuant
to paragraph 2c Dr 2d Df this SectiDn IV shall be paid tD all workers perfDrming
work in the additional classificatiDn from the first day on which wDrk is perfDrmed
in the classificatiDn.
3. Payment of Fringe Benefits:
a. Whenever the minimum wage rate prescribed in the cDntract for a class Df
labDrers or mechanics includes a fringe benefit which is nDt expressed as an
hourly rate, the cDntractDr or subcDntractDrs, as appropriate, shall either pay the
DEP CDntract No. DC646, Exhibit 3 tD Attachment B
benefit as stated in the wage determination or shall pay another bona fide fringe
benefit or an hourly case equivalent thereof.
b. If the contractor or subcontractor, as appropriate, does not make payments to a
trustee or other third person, he/she may consider as a part of the wages of any
laborer or mechanic the amount of any costs reasonably anticipated in providing
bona fide fringe benefits under a plan or program, provided, that the Secretary of
Labor has found, upon the written request of the contractor, that the applicable
standards of the Davis-Bacon Act have been met. The Secretary of Labor may
require the contractor to set aside in a separate account assets for the meeting of
obligations under the plan or program.
4. Apprentices and Trainees (Programs of the U.S. DOL) and Helpers:
a. Apprentices:
1. Apprentices will be permitted to work at less than the predetermined rate
for the work they performed when they are employed pursuant to and
individually registered in a bona fide apprenticeship program registered
with the DOL, Employment and Training Administration, Bureau of
Apprenticeship and Training, or with a State apprenticeship agency
recognized by the Bureau, or if a person is employed in his/her first 90
days of probationary employment as an apprentice in such an
apprenticeship program, who is not individually registered in the
program, but who has been certified by the Bureau of Apprenticeship
and Training or a State apprenticeship agency (where appropriate) to be
eligible for probationary employment as an apprentice.
2. The allowable ratio of apprentices to journeyman-level employees on the
job site in any craft classification shall not be greater than the ratio
permitted to the contractor as to the entire work force under the
registered program. Any employee listed on a payroll at an apprentice
wage rate, who is not registered or otherwise employed as stated above,
shall be paid not less than the applicable wage rate listed in the wage
determination for the classification of work actually performed. In
addition, any apprentice performing work on the job site in excess of the
ratio permitted under the registered program shall be paid not less than
the applicable wage rate on the wage determination for the work actually
performed. Where a contractor or subcontractor is performing
construction on a project in a locality other than that in which its program
is registered, the ratios and wage rates (expressed in percentages of the
journeyman-ievel hourly rate) specified in the contractor's or
subcontractor's registered program shall be observed.
3. Every apprentice must be paid at not less than the rate specified in the
registered program for the apprentice's level of progress, expressed as a
percentage of the journeyman-level hourly rate specified in the
applicable wage determination. Apprentices shall be paid fringe benefits
in accordance with the provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe benefits, apprentices
must be paid the full amount of fringe benefits listed on the wage
DEP Contract No. DC646, Exhibit 3 to Attachment B
determination for the applicable classification. If the Administrator for the
Wage and Hour Division determines that a different practice prevails for
the applicable apprentice classification, fringes shall be paid in
accordance with that determination.
4. In the event the Bureau of Apprenticeship and Training, or a State
apprenticeship agency recognized by the Bureau, withdraws approval of
an apprenticeship program, the contractor or subcontractor will no longer
be permitted to utilize apprentices at less than the applicable
predetermined rate for the comparable work performed by reguiar
employees until an acceptable program is approved.
b. Trainees:
1. Except as provided in 29 CFR 5.16, trainees will not be permitted to work
at less than the predetermined rate for the work performed unless they
are employed pursuant to and individually registered in a program which
has received prior approval, evidenced by formal certification by the
DOL, Employment and Training Administration.
2. The ratio of trainees to journeyman-level employees on the job site shall
not be greater than permitted under the plan approved by the
Employment and Training Administration. Any employee listed on the
payroll at a trainee rate who is not registered and participating in a
training plan approved by the Employment and Training Administration
shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed. In
addition, any trainee performing work on the job site in excess of the
ratio permitted under the registered program shall be paid not less than
the applicable wage rate on the wage determination for the work actually
performed.
3. Every trainee must be paid at not less than the rate specified in the
approved program for his/her level of progress, expressed as a
percentage of the journeyman-level hourly rate specified in the
applicable wage determination. Trainees shall be paid fringe benefits in
accordance with the provisions of the trainee program. If the trainee
program does not mention fringe benefits, trainees shall be paid the full
amount of fringe benefits listed on the wage determination unless the
Administrator of the Wage and Hour Division determines that there is an
apprenticeship program associated with the corresponding journeyman-
level wage rate on the wage determination which provides for less than
full fringe benefits for apprentices, in which case such trainees shall
receive the same fringe benefits as apprentices.
4. In the event the Employment and Training Administration withdraws
approval of a training program, the contractor or subcontractor will no
longer be permitted to utilize trainees at less than the applicable
predetermined rate for the work performed until an acceptable program
is approved.
DEP Contract No. DC646, Exhibit 3 to Attachment B
c. Helpers:
Helpers will be permitted to work on a project if the helper classification is
specified and defined on the applicable wage determination or is approved
pursuant to the conformance procedure set forth in Section IV.2. Any worker
listed on a payroll at a helper wage rate, who is not a helper under a approved
definition, shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed.
5. Apprentices and Trainees (Programs of the U.S. DOT):
Apprentices and trainees working under apprenticeship and skill training programs which
have been certified by the Secretary of Transportation as promoting EEO in connection
with Federal-aid highway construction programs are not subject to the requirements of
paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and
trainees under such programs will be established by the particular programs. The ratio of
apprentices and trainees to journeymen shall not be greater than permitted by the terms
of the particular program.
6. Withholding:
The SHA shall upon its own action or upon written request of an authorized
representative of the DOL withhold, or cause to be withheld, from the contractor or
subcontractor under this contract or any other Federal contract with the same prime
contractor, or any other Federally-assisted contract subject to Davis-Bacon prevailing
wage requirements which is held by the same prime contractor, as much of the accrued
payments or advances as may be considered necessary to pay laborers and mechanics,
including apprentices, trainees, and helpers, employed by the contractor or any
subcontractor the full amount of wages required by the contract. In the event of failure to
pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or
working on the site of the work, all or part of the wages required by the contract, the SHA
contracting officer may, after written notice to the contractor, take such action as may be
necessary to cause the suspension of any further payment, advance, or guarantee of
funds until such violations have ceased.
7. Overtime Requirements:
No contractor or subcontractor contracting for any part of the contract work which may
require or involve the employment of laborers, mechanics, watchmen, or guards
(including apprentices, trainees, and helpers described in paragraphs 4 and 5 above)
shall require or permit any laborer, mechanic, watchman, or guard in any workweek in
which he/she is employed on such work, to work in excess of 40 hours in such workweek
unless such laborer, mechanic, watchman, or guard receives compensation at a rate not
less than one-and-one-half times his/her basic rate of pay for all hours worked in excess
of 40 hours in such workweek.
