Resolution 066-2009RESOLUTION NO. 066— 2009
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA,
APPROVING THE EMERGENCY LOCAL
GOVERNMENT EMERGENCY RELIEF
REIMBURSEMENT AGREEMENT WITH FLORIDA
DEPARTMENT OF TRANSPORTATION FOR
FINANCIAL ASSISTANCE WITH REPAIRS RELATED
TO TROPICAL STORM FAY.
WHEREAS, the Federal Highway Administration (FHWA) has established an
Emergency Relief Program codified at 23 USC § 125, and
WHEREAS, the FHWA has, as a result of the Executive Order 208-170, dated August
16, 2008 for Tropical Storm Fay authorized funding to be provided to the Department for relief
from the damage inflicted by said storm, and
WHEREAS, the Emergency Relief Program Agreement provides for emergency relief,
and
WHEREAS, Monroe County has incurred certain costs and expenses as a direct result of
the tropical storm, and
WHEREAS, it has been determined that emergency repairs are necessary and that the
costs and expenses of said repairs are eligible for reimbursement up to 100%, dependent on the
amount of allocation made by FHWA.
NOWTHEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Monroe County, Florida, that:
SECTION 1: The Emergency Local Government Emergency Relief
Reimbursement Agreement Between the State of Florida
Department of Transportation and Monroe County, Florida is
hereby approved.
PASSED AND ADOPTED, by the Board of County Commissioners of Monroe County,
Florida at a regular meeting of said Board on the 18th day of March, A.D., 2009.
Mayor, George Neugent
Yes
Mayor Pro Tern Sylvia Murphy
Yes
Commissioner Kim Wigington
Yes
Commissioner Heather Carruthers
Yes
Commissioner Mario Di Gennaro
Yes
L. Kolhage, CLERK
By:
Deputy Clerk
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BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
Mayor George Neugent
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MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
CHRISTINr M. LIMBERT-BARROWS
ASSISTANT COUNTY ATTORNEY
Date 11 m
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STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 350-000-15
EMERGENCY LOCAL GOVERNMENT EMERGENCY RELIEF COMPTROLLER
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REIMBURSEMENT AGREEMENT Pap 1 of 23
Contract No: A'?& E-15
DUNS No: 80-939-7102
CFDA No: 20.205
This Agreement, made and entered into this _7-10"—" date of _IX Qg:% \ , 2009 by and between the State of Florida
Department of Transportation (FDOT), an agency of the State of Florida, herein after called the "Department° and
Monroe County located at 1100 Simonton Street, Rm. 2-216, Key West. FL 33040 herein after called the
"Local Government".
WHEREAS, the Federal Highway Administration (FHWA) has established an Emergency Relief Program codified at 23
USC §125, and
WHEREAS, the FHWA has, as a result of the Executive Order(s) 08-170 , dated August 16 , 2008 for
Hurricane(s) Tropical Storm Fay authorized funding to be provided to the Department for relief from the
damage inflicted by said storms, and
WHEREAS, this Emergency Relief Program Agreement provides for emergency relief, and
WHEREAS, the Local Government, has incurred certain costs and expenses as a direct result of the hurricane(s) as
contained on the attached Detailed Damage Inspection Reports (DDIR(s)), and
WHEREAS, it has been determined that emergency repairs are necessary and that the costs and expenses of said
repairs are eligible for reimbursement up to 100%, dependent on the amount of allocation made by FHWA, and
WHEREAS, the Local Government by Resolution No. 066-2009 adopted on 3/18/2009 2009,
a copy of which is attached hereto and made a part hereof, authorizes the proper officials to enter into this Agreement.
NOW THEREFORE in consideration of the mutual consideration, covenants and conditions set forth herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to
be legally bound hereby, agree as follows:
The parties agree as follows:
1. The recitals set forth herein above are specifically incorporated herein by reference and made a part of this
Reimbursement Agreement.
2. The Department enters into this agreement as the administrator of the FHWA Emergency Relief Program funds
with the administration of funds being subject to the terms and conditions of 23 USC §125 and the Program Administration
Manual published by the FHWA.
3. The scope of work and services authorized by FHWA are described in the DDIR(s), attached and incorporated
herein as Exhibit A
4. Subject to the terms and conditions of the Emergency Relief Program Manual at
http://www.fhwa.dot.gov/reports/erm/erm.pdf, the Department agrees to reimburse the Local Government for eligible costs
from the funds allocated to the Department for said purposes.
5. The Local Government shall be fully responsible for the proper billing of any federal reimbursable costs or
charges, including those incurred by its contractors and subcontractors. The Local Government shall timely submit
invoices and documents necessary for the close out of the project
The Local Government agree$ to promptly reimburse the Department for any and all amounts for which the Department
has made payment to the Local Government if such amounts become ineligible, disqualified, or disallowed for federal
reimbursement due to any act, error, omission, or negligence of the Local Government, including missing or deficient
documentation of costs and charges, untimely, incomplete, or insufficient submittals including the required DDIR, or any
other reason declared by FHWA.
The Local Government agrees that the Department may offset such amounts from payments due for work or services
done under any agreement between the parties if payment from the Local Government is not received by the Department
after nine 0 days of written notice from the Department. Offsetting any amount pursuant to this paragraph shall not
be considered a breach of contract by the Department.
