Item C16
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: December 16, 2009
Division: Public Works
Bulk Item: Yes ~ No
Department: Engineering
Staff Contact PersonlPhone #: Judy Clarke X4329
AGENDA ITEM WORDING: Approval to execute Contract with Bermello Ajamil & Partners,
Inc. for on call engineering services,
ITEM BACKGROUND: Miscellaneous engineering services are required for various County
projects on an ongoing basis; the Engineering Department advertised a Request for Qualifications
(RFQ) and on September 28, 2009, Bermello Ajamil & Partners, Inc. was ranked in the top seven of 44
responses.
PREVIOUS RELEVANT BOCC ACTION: The BOCC approved advertising the RFQ at the June
2009 BOCC meeting.
At the November 18, 2009 meeting the BOCC approved contract negotiations with Bermello Ajamil &
Partners and six other firms.
CONTRACT/AGREEMENT CHANGES: N/A
STAFF RECOMMENDATIONS: Approval of Contract as requested above.
TOTAL COST:
nla
INDIRECT COST: _nla_ BUDGETED: Yes _No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year
APPROVED BY: County At/ft ~urchasing~ RiSkManagementj~ t!l.'/;iI,ilA
/ 1J)tt rAT' .
DOCUMENTATION: Included X Not Required_ '
DISPOSITION:
revised 7/09
AGENDA ITEM #
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Bermello Ajamil & Partners, Contract #
Inc. Effective: December 16, 2009
Expiration
Date: Five years thereafter
Contract Purpose/Description:
Miscellaneous engineering services for various County projects on an on call basis. Specific
tasks and budgets will be awarded by task order as needed.
Contract Manager: Judy Clarke 4329 Engineering/# 1
(Name) (Ext. ) (Department/Stop #)
for BOCC meeting on Dec 16,2009 Agenda Deadline: December 1, 2009
CONTRACT COSTS
Total Dollar Value of Contract: $
Budgeted? YesD No D Account Codes:
Grant: $
County Match: $
Current Year Portion: $
- -
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- - -
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- -
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Estimated Ongoing Costs: $Q/yr
(Not included in dollar value above)
ADDITIONAL COSTS
For:
(eg, maintenance, utilities, janitorial, salaries, etc.)
CONTRACT REVIEW
Changes Date Out
~,:t~,lf: Needed
Division Director '!-J-ld.lO'1 YesD NoD
Risk ManagementQ, 'Ill JJ 1m Y esD NO~D
p~ &J ~\v..' T{ \
O.M.B./Purch~ing iI-7-t./ -rFr YesD No \
County Attorney JI/30/0Q YesD Noll] CA.~i/;ze.~J-~ldt1
Comments:
OMB Form Revised 2/27/01 Mep #2
Contract for On Call Professional Engineering Services
THIS Contract (The AGREEMENT) made and entered into this 21 st day of October
2009, by and between Monroe County, a political subdivision of the State of Florida,
whose address is 1100 Simonton Street, Key West Florida, 33040, its successors and
assigns hereinafter referred to as the "COUNTY," through the Monroe County Board of
County Commissioners (BOCC), the Owner
And
Bermello Ajamil & Partners, Inc., a Corporation of the State of Florida, whose address is
2601 South Bayshore Drive, 10th Floor, Miami, Florida, 33133, its successors and
assigns, hereinafter referred to as "CONSULTANT",
WITNESSETH:
WHEREAS, COUNTY desires to employ the professional engineering services of
CONSULTANT for various County Proj ects located in Monroe County, Florida and
WHEREAS, CONSULTANT has agreed to provide professional services for
miscellaneous projects in which construction costs do not exceed $2,000,000.00
The professional services required by this Contract will be for services in the form of a
continuing contract, commencing the effective date of this agreement and ending four
years thereafter, with options for the County to renew on an annual basis two consecutive
times.
Specific services will be performed pursuant to individual task orders issued by the
COUNTY and agreed to by the CONSULTANT. Task Orders will contain specific scope
of work, time schedule, charges and payment conditions, and additional terms and
conditions that are applicable to such Task Orders.
Execution of a Task Order by the COUNTY and the CONSULTANT constitutes the
COUNTY's written authorization to CONSULTANT to proceed with the services
described in the Task Order.
The terms and conditions ofthis Agreement shall apply to each Task Order, except to the
extent expressly modified. When a Task Order is to modify a provision of this
Agreement, the Article of this Agreement to be modified will be specifically referenced
in the Task Order and the modification shall be precisely described.
NOW, THEREFORE, in consideration of mutual promises, covenants and agreements
stated herein, and for other good and valuable consideration, the sufficiency of which is
hereby acknowledged, COUNTY and CONSULTANT agree as follows:
FORM OF AGREEMENT
ARTICLE I
1.1 REPRESENTATIONS AND WARRANTIES
By executing this Agreement, the CONSULTANT makes the following express
representations and warranties to the COUNTY:
1.1.1 The CONSULTANT shall maintain all necessary licenses, permits or other
authorizations necessary to act as CONSULTANT for the Project until the
CONSULTANT'S duties hereunder have been satisfied;
1.1.2 The CONSULTANT has become familiar with the Project site and the local
conditions under which the Project is to be designed, constructed, and operated;
1.1.3 The CONSULTANT shall prepare all documents required by this Agreement
including, but not limited to, all contract plans and specifications, in such a
manner that they shall be in conformity and comply with all applicable law, codes
and regulations. The CONSULTANT warrants that the documents prepared as a
part of this Contract will be adequate and sufficient to accomplish the purposes of
the Project, therefore, eliminating any additional construction cost due to missing
or incorrect design elements in the contract documents;
1.1.4 The CONSULTANT assumes full responsibility to the extent allowed by law with
regards to his performance and those directly under his employ.
1.1.5 The CONSULTANT'S services shall be performed as expeditiously as is
consistent with professional skill and care and the orderly progress ofthe Project.