8. Violation:
Liability for Unpaid Wages; Liquidated Damages: In the event of any violation of the
clause set forth in paragraph 7 above, the contractor and any subcontractor responsible
DEP Contract No. DC646, Exhibit 3 to Attachment B
thereof shall be liable to the affected employee for his/her unpaid wages. In addition,
such contractor and subcontractor shall be liable to the United States (in the case of work
done under contract for the District of Columbia or a territory, to such District or to such
territory) for liquidated damages. Such liquidated damages shall be computed with
respect to each individual laborer, mechanic, watchman, or guard employed in violation
of the clause set forth in paragraph 7, in the sum of $10 for each calendar day on which
such employee was required or permitted to work in excess of the standard work week of
40 hours without payment of the overtime wages required by the clause set forth in
paragraph 7.
9. Withholding for Unpaid Wages and Liquidated Damages:
The SHA shall upon its own action or upon written request of any authorized
representative of the DOL withhold, or cause to be withheld, from any monies payable on
account of work performed by the contractor or subcontractor under any such contract or
any other Federal contract with the same prime contractor, or any other Federally-
assisted contract subject to the Contract Work Hours and Safety Standards Act, which is
held by the same prime contractor, such sums as may be determined to be necessary to
satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated
damages as provided in the clause set forth in paragraph 8 above.
V. STATEMENTS AND PAYROLLS
(Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related
subcontracts, except for projects located on roadways classified as local roads or rural collectors,
which are exempt)
1. Compliance with Copeland Regulations (29 CFR 3):
The contractor shall comply with the Copeland Regulations of the Secretary of Labor
which are herein incorporated by reference.
2. Payrolls and Payroll Records:
a. Payrolls and basic records relating thereto shall be maintained by the contractor
and each subcontractor during the course of the work and preserved for a period
of 3 years from the date of completion of the contract for all laborers, mechanics,
apprentices, trainees, watchmen, helpers, and guards working at the site of the
work.
b. The payroll records shall contain the name, social security number, and address
of each such employee; his or her correct classification; hourly rates of wages
paid (including rates of contributions or costs anticipated for bona fide fringe
benefits or cash equivalent thereof the types' described in Section 1 (b)(2)(B) of
the Davis Bacon Act); daily and weekly number of hours worked; deductions
made; and actual wages paid. In addition, for Appalachian contracts, the payroll
records shall contain a notation indicating whether the employee does, or does
not, normally reside in the labor area as defined in Attachment A, paragraph 1.
Whenever the Secretary of Labor, pursuant to Section IV, paragraph 3b, has
found that the wages of any laborer or mechanic include the amount of any costs
DEP Contract No. DC646, Exhibit 3 to Attachment B
reasonably anticipated in providing benefits under a plan or program described in
Section 1(b)(2)(B) of the Davis Bacon Act, the contractor and each subcontractor
shall maintain records which show that the commitment to provide such benefits
is enforceable, that the plan or program is financially responsible, that the plan or
program has been communicated in writing to the laborers or mechanics
affected, and show the cost anticipated or the actual cost incurred in providing
benefits. Contractors or subcontractors empioying apprentices or trainees under
approved programs shall maintain written evidence of the registration of
apprentices and trainees, and ratios and wage rates prescribed in the applicable
programs.
c. Each contractor and subcontractor shall furnish, each week in which any contract
work is performed, to the SHA resident engineer a payroll of wages paid each of
its employees (including apprentices, trainees, and helpers, described in Section
IV, paragraphs 4 and 5, and watchmen and guards engaged on work during the
preceding weekly payroll period). The payroli submitted shall set out accurately
and completely all of the information required to be maintained under paragraph
2b of this Section V. This information may be submitted in any form desired.
Optional Form WH-347 is available for this purpose and may be purchased from
the Superintendent of Documents (Federal stock number 029-005-0014-1), U.S.
Government Printing Office, Washington, D.C. 20402. The prime contractor is
responsible for the submission of copies of payrolls by all subcontractors.
d. Each payroll submitted shall be accompanied by a "Statement of Compliance,"
signed by the contractor or subcontractor or his/her agent who pays or
supervises the payment of the persons employed under the contract and shall
certify the following:
1. that the payroll for the payroll period contains the information required to
be maintained under paragraph 2b of this Section V and that such
information is correct and complete;
2. that such laborer or mechanic (including each helper, apprentice, and
trainee) employed on the contract during the payroll period has been
paid the full weekly wages earned, without rebate, either directly or
indirectly, and that no deductions have been made either directly or
indirectly from the full wages earned, other than permissible deductions
as set forth in the Regulations, 29 CFR 3;
3. that each laborer or mechanic has been paid not less that the applicable
wage rate and fringe benefits or cash equivalent for the classification of
worked performed, as specified in the applicable wage determination
incorporated into the contract.
e. The weekly submission of a properly executed certification set forth on the
reverse side of Optional Form WH-347 shall satisfy the requirement for
submission of the "Statement of Compliance" required by paragraph 2d of this
Section V.
f. The falsification of any of the above certifications may subject the contractor to
civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231.
DEP Contract No. DC646, Exhibit 3 to Attachment B
g. The contractor or subcontractor shall make the records required under paragraph
2b of this Section V available for inspection, copying, or transcription by
authorized representatives of the SHA, the FHW A, or the DOL, and shall permit
such representatives to interview employees during working hours on the job. If
the contractor or subcontractor fails to submit the required records or to make
them available, the SHA, the FHW A, the DOL, or all may, after written notice to
the contractor, sponsor, applicant, or owner, take such actions as may be
necessary to cause the suspension of any further payment, advance, or
guarantee of funds. Furthermore, failure to submit the required records upon
request or to make such records available may be grounds for debarment action
pursuant to 29 CFR 5.12.
VI. RECORD OF MATERIALS, SUPPLIES, AND lABOR
1. On all Federal-aid contracts on the National Highway System, except those which
provide solely for the installation of protective devices at railroad grade crossings, those
which are constructed on a force account or direct labor basis, highway beautification
contracts, and contracts for which the total final construction cost for roadway and bridge
is less than $1,000,000 (23 CFR 635) the contractor shall:
a. Become familiar with the list of specific materials and supplies contained in Form
FHWA-47, "Statement of Materials and labor Used by Contractor of Highway
Construction Involving Federal Funds," prior to the commencement of work under
this contract.
b. Maintain a record of the total cost of all materials and supplies purchased for and
incorporated in the work, and also of the quantities of those specific materials
and supplies listed on Form FHWA-47, and in the units shown on Form FHWA-
47.
c. Furnish, upon the completion of the contract, to the SHA resident engineer on
Form FHW A-47 together with the data required in paragraph 1 b relative to
materials and supplies, a final labor summary of all contract work indicating the
total hours worked and the total amount earned.
2. At the prime contractor's option, either a single report covering all contract work or
separate reports for the contractor and for each subcontract shall be submitted.
VII. SUBLETTING OR ASSIGNING THE CONTRACT
1. The contractor shall perform with its own organization contract work amounting to not
less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the
total original contract price, excluding any specialty items designated by the State.
Specialty items may be performed by subcontract and the amount of any such specialty
items performed may be deducted from the total original contract price before computing
the amount of work required to be performed by the contractor's own organization (23
CFR 635).
a. "Its own organization" shall be construed to include only workers employed and
paid directly by the prime contractor and equipment owned or rented by the
DEP Contract No. DC646, Exhibit 3 to Attachment B
prime contractor, with or without operators. Such term does not include
employees or equipment of a subcontractor, assignee, or agent of the prime
contractor.
b. "Specialty Items" shall be construed to be limited to work that requires highly
specialized knowledge, abiiities, or equipment not ordinarily available in the type
of contracting organizations qualified and expected to bid on the contractas a
whole and in general are to be limited to minor components of the overall
contract.