The Local Government understands that if it fails to timely perform its obligations, or timely submit invoices and
documents necessary for the close out of the project, the maximum limiting amount may become unavailable or reduced
due to a removal or withdrawal of federal funds or a loss of state appropriation, and the Department will have no obligation
to provide funds from other sources. The Local Government agrees that in the event the maximum limiting amount of this
Agreement is reduced by such removal, withdrawal, or loss of funds, the Local Government will be solely responsible for
payment of costs and outstanding invoices no longer reimbursable due to the loss of funding.
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6. Invoices for fees and other compensation will be certified by the Local Government as being due and eligible for
reimbursement and shall be submitted in sufficient detail along with appropriate supporting documentation to allow a
proper pre and post audit thereof.
7. The Department agrees to reimburse the Local Government an amount not to exceed a maximum limiting amount
of $ 10,000.00 (Ten Thousand Dollars) (amount spelled out) for actual direct costs. This is a
maximum limiting amount. Amount paid will not exceed FDOT's approved and FHWA's authorized amount for the work
scope described in the DDIR(s).
(Check all that apply).
® This amount may be adjusted by agreement of both parties documented in an amendment to this
agreement.
® Will be paid upon processing of an approved invoice pursuant the invoice requirements of this agreement.
❑ Invoices will be submitted monthly
❑ Invoices will be submitted quarterly
❑ Invoices will be submitted
® One invoice will be submitted upon completion
8. Chose one of the following:
® Travel costs will not be reimbursed.
❑ Travel costs will be reimbursed if submitted pursuant to and in compliance with Section 112.061, Florida
Statutes.
9. If a payment is not available within forty (40) days, a separate interest penalty at a rate as established pursuant to
Section 55.03(1), Florida Statutes, will be due and payable, in addition to the invoice amount. Interest penalties of less
than one dollar ($1.00) will not be enforced unless the Local Government requests payment. Invoices that have to be
returned to a Local Government because of Local Government preparation errors will result in a delay in payment. The
invoice payment requirements do not start until a properly completed invoice is provided to the Department.
10. Vendor Ombudsman has been established within the Department of Financial Services. The duties of this
individual include acting as an advocate for contractors/vendors who may be experiencing problems in obtaining timely
payment(s) from a state agency. The Vendor Ombudsman may be contacted at (850) 410-9724 or by calling the
Department of Financial Services Hotline, 1-800-848-3792.
11. The Local Government agrees to complete the project on or before June 30, 2010. If the Agency does
not complete the project within this time period, this Agreement will expire on the last day of scheduled completion as
provided in this paragraph unless an extension of the time period is requested by the Agency and granted in writing by the
Department prior to the expiration of the Agreement. Expiration of this Agreement will be considered termination of the
project. The cost of any work performed after the expiration date of the agreement will not be reimbursed by the
Department.
12. Recipients of federal funds awarded by the Department to the Local Government are subject to audits as defined
in OMB Circular A-133, as revised. See attached Audit Requirements, attached and incorporated herein as Exhibit B .
13. In the event this Agreement is in excess of $26,000.00 or has a term for a period of more than one year, the
provisions of Chapter 339.135(6)(a), Florida Statutes, are hereby incorporated as follows:
"The Department, during any fiscal year, shall not expend money, incur any liability, or enter into any
contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as
available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this
subsection is null and void, and no money may be paid on such contract. The Department shall require a
statement from the Comptroller of the Department that funds are available prior to entering into any such
contract or other binding commitment of funds. Nothing herein contained shall prevent the making of
contracts for periods exceeding one year, but any contract so made shall be executory only for the value of
the services to be rendered or agreed to be paid for in succeeding fiscal years; and this paragraph shall be
incorporated verbatim in all contracts of the Department which are for an amount in excess of $25,000.00
and which have a term for a period of more than one year."
14. The Department's obligation to pay is contingent upon an annual appropriation by the Florida Legislature.
15. Agreements that are entered into by the Local Government with third parties to perform Emergency Relief
Program work for which the Local Government intends to seek reimbursement involving FHWA Emergency Relief
Program funds shall:
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a. Be negotiated, solicited or openly bid by the Local Government. Note: Pre -event agreements must be openly
bid.
b. Be negotiated, solicited or openly bid by the Local Government.
c. Include provisions mandating compliance with Davis -Bacon wage rates and include the wage rate tables in the
agreement, said tables being available at: http://www.dot.stat.fl.us/construction/waae.htm; however, Davis -Bacon
labor standards do not apply to Debris Removal work unless done in conjunction with a Construction project.
d. Include the "Required Contract Provisions for Federal -Aid Construction Contracts" (FHWA- 1273) a copy of
which is attached and incorporated herein as Exhibit E; however,
Form 1273 is not required for scope of work specific to Debris Removal Monitoring.
e. Mandate compliance with Federal "Buy America Requirements", a copy of which is attached and incorporated
herein as Exhibit D.
f. Mandate coordination by the Local Government and the third party contractor with the Department to assure
compliance with the requirements of the National Environmental Policy Act (NEPA) of 1969.
g. Mandate compliance with 49 CFR Part 26, Disadvantaged Business Enterprise Program, including the
requirement for the Contractor and/or the Local Government to report monthly on the Equal Opportunity Reporting
System on the Department's website found at www.bii)incwebapps.com/bizwebflorida/.
h. Mandate compliance with all requirements as imposed by the Americans with. Disabilities Act of 1990 (ADA),
the regulations of the Federal government issued thereunder, and assurance by the Local Government pursuant
thereto.
i. Mandate compliance with the convict labor prohibition in 23 U.S.C. 114. Convict labor cannot be used in
Emergency Relief construction projects.