In providing all services pursuant to this agreement, the CONSULTANT shall
abide by all statutes, ordinances, rules and regulations pertaining to, or regulating
such services, including those now in effect and hereinafter adopted. Any
violation of said statutes, ordinances, rules and regulations shall constitute a
material breach of this agreement and shall entitle the COUNTY to terminate this
agreement immediately upon delivery of written notice of termination to the
CONSULTANT.
1.1.6 At all times and for purposes under this agreement the CONSULTANT is an
independent contractor and not an employee of the Board of County
Commissioners for Monroe County. No statement contained in this agreement
shall be construed so as to find the CONSULTANT or any other of his /her
employees, contractors, servants, or agents to be employees ofthe Board of
County Commissioners for Monroe County.
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1.1.7 The CONSULTANT shall not discriminate against any person based on race,
creed, color, national origin, sex, age or any other characteristic or aspect which is
not related, in its recruiting, hiring, promoting, terminating, or other area affecting
employment under this agreement or with the provision of services or goods
under this agreement.
ARTICLE II
SCOPE OF BASIC SERVICES
2.1.1 The CONSULTANT will perform for the COUNTY services as described in
individual Task Orders in accordance with the requirements outlined in the
Agreement and the specific Task Order. These services will include, but not be
limited to:
A. Provide comprehensive transportation engineering design services for
road and bridge construction and rehabilitation projects, including
design, surveying, drafting, preparing specifications and contract
documents, traffic studies, lighting and signalization, geotechnical
investigations, permitting, assisting with review of contractor bids,
comprehensive project management services, and construction
engineering and inspection services.
B. Provide comprehensive storm water and drainage engineering services
including design, surveying, feasibility studies, geotechnical
investigations, permit preparation, preparing construction plans,
specifications and contract documents, assisting with review of
contractor bids, comprehensive project management services and
construction engineering and inspection services.
C. Provide comprehensive environmental engineering services including
design, surveying, geotechnical investigations, environmental
assessments, water quality studies, sampling analysis and monitoring,
permit preparation, preparing construction plans, specifications and
contract documents, assisting with review of contractor bids,
comprehensive project management services and construction
engineering and inspection services.
D. Provide comprehensive structural engineering services including
design, surveying, facility inspections and assessments, preparing
construction plans, specifications and contract documents, permitting,
construction administration related to new construction, construction
improvements, rehabilitation and/or retrofit of County facilities and
buildings.
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E. Provide general engineering services including but not limited to
surveying, drafting, studies and assessments, engineering design,
preparation of bid and proposal documents, permitting, assistance with
technical review of contractor documents, construction engineering
and inspection services for miscellaneous County projects.
2.1.2 The CONSULT ANT shall be responsible for performing in accordance with all
applicable Aorida Department of Transportation (FDOT) manuals, procedures,
specifications and guidance for all Local Agency Program (LAP) projects. When
a Project is funded through the America Recovery and Reinvestment Act of 2009
(ARRA) and will be administered under the Aorida Department of
Transportations' Local Agency Program (LAP), the CONSULT ANT must be
familiar with and must comply with all applicable federal, state and local
requirements of these programs. The CONSULT ANT shall exercise their
independent professional judgment in performing their obligations and
responsibilities under this Agreement. Pursuant to Section 4.1.4 of the Aorida
Department of Transportation's, Construction Project Administration Manual
(CP AM), the authority of the Consultant's lead person, such as the Senior Project
Engineer, and the Consultant's Project Administrator shall be identical to the
Department's Resident Engineer and Project Administrator respectively and shall
be interpreted as such.
2.2 CORRECTIONS OF ERRORS, Ol\1MlSSIONS, DEFICIENCIES
2.2.1 The CONSULTANT shall, without additional compensation, promptly correct
errors, omissions, deficiencies, or conflicts in the work product of the
CONSULTANT or its subconsultants, or both.
2.3 NOTICE REQUIREMENTS
2.3.1 All written correspondence to the COUNTY shall be dated and signed by an
authorized representative of the CONSULT ANT. Any notice required or
permitted under this agreement shall be in writing and hand delivered or mailed,
postage prepaid, to the COUNTY by certified mail, return receipt requested, to
the following:
Ms. Judith Clarke, P.E.
Monroe County Engineering Services
1100 Simonton St. Rm 2-216
Key West, FL 33040
And:Mr. Roman Gastesi, Jr.
County Administrator
1100 Simonton Street
Key West, FL 33040
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For the Consultant:
Frantz Tassy, P.E.
Bermello Ajamil & Partners, Inc.
2601 South Bayshore Drive, 10th Aoor
Miami, Aorida, 33133
ARTICLE III
ADDITIONAL SERVICES
3.1 The services described in this Article III are not included in Basic Services. They
shall be paid for by the COUNTY as provided in this agreement as an addition to the
compensation paid for the Basic Services but only if approved by the COUNTY before
commencement, and as follows:
A. Providing services of CONSULTANT for other than the previously listed
consulting scope of Project provided as a part of Basic Services.
B. Providing any other services not otherwise included in this Agreement or not
customarily furnished in accordance with generally accepted consulting
practice.
C. Providing representation before public bodies in connection with the Project,
upon approval by the COUNTY.
3.2 If Additional Services are required, such as those listed above, the COUNTY shall
issue a letter requesting and describing the requested services to the CONSULTANT.
The CONSULTANT shall respond with fee proposal to perform the requested services.
Only after receiving an amendment to the Agreement and a notice to proceed from the
COUNTY, shall the CONSULTANT proceed with the Additional Services.
ARTICLE IV
COUNTY'S RESPONSIBILITIES
4.1 The COUNTY shall provide full information regarding requirements for the project
including physical location of work, county maintained roads and maps.
4.2 The COUNTY shall designate Monroe County Engineering Services Department
to act on the COUNTY'S behalf with respects to the Project. The COUNTY or Monroe
County Engineering Services Department shall render decisions in a timely manner
pertaining to documents submitted by the CONSULT ANT in order to avoid unreasonable
delay in the orderly and sequential progress of the CONSULTANTS services.