2. The contract amount upon which the requirements set forth in paragraph 1 of Section VII
is computed includes the cost of materiai and manufactured products which are to be
purchased or produced by the contractor under the contract provisions.
3. The contractor shall furnish (a) a competent superintendent or supervisor who is
employed by the firm, has full authority to direct performance of the work in accordance
with the contract requirements, and is in charge of all construction operations (regardless
of who performs the work) and (b) such other of its own organizational resources
(supervision, management, and engineering services) as the SHA contracting officer
determines is necessary to assure the performance of the contract.
4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with
the written consent of the SHA contracting officer, or authorized representative, and such
consent when given shall not be construed to relieve the contractor of any responsibility
for the fulfillment of the contract. Written consent will be given only after the SHA has
assured that each subcontract is evidenced in writing and that it contains all pertinent
provisions and requirements of the prime contract.
VIII. SAFETY: ACCIDENT PREVENTION
1. In the performance of this contract the contractor shall comply with all appiicable Federal,
State, and local laws governing safety, health, and sanitation (23 CFR 635). The
contractor shall provide all safeguards, safety devices and protective equipment and take
any other needed actions as it determines, or as the SHA contracting officer may
determine, to be reasonably necessary to protect the life and health of employees on the
job and the safety of the public and to protect property in connection with the
performance of the work covered by the contract.
2. It is a condition of this contract, and shall be made a condition of each subcontract, which
the contractor enters into pursuant to this contract, that the contractor and any
subcontractor shall not permit any employee, in performance of the contract, to work in
surroundings or under conditions which are unsanitary, hazardous or dangerous to
his/her health or safety, as determined under construction safety and health standards
(29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of
the Contract Work Hours and Safety Standards Act (40 U.S.C. 333).
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or
authorized representative thereof, shall have right of entry to any site of contract
performance to inspect or investigate the matter of compliance with the construction
safety and health standards and to carry out the duties of the Secretary under Section
107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333).
IX. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS
DEP Contract No. DC646, Exhibit 3 to Attachment B
In order to assure high quality and durable construction in conformity with approved plans and
specifications and a high degree of reliability on statements and representations made by
engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that
all persons concerned with the project perform their functions as carefully, thoroughly, and
honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts
related to the project is a violation of Federal law. To prevent any misunderstanding regarding the
seriousness of these and similar acts, the following notice shall be posted on each Federal-aid
highway project (23 CFR 635) in one or more places where it is readily available to all persons
concerned with the project:
NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL-AID
HIGHWAY PROJECTS
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United States, or of any State or Territory,
or whoever, whether a person, association, firm, or corporation, knowingly makes any false
statement, false representation, or false report as to the character, quality, quantity, or cost of the
material used or to be used, or the quantity or quality of the work performed or to be performed,
or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or
costs of construction on any highway or related project submitted for approval to the Secretary of
Transportation; or
Whoever knowingly makes any false statement, false representation, false report or false claim
with respect to the character, quality, quantity, or cost of any work performed or to be performed,
or materials furnished or to be furnished, in connection with the construction of any highway or
related project approved by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false representation as to material fact in any
statement, certificate, or report submitted pursuant to provisions of/he Federal-aid Roads Act
approved July 1, 1916, (39 Stat. 355), as amended and supplemented;
Shall be fined not more that $10,000 or imprisoned not more than 5 years or both."
X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL
ACT
(Applicable to all Federal-aid construction contracts and to all related subcontracts of $100,000 or
more.)
By submission of this bid or the execution of this contract, or subcontract, as appropriate, the
bidder, Federal-aid construction contractor, or subcontractor, as appropriate, will be deemed to
have stipulated as follows:
1. That any facility that is or will be utilized in the performance of this contract, unless such
contract is exempt under the Clean Air Act, as amended (42 U.S.C. 1857 et sea., as
amended by Pub.L. 91-604), and under the Federal Water Pollution Control Act, as
amended (33 U.S.C. 1251 et sea., as amended by Pub.L. 92-500), Executive Order
11738, and regulations in implementation thereof (40 CFR 15) is not listed, on the date of
DEP Contract No. DC646, Exhibit 3 to Attachment B
contract award, on the U.S. Environmental Protection Agency (EPA) List of Violating
Facilities pursuant to 40 CFR 15.20.
2. That the firm agrees to comply and remain in compliance with all the requirements of
Section 114 of the Clean Air Act and Section 308 of the Federal Water Pollution Control
Act and all regulations and guidelines listed thereunder.
3. That the firm shall promptly notify the SHA of the receipt of any communication from the
Director, Office of Federal Activities, EPA, indicating that a facility that is or will be utilized
for the contract is under consideration to be listed on the EPA List of Violating Facilities.
4. That the firm agrees to include or cause to be included the requirements of paragraph 1
through 4 of this Section X in every nonexempt subcontract, and further agrees to take
such action as the government may direct as a means of enforcing such requirements.
XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND
VOLUNTARY EXCLUSION
1. Instructions for Certification - Primary Covered Transactions:
(Applicable to all Federal-aid contracts - 49 CFR 29)
a. By signing and submitting this proposal, the prospective primary participant is
providing the certification set out below.
b. The inability of a person to provide the certification set out below will not
necessarily result in denial of participation in this covered transaction. The
prospective participant shall submit an explanation of why it cannot provide the
certification set out below. The certification or explanation will be considered in
connection with the department or agency's determination whether to enter into
this transaction. However, failure of the prospective primary participant to furnish
a certification or an explanation shall disqualify such a person from participation
in this transaction.
c. The certification in this clause is a material representation of fact upon which
reliance was placed when the department or agency determined to enter into this
transaction. If it is later determined that the prospective primary participant
knowingly rendered an erroneous certification, in addition to other remedies
available to the Federal Government, the department or agency may terminate
this transaction for cause of default.
d. The prospective primary participant shall provide immediate written notice to the
department or agency to whom this proposal is submitted if any time the
prospective primary participant learns that its certification was erroneous when
submitted or has become erroneous by reason of changed circumstances.
e. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier
covered transaction," "participant," "person," "primary covered transaction,"
"principal," "proposal," and "voluntarily excluded," as used in this clause, have
the meanings set out in the Definitions and Coverage sections of rules
implementing Executive Order 12549. You may contact the department or
DEP Contract No. DC646, Exhibit 3 to Attachment B
agency to which this proposal is submitted for assistance in obtaining a copy of
those regulations.
f. The prospective primary participant agrees by submitting this proposal that,
should the proposed covered transaction be entered into, it shall not knowingly
enter into any lower tier covered transaction with a person who is debarred,
suspended, declared ineligible, or voluntarily excluded from participation in this
covered transaction, unless authorized by the department or agency entering into
this transaction.
g. The prospective primary participant further agrees by submitting this proposal
that it will include the clause titled "Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered
Transaction," provided by the department or agency entering into this covered
transaction, without modification, in ail lower tier covered transactions and in all
solicitations for lower tier covered transactions.
h. A participant in a covered transaction may rely upon a certification of a
prospective participant in a lower tier covered transaction that is not debarred,
suspended, ineligible, or voluntarily excluded from the covered transaction,
unless it knows that the certification is erroneous. A participant may decide the
method and frequency by which it determines the eligibility of its principals. Each
participant may, but is not required to, check the nonprocurement portion of the
"Lists of Parties Excluded From Federal Procurement or Nonprocurement
Programs" (Non procurement List) which is compiled by the General Services
Administration.
i. Nothing contained in the foregoing shall be construed to require establishment of
a system of records in order to render in good faith the certification required by
this clause. The knowledge and information of participant is not required to
exceed that which is normally possessed by a prudent person in the ordinary
course of business dealings.
j. Except for transactions authorized under paragraph f of these instructions, if a
participant in a covered transaction knowingly enters into a lower tier covered
transaction with a person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to other remedies
available to the Federal Government, the department or agency may terminate
this transaction for cause or default.
