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Item I6 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: January 17,2007 Division: Growth Management Bulk Item: Yes ~ No Department: Planning Staff Contact PersoniPhone #: Aref Joulaini/Jose PaQa #2514 AGENDA ITEM WORDING: Approval of the 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 platfonn on an existing bridge on that portion of the Florida Keys Overseas Heritage Trail in the area kno\VTI as Torn's Harbor Cut located at Mile Marker 61.7. The original contract was never signed by all the parties and therefore was never in effect. This new version is simply substituted for the version approved on November 15, 2006. ITEM BACKGROUND: On November 15, 2006, the Board of County Commissioners approved a 3-party contract between the State of Florida Department of Environmental Protection, and Otak Group, Inc. After the contract was signed by the contractor and approved by the BOCC, the DEP realized that they had made errors in the contract and would not sign the contract. DEP has corrected the errors and Otak Group, Inc. has signed the corrected contract. DEP is now submitting the corrected contract to the BOCC for approval. PREVIOUS RELEVANT BOCC ACTION: See above CONTRACT/AGREEMENT CHANGES: The changes are include errors involving a correction of contract number on page one and the addition of the name of the DEP in the attachment where they would ordinarily be mentioned. STAFF RECOMMENDATIONS: Approval TOTAL COST: $658.500 COST TO COUNTY: $424,500 BUDGETED: Yes--L No SOURCE OF FUNDS: 135-5410-29011-560630 REVENUE PRODUCING: Yes No -1l AMOUNT PER MONTH_ Year APPROVED BY; County Atty ~~ OMB/Purchasing ~_ Risk Management _~_ DOCUMENTATION: Included _L_ Not Required_~__ DISPOSITION: AGENDA ITEM # Revised DEP Contract No. DC646 CONTRACT THIS CONTRACT (the "Contract") is entered into between the STATE OF FLORIDA DEP AR TMENT 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] 7, 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 knovvll 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 hid 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-20t, 1997 Edition, (hereinafter referred to as AlA Document A-20J). 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 shaH 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. 4. A. As consideration for the services rendered 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 thereof. 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 of the goods and services. Interest payments of less 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 Department's Procurement Section at (850) 245-2361. DEP Col1tract No. DC646 Page 1 of 12 B. 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 tor 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. Ifrequest for payment is not approved, the Department's project manager must inform the Consultant in a \'/riting 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 VB, 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 LEGISLA TURK B. MONROE COUN1Y'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 inspe(.,'t 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 returned 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 1-800-848-3792. 8. The Contractor shall indemnity, protect, defend, save and hold harmless the State of Florida, the Department, the Board of Trustees of the lntemallmprovement 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 perfonnance 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. OFP 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 rcason(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 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. 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 ofthe 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 ofthe failure of the Department to fulfill any of its obligations under this Contract. Prior to termination, the County shall provide ten (] 0) calendar days written notice of its intent to terminate and shaJl 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 atter the effective tennination date. F. Notice shall be sufficient if delivered personally or by certified mail to the address set forth in paragraph 10. DEP Contrdct Noc D(,646 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 Yulee, Florida 32097 Department Michael Renard, Contract Manager State of Florida Department of Environmental Protection hand delivery to: Alfred B. Maclay Gardens State Park 3540 Thoma-wille Road Thomasville Road, Building 8-1 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 lose 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. 11. 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 Contraet 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 1.2 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 services required. B, No member, officer or employee of the Contractor or the locality during his tenure, or fOf 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. IS. 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 of the parties hereto. 19. With regard to the Department: 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 use 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 regard 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: I) 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 of age; 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 of 12 Prevention, Treatment and Rehabilitation Act of 1970 (PL 91-6] 6), 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. 690dd-3 an 290 ee-3), as amended, relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the Civil Rights Act of ] 968 (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. ]201 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 I J) 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 direeted 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 tile 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. R The Department supports diversity in its procurement program and requests that all subcontracting opportunities afforded by tllis 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. DEI' Contract No. DC646 Page 6 of 12 The "corporation identified" is Prison Rehabilitative Industries and Diversified Enterprises, Inc. (P.RJ.D.E.) which may be contacted at P.R.LD.E. 12425 28th Street North St. Petersburg, Florida 337]6-1826 Telephone: 1-800-643-8459 Website: www.pridefl.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 tor the blind or for the severely handicapped that is qualified pursuant to Chapter 4] 3, Florida Statutes, in the same manner and under the same procedures set forth in Section 4]3.036(1) and (2), Florida Statutes; and for purposes of this Contract the person, finn, 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 eontacted at: RESPECT of Florida 2475 Apalachee Parkway, Suite 205 Tallahassee, Florida 32301-4946 (850) 487-147] Website: www.respectofflorida.orq 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-insurance 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' Liability 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 damagc, 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 tenn 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, ifapplicable $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 reason except after 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 evidence.d 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 Contrad or any benefit arising therefrom. 