4.3 Prompt written notice shall be given by the COUNTY and its representative to the
CONSULT ANT if they become aware of any fault or defect in the Project or
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nonconformance with the Agreement Documents. Written notice shall be deemed to have
been duly served if sent pursuant to paragraph 2.3.
4.4 The COUNTY shall furnish the required information and services and shall render
approvals and decisions as expeditiously as necessary for the orderly progress of the
Consultants services and work of the contractors.
4.5 The COUNTY'S review of any documents prepared by the CONSULT ANT or its
subconsultants shall be solely for the purpose of determining whether such documents are
generally consistent with the COUNTY'S criteria, as, and if, modified. No review of such
documents shall relieve the CONSULT ANT of responsibility for the accuracy, adequacy,
fitness, suitability or coordination of its work product.
4.6 The COUNTY shall provide copies of necessary documents required to complete
the work.
4.7 Any information that may be of assistance to the CONSULTANT that the
COUNTY has immediate access to will be provided as requested.
ARTICLE V
INDEl\1NIFICATION AND HOLD HARMLESS
5.1.1 The CONSULT ANT covenants and agrees to indemnify and hold harmless
COUNTY/Monroe County and Monroe County Board of County Commissioners
from any and all claims for bodily injury, including death, personal injury, and
property damage, including property owned by Monroe County, and any other
losses, damages, and expenses, including attorney's fees, court costs and
expenses, which arise out of, in connection with, or by reason of services
provided by the CONSULTANT or Subcontractor(s) in any tier, occasioned by
the negligence, errors, or other wrongful act or omission of the CONSULT ANT
in any tier, their employees, or agents.
5.1.2 The first ten dollars ($10.00) of remuneration paid to the CONSULT ANT is for
the indemnification provided for above. The extent of liability is in no way
limited to, reduced, or lessened by the insurance requirements contained
elsewhere within this agreement. Should any claims be asserted against the
COUNTY by virtue of any deficiency or ambiguity in the plans and specifications
provided by the CONSULTANT, the CONSULTANT agrees and warrants that he
shall hold the COUNTY harmless and shall indemnify him from all losses
occurring thereby and shall further defend any claim or action on the COUNTY'S
behalf.
5.1.3 In the event the completion of the project (to include the work of others) is
delayed or suspended as a result of the CONSULT ANT'S failure to purchase or
maintain the required insurance, the CONSULT ANT shall indemnify COUNTY
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from any and all increased expenses resulting from such delays. Should any
claims be asserted against COUNTY by virtue of any deficiencies or ambiguity in
the plans and specifications provide by the CONSULTANT the CONSULTANT
agrees and warrants that CONSULTANT hold the COUNTY harmless and shall
indemnify it from all losses occurring thereby and shall further defend any claims
or action on the COUNTY'S behalf.
5.1.4 The extent of liability is in no way limited to, reduced or lessened by the
insurance requirements contained elsewhere within the Agreement.
5.1.5 This indemnification shall survive the expiration or early termination of the
Agreement.
ARTICLE VI
PERSONNEL
6.1 PERSONNEL
The CONSULTANT shall assign only qualified personnel to perform any service
concerning the project. At the time of execution of this Agreement, the parties anticipate
that the following named individuals will perform those functions as indicated:
NAME
FRANTZ. TAsSY
TAo:. '10()NU
::rOSe. e'-l..qS H4/VDA L.
FUNCTION
pA.ojec7 MANAG~2
SENIOI{ e(lJ(S./~e.e.R.
::]VIJ/Ot'{ eNGEea.
So long as the individuals named above remain actively employed or retained by the
CONSULTANT, they shall perform the functions indicated next to their names. If they
are replaced the CONSULT ANT shall notify the COUNTY of the change immediately.
ARTICLE VII
PAYMENTS
7.1 PAYMENTSUM
7.1.1 The COUNTY shall pay the CONSULTANT in current funds for the
CONSULTANT'S performance of this Agreement based on rates negotiated and
agreed upon and shown in Exhibit B.
7.2 PAYMENTS
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7.2.1 For its assumption and performances of the duties, obligations and responsibilities
set forth herein, the CONSULTANT shall be paid monthly.
(A) If the CONSULT ANT'S duties, obligations and responsibilities are
materially changed by amendment to this agreement after execution of this
Agreement, compensation due to the CONSULT ANT shall be equitably
adjusted, either upward or downward;
(B) As a condition precedent for any payment due under this Agreement, the
CONSULT ANT shall submit monthly, unless otherwise agreed in writing
by the COUNTY, an invoice to the COUNTY requesting payment for
services properly rendered and reimbursable expenses due hereunder. The
CONSULTANT'S invoice shall describe with reasonable particularity the
service rendered. The CONSULT ANT'S invoice shall be accompanied by
such documentation or data in support of expenses for which payment is
sought that the COUNTY may require.
(C) For the performance of the optional additional services and contingent
additional services described in Article III of this contract, provided same
are first authorized in writing by the COUNTY, the CONSULTANT shall
be paid hourly at the rates identified in Exhibit B, or as negotiated.
7.3 RElMBURSABLE EXPENSES
f, .'
7.3.1 Reimbursable expenses include expenses incurred by the CONSULTANT in the-
interest of the Project:
a. Expenses of transportation submitted by CONSULT ANT, in writing, and
living expenses in connection with travel authorized by the COUNTY, in
writing, but only to the extent and in the amounts authorized by Section
112.061, Aorida Statutes;
b. Cost of reproducing maps or drawings or other materials used in performing
the scope of services;
c. Postage and handling of reports;
7.4 BUDGET
7.4.1 The CONSULANT may not be entitled to receive, and the COUNTY is not
obligated to pay, any fees or expenses in excess of the amount budgeted for this
Agreement in each fiscal year (October 1- September 30) by COUNTY'S Board
of County Commissioners. The budgeted amount may only be modified by an
affirmative act of the COUNTY'S Board of County Commissioners.