* * * * *
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion--Primary Covered Transactions
1. The prospective primary participant 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;
DEP Contract No. DC646, Exhibit 3 to Attachment B
b. Have not within a 3-year period preceding this proposal been convicted of
or had a civil judgement rendered against them for commission of fraud or
a criminal offense in connection with obtaining, attempting to obtain, or
performing a public (Federal, State or local) transaction or contract under a
public transaction; vioiation of Federal 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 indicted for or otherwise criminally or civilly charged by a
governmental entity (Federal, State or local) with commission of any of the
offenses enumerated in paragraph. 1 b of this certification; and
d. Have not within a 3-year period preceding this application/proposal had
one or more public transactions (Federal, State or local) terminated for
cause or default.
2. Where the prospective primary participant is unable to certify to any of the
statements in this certification, such prospective participant shall attach an
explanation to this proposal.
* * * * *
2. Instructions for Certification - Lower Tier Covered Transactions:
(Applicable to all subcontracts, purchase orders and other lower tier transactions of
$25,000 or more - 49 CFR 29)
a. By signing and submitting this proposal, the prospective lower tier is providing
the certification set out below.
b. The certification in this clause is a material representation of fact upon which
reliance was placed when this transaction was entered into. If it is later
determined that the prospective lower tier participant knowingly rendered an
erroneous certification, in addition to other remedies avaiiable to the Federai
Government, the department, or agency with which this transaction originated
may pursue available remedies, including suspension and/or debarment.
c. The prospective lower tier participant shall provide immediate written notice to
the person to which this proposal is submitted if at any time the prospective lower
tier participant learns that its certification was erroneous by reason of changed
circumstances.
d. The terms "covered transaction," "debarred," "suspended," "ineligible," "primary
covered transaction," "participant," "person," "principal," "proposal," and
"voluntarily excluded," as used in this clause, have the meanings set out in the
Definitions and Coverage sections of rules implementing Executive Order 12549.
You may contact the person to which this proposal is submitted for assistance in
obtaining a copy of those regulations.
DEP Contract No. DC646, Exhibit 3 to Attachment B
"
e. The prospective lower tier participant agrees by submitting this proposal that,
should the proposed covered transaction be entered into, it shall not knowingly
enter into any lower tier covered transaction with a person who is debarred,
suspended, declared ineligible, or voluntarily excluded from participation in this
covered transaction, unless authorized by the department or agency with which
this transaction originated.
f. The prospective lower tier participant further agrees by submitting this proposal
that it will include this clause titled "Certification Regarding Debarment,
Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered
Transaction," without modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
g. A participant in a covered transaction may rely upon a certification of a
prospective participant in a lower tier covered transaction that is not debarred,
suspended, ineligible, or voluntarily excluded from the covered transaction,
unless it knows that the certification is erroneous. A participant may decide the
method and frequency by which it determines the eligibility of its principals. Each
participant may, but is not required to, check the Nonprocurement List.
h. Nothing contained in the foregoing shall be construed to require establishment of
a system of records in order to render in good faith the certification required by
this clause. The knowledge and information of participant is not required to
exceed that which is normally possessed by a prudent person in the ordinary
course of business dealings.
1. Except for transactions authorized under paragraph e of these instructions, if a
participant in a covered transaction knowingly enters into a lower tier covered
transaction with a person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to other remedies
available to the Federal Government, the department or agency with which this
transaction originated may pursue available remedies, including suspension
and/or debarment.
.,.. *.,.. * *
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion--Lower Tier Covered Transactions:
1. The prospective lower tier participant certifies, by submission of this proposal, that neither
it nor its principals is presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from participation in this transaction by any Federal
department or agency.
2. Where the prospective lower tier participant is unable to certify to any of the statements in
this certification, such prospective participant shall attach an explanation to this proposal.
.,.. .,.. .. .,.. *
XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING
DEP Contract No. DC646, Exhibit 3 to Attachment B
(Applicable to all Federal-aid construction contracts and to all related subcontracts which exceed
$100,000 - 49 CFR 20)
1. The prospective participant certifies, by signing and submitting this bid or proposal, to the
best of his or her knowledge and belief, that:
a. 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 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 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.
b. If any funds other than Federal appropriated funds have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee of
any Federal agency, a Member of Congress, an officer or employee of Congress,
or an employee of a Member of Congress in connection with this Federal
contract, grant, loan, or cooperative agreement, the undersigned shall complete
and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in
accordance with its instructions.
2. This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered into. Submission of this certification is a
prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. 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.
3. The prospective participant also agrees by submitting his or her bid or proposal that he or
she shall require that the language of this certification be included in all lower tier
subcontracts, which exceed $100,000 and that all such recipients shall certify and
disclose accordingly.
ATTACHMENT A. EMPLOYMENT PREFERENCE FOR APPALACHIAN CONTRACTS
(Applicable to Appalachian contracts only.)
1. During the performance of this contract, the contractor undertaking to do work which is,
or reasonably may be, done as on-site work, shall give preference to qualified persons
who regularly reside in the labor area as designated by the DOL wherein the contract
work is situated, or the subregion, or the Appalachian counties of the State wherein the
contract work is situated, except:
a. To the extent that qualified persons regularly residing in the area are not
available.
b. For the reasonable needs of the contractor to employ supervisory or specially
experienced personnel necessary to assure an efficient execution of the contract
work.
DEP Contract No. DC646, Exhibit 3 to Attachment B
c. For the obligation of the contractor to offer employment to present or former
employees as the result of a lawful collective bargaining contract, provided that the
number of nonresident persons employed under this subparagraph 1 c shall not
exceed 20 percent of the total number of employees employed by the contractor on
the contract work, except as provided in subparagraph 4 below.
2. The contractor shall place a job order with the State Employment Service indicating (a)
the classifications of the laborers, mechanics and other employees required to perform
the contract work, (b) the number of employees required in each classification, (c) the
date on which he estimates such employees will be required, and (d) any other pertinent
information required by the State Employment Service to complete the job order form.
The job order may be placed with the State Employment Service in writing or by
telephone. If during the course of the contract work, the information submitted by the
contractor in the original job order is substantially modified, he shall promptly notify the
State Employment Service.
3. The contractor shall give full consideration to all qualified job applicants referred to him by
the State Employment Service. The contractor is not required to grant employment to any
job applicants who, in his opinion, are not qualified to perform the classification of work
required.
4. If, within 1 week following the placing of a job order by the contractor with the State
Employment Service, the State Employment Service is unable to refer any qualified job
applicants to the contractor, or less than the number requested, the State Employment
Service will forward a certificate to the contractor indicating the unavailability of
applicants. Such certificate shall be made a part of the contractor's permanent project
records. Upon receipt of this certificate, the contractor may employ persons who do not
normally reside in the labor area to fill positions covered by the certificate,
notwithstanding the provisions of subparagraph 1 c above.