30. The employment of unauthorized aliens by the Contractorlvendor is considered a violation of 8 U.s.c. S 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, tor 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, after 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. Otherwise, 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 perfonned 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 Contr'dct 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 perfonnance 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 ofthis 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 hannless from and against any loss, cost, liability or expense arising out of any breach or claimed breach ofthis 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 9 of 12 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 notifY the Department's project manager when archaeological material (human remains, bones, pottery, arrowheads, building foundations, etc.) are found during construction. 37. A. In aCCDrdance with Executive Order ] 2549, Debarment and Suspension (43 CFR ]2), 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 Debannents, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Federally Funded Transactions", attached hereto and made a part hereof as Exhibit I 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 coopemtive agreement. If any non~Fedeml 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 "Anti Kickback" Act 18 USC S 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 CDntained in the SCDpe of Work which is attached hereto as Attachment A. The Scope of Work has been read and carefully considered by the Contmctor, 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. DC646 Page 10 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 tenns 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 Contmctor'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 of this Contract. 45. If any teon, 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 tenns, covenants, conditions and provisions of this Contract shall not be affected thereby; and each remaining tenn, 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 tenns, 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 refonn this Contract to replace any stricken provision with a valid provisions that comes as close as possible to the intent afthe stricken provision. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK DEP Contr'act No DC646 Page II of 12 The parties have caused this Contract to be duly executed, the day and year last written below. 01' AK GROUP, INC., a Florida corporation STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, OFFICE OF GREENW A YS AND TRAILS /"' . /~ By: (~/2C5h / f;Ju (Contractor's Authorized Signatory*) W .' /! , _'.' !'.{r1kr.n.7.t:9:.~ / rlr:5ld~.,J (Print Signatory's Name and TItle) Date: By: Secretary or Designee for the State of Florida Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (CORPORATE SEAL) I .} /2 /2 Y; IO~ Title: Date: Approved as to form and legality: 3'5DO &2 U S Hw\{ 17 (Company Address) DEP Assistant General Counsel I) , Yu It:w FC (City, State and Zip Code) FEID No, 3 "--C,C'7 ' c: 1 MONROE COUNTY, FLORlDA By its Board of County Commissioners 59310 ~a2 7 By: * Mayor Charles (Sonny) McCoy (OFFICIAL SEAL) Contractor's Remittance Address: '8~-Y-? '. ",JCC (AddV) , 14~ (City, State and Zip Code) us HOJc/17 , Date: APPro~ as to/~rm and legality: X County fittome\ pL. <Z"4C1G] / ,.' 1 *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/exhibit.. 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 Utiliz.ation of Disadvantaged Business Enterprises (8 Pages) FHWA 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 1 MONROE COUNTY ATTORNEY M' DEP Contmct No DC646 Page J 2 of 12 ASSISTANT COUNTYt\TTORNEY A TT ACHMENT A Scope of Work ARTICLE I. THE WORK 1.1 The Contractor shall perform all the work required by the contract documents and provide for the proper execution and completion of the construction of fishing platfonns on an existing bridge on that portion of the Florida Keys Overseas Heritage Trail known as Tom's Harbor Cut located at Mile Marker 6] .7. 1.2 All modifications pursuant to executed change orders processed as stipulated in the contract 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 LPA Group Incorporated, a South Carolina corporation. ARTICLE 3. TIME OF COMMENCEMENT AND COMPLETION AND LIQUIDATED DAMAGES 3.1 The work to be perfonned under this Contract shall commence upon notification within ten (10) calendar days after the date ofthe 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 (180) 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 Liquidated Damages For Failure to Complete 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 tenninology, unless a later time, is agreed to by the parties in accordance with the Contract, 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 completed, in accordance with the Contract 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 Contract except fur Contractor's delays. The Department and the County shall each be entitled to receive fifty percent (500/0) 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 exercise 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 balance will cover. DEP Contract No. DC646, Attachment A, Page ] of 6 3.3 Liquidated Damages When Department 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-201 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 thereofas 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 Contnictor said amount. 5.2 Progress Payments Against 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%) 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. DC646. Aitachment 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 Payments Withheld From Contract Sum The Consultant may decline to certifY payment or, because of subsequently discovered evidence or subsequent observations, he may nullifY the whole or any part of any Certificate for Payment previously issued, to such extent as may be necessary, in hislher 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; (f) Reasonable evidence that the work will not be completed within the time allowed in Article 3.1; or (g) Persistent fuilure 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 bcen satisfactorily completed, the Contractor's obligations under the Contract have been ftllly 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. DC646, Attachment A, Page 3 of6 7.2 Harmony The Contractor is advised and hereby agrees to exert every reasonable and diligent effort to assure that aU labor employed by the Contraetor 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 ofthe 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 Apprentices 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 agrecments 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 Representative 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 shaJl be calculated on the basis of the cost of materials and lahar utilized by the prime Contractor's own forces to the original Contract Sum, and may exceed 15%. 7.6 Contractor's Supervision ofProiect The Contractor shan 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, plwnbing and electrical trades through the use ofemployces 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-2m, 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 Delays; Chan~es In the Work Article 8.3 of the AlA Document A201, General Conditions, is deleted and Contractor'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. OC646. Attachment A, Page 4 of 6 Article. The Contractor's exclusive remedy for delays in performance ofthe 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 shall 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 ono-half percent (2 Y2%) 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 0, 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 shall 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 ofthe 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 fonnal conference. 