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7.4.2 A V AILABILITY OF FUNDS. If funding cannot be obtained or cannot be
continued at a level sufficient to allow for continued reimbursement of
expenditures for services specified in the Task Order, the agreement may be
terminated immediately at the option of the COUNTY by written notice of
termination delivered to the CONSULTANT. The COUNTY shall not be
obligated to pay for any services provided by the CONSULTANT after the
CONSULTANT has received written notice of termination, unless otherwise
required by law.
7.4.3 The COUNTY does not guarantee CONSULTANT any specific amount of work
or task orders under this agreement.
8.1 INSURANCE
ARTICLE VIII
8.1.1 The CONSULTANT shall obtain insurance as specified and maintain the required
insurance at all times that this Agreement is in effect. In the event the completion
of the project (to include the work of others) is delayed or suspended as a result of
the CONSULTANT'S failure to purchase or maintain the required insurance, the
CONSULTANT shall indemnify the COUNTY from any and all increased
expenses resulting from such delay.
8.1.2 The coverage provided herein shall be provided by an insurer with an A.M. Best
Rating of VI or better, that is licensed to do business in the State of Aorida and
that has an agent for service of process within the State of Aorida. The insurance
certificate shall contain an endorsement providing sixty (60) days notice to the
COUNTY prior to any cancellation of said coverage. Said coverage shall be
written by an insurer acceptable to the COUNTY and shall be in a form
acceptable to the COUNTY.
8.1.3 CONSULTANT shall obtain and maintain the following policies:
A. Workers' Compensation insurance as required by the State of Aorida,
sufficient to respond to Chapter 440, Aorida Statutes.
B. Employers Liability Insurance with limits of $1,000,000 per Accident,
$1,000,000 Disease, policy limits, $1,000,000 Disease each employee.
C. Comprehensive business automobile and vehicle liability insurance covering
claims for injuries to members of the public and/or damages to property of
others arising from use of motor vehicles, including onsite and offsite
operations, and owned, hired or non-owned vehicles, with One Million
Dollars ($1,000,000.00) combined single limit and One Million Dollars
($1,000,000.00) annual aggregate.
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D. Commercial general liability, including Personal Injury Liability insurance
covering claims for injuries to members of the public or damage to property of
others arising out of any covered act or omission of the CONSULT ANT or
any of its employees, agents or subcontractors or subconsultants, including
Premises and/or Operations, Products and Completed Operations, Independent
Contractors; Broad Form Property Damage and a Contractual Liability
Endorsement with One Million Dollars ($1,000,000) per occurrence and
annual aggregate.
An Occurrence Form policy is preferred. If coverage is changed to or
provided on a Claims Made policy, its provisions should include coverage for
claims filed on or after the effective date of this Agreement. In addition, the
period for which they may be reported must extend for a minimum of 48
months following the termination or expiration of this Agreement.
E. Professional liability insurance of One Million Dollars ($1,000,000.00) per
claim and Two Million Dollars ($2,000,000.00) annual aggregate. If the
policy is a "claims made" policy, CONSULTANT shall maintain coverage or
purchase a "tail" to cover claims made after completion of the project to cover
the statutory time limits in Chapter 95 of the Aorida Statutes.
F. COUNTY shall be named as an additional insured with respect to
CONSULTANTS liabilities hereunder in insurance coverage identified in
Paragraphs C and D.
G. CONSULTANT shall require its subconsultants to be adequately insured at
least to the limits prescribed above, and to any increased limits of
CONSULTANT if so required by COUNTY during the term of this
Agreement. COUNTY will not pay for increased limits of insurance for
subconsultants.
H. CONSULTANT shall provide to the COUNTY certificates of insurance or a
copy of all insurance policies including those naming the COUNTY as an
additional insured by including any subsection hereunder. The COUNTY
reserves the right to require a certified copy of such policies upon request.
I. If the CONSULTANT participates in a self-insurance fund, a Certificate of
Insurance will be required. In addition, the CONSULTANT may be required
to submit updated financial statements from the fund upon request from the
COUNTY.
8.2 APPLICABLE LAW
This contract is governed by the laws of the State of Aorida. Venue for any litigation
arising under this contract must be in Monroe County, Aorida.
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ARTICLE IX
MISCELLANEOUS
9.1 SECTION HEADINGS
Section headings have been inserted in this Agreement as a matter of convenience of
reference only, and that it is agreed that such section headings are not a part of this
Agreement and will not be use in the interpretation of any provisions of this Agreement.
9.2 OWNERSIDP OF THE PROJECT DOCUMENTS
The documents prepared by the CONSULTANT for this Project belong to the COUNTY
and may be reproduced and copied without acknowledgement or permission of the
CONSULTANT.
9.3 SUCCESSORS AND ASSIGNS
The CONSULTANT shall not assign or subcontract its obligations under this Agreement
except in writing and with the prior written approval of the Board of County
Commissioners for Monroe County and the CONSULTANT, which approval shall be
subject to such conditions and provisions as the Board may deem necessary. This
paragraph shall be incorporated by reference into any assignment or subcontract and any
assignee or subcontractor shall comply with all of the provisions of this Agreement.
Subject to the provisions of the immediately proceeding sentence, each party hereto binds
itself, its successors, assignees and legal representatives to the other and to the
successors, assigns and legal representatives of such other party. The CONSULTANT
shall not assign its right hereunder, excepting its right to payment, nor shall it delegate
any of its duties hereunder without the written consent of the COUNTY.
9.4 NO THIRD PARTY BENEFICIARIES
Nothing contained herein shall create any relationship, contractual or otherwise, with or
any rights in favor of, any third party.
9.5 TERMINATION
A. In the event the CONSULTANT shall be found to be negligent in any aspect of
service, the COUNTY shall have the right to terminate this Agreement after five days
written notification to the CONSULTANT.
B. The County may terminate this Agreement without cause by giving the other party
sixty (60) days written notice of its intention to do so.