5. The contractor shall include the provisions of Sections 1 through 4 of this Attachment A in
every subcontract for work which is, or reasonably may be, done as on-site work.
DEP Contract No. DC646, Exhibit 3 to Attachment B
Exhibit 4 to Attachment B
General Decision Number FL030097
Superseded General Decision No. FL020097
State, Florida
construction Type:
HEAVY
County (ies) :
DE SOTO
GLADES
HARDEE
HENDRY
HIGHLANDS
MONROE
OKEECHOBEE
HEAVY CONSTRUCTION PROJECTS (including Sewer & Water Line
Construction & Drainage Projects.)
Modification Number
o
Publication Date
06/13/2003
COUNTY (ies) ,
DE SOTO
-- -----Gl:;ADES-- -- --- --...
HARDEE
HENDRY OKEECHOBEE
----~---- - ~---
--1frGHr;l\NUS-- .-- ------
MONROE
SUFL2023A 10/01/1994
CARPENTERS
Rates
12.00
Fringes
ELECTRICIANS
14. SO
LABORERS,
Unski lled
Pipe layers
7.81
9.00
PIPEFITTERS
10.00
POWER EQUIPMENT OPERATORS;
Backhoe
Grader
Loader
Tractor
Trenching Machine
12.00
12.00
12.00
12.00
13 .50
TRUCK DRIVERS
10.00
----------------------------------------------------------------
WELDERS - Receive rate prescribed for craft performing operation
to which welding is incidental.
================================================================
Unlisted classifications needed for work not included within
the scope of the classifications listed may 'be added after
award only as provided in the labor standards contract clauses
(29 CFR 5.5 (a) (1) (ii)).
-- -- - - - -- -- -- - - -- -- -- -- -- -- -- -- -- J)EP Lonfrllet"No. OC64"6~ Exhibit-4-to-A:tlaekmeftt-B,-Fage ~-ofJ
In the listing above, the "SU" designation means that rates
listed under that identifier do not reflect collectively
bargained wage and fringe benefit rates. Other designations
indicate unions whose rates have been determined to be
prevailing.
WAGE DETERMINATION APPEALS PROCESS
1.) Has there been an initial decision' in the matter? This can
be:
* an existing published wage determination
* a survey underlying a wage determination
* a Wage and Hour Division letter setting forth a
position on a wage determination matter
* a conformance (additional classification and rate)
ruling
On survey related matters, initial contact, including requests
for summaries of surveys, should be with the Wage and Hour
Regional Office for the area in which the survey was conducted
because those Regional Offices have responsibility for the
Davis-Bacon survey program. If the response from this initial
contact is not satisfactory, then the process described in 2.)
and 3.) should be followed.
With regard to any other matter not yet ripe for the formal
process described here, initial contact should be with the Branch
of Construction Wage Determinations. Write to:
Branch of Construction Wage Determinations
Wage and Hour Division
u. S. Department of Labor
200 Constitution Avenue, N. w.
Washington, D. C. 20210
2.) If the answer to the question in 1.) is yes, then an
interested party (those affected by the action) can request
review and reconsideration from the Wage and Hour Administrator
(See 29 CFR Part 1.8 and 29 CFR Part 7). Write to:
Wage and Hour Administrator
u.S. Department of Labor
200 Constitution Avenue, N. W.
Washington, D. C. 20210
The request should be accompanied by a full statement of the
interested party's position and by any information (wage payment
data, project description, area practice material, etc.) that the
requestor considers relevant to the issue.
3.) If the decision of the Administrator is not favorable, an
interested party may appeal directly to the Administrative Review
Board (formerly the Wage Appeals Board). Write to:
Administrative Review Board
U. S. Department of Labor
200 Constitution Avenue, N. W.
Washington, D. C. 20210
DEP Cbntract No. 646, Exhibit 4 to Attachnent B, Page 2 of 3
4.) All decisions by the Administrative Review Board are final.
END OF GENERAL DECISION
DEP Contract No. DC646, Exhibit 4 to Attachment B, Page 3 of3
Attachment "en
DISCLOSURE OF LOBBYING ACTIVTI1ES
Complete this form to dlsclolc lobbying activities putSlllltlt to 31 U.S.C. 1352
1. Type ofPedcm1 ActioD:
o
2. StatuaofFcdcn:lAction
o
3. _Typo:
o
tillDg
. ....
. ChJo>ao 00Iy,
'""'----
dJltcofbstrcport "
L __
b. _
c, coopeDti:ve.~
d. """
e. loan guarantee
f. JoaoimluImc::e
a. bidto&dapp1ication
b,__
c. post-award
Fa<
o Prime
s.
'ty in :No.4 is Subawardcz:, Enter Name
of~
4. Name and Address of Reporting Butity:
Ds.,,;,wmlce
Til!ll" ifbunwL'
CoDgleaion-.l District, if known:
Congresaional District, if known,:
Fedt:ra1 Propun NanWDescription:
6. _ IlopommonUA....,.,
8.
CPDANumbrz, ifapplkDbk:
9. AwudAmmmt.if""""'"
$
In
b. IndiYidulls Pcrfonnina: SCfVioeI (itIcbultng address if
~tfromNtJ.lOa}
(ltut name,jintllCUM, MlJ:
(o.1kJx:hCont.blaatioftSMet(s) SF-UlA,ifraecu.rary)
11. lGfommion req 1hooa&h 1hia fonn is audJodu:d by SignaInP-'
1ltIe31 U.S.C 'DD 1352. Thi&diaclosureoflobbyl
activities is rcpreseorttioD affact upon whi~ PrintNamc:
reliance laced by the ticrabove. wbcn.tbis
was wade entcIRd into. This dbclosurc is n:qajn:d nt1e:
, 31 U.s.c. 1352. This information wiD btl
to Congtcu 8cmi-aonuaD.y and will beavAilab.le Telephone No.:
for 'cinspectif?J1. AnYptDQllwhofailstofilethe
. didoeure IIhaI1 be IUhjait to . dvD. pcmalty of
left than $10.000 and DOl more than $100,000 f<<
failure.
Date:
Authorized for l..oc:a1 Reproduction
S_ Fmm-LU. (Rev 7-97)
Porm DEP 55-221 (01101)
INSTRUCTIONS POR COMPLETION OP SP-lli., DISCLOSURE OP LOBBYING ACTIVIT1ES
This diSclosure fom;1 shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the
initiation or receipt ofa covered Fedetal action, or a material change to a previous filing, pursuBrit to title 31 U.S.C.
section 1352. The filing of a form is required for each payment or agreerqent to make payment to any lobbying entity
for influencing or attempting to influence an officer or employee of any agency, a Member of Congress in connection
with a covered Pederal action. Complete all items that apply for both the initial filing and material change report.
Refer to the implementing guidance pub~ed by the Office pfManagcmont anti Budget for additional information.
1. Identify the type of covered federal action for which lobbying activity is and/or has been
secured to influence the outcome of a covered Fcdcnl action.
2, IdentifY the status of covered Federal action
3. . Identify the appropriate classificadon afthis report. If this is a follow up report caused by a material
change to the infonnation previously reported. enter the year and quarter in which the change occurred.
Enter the date of the last previously submitted report by the reporting entity for this covered Federal
action.
4. Enter the: full name, address, city, state and ':zip codc of the: reporting entitY. Include Congressional
District, ifknown. Check the appropriate classification of the reporting entity that deai~tes if 1t is or
expects to be, a prime or subawardre:cipient. Identify the tier of the subawardee, e.g., the first .
subawardee of the prime is the 111 tier. Subawards include but are not limited to subcontracts, subgrants
and contract awards under grants.