16. Exhibit C which is attached and incorporated herein indicates Federal resources and state financial assistance
awarded through the Department by this agreement.
17. Records of costs incurred under the terms of this Agreement shall be maintained and made available upon
request to the Department at all times during the period of this Agreement and for five years after the Department
has closed out an Emergency Event with the Florida Division of Emergency Management. Records of costs
incurred include the Local Government's general accounting records and the project records, together with
supporting documents and records, of the contractor and all subcontractors performing work on the project, and
all other records of the contractor and subcontractors considered necessary by the Department for a proper audit
of costs.
18. All invoices are to be mailed to:
Florida Department of Transportation
Attn: Jeannie Cann
1000 NW 111 Avenue, Rm. 6205
Miami. FL , Florida 33172
18. Contact Names and Addresses:
Local Government: Monroe County
Address:
1100 Simonton Street, Room 2-216
Key West, FL Florida 33040
Contact Name: Judith S. Clarke, P.E.. Assistant County Engineer
Contact Telephone: 305-295-4329
Florida Department of Transportation
Address: 1000 NW 111 Avenue, Rm. 6202B
Miami. FL . Florida 33172
Contact Name: Michelle L. Meaux, JPA Coordinator
Contact Telephone: 305-470-5112
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IN WITNESS WHEREOF, parties have executed this Agreement on the date first above written.
LOCAL
Monroe
By: �` -e- 6 i
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George R. Neugent
-- .or/Chairman
"Ma 18, 2009
$ 7 L. KOLHAGE, Clerk
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A Form, Legality
And Execution:
Local Government Attorney
MONROE COUNTY ATTORNEY
,, APPROVFD AS TO FORM:
CHRISTINE M. IIIMBERT-BARROWS
ASSISTANT COUNTY ATTORNEY
Date QJI I /awg
STATE OF FL RID
R 4 DEPARTMEN�OFNSPORTATION
By:
Name: Gu e o
Title: Distridt Secretary
Attest:
Executive ffecretary
Department Legal
CoiC�
Authorization Received From the Department's
Comptroller as to Availability of Funds:
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Exhibit "A"
DETAILED DAMAGE INSPECTION REPORT
U.S Depalment
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Forla,al-aid Roule Number
Des::rIction of Damao
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Cost Estimito
Description of Work to Date c
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(Equipment. Labor. and klatetml:;)
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State Forces(.Onlroct PE/CE
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EnwomepIN Assessment RmommefOnan
IWCategorical Exduston
L] EAIEIS
Recommendation
concurrence Yes
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Form FHWA-1547 (Rev. 4-98)
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EXHIBIT B
Audit Requirements
FEDERALLY FUNDED CONTRACTS
The administration of resources awarded by the Department to Monroe County may be subject to audits and/or monitoring
by the Department, as described in this section.
In addition to reviews of audits conducted in accordance with OMB Circular A-133 and Section 215.97, F.S., as revised
(see "AUDITS" below), monitoring procedures may include, but not be limited to, on -site visits by Department staff, limited
scope audits as defined by OMB Circular A-133, as revised, and/or other procedures. By entering into this agreement,
the recipient agrees to comply and cooperate fully with any monitoring procedures/processes deemed appropriate by the
Department. In the event the Department determines that a limited scope audit of the recipient is appropriate, the
recipient agrees to comply with any additional instructions provided by the Department staff to Monroe County regarding
such audit. Monroe County further agrees to comply and cooperate with any inspections, reviews, investigations, or
audits deemed necessary by the Department's Office of Inspector General (OIG) and Florida's Chief Financial Officer
(CFO) or Auditor General.
AUDITS
PART 1: FEDERALLY FUNDED
Recipients of federal funds (i.e. state, local government, or non-profit organizations as defined in OMB Circular A-133, as
revised) are to have audits done annually using the following criteria:
In the event that the recipient expends $500,000 or more in Federal awards in its fiscal year, the recipient must
have a single or program -specific audit conducted in accordance with the provisions of OMB Circular A-133, as
revised. EXHIBIT C to this agreement indicates Federal resources awarded through the Department by this
agreement. In determining the Federal awards expended in its fiscal year, the recipient shall consider all sources
of Federal awards, including Federal resources received from the Department. The determination of amounts of
Federal awards expended should be in accordance with the guidelines established by OMB Circular A-133, as
revised. An audit of the recipient conducted by the Auditor General in accordance with the provisions OMB
Circular A-133, as revised, will meet the requirements of this part.
2. In connection with the audit requirements addressed in Part I, paragraph 1., the recipient shall fulfill the
requirements relative to auditee responsibilities as provided in Subpart C of OMB Circular A-133, as revised.
3. If the recipient expends less than $500,000 in Federal awards in its fiscal year, an audit conducted in accordance
with the provisions of OMB Circular A-133, as revised, is not required. However, if the recipient elects to have an
audit conducted in accordance with the provisions of OMB Circular A-133, as revised, the cost of the audit must
be paid from non -Federal resources (i.e., the cost of such an audit must be paid from recipient resources obtained
from other than Federal entities).
4. Federal awards are to be identified using the Catalog of Federal Domestic Assistance (CFDA) title and number,
award number and year, and name of the awarding federal agency.