9.6 CONTRACT DOCUMENTS
The contract documents consist of the Request for Qualifications (RFQ), any addenda,
the Form of Agreement (Articles I-XV), the CONSULTANTS response to the RFQ, the
II
documents referred to in the Form of Agreement as a part of this Agreement, and the
attachments A and Exhibit B and modifications made after execution by written
amendment. In the event any conflict between any of those Agreement documents, the
one imposing the greater burden on the CONSULT ANT will control.
9.7 PUBLIC ENTITIES CRIMES
A person or affiliate who has been place on the convicted vendor list following a
conviction for public entity crime may not submit a bid on contracts to provide any goods
or services to a public entity, may not submit a bid on a contract with a public entity for
the construction or repair of a public building or public work, may not submit bids on
leases of real property to public entity, may not be awarded or perform work as a
contractor, supplier, subcontractor, or consultant under a contract with any public entity,
and may not transact business with any public entity in excess of the threshold amount
provided in Section 287.017 of the Aorida Statutes, for CA TEGOR Y TWO for a period
of 36 months from the date of being placed on the convicted vendor list.
By signing this Agreement, CONSULTANT represents that the execution of this
Agreement will not violate the Public Entity Crimes Act (Section 287.133, Aorida
Statutes), Violation of this section shall result in termination of this Agreement and
recovery of all moneys paid hereto, and may result in debarment from COUNTY'S
competitive procurement activities.
In addition to the foregoing, CONSULT ANT further represents that there has been no
determination, based on an audit that it or any subconsultant has committed an act
defined by Section 287.133, as "public entity crime", and that it has not been formally
charged with committing an act defined as a "public entity crime" regardless of the
amount of money involved or whether CONSULT ANT has been placed on the convicted
vendor list.
CONSUL T ANT will promptly notify the COUNTY if it or any subcontractor or
sub consultant is formally charged with an act defined as a "public entity crime" or
has been placed on the convicted vendor list.
9.8 MAINTENANCE OF RECORDS
CONSULTANT shall maintain all books, records, and documents directly pertinent to
performance under this Agreement in accordance with generally accepted accounting
principles consistently applied. Records shall be retained for a period of five years from
the termination of this Agreement. Each party to this Agreement or their authorized
representatives shall have reasonable and timely access to such records of each other
party to this Agreement for public records purposes during the term of the Agreement and
for four years following the termination of this Agreement. If an auditor employed by the
County or Clerk determines that monies paid to CONSULTANT pursuant to this
Agreement were spent for purposes not authorized by this Agreement, the
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CONSULTANT shall repay the monies together with interest calculated pursuant to Sec.
55.03, FS, running from the date the monies were paid to County.
9.9 GOVERNING LAW, VENUE, INTERPERT ATION, COST AND FEES
This Agreement shall be governed by and construed in accordance with the laws of the
State of Florida applicable to contracts made and to be performed entirely in the State. In
the event that any cause of action or administrative proceeding is instituted for the
enforcement or interpretation of this Agreement, COUNTY and CONSULTANT agree
that venue will lie in the 16TH Judicial Circuit, Monroe County, Aorida, in the
appropriate court or before the appropriate administrative body in Monroe County,
Florida. This Agreement shall not be subject to arbitration. The County and
CONSULTANT agree that, in the event of conflicting interpretations of the terms or a
term of this Agreement by or between any of them the issue shall be submitted to
mediation prior to the institution of any other administrative or legal proceeding.
9.10 SEVERABILITY
If any term, covenant, condition or provision of this Agreement (or the application
thereof to any circumstance or person) shall be declared invalid or unenforceable to any
extent by a court of competent jurisdiction, the remaining terms, covenants, conditions
and provisions of this Agreement, shall not be affected thereby; and each remaining term,
covenant, condition and provision of this Agreement shall be valid and shall be
enforceable to the fullest extent permitted by law unless the enforcement of the remaining
terms, covenants, conditions and provisions of this Agreement would prevent the
accomplishment of the original intent of this Agreement. The County and
CONSULTANT agree to reform the Agreement to replace any stricken provision with a
valid provision that comes as close as possible to the intent of the stricken provision.
9.11 ATTORNEY'S FEES AND COSTS
The COUNTY and CONSULTANT agree that in the event any cause of action or
administrative proceeding is initiated or defended by any party relative to the
enforcement or interpretation of this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees and court costs expenses, as an award against the non-
prevailing party, and shall include attorney's fees and courts costs expenses in appellate
proceedings, as an award against the non-prevailing party. Mediation proceedings
initiated and conducted pursuant to this Agreement shall be in accordance with the
Florida Rules of Civil Procedure and usual and customary procedures required by the
circuit court of Monroe County.
9.12 BINDING EFFECT
The terms, covenants, conditions, and provisions of this Agreement shall bind and inure
to the benefit of the COUNTY and CONSULTANT and their respective legal
representatives, successors, and assigns.
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9.13 AUTHORITY
Each party represents and warrants to the other that the execution, delivery and
performance of this Agreement have been duly authorized by all necessary COUNTY
and corporate action, as required by law.
9.14 CLAIMS FOR FEDERAL OR STATE AID
CONSULTANT and COUNTY agree that each shall be, and is, empowered to apply for,
seek, and obtain federal and state funds to further the purpose of this Agreement;
provided that all applications, requests, grant proposals, and funding solicitations shall be
approved by each party prior to submission.
9.15 ADJUDICATION OF DISPUTES OR DISAGREEMENTS
COUNTY and CONSULTANT agree that all disputes and disagreements shall be
attempted to be resolved by meet and confer sessions between representatives of each of
the parties. If no resolution can be agreed upon within 30 days after the first meet and
confer session, the issue or issues shall be discussed at a public meeting of the Board of
County Commissioners. If the issue or issues are still not resolved to the satisfaction of
the parties, then any party shall have the right to seek such relief or remedy as may be
provided by this Agreement or by Aorida law. This provision does not negate or waive
the provisions of paragraph 9.5 concerning termination or cancellation.