8.33.2 Minutes ofthe formal conference shall be taken, transcribed, and signed offon by the Department and the County and shall be copied to the Contractor. Contractor shall send, in writing any dispute to the minutes within five (5) days. 834 In the event that the matter is not resolved at formal conference, ifthe parties agree in writing, the parties may choose to mediate 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 medi.ation, 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, Aitachment 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-20I 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 215.422(3)(b), Florida Statutes. 85 Contractor Insolvency and Neglect Should the Contractor become insolvent, or at any time refuse or neglect to supply a suftlcient number of properly skilled workers, or equipment and materials of the proper quality, or fail in any respect to prosecute the work with promptness 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 shaU be paid by the Department and the County to the Contractor. If such expense shan 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 DE]> Contmct No DC646, Attachment A, Pagc 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.dotstate.fI.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 EqualU 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 articlej devicej product, material or fixturej or any form or type of construction, that, in the judgment of the Engineer (expressed in writing), is equat 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 specifiedj 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 appllcable 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 air 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 (PC!) 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, Timberl 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 platformsl 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 win 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 transportationl storagel 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 laborator!,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 laboratoryfs 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 materialsl even though previously tested and approved; materials that are or have been improperly stored; and materials that are mixed with an excess of c1aYI coal, sticks, burlap, haYI 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 foHowing: 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,ff 7-25.2 Equal Employment Opportunity Officer: Designate and make known to the Departmenfs 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 foflowing: (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. EQUIPMENT 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 DIG, The FHWA field offices were advised of this determination on December 23, 1986. Further rental rate guidance was issued by Headquarters1 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 CFRl 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 polley. 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. Thereforel 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 Equipment Distributors (AED) Rental Rate and Specifications 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 future1 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 Contract1 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 claim1 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 8-7.3.21 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 compensation1 time1 or other dispute resolution proposal certify under oath and in writing1 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 belief1 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 othei 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)1 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 personnell 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 -I =--=i ~ , I FICA ~~_u ! FUTA/SUTA ! Medical Insurance I Holidays, Sick & I Vacation benefits I Retirement ! benefits I i i I Workers I Compensation i Rate Rate established by Law Rate established b'L~aw Actual Actual Item Actual . , -1 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-i:.L.~...............J ~L~........I.,. ......... . ,~.t:--..~.-~.....-..........- ..,.-....[.. 16 additional work or unforeseen work. Per Diem I Insurance* Actual but not to exceed State of Florida's rate 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 applicablel 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 Rate/176 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. e 4) Standby Rate = Allowable Hourly Equipment Rate x 50%. The Monthly Rate is The Basic Machine Rate Plus Any Attachments. Standby rates wlll 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 tvvo 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 wlll 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 wil[ 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 fina I 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 physicallimrts 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 Contractor1s 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 Contractor1s 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 FHW A- 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 DEBARTvlENTS. SUSPENSION, h'<l3LIGIBlLItY A;~D VOLtJNT ARY EXCLUSION-LOWER TIER FEDERALLY F1Jt'<'DED TRANSACTIONS Required for all contractors and subcontractors under DEP CONTMCT NO.: tc046 1. The nndersigried hereby certifies that neither it nor irs 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. The undersigned also certifies that it ""d its principals: (a) Have not within a three~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 Sw.te 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 crilninaUy or civil1y 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 tJ:js certification had one or more public transactions (Federal, State or local) terrr.inated for cause or default. 3. Vlhere the undersigned is unable to certify to any of the statements in this certification, an explanation shall be attached to this certification. Dated this~ 2 tr By Authorized SignattJrc/Contractor rfzrDn/KJ?J /0.] hi? Sj'cLo Typed Name/TItle (}1741::& b:rd;~?J j ./JJ:~~__ COlltract6r's Fiiin Name 8.SlXJZ-Z U3 f/vJ f 17 Street Address ':::.17'<7 f U!.f ""ZZ5 City/State/Zip Code "/.~ ?'y 0,J c;5 (J Area Codelfeleph~lle Number DEP FORM! 1-043 Rcv(05/95) DEP Contract No. DC646, Exhibit 1 to Attachment B, Page 1 of 2 INSTRUCTIONS FOR CERTIBCATION REGARDING DEBAR1\1ENT, SUSPENSION, INELIGIBILITY. A."ID VOLUNTARY EXCLUSION-LOvVER TIER FEDERALLY FUi'iTlED TRA.J.'-'SACfIONS 1. By signing and submitting this form, the certifying party is providing the certification set below. 2. The certification in this clause us a material representation of fact upon which reliance was placed when tbis transaction was entered into. If it is later detennined that the certifying party knowingly rendered an erroneous certification, in addition to other remedics available to k1:\e Federal Government, the Department of Environmental Protection (DEP) or agencies with which this. transaction originated may pursue available remedies, including suspension audror debarment. 