PART II: STATE FUNDED
Recipients of state funds (i.e. a nonstate entity as defined by Section 215.97(2)(1), Florida Statutes) are to have audits
done annually using the following criteria:
In the event that the recipient expends a total amount of state financial assistance equal to or in excess of
$500,000 in any fiscal year, the recipient must have a State single or project -specific audit for such fiscal year in
accordance with Section 215.97, Florida Statutes; applicable rules of the Department of Financial Services and
the CFO; and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for -profit organizations),
Rules of the Auditor General. EXHIBIT C to this agreement indicates state financial assistance awarded through
the Department by this agreement. In determining the state financial assistance expended in its fiscal year, the
recipient shall consider all sources of state financial assistance, including state financial assistance received from
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the Department, other state agencies, and other nonstate entities. State financial assistance does not include
Federal direct or pass -through awards and resources received by a nonstate entity for Federal program matching
requirements.
2. In connection with the audit requirements addressed in Part II, paragraph 1, the recipient shall ensure that the
audit complies with the requirements of Section 215.97(7), Florida Statutes. This includes submission of a
financial reporting package as defined by Section 215.97(2)(d), Florida Statutes, and Chapters 10.550 (local .
governmental entities) or 10.650 (nonprofit and for -profit organizations), Rules of the Auditor General.
3. If the recipient expends less than $500,000 in state financial assistance in its fiscal year, an audit conducted in
accordance with the provisions of Section 215.97, Florida Statutes, is not required. However, if the recipient
elects to have an audit conducted in accordance with the provisions of Section 215.97, Florida Statutes, the cost
of the audit must be paid from the nonstate entity's resources (i.e., the cost of such an audit must be paid from the
recipient's resources obtained from other than State entities).
4. State awards are to be identified using the Catalog of State Financial Assistance (CSFA) title and number, award
number and year, and name of the state agency awarding it.
PART III: OTHER AUDIT REQUIREMENTS
The recipient shall follow up and take corrective action on audit findings. Preparation of a summary schedule of prior year
audit findings, including corrective action and current status of the audit findings is required. Current year audit findings
require corrective action and status of findings.
Records related to unresolved audit findings, appeals, or litigation shall be retained until the action is completed or the
dispute is resolved. Access to project records and audit work papers shall be given to the Department., the Department of
Financial Services, and the Auditor General. This section does not limit the authority of the Department to conduct or
arrange for the conduct of additional audits or evaluations of state financial assistance or limit the authority of any other
state official.
PART IV: REPORT SUBMISSION
Copies of reporting packages for audits conducted in accordance with OMB Circular A-133, as revised, and
required by PART I of this agreement shall be submitted, when required by Section .320 (d), OMB Circular A-133,
as revised, by or on behalf of the recipient directly to each of the following:
A. The Department at each of the following addresses:
Florida Department of Transportation
1000 NW 111t" Avenue, Room 6202E
Miami, FL 33172
Attn: Michelle L. Meaux, JPA Coordinator
B. The Federal Audit Clearinghouse designated in OMB Circular A-133, as revised (the number of copies
required by Sections .320 (d)(1) and (2), OMB Circular A-133, as revised, should be submitted to the Federal
Audit Clearinghouse), at the following address:
Federal Audit Clearinghouse
Bureau of the Census
1201 East 10th Street
Jeffersonville, IN 47132
C. Other Federal agencies and pass -through entities in accordance with Sections .320 (e) and (0, OMB Circular
A-133, as revised.
2. In the event that a copy of the reporting package for an audit required by PART I of this agreement and conducted
in accordance with OMB Circular A-133, as revised, is not required to be submitted to the Department for reasons
pursuant to section .320 (e)(2), OMB Circular A-133, as revised, the recipient shall submit the required written
notification pursuant to Section .320 (e)(2) and a copy of the recipient's audited schedule of expenditures of
Federal awards directly to each of the following:
Florida Department of Transportation
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1000 NW 111th Avenue, Room 6202B
Miami, FL 33172
Attn: Michelle L. Meaux, JPA Coordinator
In addition, pursuant to Section .320 (f), OMB Circular A-133, as revised, the recipient shall submit a copy of the
reporting package described in Section .320 (c), OMB Circular A-133, as revised, and any management letters
issued by the auditor, to the Department at each of the following addresses:
Florida Department of Transportation
1000 NW 111th Avenue, Room 6202B
Miami, FL 33172
Attn: Michelle L. Meaux, JPA Coordinator
3. Copies of financial reporting packages required by PART II of this agreement shall be submitted by or on behalf of
the recipient directly to each of the following:
A. The Department at each of the following addresses:
Florida Department of Transportation
1000 NW 111th Avenue, Room 6202B
Miami, FL 33172
Attn: Michelle L. Meaux, JPA Coordinator
B. The Auditor General's Office at the following address:
Auditor General's Office
Room 401, Pepper Building
111 West Madison Street
Tallahassee, Florida 32399-1450
4. Copies of reports or the management letter required by PART III of this agreement shall be submitted by or on
behalf of the recipient directly to:
A. The Department at each of the following addresses:
Florida Department of Transportation
1000 NW 111th Avenue, Room 6202E
Miami, FL 33172
Attn: Michelle L. Meaux, JPA Coordinator
5. Any reports, management letter, or other information required to be submitted to the Department pursuant to this
agreement shall be submitted timely in accordance with OMB Circular A-133, Florida Statutes, and Chapters
10.550 (local governmental entities) or 10.650 (nonprofit and for -profit organizations), Rules of the Auditor
General, as applicable.