9.16 COOPERATION
In the event any administrative or legal proceeding is instituted against either party
relating to the formation, execution, performance, or breach of this Agreement,
COUNTY and CONSULT ANT agree to participate, to the extent required by the other
party, in all proceedings, hearings, processes, meetings, and other activities related to the
substance of this Agreement or provision of the services under this Agreement.
COUNTY and CONSULT ANT specifically agree that no party to this Agreement shall
be required to enter into any arbitration proceedings related to this Agreement.
9.17 NON DISCRIMINATION
CONSULTANT and COUNTY agree that there will be no discrimination against any
person, and it is expressly understood that upon a determination by a court of competent
jurisdiction that discrimination has occurred, this Agreement automatically terminates
without any further action on the part of any party, effective the date of the court order.
CONSULTANT and COUNTY agree to comply with all Federal and Aorida statutes,
and all local ordinances, as applicable, relating to nondiscrimination. These include but
are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88-352) which
prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the
Education Amendment of 1972, as amended (20 USC SS. 1681-1683, and 1685-1686),
14
which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation
Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of
handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101-6107)
which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and
Treatment Act of 1972 (PL 92-255), as amended, relating to nondiscrimination on the
basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970 (PL 91-616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health
Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd-3 and 290ee-3), as amended,
relating to confidentiality of alcohol and drug abuse patent records; 8) Title VIII of the
Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination
in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of
1990 (42 USC s. 1201 Note), as maybe amended from time to time, relating to
nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions
in any Federal or state statutes which may apply to the parties to, or the subject matter of,
this Agreement.
9.18 COVENANT OF NO INTEREST
CONSULTANT and COUNTY covenant that neither presently has any interest, and shall
not acquire any interest, which would conflict in any manner or degree with its
performance under this Agreement, and that only interest of each is to perform and
receive benefits as recited in this Agreement.
9.19 CODE OF ETIDCS
COUNTY agrees that officers and employees of the COUNTY recognize and will be
required to comply with the standards of conduct for public officers and employees as
delineated in Section 112.313, Aorida Statutes, regarding, but not limited to, solicitation
or acceptance of gifts; doing business with one's agency; unauthorized compensation;
misuse of public position, conflicting employment or contractual relationship; and
disclosure or use of certain information.
9.20 NO SOLICITATIONIPAYMENT
The CONSULTANT and COUNTY warrant that, in respect to itself, it has neither
employed nor retained any company or person, other than a bona fide employee working
solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay
any person, company, corporation, individual, or firm, other than a bona fide employee
working solely for it, any fee, commission, percentage, gift, or other consideration
contingent upon or resulting from the award or making of this Agreement. For the breach
or violation of the provision, the CONSULTANT agrees that the COUNTY shall have
15
the right to terminate this Agreement without liability and, at its discretion, to offset from
monies owed, or otherwise recover, the full amount of such fee, commission, percentage,
gift, or consideration.
9.21 PUBLIC ACCESS
The CONSULTANT and COUNTY shall allow and permit reasonable access to, and
inspection of, all documents, papers, letters or other materials in its possession or under
its control subject to the provisions of Chapter 119, Aorida Statutes, and made or
received by the CONSULT ANT and COUNTY in conjunction with this Agreement; and
the COUNTY shall have the right to unilaterally cancel this Agreement upon violation of
this provision by CONSULTANT.
9.22 NON-WAIVER OF lMMUNITY
Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the
CONSULTANT and the COUNTY in this Agreement and the acquisition of any
commercial liability insurance coverage, self-insurance coverage, or local government
liability insurance pool coverage shall not be deemed a waiver of immunity to the extent
of liability coverage, nor shall any contract entered into by the COUNTY be required to
contain any provision for waiver.
9.23 PRIVILEGES AND IMMUNITY
All of the privileges and immunities from liability, exemptions from laws, ordinances,
and rules and pensions and relief, disability, workers' compensation, and other benefits
which apply to the activity of officers, agents, or employees of any public agents or
employees of the COUNTY, when performing their respective functions under this
Agreement within the territorial limits of the COUNTY shall apply to the same degree
and extent to the performance of such functions and duties of such officers, agents,
volunteers, or employees outside the territorial limits of the COUNTY.
9.24 LEGAL OBLIGATIONS AND RESPONSIBILITIES
Non-Delegation of Constitutional or Statutory Duties. This Agreement is not intended to,
nor shall it be construed as, relieving any participating entity from any obligation or
responsibility imposed upon the entity by law except to the extent of actual and timely
performance thereof by any participating entity, in which case the performance may be
offered in satisfaction of the obligation or responsibility. Further, this Agreement is not
intended to, nor shall it be construed as, authorizing the delegation of the constitutional or
statutory duties of the COUNTY, except to the extent permitted by the Aorida
constitution, state statute, and case law.
9.25 NON-RELIANCE BY NON-PARTIES
16
No person or entity shall be entitled to rely upon the terms, or any of them, of this
Agreement to enforce or attempt to enforce any third-party claim or entitlement to or
benefit of any service or program contemplated hereunder, and the CONSULTANT and
the COUNTY agree that neither the CONSULT ANT nor the COUNTY or any agent,
officer, or employee of either shall have the authority to inform, counsel, or otherwise
indicate that any particular individual or group of individuals, entity or entities, have
entitlements or benefits under this Agreement separate and apart, inferior to, or superior
to the community in general or for the purposes contemplated in this Agreement.
9.26 ATTESTATIONS AND TRUTH IN NEGOTATION
CONSULTANT agrees to execute such documents as the COUNTY may reasonably
require including a Public Entity Crime Statement, an Ethics Statement, and a Drug-Free
Workplace Statement. Signature of this Agreement by CONSULTANT shall act as the
execution of a truth in negotiation certificate stating that wage rates and other factual unit
costs supporting the compensation pursuant to the Agreement are accurate, complete, and
current at the time of contracting. The original contract price and any additions thereto
shall be adjusted to exclude significant sums by which the agency determines the contract
price was increased due to inaccurate, incomplete, or concurrent wage rates and other
factual unit costs. All such adjustments must be made within one year following the end
of the Agreement.