3. Tue certifying party shall provide immediate 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 terrrlS covered transaction, debarred, suspended, ineligible, lower tier covered transactiDn, Participant, person, pri!ill4ry covered transaction, principal, proposal, and voluntarily excluded, as used in this clause, have the mea-'lillgs set out in the Definitions of Coverage sections of rules implementing Executive Order 12549. You may coutact the person to which this contract is submitted for assistance in obtaining a copy of those regulations, 5. The certifying party agrees by subrritting th{s contract that, should the proposed covered transacti on be entered into, it shall not kIlowingly enter into lower tier contract, or other covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarj]y excluded from participation in this covered transaction, unless authorized by the DEP 'or 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, Suspen.siol1, Ineligibility, and Voluntary Exciusion- Lower Tier covered Transactions and in all solicitations for lower tier covered transactions and to 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 volunta-rily excluded. from th.e covered transaction, unless it Imows that the certification is erroneous. A participant may decide the method and frequency by which it detennines the eligibility of its principles. Each participant may, but is not required to. check the Nonprocurement List (Telephone No. (202) 501A740 or (202) 50lA873). 8, NOl.1lng 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 pa-'1icipant 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, meligible, 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 aneVor debarment, DEP FORlY: ] 1-043 (12/94) DEP Contmct No, DC646, Exhibit \w Attachment B, Page 2 of2 Exhibit 2 to Attachment B 21'<0>>11 1.:tl\JAl OPl'''''''ruNlT'l (#l'lCl1 1<l1tl!l DBE UtilizatlQn . PagohlS The Department began its DBE race neutral program January 1, 2000, Contract specific goals are not plaCed on Federa!lState contracts; however, the Department has an overall 8.1 % DBE goal it must achieve. [n order to assist contractors In determining their 08E commitment level, the Department has reviewed the estimates for this letting_ As you prepare your bid, ptease monitor potential or anticipated DBE utilization for contracts, \Mien the low bidder executes the contract with the Department, information wHl be requested of the contractor's anticipated DBE participation for the project. Wlile the utilization Is not mandatory in order to be awarded the project, continuing LrtllizatiOn of DBE flrms on contracts supports the success of Florida's Voluntary bBE Program, and supports contractors' Equal Employment OppOrtunity and DBE Affirmative Action Programs, NOTE: MY Protect listed as 0% DeE avail6bllity does not mean that a OBE may not be used on that project A OO~ cae availabil!fy may have been eStablished due to any of the follOWing reasons: limited iCIentlfied subcontracting opportunities. minimal contract days, and/or small contract dollar amount Contractors are encouraged to identify any Opportunities to subcontract to OeEs, If you have any questions regarding this information, please contact the Equal Qpportunlty Office at (850) 414-4747. DaE Reporting It you are the prime contractor on a project. complete the attached AntiCipated DBE Participation Statement . and submit the information at the pre-construction or pre.work conference for an federal and state funded projects. This will not become a mandatory part of the contract. It will assist the Department in tracKing and reporting planned or. estimated DeE utUization. During the contract, the prime contractor js required to report actual payments to all Subcontradors through me web-based Equal Opportunity Reporting System (EORS), BizWeb. AU DeE payments must be reported Whether or not you initially planned to utilize the company. In order for our race neutral DBE Program to be successful, your cooperation is imperative. If you have any questions concerning the completion or $llbmisslon of this Information, contact the FOOT EOO at (BOO) 414~4747, Bid ODPortuni~ List The Federal OeE Program requires States to maintain a databa$e of all flfTTlS '!hat are participating or attempting to participate on FOOT.assisted contracts, The list must include aU f'tmlS that bid on prime contracts or bid or quote subcontracts on FOOT~assisted projects, including both Pees and non~08Es, A form is inclUded to record bidders' information for ALL subcontractors or sutrconsultants who quoted to you for specific projects for this l$tling. If a contractor quoted 10 you for more than one project you only Med list that contractor once. If you have submitted a bidder's list to the Department preVIOUSly, you need only list new companies who have quoted to you or requested to be on $pecific projects. If roo do nQt know lhe answers to numbers 2, 3, 4, or 5 you may leave them blank. and the Department win complete them, This information should be returned with your bid package or proposal package or submitted to the Equal Opportunity OffICe within three days of your submiSsion. Jt can be marled or faxed. Please reply to: Florida Department of Transportation Equal Opportunity Office 60S Suwa",," StrNt, MS 65 Tallaha$see,FL 32399-0450 (850) 414-4747 (SSO) 414-1879 215-<<11)011 EQ\JAL OP!>ORTUNlT'o' QR'1Cl: lDilJe I"w.loZIlU ANTICIPATED DBE PARl1CIPATlON STATEMENT Financial Project Number: Conlract Number: JY... L (f (.p federal AId project Number (if applicable): Prime Contractor Name: DTHlL 6rC\ ~ '2JL V\ L '$ lvS'3 j 'Sf:i) t <tu Contract DOllar Amount: Is the lima contmctor a Florida D"f)artment Of T I'$nsportation Clirtified Disadvantaged Business Enterprise (Dee)? (yes r ) (no 0) Expedad amount of con~ct dollars fo be sUbContracted to OBE{s): $ It is our intent to subcontract sub-contraetors; % of the contract dollars to DBE,s). Listed below are the proposed DBE DJll:: ($) Name Tvpe of Worl\lSooclalt-/ Dollar AmountlPercental:le Submitted by: }./f) J/ /1 /0 J~ (.tuon / ~_..(~ Title: f/r/<5iC;&~~ .' .~ (Q"~ J. I. r (J)/w; r. #fy Z Z:l Z ~y:(' &~b flrv.r CLI ,tim C! ' Telephone Number: L1 u { .... . . .... . 1:1 /J qtSlf' ZL'S' JOe. / Date: I .' / E.maH Address: Fax Number: Note: Thls infoli1'\ation is used to track and report antiCipated DB~ participation in all state and federalJyfunde(f FOOT contracts, The anticipatQd DeE amount will not become a part of the contractual fenns.. This form must be submitted at the pre.construeUon or pre.wane conferenee. DOT staff must forward 1his to the Equal opportun<<y Office, 605 Suwa.nnee Street, MS 65- Tallahassee, FL 32399-0450 or fax to (850) 414-4819. If you have any questions. pleasa contact the EOO at (850) 414.4747. vs.<i31j.1 I ~UA;. OWOiolTtJNl'fY Ofl'1CE '\loW P.go301$ Equal Opportunity Reporting System Infonnation To comply with Changes in the Disadvantaged Business Enterprise (DBE) Program, the Department ia collecting both actual paymenls made to subcontractors and svtH::onsultsnts, and DBE commitment amount., Actual o<fYl!1ents will be coHect~ lhrouQh the web-based Equal Opportunity Reportinj:j S.Ystem {EORS} and commitments Will be collected throu.Qt! the Ai'lffcjpated pee Parl.icination Statemen~, It is extremely important that you continue to submit the Anticipated DBE PartidpatlOn Statement at the pre-construction conference for all fideml and state fuMed projects. This primary imormation is used by the State and Federal Government to evaluate our performance in lt1.e DBE Program. In addition; for federal and $taW funded projects, you mt.ll~t al$o report actual paymellt8 in tilt! Eq",al Opportunity Reporting System. Revisions were made to the specifications beginning With the October 2000 fetting ttlat states in $eetiQr'l Q-S.7; . The Contractor Is required to report monthly. through the Oepsrtmenfs Equal Opportunity Reporting System on the Internet at W\'Jwdotstate.f1.lJS, actual payments, retainaga, minority status, and the work type of all subcontractors and suppliers. Since the specifications were reviSed, we have made some additional mOdiflcatlons to ease the burden on the contractor. We will pursue making the permanent modifications to the spedfications. In the interim, each montt1 yoo must report aclual payments to all DBE subcontractors, sul>-consultants and suppliers. Payments to all non-DBE subcontractors and sukonsultants will need to be reoorted either mOnthly or at the end of the project. Payments to non-DBE suoP~ers