J. If the organization filing the rcport:in item 4 checks "Subawardee", then enter the full name, address,
city, state .and zip code of the prime Federal recipient. Include: Congressional District, if known.
6. Enter the name of the Federal agency making the award or loan commitment. Include at least onc
organizational level below agencY.Da1ne, if known. For example. Department ofTransportatioo. United
States Coast Guard.
7. Enter the name oftbe Federal program name. or description for the covered Federal action (item I). If
known, enter the full Catalog ofFede.ral Oomestic AssiatanCe (CFDA) number for grants, cooperative
agreements, loans, and loan commitments. '
8. Enter the moat appropriate Federal identifying number available for the Federal identified in item 1 (e.g.,
Request for Proposal (RFP) number; Invil:8tion to 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-90-001.''
9. For a covered Federal action where there has been'an award or loan commitment by the Federal agency,
enter the Federal amount of the award/loan commitment for the prime entity identified in item 4 or 5.
10. (a) Enter the full name, address, city, state and zip code of the lobbying entity engaged by tbe reporting
entity identifie4 in item 4 to influence the covered Federal action.
(b) Enter the full names of the jndividua1(s) perfon;nin~ services. and include fun address if different
from 10 (a).. Enter the'LastName, First Name, atld Middle Initial (MI).
11. The Certifying official.shall sign llI1d date the form, print biBlher name. title and telephone
number.
AccordiDg to the Paperwodc RBducticm kt, IS ,amem:HId, no persons am mjuiIed to n:spond to a collecti<m of infonnation
unka it displays a valid OMB CoDtroI Nomhcc. The.Y1lid OMB control numbcrfor this ioformatioa col1cction is OMB
No. 0J48.0046. Public r;epmtiug bardcD b this ceIIoctian of itIfoImation lc estimated to aw:rage 30 minuUl& per rmponae.
including time for nmc.winginstructiona, lCBl'Cbingexisting data soun:es. gatheriDg and main~ the data ~,and
completing'8DdWliowingtbe.DDUcctimof'iDionnaIiaa. 'SCIlti,COIDfQeIlta~the-.....wI nestilDa"ot'anyotherupect
ofthi:.l collectiou. ofinfnnnmN't includiug mgeatiOD&forl'Cdueina: Ibis bmden. to the Office ofManagcment andBudget,
~R.ducliouPn>jcot(0348-OO46). W~D.C. 20S03. -
PonnDEP 55-221 (01/01)-
ATTACHMENT D
1. Compliance with Florida Prompt Payment Act by Contractor. Contractor agrees to
abide by all of the terms and conditions of the Florida Prompt Payment Act, sections
255.0705 through 255.078, Florida Statutes ("the Act"), which are incorporated herein
and attached hereto as Exhibit 1. The Contractor shall read the Act prior to starting
construction and shall implement use of the Act for all of its payments to subcontractors,
sub-subcontractors, materialmen and suppliers (hereinafter "subcontractors and
suppliers"). Contractor acknowledges by signing of this Contract that it is aware that its
failure to comply with the strict time frames (7 or 10 days) provided in the Act for
payments that are undisputed to subcontractors and suppliers may result in said
subcontractors and suppliers obtaining: an expedited evidentiary hearing by the court; an
accounting of its use of any state payment; a temporary injunction against it subject to
bond requirements in the Florida Rules of Civil Procedure; prejudgment attachment
against the Contractor, in accordance with each of the requirements of chapter 76;
payment ofreasonable attorney's fees and costs to the prevailing party; and other legal or
equitable remedies available under the law. This provision also applies to contracts
between subcontractors and sub-subcontractors and suppliers, and Contractor agrees to
place the foregoing language of this paragraph into all of its contracts with subcontractors
for this Proj ecl.
2. Timely Payment by Department and Interest. Except as otherwise provided in
sections 255.072-255.078, Florida Statutes, section 215.422, Florida Statutes, governs the
timely payment for construction services by the Department. Ifthe Department disputes
a portion of a payment request, it shall timely pay the undisputed portion to the
Contractor. All undisputed payments due to the Contractor and not made within the time
frame provided in section 215.422, F.S., shall bear interest at the rate specified in that
section until January 1, 2007 (or as early as July I, 2006, if the Chief Financial Officer's
new accounting and cash management system is operational within the Department). On
January I, 2007, or earlier as provided above, all such payments due shall bear interest at
the rate of 1 percent per month.
3. Punch List to be Prepared and Completed by Contractor Prior to Retainage Release.
Within 30 calendar days of the date of substantial completion, as certified by the
Department, the Contractor shall prepare, and the Department shall approve, supplement
or modify a detailed list of items required to render the Project complete, satisfactory, and
acceptable under this Contract ("punch list"). When the Contractor has completed all
items on the Department-approved punch list, the Contractor may submit a payment
request for all remaining retainage withheld by the Department. If the Department, in
good faith, disputes whether one or more items identified on the punch list have been
completed pursuant to the Contract, the Department may continue to hold (out of the
retainage) an amount not to exceed 150 percent of the total costs to complete such items.
This collection, however, does not relieve the Contractor from his duty to complete such
items under the Contract. Warranty items shall not affect the final payment of retain age,
unless otherwise provided herein. If the Contractor fails to cooperate in preparing the
initial punch list within 30 calendar days, fails to perform its contractual responsibilities,
DEP Contract No. DC646, Attachment D, Page I of2
or if certain punch list items are subj ect to a good faith dispute, the Department has no
obligation to payor process any payment request for retainage, in accordance with
section 255.077(8), Florida Statutes.
4. Timing of Release of Retainage by Department. The Department may withhold from
each progress payment made to the Contractor an amount of 10% of the payment as
retainage until 50% completion of the Project. After 50% completion of the Project, the
Department will reduce the retainage withheld from all progress payments to 5%. The
term "50% completion" shall mean that: 50% of the funds are expended on the current
cost of the Contract. The current cost of the Contract is the initial contract amount, as
modified by all change orders. After 50% completion of the Contract, the Contractor
may elect, ifit wishes, to withhold more than 5% retainage from its subcontractors, as
determined on a case-by-case basis, based on the Contractor's assessment of the
subcontractor's past performance, the likelihood that such performance will continue, and
the contractor's ability to rely on other safeguards. The Contractor shall notify the
subcontractor, in writing, of its determination to withhold more than 5% of the retainage
in and its reasons for making the determination. After 50% completion of the Project, the
Contractor may present to the Department a payment request for up to one-half of the
retainage held by the Department. The Department shall promptly pay the amount
requested unless it has a good faith dispute for withholding payment of part or all of the
retainage. Ifthe Department pays the Contractor for services attributable to the labor,
services, or materials supplied by one or more subcontractors or suppliers, the Contractor
shall timely remit payment (within 7 days) to those subcontractors and suppliers. This
paragraph does not require the Department to pay any amounts that are subject of a good
faith dispute, the subject of a claim brought under section 255.05, F.S., or otherwise the
subject of a claim or demand by either party. The same time limits expressed in the
Florida Prompt Payment Act apply to all payments due, whether payments for retainage
or not.
5. Conflicts with Federal Grant Laws and Proiects under $200,000. Paragraphs 1,2,3
and 4, above, do not apply to any Project which is paid for by federal funds in whole or in
part and are subj ect to federal grantor laws and regulations or requirements that are
contrary to the Florida Prompt Payment Act. Paragraph 4 does not apply to any Project
the total cost of which is $200,000 or less.