9.27 NO PERSONAL LIABILITY
No covenant or agreement contained herein shall be deemed to be a covenant or
agreement of any member, officer, agent or employee of Monroe County in his or her
individual capacity, and no member, officer, agent or employee of Monroe County shall
be liable personally on this Agreement or be subject to any personal liability or
accountability by reason of the execution of this Agreement.
9.28 EXECUTION IN COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which shall be
regarded as an original, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by singing any such
counterpart.
9.29 FEDERAL IDGHW A Y ADMINISTRATION REQUIREMENTS
Following forms and provisions are incorporated in and made part of this Agreement.
9.29.1 Davis-Bacon Act - In accordance with the Davis-Bacon Act the Consultant or
their subcontractors shall pay workers employed directly upon the site of the work
no less than the locally prevailing wages and fringe benefits paid on projects of a
similar character. The current wage rates can be found at:
WWW.access.gpo.gov/davisbaconlfl.html under Monroe County.
17
9.29.2 Americans with Disabilities Act of 1990 (ADA) The CONSULTANT will
comply with all the requirements as imposed by the ADA, the regulations of the
Federal government issued thereunder, and the assurance by the CONSULTANT
pursuant thereto.
9.29.3 DISADV ANT AGED BUSINESS ENTERPRISE (DBE)POLICY AND
OBLIGATION
It is the policy of the COUNTY that DBE's, as defined in C.F.R. Part 26, as
amended, shall have the opportunity to participate in the performance of contracts
financed in whole or in part with COUNTY funds under this Agreement. The
DBE requirements of applicable federal and state laws and regulations apply to
this Agreement. The COUNTY and its CONSULTANT agree to ensure that
DBE's have the opportunity to participate in the performance of the Agreement.
In this regard, all recipients and contractors shall take all necessary and
reasonable steps in accordance with applicable federal and state laws and
regulations to ensure that DBE's have the opportunity to compete and perform
contracts. The COUNTY and the CONSULTANT and subcontractors shall not
discriminate on the basis of race, color, national origin or sex in the award and
performance of contracts, entered pursuant to this Agreement.
9.29.4 CONVICT LABOR
The convict labor prohibition in 23 U.S.C. 114 applies to Federal Aid
construction projects. Convict labor cannot be used for Federal Aid construction
projects.
9.29.5 FHW A Form 1273 is attached hereto as Attachment A and made a part of this
Agreement.
IN WITNESS WHEREOF, each party caused this Agreement to be executed by its duly
authorized representative on the day and year first above written.
(SEAL)
Attest: DANNY L. KOLHAGE, Clerk
BOARD OF COUNTY COl\1MlSSIONERS
OF MONROE COUNTY, FLORIDA
By:
Deputy Clerk
By:
Mayor/Chairman
Date:
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END OF AGREEMENT
19
ATTACHMENT A
REQUIRED CONTRACT PROVISIONS
FEDERAL-AID CONSTRUCTION CONTRACTS
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
Page
General ..................................... 1
Nondiscrimination ............................. 1
Nonsegregated Facilities . . . . . . . . . . . . . . . . . . . . . . " 3
Payment of Predetermined Minimum Wage ......... 3
Statements and Payrolls ........................ 5
Record of Materials, Supplies, and Labor .. . . . . . . . " 5
Subletting or Assigning the Contract ............... 5
Safety: Accident Prevention ..................... 6
False Statements Concerning Highway Projects. . . . " 6
Implementation of Clean Air Act and Federal
Water Pollution Control Act ...................... 6
Certification Regarding Debarment, Suspension,
Ineligibility, and Voluntary Exclusion ............... 6
Certification Regarding Use of Contract Funds for
Lobbying .................................... 8
ATTACHMENTS
A. Employment Preference for Appalachian Contracts
(included in Appalachian contracts only)
I. GENERAL
1. These contract provisions shall apply to all work performed on
the contract by the contractor's own organization and with the
assistance of workers under the contractor's immediate superinten-
dence 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 contractor's employees or their
representatives.
6. Selection of Labor: During the performance of this contract,
the contractor shall not:
a. discriminate against labor from any other State, possession,
or territory of the United States (except for employment preference for
Appalachian contracts, when applicable, as specified In Attachment
A), or
b. employ convict labor for any purpose within the limits of the
project unless it is labor performed by convicts who are on parole,
supervised release, or probation.
II. NONDISCRIMINATION
(Applicable to all Federal-aid construction contracts and to all
Form FHWA-1273 (Rev. 3-94)
related subcontracts of $10,000 or more.)
1. Equal Employment Opportunity: Equal employment opportu-
nity (EEO) requirements not to discriminate and to take affirmative
action to assure equal opportunity as set forth under laws, executive
orders, rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60)
and orders of the Secretary of Labor as modified by the provisions
prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall
constitute the EEO and specific affirmative action standards for the
contractor's project activities under this contract. The Equal Opportu-
nity 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 ~.) set forth under 28 CFR 35 and 29 CFR 1630
are incorporateeJ 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 payor other forms of
compensation; and selection for training, Including apprentice-
ship, preapprenticeshlp, 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 Polley: 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 responsibili-
ties 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 imple-
ment 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
Page 1
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 consider-
ation.
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 proce-
dures 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, fayoff, 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 discrimi-
natory wage practices.
c. The contractor will periodically review selected personnel
actions in depth to determine whether there is evidence of discrimina-
tion. Where evidence is found, the contractor will promptly take
corrective action. If the review Indicates that the discnmination may
extend beyond the actions reviewed, such corrective action shall
include all affected persons.
d. The contractor will promptly investi~ate all complaints of
alleged discrimination made to the contractor In connection with his
obligations under this contract, will attempt to resolve such com-
plaints, and wili 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 shaH 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 require-
ments 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 promo-
tion.