need nol be ~Oorted at all. This information can be submitted in hard COP\{ fOrm. if necessarY Instructions for accessing the EORS are lncJude~, If you have any questions, please contact the Equal Opportunity Office at (850) 414-4747. INSTRUCTIONS FOR ACCESSING THE eQUAL OPPORTUNITY REPORTING SYSTEM Purpose The Florida Department of Transportallon, Equal Opportunity Office has been charged with requirements of reporting Dtsadvantaged Business Enterprise Information to the U.S. Department of Transportation, Federal Highway AdministratIon (FHWA) accordIng to the new 49 Code of Federal Regulations PM 26, The Equal Opportunity R~porting system was developed as a solution to oollectthis information, Objllctive The Equal Opponunity Reporting system will collect information of actual payments and retainage paid te the Prime Consultant/Contractor by the Department of Transportalion and the Prime Consultant/Contractor's actual payments and relainage paid to their subs and suppliers, by the type of worK !:hey perfOrmed. The reporting of this information will be performed by the Prime on a monthly basis for an i,wolce or estimate number per contract. To establish 80ceu to the new Equal Opportunity Reporting System (8.izWeb), contact Business Innovations Plus toll-free at 1.:877-249-8725. The site location is http://v.Iww.biplncwebapPs.com/bizwebf1oridaf Z1SoII3M, [QuAlOPPalTUNl1Y ~ IIlIOO ~'of! INSTRUCTIONS FOR COMPLETING OBE/AA PLAN NOTE: THE DBElAA PLAN MUST BE APPROVED BY THE eQUAL OPPORtUNITY OFFice AND COMPLETED.lN ACCORDANCE WITH CHAPTER 14-78, FLORIDA ADMINr8TRA riVE CODe OBElAA PLA~ DBEfAA Plans must be submitted by the prime contractor, be submitted on company letterhead (first page only), signed by a company offieiar. dated and. contain all elements of an effective OBElAA Plan (S3rhple enclOSed). Plans that do not meet these mandatory requirements may not be approved. Approvals are for a (3) three year period and should be uPdated at anytime there is a change in the company's DeE Liaison Officer and/or Pre$ident. DBEJAA Plans must be recei'led with the contractors bid or received by the Equal Opportunity Office prior to the fetting for the contract to be awarded. MAfL PLAN~ ~ . 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 caUlng (850) 414-4747 l1&.O;l().11 tQuAL 04'fJORTWNlTf ~E Wot F'1cgeli<llti DBE AFFIRMA llVE ACTION PLAN PO~fCY STA TEMENT It is the policy of that disadvantaged businesses, as defined by 49 CFR Part 26, SubJ)art D and implemented under Rule Chapter 14-78. F.A.C., shall have the opportunity to participate as subcontractors and suppliers on all contracts awarded by the Ronda Department of Transportation. The requirements of Rule Chapter 14-78, FAC.. shall apPly to all contracts entered into between the Florida Department of Transportation and Subcontractors and/or suppliers to , . will also be bound by the requirements of Rule Chapter 14-78 F AC. , and Its subContractors shall take all necessary and reasonable steps in accordance with Chapter 14-78, FAC., to ensure that disadvantaged businesses have the opportunity to compete and perform work contracted with the Florida Department of Transportation. , and its subcontractors shall not discriminate 00 the basis of race, color, religion, national origin, disabUity, sex, or age in the administration of contracts with the Oepartment of Transportation. , has designated and appointed a Uaison Officer to develop, maintain, and monitor the DBE Affirmative Action Plan implementation. The liaison Officer will be responsfbfe for disseminating this policy statement throoghout and to dlsadvpntaged controlled bUsinesses. The statement is posted on notice boards of the Company. x , President x .7$-I)lJOci' iQOAJ. OPI>OM'U!.Ii1'f ~ j QI1)6 ""'lI"$ol8 f. DESIGNA nON OF lIAISON OFFICER will aggressively l'eQ'Uit disadvantaged businesses as subcontractors and SUppliers fOl' all cootracts with the Florida Department of Transportation. The Company has appointed a Uaison Officer to develop al'ld maintain this Affirmative Action Plan to aocordance with the requirements of Rule Chapter 14-78. FAC. The Uaison Officer will have primary responsibility for developfng, maintaining, and monitoring the Company's utilization of disadvantaged subcontractors in additiOn to the following specific duties: (1) The Liaison Officer shall aggressively soli cit bids from di~vanta9ed business subcontractors for aU Ronda Department of Transportation contracts; (2) The Uaison Officer will submit all records, reports, and documents required by the Ftorida Department of Transportation. and shalt maintain such records for.a period of not less than three years, or as directed by any specifjc contractual requirements of the Florida Department of Transportation, The following individual has been designated Liaison Officer with responsibility for implementing the Company' 5 affirmative action program in accQrdance with the requirements of the Florida Department Transportation, fl. AFFIRMA TlVE ACTION METHODS I n order to formulate a realistic Affirmative Action Plan, has identified the fOllOWing known barriers to participation by disadvantaged subcontractors, before describing itS, proposed affirmati~ action methods: 1. Lack of qualified disadvanfaged subcontractors in our specific geographical areas of work; 2. Lack of certified disadvantaged subcontractOf$ who seek to perform Florida D$partment of Transportation work; 3. lack of interest in performing on Florida Department of Transportation contracts; 4. Lack of response when requested to bid; 5. Umited knowledge of Florida Department of Transportation plans and specifications to prepare a responsible bid. In vievv of the barriers to disadvantaged businesses stated above, It shall be the policy of . . to provide opportunity by utilizing the following affirmative action methods to ensure participation on the contracts with the F10nda Department of Transportation. will: 1. Provide written notice to all certified DSE subcontradors in the geographical area where the work Is to 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 performed by DBEs in order to imiease the likelihood of meeting contract goals (indudlng, where appropriate. breaking down contracts into eoonomically feasible units to faCIlitate DBE. participation); 1~11 (Q(JAL OI'l"OR'ruM'TY 0ff'lCl': 1twlo ""\10'.,1. 4. Provide adequate information about the pl~ns, specifications, and requirements ofthe contract, not rejecting subcontractors without sound reasons based on a thorough investigation of their capabilities; 5. Waive requirements d performance bonds where it is practical to do so; 6. Attend pre-bid meeCings held by the Florida Department of Transportation to apprise disadvantaged subcontractors of opportunities with the Company: 7. Follow up on initial solicitations of interest to DBE subcontractors to determine with certainty whether the DBE company is interested in the subcontract opportunity. understands that this list of affirmative action methods is not exhaustive and wi" indude additional approaches after having established familiarity with the disadwl'ltaged subcontracting community and/or determil"!oo the stated approaches to be ineffective. III, IMPLEMENTA110N On contracts with specific DBE goals, will make every effort to meet contrad goals as stated by utilizing its affirmative action methods. On projects with no specific goals,the Company will, as an expression of good faith, seek to utilize D8E subcontractors Where work is to be subcontracted. IV. REPORTING shall keep and maintain such records as are necessary to determine the Company's compliance with its DBE Affirmative Action .Plan. The Company wiH design its record keeping system to indicate: 1. The number of DBE subcontractors and suppliers used by the Company, identifying me 