S. Recipients, when submitting financial reporting packages to the Department for audits done in accordance with
OMB Circular A-133 or Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for -profit
organizations), Rules of the Auditor General, should indicate the date that the reporting package was delivered to
the recipient in correspondence accompanying the reporting package.
PART V: RECORD RETENTION
The recipient shall retain sufficient records demonstrating its compliance with the terms of this agreement for a
period of at least five years from the date the audit report is issued, and shall allow the Department, or its
designee, CFO, or Auditor General access to such records upon request. The recipient shall ensure that audit
working papers are made available to the Department, or its designee, CFO, or Auditor General upon request for
a period of at least five years from the date the audit report is issued, unless extended in writing by the
Department.
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EXHIBIT C
FEDERAL and/or STATE resources awarded to the recipient pursuant to this agreement should be listed below. If the
resources awarded to the recipient represent more than one Federal or State program, provide the same information for
each program and the total resources awarded. Compliance Requirements applicable to each Federal or State program
should also be listed below. If the resources awarded to the recipient represent more than one program, list applicable
compliance requirements for each program in the same manner as shown here:
• (e.g., What services or purposes the resources must be used for)
• (e.g., Eligibility requirements for recipients of the resources)
• (Etc... )
NOTE: Instead of listing the specific compliance requirements as shown above, the State awarding agency may elect to
use language that requires the recipient to comply with the requirements of applicable provisions of specific laws, rules,
regulations, etc. The State awarding agency, if practical, may want to attach a copy of the specific law, rule, or regulation
referred to.
FEDERAL RESOURCES
Federal Agency Catalog of Federal Domestic Assistance (Number & Title) Amount
Florida Highway 20.205 Highway Planning and Construction $10,000.00
Administration (FHWA)
Compliance Requirements
1. Contract Specifications
2. FHWA Emergency Relief Program Requirements
3.
STATE RESOURCES
State Agency Catalog of State Domestic Assistance (Number & Title) Amount
Compliance Requirements
2.
3.
Matching Resources for Federal Programs
Federal Agency Catalog of Federal Domestic Assistance (Number & Title) Amount
Compliance Requirements
2
3
NOTE: Section .400(d) of OMB Circular A-133, as revised, and Section 215.97(5)(a), Florida Statutes, require that
the information about Federal Programs and State Projects included in Exhibit 1 be provided to the recipient.
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EXHIBIT D
Federal Highway Administration Provision — Buy America
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 $ N/A. 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 Engineers written approval prior to incorporating the
material into the project.
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EXHIBIT E
Required Contract Provisions Federal -Aid Construction Contracts
I. General
II. Nondiscrimination
III. Nonsegregated Facilities
IV. Payment of Predetermined Minimum Wage
V. Statements and Payrolls
VI. Record of Materials, Supplies, and Labor
VII.. Subletting or Assigning the Contract
Vill. Safety: Accident Prevention
IX. False Statements Concerning Highway Projects
X. Implementation of Clean Air Act and Federal Water Pollution Control Act
XI. Certification Regarding Debarment, Suspension Ineligibility, and Voluntary Exclusion
XII. Certification Regarding Use of Contract Funds for Lobbying
Attachments
A. Employment Preference for Appalachian Contracts (included in Appalachian contracts only)
GENERAL
1. These contract provisions shall apply to all work performed on the oontract by the contractor's own
organization and with the assistance of workers under the contractors 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 any of its subcontractors) and the contracting agency, the DOL, or the contractors
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 tabor 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.)
Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to discriminate
and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules,
regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60) and orders of the Secretary of Labor as modified by
the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and
specific affirmative action standards for the contractors project activities under this contract. The Equal
Opportunity Construction Contract Specifications set forth under 41 CFR 60-4.3 and the provisions of the
American Disabilities Act of 1990 (42 U.S.C. 12101 et sea.) set forth under 28 CFR 35 and 29 CFR 1630
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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, religion, sex, color, national origin, age or
disability. Such action shall include: employment, upgrading, demotion, or transfer, recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship, preapprenticeship, and/or on-the-job training."
2. EEO Officer: The contractor will designate and make known to the SHA contracting officers an EEO
Officer who will have the responsibility for and must be capable of effectively administering and promoting
an active contractor program of EEO and who must be assigned adequate authority and responsibility to
do so.
3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise,
promote, and discharge employees, or who recommend such action, or who are substantially involved in
such action, will be made fully cognizant of, and will 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 will be given a thorough indoctrination by the EEO
Officer, covering all major aspects of the contractor's EEO obligations within thirty days following
their reporting for duty with the contractor.
C. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO
Officer in the contractor's procedures for 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 have 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.
5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and
administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer,
demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, national origin,
age or disability. The following procedures shall be followed:
a. The contractor will conduct periodic inspections of project sites to insure that working conditions and
employee facilities do not indicate discriminatory treatment of project site personnel.
b. The contractor will periodically evaluate the spread of wages paid within each classification to
determine any evidence of discriminatory wage practices.
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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 periodically 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 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 EEO obligations under
this contract.
b. Disadvantaged business enterprises (DBE), as defined in 49 CFR 23, shall have equal opportunity to
compete for and perform subcontracts which the contractor enters into pursuant to this contract. The
contractor will use his best efforts to solicit bids from and to utilize DBE subcontractors or
subcontractors with meaningful minority group and female representation among their employees.