DEP Contract No. DC646, Attachment 0, Page 2 of2
Exhibit 1
to Attachment D
255.0705 Popular name.--Sections 255.0705-255.078 maybe cited as the "Florida
Prompt Payment Act."
History.--s. 4, ch. 2005-230.
1255.071 Payment of subcontractors, sub-subcontractors, materialmen, and
suppliers on construction contracts for public projects.--
(1) Any person, firm, or corporation who receives a payment from the state or any
county, city, or political subdivision of the state, or other public authority, for the
construction of a public building, for the prosecution and completion of a public work, or
for repairs upon a public building or public work shall pay, in accordance with the
contract terms, the undisputed contract obligations for labor, services, or materials
provided on account of such improvements.
(2) The failure to pay any undisputed obligations for such labor, services, or materials
within 30 days after the date the labor, services, or materials were furnished and payment
for such labor, services, or materials became due, or within the time limitations set forth
in s. 255.073(3), whichever last occurs, shall entitle any person providing such labor,
services, or materials to the procedures specified in subsection (3) and the remedies
provided in subsection (4).
(3) Any person providing labor, services, or materials for the construction of a public
building, for the prosecution and completion of a public work, or for repairs upon a
public building or public work improvements to real property may file a verified
complaint alleging:
(a) The existence of a contract for providing such labor, services, or materials to improve
real property.
(b) A description of the labor, services, or materials provided and alleging that the labor,
services, or materials were provided in accordance with the contract.
(c) The amount of the contract price.
(d) The amount, if any, paid pursuant to the contract.
(e) The amount that remains unpaid pursuant to the contract and the amount thereof that
is undisputed.
(I) That the undisputed amount has remained due and payable pursuant to the contract
for more than 30 days after the date the labor or services were accepted or the materials
were received.
DEP Contract No. DC646, Exhibit 1 to Attachment D, Page 1 of 7
(g) That the person against whom the complaint was filed has received payment on
account of the labor, services, or materials described in the complaint and, as of the date
the complaint was filed, has failed to make payment within the time limitations set forth
in s. 255.073(3).
(4) After service of the complaint, the court shall conduct an evidentiary hearing on the
complaint, upon not less than 15 days' written notice. The person providing labor,
services, or materials is entitled to the following remedies to the extent of the undisputed
amount due for labor or services performed or materials supplied, and upon proof of each
allegation in the complaint:
(a) An accounting of the use of any such payment from the person who received such
payment.
(b) A temporary injunction against the person who received the payment, subject to the
bond requirements specified in the Florida Rules of Civil Procedure.
(c) Prejudgment attachment against the person who received the payment, in accordance
with each of the requirements of chapter 76.
(d) Such other legal or equitable remedies as may be appropriate in accordance with the
requirements of the law.
(5) The remedies specified in subsection (4) must be granted without regard to any other
remedy at law and without regard to whether or not irreparable damage has occurred or
will occur.
(6) The remedies specified in subsection (4) do not apply:
(a) To the extent of a bona fide dispute regarding any portion of the contract price.
(b) In the event the plaintiff has committed a material breach of the contract which
would relieve the defendant from the obligations under the contract.
(7) The prevailing party in any proceeding under this section is entitled to recover costs,
including a reasonable attorney's fee, at trial and on appeal.
(8) The provisions of this section shall also apply to any contract between a
subcontractor and a sub-subcontractor or supplier and any contract between a sub-
subcontractor and supplier on any project for the construction of a public building, for the
prosecution and completion of a public work, or for repairs upon a public building or
public work.
History.--s. 1, ch. 93-141; s. 5, ch. 2005-230.
DEP Contract No. DC646, Exhibit 1 to Attachment D, Page 2 of7
INote.--Section 16, ch. 2005-230, provides that "[n]either the amendments to
sections 95.11, 218.70, 218.72, 218.735, and 255.071, Florida Statutes, and
subsection (2) of section 255.05, Florida Statutes, as provided in this act, nor
subsection (10) of section 255.05, Florida Statutes, and section 255.078, Florida
Statutes, as created by this act, apply to any existing construction contract pending
approval by a local governmental entity or public entity, or to any project
advertised for bid by the local governmental entity or public entity, on or before
October 1, 2005."
255.072 Definitions.--As used in ss. 255.073-255.078, the term:
(1) "Agent" means project architect, project engineer, or any other agency or person
acting on behalf of a public entity.
(2) "Construction services" means all labor, services, and materials provided in
connection with the construction, alteration, repair, demolition, reconstruction, or any
other improvements to real property. The term "construction services" does not include
contracts or work performed for the Department of Transportation.
(3) "Contractor" means any person who contracts directly with a public entity to provide
construction services.
(4) "Payment request" means a request for payment for construction services which
conforms with all statutory requirements and with all requirements specified by the
public entity to which the payment request is submitted.
(5) "Public entity" means the state, or any office, board, bureau, commission,
department, branch, division, or institution thereof, but does not include a local
governmental entity as defined in s. 218.72.
(6) "Purchase" means the purchase of construction services.
History.--s. 6, ch. 2005-230.
255.073 Timely payment for purchases of construction services.--
(1) Except as otherwise provided in ss. 255.072-255.078, s. 215.422 governs the timely
payment for construction services by a public entity.
(2) If a public entity disputes a portion of a payment request, the undisputed portion must
be timely paid.
(3) When a contractor receives payment from a public entity for labor, services, or
materials furnished by subcontractors and suppliers hired by the contractor, the contractor
shall remit payment due to those subcontractors and suppliers within 10 days after the
contractor's receipt of payment. When a subcontractor receives payment from a
DEP Contract No. DC646, Exhibit 1 to Attachment D, Page 3 of7
contractor for labor, services, or materials furnished by subcontractors and suppliers hired
by the subcontractor, the subcontractor shall remit payment due to those subcontractors
and suppliers within 7 days after the subcontractor's receipt of payment. This subsection
does not prohibit a contractor or subcontractor from disputing, pursuant to the terms of
the relevant contract, all or any portion of a payment alleged to be due to another party if
the contractor or subcontractor notifies the party whose payment is disputed, in writing,
of the amount in dispute and the actions required to cure the dispute. The contractor or
subcontractor must pay all undisputed amounts due within the time limits imposed by this
subsection.
(4) All payments due for the purchase of construction services and not made within the
applicable time limits shall bear interest at the rate specified in s. 215.422. After July I,
2006, such payments shall bear interest at the rate of I percent per month, to the extent
that the Chief Financial Officer's replacement project for the state's accounting and cash
management systems is operational for the particular affected public entity. After January
1,2007, all such payments due from public entity shall bear interest at the rate of I
percent per month.
History.--s. 7, ch. 2005-230.
255.074 Procedures for calculation of payment due dates.--
(I) Each public entity shall establish procedures whereby each payment request received
by the public entity is marked as received on the date on which it is delivered to an agent
or employee of the public entity or of a facility or office of the public entity.
(2) If the terms under which a purchase is made allow for partial deliveries and a
payment request is submitted for a partial delivery, the time for payment for the partial
delivery must be calculated from the time of the partial delivery and the submission of
the payment request.
(3) A public entity must submit a payment request to the Chief Financial Officer for
payment no more than 20 days after receipt of the payment request.
History.--s. 8, ch. 2005-230.