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 contracts, to include correspondence, telephone calls, newspaper advertisements, etc., ta obtain DBE participation on aU Florida Department of Transportation projects; 4. The Company shall comply with Florida Department of Transportation's requiremelTts regarding payments to subcontractors including OBEs for each month (estimate periOd} in which the companies have worked. V. DBE DIRECTORY ~ published by the Florida Department of Transportation. The Company will dIstribute Form Number 27$-030-01, Schedule A Certification Form Number 1, to potential.DBE contractors and assist. in their completion. will utillze the DeE Directory FLORIOA OEPARTMENT OF TRANSPORT A TJON BID OPPORTUNITY LIST 2n-Qi{Ll~ 6iOUA.l Ol'PORTUNllY OR'lCE j Q/\)S ~OB~fa Please complete and mail or fax to: Equal Opportunity Office 605 Suwannee St., MS 65 TaBahassee, FL 32399-0450 TELEPHONE: (8SO) 414-4747 FAX: (850) 414-4879 This information may also be induded in your bid or proposal package. Prime COI1tractorlConsuftant: A<1dreSsITe!ephone Number: 8idIProposal Number: QUale Submitted MMIYR: 49 CFR f>art 2611 requires tile Florida Department ofTransportallon to develop and maintain a ''bId opportunity fist ~ The listis intended lQ be a listing of all firms that are participating, or attempting to participate, on DOT-assisted contracts. The list must include all firms that bid on prime contracts, or bid or quote subcontracts and materials supplies on DOT-assisted projects, inCk.ldlng both OBEs and non-DSEs For consulting companies this IiSI must include all subconsu!tanls contacting you and expressing an interest in teaming with you on a specific DOT assisted project. Prime contractors and coO$I111ant$ must provide informalion for Nos, 1, 2, 3 and 4 and should proYide any infOrmation they have available on Numbers 5, 6,7, and 8 fort1emselves, and their subcontractors aM subconsultants. 1, Federal Tax 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 Established: 6. o DBE 8. Annual Gross Receipts [J Non-DBE Cl Less than $1 mlNon CJ Between $1 ,$5 miltion o Betwe~n $5 - $10 million 7. o Sulx:ontractQr o Between $10 - $15 minion [J S1.Ibconsultllnt o More than $15 million 6. DOBE 8. Annual Gross Receipts CJ NM-DBE o less than 11 mi!~on CJ Be\v.ieen $1 - $5 million o Between $5 - $10 million 7. o Subcontractor o BelWeen S10. $15 million CJ $ubccnsullant o MQte lhen $1!Smillion 6. ODBE 8. Annual Gross Receipts o NoncD8E o Less !tian $1 ml!1iQn o eet.veen $1 - $5 million o Between $5 - $10 million 7. C1 Subcontractor o Between $10 - $15 million o Subconsullant o More than $15 million 1. Federal Tax ID Number. 2, Firm Name: 3 Phone: 4. Address: 5. Year Firm Established: Exhibit 3 to Attachment B Required Contract Provisions Federal-Aid Construction Contracts l. General II. Nondiscrimination Ill. Nonseqreqated Facilities IV. Payment of Predetermined Minimum Waqe V. Statements and Pavrolls VI. Record of Materials, Suppries, and Labor VII. Sublettlnq or Assigninq the Contract VIII. Safety: Accident Prevention IX. False Statements Concerninq Highwav Projects X. Implementation of Clean Air Act and Federal Water Pollution Control Act Xl. Certification Reqarding Debarment, Suspensionlneliqibility, and Voluntary Exclusion XII. Certification ReQardinQ Use of Contract Funds for Lobbvinq Attachments A Emplovment 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 labor 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 V.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 V.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 agrees 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, refigion, 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 responsibiiity 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 B 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 implementation will be reviewed and explained. The meetings will be conducted by the EEO Officer. b. All new supervisory or personnel office employees wil! 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 locating 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 circulation 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 employee benefits shall be established and administered, and personnel actions of every type, induding 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 completion 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 employment. 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 special 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 periodicaHy review the training and promotion potential of minority group and women employees and will encourage eligible employees to apply for such training and promotion. 7. Unions: If the contractor relies in whole 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 referral practices and policies of the labor 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 employees.) 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, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procurement of materials and leases of equipment. a. The contractor shall notify all potential subcontractors and suppliers of his/her EEQ 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 shaH 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 locating, 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 female 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 coHect and report training data. It I. 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 certities 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, locker 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 aU 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 unconditionarry 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)J 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 lime 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 officer shalf approve an additional classification, wage rate and fringe benefits only when the following criteria have been met: 1 . the work to be performed by the additional classification requested is not performed by a classification in the wage determination; 2. the additional classification is utilized in the area by the construction industry; 3. the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and 4. with respect to helpers, when such a classification prevails in the area in which the work is performed. c. If the contractor or subcontractors, as appropriate, the laborers and mechanics (if known) to be employed in the additional classification or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the DOL, Administrator of the Wage and Hour Division, Employment Standards Administration, Washington, D.C. 20210. The Wage and Hour Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or wftl notify the contracting officer within the 30.day period that additional time is necessary. d. In the event the contractor or subcontractors, as appropriate, the laborers or mechanics to be employed in the additional classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Wage and Hour Administrator for determination. Said Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or wHl notify the contracting officer within the 30-day period that additional time is necessary e. The wage rate (including fringe benefits where appropriate) determined pursuant to paragraph 2c or 2d of this Section IV shalf be paid to all workers pelforming work in the additional classification from the first day on which work is performed in the classification. 3. Payment of Fringe Benefits: a. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Gontractor or subcontractors, as appropriate, shal! either pay the DEP Contract No. DC646, Exhibit 3 to 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 othelWlse 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 journeymanwlevel hourly rate) specified in the contractor's or subcontractor's registered program shaH 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. Jf 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 regular 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 shalf be paid not Jess 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 perform ed. 3. Every trainee must be paid at not Jess than the rate specified in the approved program for his/her level of progress, expressed as a percentage of the journeyman-level hourly rate spedfied in the applicable wage determination. Trainees shalf 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 8 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 actuaUy 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 shalf not be greater than permitted by the terms of the pa rticu lar p rog ram. 6. Withholding: The SHA shaH 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 prevaifing 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, incfuding 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 shari be liable to the affected employee for his/her unpaid wages. In addition, such contractor and subcontractor shalf 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 shari 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 Federarly- 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 sel 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 aU 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 correcl 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 employing 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 payroll 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, faiiure 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. VL 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 at! contract work indicating the total hours worked and the total amount earned. 2. At the prime contractor's option, either a single report covering at! 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 OEP Contract No. OC646, 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 !tems" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid on the contract"as 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 incfudes the cost of material 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 air 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 applicable 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 the Federal-aid Roads Act approved July 1, 1916, (39 Stat. 355), as amended and supplemented; Shall be fined not more that $1 0,000 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 seq" as amended by Pub.L. 91-604), and under the Federal Water Pollution Control Act, as amended (33 U,S.C. 1251 et seg., 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 knm'\jing!y 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 all 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" (Nonprocurement 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 presentty 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; violation 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; G. 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 available to the Federal 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 Her 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 whois 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. L 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 presentfy 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 shaH 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 contraclor 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 substantialiy modified, he shall promptly notify the State Employment Service. 3. The contractor shall give full consideration to a1l 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 unavailabilily 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 tofill 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 HENDRY OKEECHOBEE ---'"~~'-GI:lADES---"-'-~'---'-'--~-'---"-lI'IGHr:;ANtf;:r~-'~--.-----..--~--------.-~___~._._._~_____ HARDEE MONROE SUFL2023A 10/01/1994 CARPENTERS Rates 12.00 Fringes ELECTRICIANS 14.50 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)) . - - - - - - - - - - - - - - - - - - - ""DEP LonfracfNcr, De&46; Exhibit'4-to 7i::ttadunent-B, -P-ag@ .! -of-3 cc~_,..~_~_"~~~_~~_._'_n~_ 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. --~-~---""'~O_~-'---"-o---,-._,_~_~.~~ ~-'-_o_~--'--~~_.~~~c___~~~cw~_._~~._~~~~~.,_,...,_.__~~~_'~n_.----.-~~._,_,~~~~c_~_..w_____ 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 CPR Part 1.8 and 29 CPR 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 Contract No. 646~ Exhibit 4 to Atta.c:hrrent 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 E, Page 3 of 3 Attachment "c" DISCLOSURE OF LOBBYING ACTIVITIES COOlplere this form to discio.e lobbying activities purstWlt to 31 U.S.C. 1352 1. 1'ypc of Fed=.! Action, o 2. StaIm m Ptdcral Action o ... <l'O!l.IDlCt b. grant c. ~ve~ d. loon e. loangur.rontee f. Irnw 1n0lmlllCe a. bW of!edappucation b, iniliBl award c. !'<"'t-ll.'<'<llI<l. 3. Repmt Type: o /' ~alfiUng ~ matl:rilll cl1an;;e / ~Changeo..lY' /< ~quzrter-,.,- /' dI!I.c of hst report~ ? / 4. Name. and Address of Reporting &tity: o Prime 0 Sub.wanke TIer~ifbwwzt: 8. 5. If . Ii Entity in '!'lo. 4 is Sabawardee. Erna- Name and A,dflress of Prime: f . / ./ / / / ~o~ District. if known: Congresaional District, ifk1w",,,: 6. Federnl Departmenll J\sency: 7. Federnl Program NllIQelDescripti",,: Cf-DA Numba-, if appIkabk; 9. AwardAmount,iflawwn: $, III a. Name Md Address mL:lbbying Entity 1'\ b. lndividnols Pc.rl'orming Sernces (im:lJu1bIg addres.< if (ifindil>it:fual, l=_fUllMm",Ml).- difj'erciJtfromNn.lOa) , I . (last 1W1le, fim""""" MI): I / / (oUat:h C/JlitbwatlOIl Sheet(s} ,';F.L1.J.A, ifll=ary} 11. InfOl:lmtiou req~ furough tlllil fOlIli'~ IlIltIlotiml by Signature: TrtJe31 US.c.ftcllon 1352. Thisdisclosureof)cl;byln activities is a;fmtcril!l repre8"-Jllatioo of fact uptm which PrintNmw: reliance wuAilaced by the tier,u,;,vc wl;en.thi.stnwsaetia \<r.l.'; made 9f entered int{>o This dinclosure is ""I'rir<d Tille: pnn;tIJmt u> 31 U.s.c. 1352. ThIs iafoonatioo will be , re~to Canz=s SenU-llllUmilly and will be available Tclepb<>lle No.: Dale: forpujilic inspecti<?u. Any'PetSilll who falh:toffiethe requited disckmnu shall be subjeCt to a civil ~ of ~ie.. than $10,000 and not. tll<lre than $100,000 fer e fiUlure. . .J ~I Use Only: .J .f ,#onnDEP 55-:m (OliOI) AlIthorizro ror!.=al Reproduction Stllnthmi Fonn-U1.. (Rev 7-97) INSTRUCITONS FOR COMPLETION OF SF-UL, DISCLOSURE OF LOBBYING ACTIV1TJ.ES This diSclosure fuan sball be COmpleted by the reporting entity, whether subawardee or prime Federal recipient, at the initiation or receipt of a CQvered Federal action, or a material change to a previQus filing, pursuant tQ title 31 D.S.C. section 1352, The filing of a form is required for each payment oragreeIl)Cut 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 eonnection with a covered Federal action. Complete all items that apply for both the initial. tiling and material change report. Refer to the imp,=ting guidance published by the Office JifMauagement and Budget for additional informatiQu, 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 Federal action. 2, Identify the status Qf covered Pederalaction 3. ,. Identify the appropriate classification of this report, If this is a fonow up report caused by a Iilllterial' change'to the information previQusly reported, ente!" the year and quairer in which the change occurred. Enter the date of the last previously submitted report by the reporting entity fur this covered Federal action. 