Contractors shall obtain lists of DBE construction firms from SHA personnel.
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C. The contractor will use his best efforts to ensure subcontractor compliance with their EEO
obligations.
9. Records and Reports: The contractor shall keep such records as necessary to document compliance with
the EEO requirements. Such records shall be retained for a 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 FHWA.
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
FHWA-1391. If on-the-job training is being required by special provision, the contractor will be
required to collect and report training data.
III. NONSEGREGATED FACILITIES
(Applicable to all Federal -aid construction contracts and to all related subcontracts of $10,000 or more.)
a. By submission of this bid, the execution of this contract or subcontract, or the consummation of this
material supply agreement or purchase order, as appropriate, the bidder, Federal -aid construction
contractor, subcontractor, material supplier, or vendor, as appropriate, certifies that the firm does not
maintain or provide for its employees any segregated facilities at any of its establishments, and that
the firm does not permit its employees to perform their services at any location, under its control,
where segregated facilities are maintained. The firm agrees that a breach of this certification is a
violation of the EEO provisions of this contract. The firm further certifies that no employee will be
denied access to adequate facilities on the basis of sex or disability.
b. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas,
restrooms and washrooms, restaurants and other eating areas, timeclocks, 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).
C. The contractor agrees that it has obtained or will obtain identical certification from proposed
subcontractors or material suppliers prior to award of subcontracts or consummation of material
supply agreements of $10,000 or more and that it will retain such certifications in its files.
IV. PAYMENT OF PREDETERMINED MINIMUM WAGE
(Applicable to all Federal -aid construction contracts exceeding $2,000 and to all related subcontracts, except for
projects located on roadways classified as local roads or rural minor collectors, which are exempt.)
1. General:
a. All mechanics and laborers employed or working upon the site of the work will be paid
unconditionally and not less often than once a week and without subsequent deduction or rebate on
any account [except such payroll deductions as are permitted by regulations (29 CFR 3) issued by
the Secretary of Labor under the Copeland Act (40 U.S.C. 276c)] the full amounts of wages and
bona fide fringe benefits (or cash equivalents thereof) due at time of payment. The payment shall be
computed at wage rates not less than those contained in the wage determination of the Secretary of
Labor (hereinafter "the wage determination") which is attached hereto and made a part hereof,
regardless of any contractual relationship which may be alleged to exist between the contractor or its
subcontractors and such laborers and mechanics. The wage determination (including any additional
classifications and wage rates conformed under paragraph 2 of this Section IV and the DOL poster
(WHA 321) or Form FHWA-1495) shall be posted at all times by the contractor and its subcontractors
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at the site of the work in a prominent and accessible place where it can be easily seen by the
workers. For the purpose of this Section, contributions made or costs reasonably anticipated for
bona fide fringe benefits under Section 1(b)(2) of the Davis -Bacon Act (40 U.S.C. 276a) on behalf of
laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the
provisions of Section IV, paragraph 3b, hereof. Also, for the purpose of this Section, regular
contributions made or costs incurred for more than a weekly period (but not less often than quarterly)
under plans, funds, or programs, which cover the particular weekly period, are deemed to be
constructively made or incurred during such weekly period. Such laborers and mechanics shall be
paid the appropriate wage rate and fringe benefits on the wage determination for the classification of
work actually performed, without regard to skill, except as provided in paragraphs 4 and 5 of this
Section IV.
b. Laborers or mechanics performing work in more than one classification may be compensated at the
rate specified for each classification for the time actually worked therein, provided, that the
employers 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:
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 shall 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 will 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 will 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 shall be paid to all workers performing 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 contractor or subcontractors,
as appropriate, shall either pay the 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
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costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, provided,
that the Secretary of Labor has found, upon the written request of the contractor, that the applicable
standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the
contractor to set aside in a separate account assets for the meeting of obligations under the plan or
program.
4. Apprentices and Trainees (Programs of the U.S. DOL) and Helpers:
a. Apprentices:
1. Apprentices will be permitted to work at less than the predetermined rate for the work they
performed when they are employed pursuant to and individually registered in a bona fide
apprenticeship program registered with the DOL, Employment and Training Administration,
Bureau of Apprenticeship and Training, or with a State apprenticeship agency recognized by
the Bureau, or if a person is employed in his/her first 90 days of probationary employment as
an apprentice in such an apprenticeship program, who is not individually registered in the
program, but -who has been certified by the Bureau of Apprenticeship and Training or a State
apprenticeship agency (where appropriate) to be eligible for probationary employment as an
apprentice.
2. The allowable ratio of apprentices to journeyman -level employees on the job site in any craft
classification shall not be greater than the ratio permitted to the contractor as to the entire
work force under the registered program. Any employee listed on a payroll at an apprentice
wage rate, who is not registered or otherwise employed as stated above, shall be paid not less
than the applicable wage rate listed in the wage determination for the classification of work
actually performed. In addition, any apprentice performing work on the job site in excess of
the ratio permitted under the registered program shall be paid not less than the applicable
wage rate on the wage determination for the work actually performed. Where a contractor or
subcontractor is performing construction on a project in a locality other than that in which its
program is registered, the ratios and wage rates (expressed in percentages of the
journeyman -level hourly rate) specified in the contractor's or subcontractor's registered
program shall be observed.