255.075 Mandatory interest.--A contract between a public entity and a contractor may
not prohibit the collection oflate payment interest charges authorized under s.
255.073(4).
History.--s. 9, ch. 2005-230.
255.076 Award of court costs and attorney's fees.--In an action to recover amounts
due for construction services purchased by a public entity, the court shall award court
costs and reasonable attorney's fees, including fees incurred through any appeal, to the
prevailing party, if the court finds that the nonprevailing party withheld any portion of the
DEP Contract No. DC646. Exhibit 1 to Attachment D, Page 4 of7
payment that is the subject of the action without any reasonable basis in law or fact to
dispute the prevailing party's claim to those amounts.
History.--s. 10, ch. 2005-230.
255.077 Project closeout and payment of retainage.--
(1) Each contract for construction services between a public entity and a contractor must
provide for the development of a list of items required to render complete, satisfactory,
and acceptable the construction services purchased by the public entity. The contract
must specify the process for the development of the list, including responsibilities of the
public entity and the contractor in developing and reviewing the list and a reasonable
time for developing the list, as follows:
(a) For construction projects having an estimated cost ofless than $10 million, within 30
calendar days after reaching substantial completion of the construction services
purchased as defined in the contract, or, if not defined in the contract, upon reaching
beneficial occupancy or use; or
(b) For construction projects having an estimated cost of$IO million or more, within 30
calendar days, unless otherwise extended by contract not to exceed 60 calendar days,
after reaching substantial completion of the construction services purchased as defined in
the contract, or, if not defined in the contract, upon reaching beneficial occupancy or use.
(2) If the contract between the public entity and the contractor relates to the purchase of
construction services on more than one building or structure, or involves a multi phased
project, the contract must provide for the development of a list of items required to render
complete, satisfactory, and acceptable all the construction services purchased pursuant to
the contract for each building, structure, or phase of the project within the time
limitations provided in subsection (1).
(3) The failure to include any corrective work or pending items not yet completed on the
list developed pursuant to subsection (I) or subsection (2) does not alter the responsibility
of the contractor to complete all the construction services purchased pursuant to the
contract.
(4) Upon completion of all items on the list, the contractor may submit a payment
request for all remaining retainage withheld by the public entity pursuant to s. 255.078. If
a good faith dispute exists as to whether one or more items identified on the list have
been completed pursuant to the contract, the public entity may continue to withhold an
amount not to exceed 150 percent of the total costs to complete such items.
(5) All items that require correction under the contract and that are identified after the
preparation and delivery of the list remain the obligation of the contractor as defined by
the contract.
DE? Contract No. DC646, Exhibit 1 to Attachment 0, Page 5 of 7
(6) Warranty items may not affect the final payment ofretainage as provided in this
section or as provided in the contract between the contractor and its subcontractors and
suppliers.
(7) Retainage may not be held by a public entity or a contractor to secure payment of
insurance premiums under a consolidated insurance program or series of insurance
policies issued to a public entity or a contractor for a project or group of projects, and the
final payment of retainage as provided in this section may not be delayed pending a final
audit by the public entity's or contractor's insurance provider.
(8) If a public entity fails to comply with its responsibilities to develop the list required
under subsection (1) or subsection (2), as defined in the contract, within the time
limitations provided in subsection (l), the contractor may submit a payment request for
all remaining retainage withheld by the public entity pursuant to s. 255.078. The public
entity need not payor process any payment request for retainage if the contractor has, in
whole or in part, failed to cooperate with the public entity in the development of the list
or failed to perform its contractual responsibilities, if any, with regard to the development
of the list or ifs. 255.078(6) applies.
History.--s. 11, ch. 2005-230.
1255.078 Public construction retainage.--
(1) With regard to any contract for construction services, a public entity may withhold
from each progress payment made to the contractor an amount not exceeding 10 percent
of the payment as retainage until 50-percent completion of such services.
(2) After 50-percent completion of the construction services purchased pursuant to the
contract, the public entity must reduce to 5 percent the amount ofretainage withheld from
each subsequent progress payment made to the contractor. For purposes ofthis section,
the term "50-percent completion" has the meaning set forth in the contract between the
public entity and the contractor or, if not defined in the contract, the point at which the
public entity has expended 50 percent of the total cost of the construction services
purchased as identified in the contract together with all costs associated with existing
change orders and other additions or modifications to the construction services provided
for in the contract.
(3) After 50-percent completion of the construction services purchased pursuant to the
contract, the contractor may elect to withhold retainage from payments to its
subcontractors at a rate higher than 5 percent. The specific amount to be withheld must be
determined on a case-by-case basis and must be based on the contractor's assessment of
the subcontractor's past performance, the likelihood that such performance will continue,
and the contractor's ability to rely on other safeguards. The contractor shall notify the
subcontractor, in writing, of its determination to withhold more than 5 percent of the
progress payment and the reasons for making that determination, and the contractor may
not request the release of such retained funds from the public entity.
DEP Contract No. DC646, Exhibit 1 to Attachment 0, Page 6 of7
(4) After 50-percent completion of the construction services purchased pursuant to the
contract, the contractor may present to the public entity a payment request for up to one-
half ofthe retainage held by the public entity. The public entity shall promptly make
payment to the contractor, unless the public entity has grounds, pursuant to subsection
(6), for withholding the payment ofretainage. Ifthe public entity makes payment of
retainage to the contractor under this subsection which is attributable to the labor,
services, or materials supplied by one or more subcontractors or suppliers, the contractor
shall timely remit payment of such retainage to those subcontractors and suppliers.
(5) Neither this section nor s. 255.077 prohibits a public entity from withholding
retainage at a rate less than 10 percent of each progress payment, from incrementally
reducing the rate of retainage pursuant to a schedule provided for in the contract, or from
releasing at any point all or a portion of any retainage withheld by the public entity which
is attributable to the labor, services, or materials supplied by the contractor or by one or
more subcontractors or suppliers. If a public entity makes any payment of retainage to the
contractor which is attributable to the labor, services, or materials supplied by one or
more subcontractors or suppliers, the contractor shall timely remit payment of such
retainage to those subcontractors and suppliers.
(6) Neither this section nor s. 255.077 requires the public entity to payor release any
amounts that are the subject of a good faith dispute, the subject of a claim brought
pursuant to s. 255.05, or otherwise the subject ofa claim or demand by the public entity
or contractor.
(7) The same time limits for payment of a payment request apply regardless of whether
the payment request is for, or includes, retainage.
(8) Subsections (1)-(4) do not apply to construction services purchased by a public entity
which are paid for, in whole or in part, with federal funds and are subject to federal
grantor laws and regulations or requirements that are contrary to any provision of the
Florida Prompt Payment Act.
(9) This section does not apply to any construction services purchased by a public entity
if the total cost of the construction services purchased as identified in the contract is
$200,000 or less.
History.--s. 12, ch. 2005-230.
lNote.--Section 16, ch. 2005-230, provides that "[n]either the amendments to
sections 95.11, 218.70, 218.72, 218.735, and 255.071, Florida Statutes, and
subsection (2) of section 255.05, Florida Statutes, as provided in this act, nor
subsection (10) of section 255.05, Florida Statutes, and section 255.078, Florida
Statutes, as created by this act, apply to any existing construction contract pending
approval by a local governmental entity or public entity, or to any project
advertised for bid by the local governmental entity or public entity, on or before
October 1, 2005."
DEP Contract No. DC646, Exhibit 1 to Attachment 0, Page 7 of7