4. Enter the full name, address, city, state and zip code of the reporting entity. Include Congressional District, rrknown. Cbeck the appropriiue classification of the reporting entity that designates if it is or expects to be, a prime or sub award recipient. Identify the tier of the subawardee, e.g., the first . subawardee of the prime is the I" der. Subawatds include but are Dot limited to subcontracts, subgmnts and contract awards under grants. 5, If the organization filing the report in item 4 cbecks "Subawardee", then enter the fullllatne, address, city, state and rip code of the prime Federal recipient InclUde Congressional District. ifknown. 6. Enter the name of the Federal agency making the award or loan commitment. Include. at least one organizational level below agency Dame, if known. For example, Department ofTr;msportatiQn, United States Coast Guard. . 7. Enter the name of the Federal program name or dC3cription for the covered Federal action (item 1). If known, enter the full Catalog of Federal Domestic Assistance (CFDA) number for grants, cQoperative agreement,;, loans, and loan commitments. , 8. Enter the most appropriate Federal identifying number available for the Federal identified in item 1 (e.g>. Request fer Proposal (RFP) number; Invitation to Bid (lFB) number; grant announcement number; the contract, grant, Of loan award number; the application/proposal control numlier assigned by the Federal agency)" Include prefixes, e.g., ''RFP-DE.90.{)Ol.'' 9. For a covered Federal action where there has been "an award or loan Conu:nltment by the Federal agency, enter the Federal amount of the awardlloan commitment fQr the prime entity identified in item 4 or 5, 10, ta) Enter the full name, address, city, state and zip code of the lobbying entity engaged by the rejXlrting entity identified in item 4 to influence the covered Federal action. (b) Enter the nIlI names of the ,individual(s) perfonping services, and include full addte$s if differem from 10 (a).. Enter the Last Name, First Name, and Middle Initial (MI). 1 L The certifying officiatshall sIJpl and date the form, print his/her name, title and telephone number. Aceoorling rome Paperwori; Reduction Act. ll>1 amended, no peroons are required to respond to a collection of infOl1l1lll:ion unl= it displays a valid OMB Cootml Nlll:i1her. The valid OMB control number for thi& inf<>rnWion colloclioo is OMB No. 0348-0046. Publlc J:CPorting burden fur Ih:is rollectioo of infonnation is estimated to ll\'el"1lge 30 minul.... per responre, mcluding time for reviewing insltuctiow, =lUng cristiug dalJl. sources, galhf:ring and maintain!"!; the data needed. and oompleting.and reviewing !he eollection ofinfurmalkm. Sendc~ts rega.-cling thebrmien~~orany other a.pect of thi~ colle<:tion of infotnllltion. including SU~OllS fot reducing Ih:is huulen. to tbe Office ofM"""~t and Budget, Papl:"1WU1k Reduction Project {0348-0046}, Washington D.C, 20503, Fonn DEP 55-221 (01101) 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 Pa.Yillent 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 of reasonable 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 Project 2. Timely Payment by Department and Interest. Exeept as othenvise provided in sections 255.072-255.078, Florida Statutes, section 215A22, Florida Statutes, governs the timely payment for construction services by the Department. If the 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 215A22, 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"). Vv'hen 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) anamount not to exceed 150 percent of the total costs to complete such items. This colIection, 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 retainage, unless otherwise provided herein. lfthe 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 subject 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, if it 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 perfonnance, 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 detennination 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. lfthe 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 ofa claim brought under section 255.05, F.S., or otherv.rise 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 Projects 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 subject 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 D, Page 2 of 2 Exhibit 1 to Attachment D 255.0705 Popular name.--Sections 255.0705-255.078 may be 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 ofthe 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. (f) 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 I 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 J to Attachment D, Page 2 on INote.--Section 16, eh. 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 confolms \vith 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) \\nen 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! to Attachment D, Page 3 of 7 contractor for labor, services, or materials fumished 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 1, 2006, such payments shall bear interest at the rate of 1 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 1 percent per month. History.--s. 7, ch. 2005-230. 255.074 Procedures for calculation of payment due dates.-- (1) 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 of late 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 attomey'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 pa)rment that is the subject ofllie 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.-- (l) Each contract for constmction 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 constmction projects having an estimated cost of less than $10 million, within 30 calendar days after reaching substantial completion of the constmction services purchased as defined in the contract, or, ifnot defined in the contract, upon reaching beneficial occupancy or use; or (b) For constmction projects having an estimated cost of $1 0 million or more, within 30 calendar days, unless otherwise extended by contract not to exceed 60 calendar days, after reaching substantial completion of the constmction 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 constmction services on more than one building or structure, or involves a multiphased project, the contract must provide for the development of a list of items required to render complete, satisfactory, and acceptable all the constmction 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 (1) or subsection (2) does not alter the responsibility of the contractor to complete all the constmction 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. DEP Contract No. DC646, Exhibit 1 to Attachment D, Page 5 of7 (6) Warranty items may not affect the final payment of retain age 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 (1), the contractor may submit a payment request for all remaining retainage witlilield 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 if s. 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 of retainage withheld from each subsequent progress payment made to the contractor. For purposes of this 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 publie 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 constmction services purchased pursuant to the contract, the contractor may elect to witliliold 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 I to Attachment D, Page 6 of! (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 of the 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 witliliolding the payment of retain age. If the 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 pay'IDent 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 rctainage 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 retain age 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 of a 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. 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." DEP Contract No, DC646, Exhibit I to Attachment D, Page 7 of7