3. Every apprentice must be paid at not less than the rate specified in the registered program for
the apprentice's level of progress, expressed as a percentage of the journeyman -level hourly
rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits
in accordance with the provisions of the apprenticeship program. If the apprenticeship
program does not specify fringe benefits, apprentices must be paid the full amount of fringe
benefits listed on the wage 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 shall be paid not less
than the applicable wage rate on the wage determination for the classification of work actually
performed. In addition, any trainee performing work on the job site in excess of the ratio
permitted under the registered program shall be paid not less than the applicable wage rate on
the wage determination for the work actually performed.
3. Every trainee must be paid at not less than the rate specified in the approved program for
his/her level of progress, expressed as a percentage of the journeyman -level hourly rate
specified in the applicable wage determination. Trainees shall be paid fringe benefits in
accordance with the provisions of the trainee program. If the trainee program does not
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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.
C. Helpers:
Helpers will be permitted to work on a project if the helper classification is specified and defined
on the applicable wage determination or is approved pursuant to the conformance procedure set
forth in Section IV.2. Any worker listed on a payroll at a helper wage rate, who is not a helper
under a approved definition, shall be paid not less than the applicable wage rate on the wage
determination for the classification of work actually performed.
5. Apprentices and Trainees (Programs of the U.S. DOT):
Apprentices and trainees working under apprenticeship and skill training programs which have been
certified by the Secretary of Transportation as promoting EEO in connection with Federal -aid highway
construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight
time hourly wage rates for apprentices and trainees under such programs will be established by the
particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than
permitted by the terms of the particular program.
6. Withholding:
The SHA shall upon its own action or upon written request of an authorized representative of the DOL
withhold, or cause to be withheld, from the contractor or subcontractor under this contract or any other
Federal contract with the same prime contractor, or any other Federally -assisted contract subject to
Davis -Bacon prevailing wage requirements which is held by the same prime contractor, as much of the
accrued payments or advances as may be considered necessary to pay laborers and mechanics,
including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full
amount of wages required by the contract. In the event of failure to pay any laborer or mechanic,
including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the
wages required by the contract, the SHA contracting officer may, after written notice to the contractor,
take such action as may be necessary to cause the suspension of any further payment, advance, or
guarantee of funds until such violations have ceased.
7. Overtime Requirements:
No contractor or subcontractor contracting for any part of the contract work which may require or
involve the employment of laborers, mechanics, watchmen, or guards (including apprentices, trainees,
and helpers described in paragraphs 4 and 5 above) shall require or permit any laborer, mechanic,
watchman, or guard in any workweek in which he/she is employed on such work, to work in excess of 40
hours in such workweek unless such laborer, mechanic, watchman, or guard receives compensation at a
rate not less than one -and -one-half times his/her basic rate of pay for all hours worked in excess of 40
hours in such workweek.
8. Violation:
Liability for Unpaid Wages; Liquidated Damages: In the event of any violation of the clause set forth in
paragraph 7 above, the contractor and any subcontractor responsible thereof shall be liable to the
affected employee for his/her unpaid wages. In addition, such contractor and subcontractor shall be
liable to the United States (in the case of work done under contract for the District of Columbia or a
territory, to such District or to such territory) for liquidated damages. Such liquidated damages shall be
computed with respect to each individual laborer, mechanic, watchman, or guard employed in violation of
the clause set forth in paragraph 7, in the sum of $10 for each calendar day on which such employee was
required or permitted to work in excess of the standard work week of 40 hours without payment of the
overtime wages required by the clause set forth in paragraph 7.
9. Withholding for Unpaid Wages and Liquidated Damages:
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The SHA shall upon its own action or upon written request of any authorized representative of the DOL
withhold, or cause to be withheld, from any monies payable on account of work performed by the
contractor or subcontractor under any such contract or any other Federal contract with the same prime
contractor, or any other Federally -assisted contract subject to the Contract Work Hours and Safety
Standards Act, which is held by the same prime contractor, such sums as may be determined to be
necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated
damages as provided in the clause set forth in paragraph 8 above.
V. STATEMENTS AND PAYROLLS
(Applicable to all Federal -aid construction contracts exceeding $2,000 and to all related subcontracts, except for
projects located on roadways classified as local roads or rural collectors, which are exempt.)
1. Compliance with Copeland Regulations (29 CFR 3):
The contractor shall comply with the Copeland Regulations of the Secretary of Labor which are herein
incorporated by reference.
2. Payrolls and Payroll Records:
a. Payrolls and basic records relating thereto shall be maintained by the contractor and each
subcontractor during the course of the work and preserved for a period of 3 years from the date of
completion of the contract for all laborers, mechanics, apprentices, trainees, watchmen, helpers, and
guards working at the site of the work.
b. The payroll records shall contain the name, social security number, and address of each such
employee; his or her correct classification; hourly rates of wages paid (including rates of
contributions or costs anticipated for bona fide fringe benefits or cash equivalent thereof the types
described in Section 1(b)(2)(B) of the Davis Bacon Act); daily and weekly number of hours worked;
deductions made; and actual wages paid. In addition, for Appalachian contracts, the payroll records
shall contain a notation indicating whether the employee does, or does not, normally reside in the
labor area as defined in Attachment A, paragraph 1. Whenever the Secretary of Labor, pursuant to
Section IV, paragraph 3b, has found that the wages of any laborer or mechanic include the amount
of any costs 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.
J. 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;
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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.
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
FHWA, 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 FHWA, the DOL, or all may, after written notice to the contractor,
sponsor, applicant, or owner, take such actions as may be necessary to cause the suspension of any
further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records
upon request or to make such records available may be grounds for debarment action pursuant to 29
CFR 5.12.
VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR
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 FHWA47.
C. Furnish, upon the completion of the contract, to the SHA resident engineer on Form FHWA47
together with the data required in Paragraph 1b relative materials and supplies, a final labor
summary of all contract work indicating the total hours worked and the total amount earned.
At the prime contractor's option, either a single report covering all contract work or separate reports for the
contractor and for each subcontract shall be submitted.
VII. SUBLETTING OR ASSIGNING THE CONTRACT
1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent
(or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding
any specialty items designated by the State. Specialty items may be performed by subcontract and the
amount of any such specialty items performed may be deducted from the total original contract price before
computing the amount of work required to be performed by the contractor's own organization (23 CFR 635).
a. Its own organization" shall be construed to include only workers employed and paid directly by the
prime contractor and equipment owned or rented by the prime contractor, with or without operators.
Such term does not include employees or equipment of a subcontractor, assignee, or agent of the
prime contractor.
b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge,
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
includes 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 all construction operations (regardless of who performs the work) and (b) such other of its own
organizational resources (supervision, management, and engineering services) as the SHA contracting
officer determines is necessary to assure the performance of the contract.
4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent
of the SHA contracting officer, or authorized representative, and such consent when given shall not be
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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
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 per`ormed, 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 $10, 000 or imprisoned not more than 5 years or both. "
X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT
(Applicable to all Federal -aid construction contracts and to all related subcontracts of $100,000 or more.)
By submission of this bid or the execution of this contract, or subcontract, as appropriate, the bidder, Federal -
aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows:
1. That any facility that is or will be utilized in the performance of this contract, unless such contract is
exempt under the Clean Air Act, as amended (42 U.S.C. 1857 et seg., as amended by Pub.L. 91-604),
and under the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et sea., as amended by
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Pub.L. 92-500), Executive Order 11738, and regulations in implementation thereof (40 CFR 15) is not
listed, on the date of 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 agency to which this proposal is submitted for assistance in obtaining a copy of
those regulations.
f. The prospective primary participant agrees by submitting this proposal that, should the proposed
covered transaction be entered into, it shall not knowingly enter into any lower tier covered
transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded
from participation in this covered transaction, unless authorized by the department or agency
entering into this transaction.
g. The prospective primary participant further agrees by submitting this proposal that it will include
the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion -Lower Tier Covered Transaction," provided by the department or agency entering into
this covered transaction, without modification, in 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.
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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.
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.
2. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion --Primary
Covered Transactions
1. The prospective primary participant certifies to the best of its knowledge and belief, that it and its
principals:
a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from covered transactions by any Federal department or agency;
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;
c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity
(Federal, State or local) with commission of any of the offenses enumerated in paragraph 1b 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.
3. 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)
By signing and submitting this proposal, the prospective lower tier is providing the certification set out
below:
a. 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.
b. The prospective lower tier participant shall provide immediate written notice to the person to which
this proposal is submitted if at any time the prospective lower tier participant learns that its
certification was erroneous by reason of changed circumstances.
c. 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.
d. The prospective lower tier participant agrees by submitting this proposal that, should the proposed
covered transaction be entered into, it shall not knowingly enter into any lower tier covered
transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded
from participation in this covered transaction, unless authorized by the department or agency with
which this transaction originated.
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e. 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.
f. 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.
g. 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.
h. Except for transactions authorized under paragraph a 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.
•wrsw
4. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion --Lower Tier
Covered Transactions:
1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its
principals is presently debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from participation in this transaction by any Federal department or agency.
2. Where the prospective lower tier participant is unable to certify to any of the statements in this
certification, such prospective participant shall attach an explanation to this proposal.
XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING
(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.
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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.
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 1c shall not exceed 20 percent of the total number of employees employed
by the contractor on the contract work, except as provided in subparagraph 4 below.
2. The contractor shall place a job order with the State Employment Service indicating (a) the classifications of
the laborers, mechanics and other employees required to perform the contract work, (b) the number of
employees required in each classification, (c) the date on which he estimates such employees will be
required, and (d) any other pertinent information required by the State Employment Service to complete the
job order form. The job order may be placed with the State Employment Service in writing or by telephone. If
during the course of the contract work, the information submitted by the contractor in the original job order is
substantially modified, he shall promptly notify the State Employment Service.
3. The contractor shall give full consideration to all qualified job applicants referred to him by the State
Employment Service. The contractor is not required to grant employment to any job applicants who, in his
opinion, are not qualified to perform the classification of work required.
4. If, within 1 week following the placing of a job order by the contractor with the State Employment Service, the
State Employment Service is unable to refer any qualified job applicants to the contractor, or less than the
number requested, the State Employment Service will forward a certificate to the contractor indicating the
unavailability of applicants. Such certificate shall be made a part of the contractor's permanent project
records. Upon receipt of this certificate, the contractor may employ persons who do not normally reside in the
labor area to fill positions covered by the certificate, notwithstanding the provisions of subparagraph I 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.
Last modified on March 11, 2005