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
Page 2
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 coopera-
tion 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 fumish 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 bar~aining 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 procure-
ment 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.
c. The contractor will use his best efforts to ensure subcontrac-
tor 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 pr<x,;lress and efforts being made in cooperation
with unions, when applicable, to Increasl'l 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
Form FHWA-1273 (Rev. 3-94)
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 construc-
tion 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,
recreatlon 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, natlonal origin, age or disability, because of habit, local
custom, or othelWise. 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
sUPP'ly 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 subcon-
tractors and such laborers and mechanics. The wage determination
(including any additional classifications and wage rates conformed
under paragraph 2 of this Section IV and the DOL poster (WH-1321)
or Form FHWA-1495) shall be posted at all times by the contractor
and its subcontractors at the site of the work in a prominent and
accessible place where it can be easily seen by the workers. For the
pU'P?se 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 oflaborers 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 durinl;l 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.
Form FHWA-1273 (Rev. 3-94)
b. laborers or mechanics performing work in more than one
classification may be compensated at the rate specified for each
classification for the time actually worked therein, provided, that the
employer's payroll records accurately set forth the time spent in each
classification in which work is performed.
c. All rulings and interpretations of the Davis-Bacon Act and
related acts contained in 29 CFR 1, 3, and 5 are herein incorporated
by reference in this contract.
2. Classification:
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 classifica-
tion, wage rate and fringe benefits only when the following criteria
have been met:
(1) the work to be performed by the additional classifica-
tion 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 contract-
ing officer within the 30-day period that additional time is necessary.
d. In the event the contractor or subcontractors, as appropri-
ate, 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 determina-
tion 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 c1asslficatlon.
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 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.
Page 3
4. Apprentices and Trainees (Programs of the U.S. DOL) and
Helpers:
a. Apprentices:
(1) Apprentices will be pennitted to work at less than the
predetennined rate for the work they perfonned 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 employ-
ment 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 employ-
ment 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 detennination for the classification of
work actually perfonned. In addition, any apprentice perfonning work
on the job site in excess of the ratio pennitted under the registered
program shall be paid not less than the applicable wage rate on the
wage detennination for the work actually perfonned. Where a
contractor or subcontractor is perfonning 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 detennination. 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 detennination 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, with-
draws approval of an apprenticeship program, the contractor or
subcontractor will no longer be pennitted to utilize apprentices at less
than the applicable predetennined rate for the comparable work
perfonned by regular employees until an acceptable program is
approved.
b. Trainees:
(1) Except as provided in 29 CFR 5.16, trainees will not be
pennitted to work at less than the predetennined rate for the work
perfonned unless they are employed pursuant to and individually
registered in a program which has received prior approval, evidenced
by fonnal 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 pennitted 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 participatinQ in a training plan approved by the Employment and
Training Administration shall be paid not less than the applicable
wage rate on the wage detennination for the classification of work
actually perfonned. In addition, any trainee.perfonning work on the
job site in excess of the ratio permitted under the registered program
shall be paid not less than the applicable wage rate on the wage
determination for the work actually performed.
(3) Every trainee must be paid at not less than the rate
specified in the approved program for his/her level of progress,
expressed as a percentage of the journeyman-level hourly rate
specified in the applicable wage determination. Trainees shall be
paid fringe benefits in accordance with the provisions of the trainee
program. If the trainee program does not mention fringe benefits,
trainees shall be paid the full amount of fringe benefits listed on the
wage determination unless the Administrator of the Wage and Hour
Page 4
Division detennines that there is an apprenticeship program associ-
ated with the corresponding journeyman-level wage rate on the wage
detennination 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 Administra-
tion withdraws approval of a training program, the contractor or
subcontractor will no longer be pennitted to utilize trainees at less
than the applicable predetennined rate for the work perfonned until
an acceptable program is approved.
c. Helpers:
Helpers will be pennitted to work on a project if the helper
classification is specified and defined on the applicable wage
detennination or is approved pursuant to the confonnance 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 detennina-
tion for the classification of work actually perfonned.
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 pennitted by the tenns 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 subcontrac-
tor 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 pennit 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 pennit-
ted 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:
Fonn FHWA-1273 (Rev. 3-94)
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 contribu-
tions or costs anticipated for bona fide fringe benefrts or cash
equivalent thereof the types described in Section 1(b)(2)(B) of the
Davis Bacon Act); dally and weekly number of hours worked;
deductions made; and actual wages paid. In addition, for Appala-
chian 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 benefrts 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, para-
graphs 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 Superin-
tendent of Documents (Federal stock number 029-005-0014-1), U.S.
Government Printing Office, Washington, D.C. 20402. The prime
contractor is responsible for the submission of copies of payrolls by
all subcontractors.
d. Each payroll submitted shall be accompanied by a "State-
ment 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 (includinQ each helper,
apprentice, and trainee) employed on the contract dunng the payroll
period has been paid the full weekly wages earned, without rebate,
either directly or indirectly, and that no deductions have been made
Form FHWA-1273 (Rev. 3-94)
either directly or indirectly from the full wages earned, other than
permissible deductions as set forth in the Regulations, 29 CFR 3;
(3) that each laborer or mechanic has been paid not less
that the applicable wage rate and fringe benefits or cash equivalent
for the classification of worked performed, as specified in the
applicable wage determination incorporated into the contract.
e. The weekly submission of a properly executed certification
set forth on the reverse side of Optional Form WH-347 shall satis~
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 inspec-
tion, 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, SUPPUES, AND LABOR
1. On all Federal-aid contracts on the National Highway System,
except those which provide solely for the installation of protective
devices at railroad grade crossin\ls, those which are constructed on
a force account or direct labor baSIS, highway beautification contracts,
and contracts for which the total final construction cost for roadway
and bridge is less than $1,000,000 (23 CFR 635) the contractor shall:
a. Become familiar with the list of specific materials and
supplies contained in Form FHWA-47, "Statement of Materials and
labor Used by Contractor of Highway Construction Involving Federal
Funds," prior to the commencement of work under this contract.
b. Maintain a record of the total cost of all materials and
supplies purchased for and incorporated in the work, and also of the
quantities of those specific materials and supplies listed on Form
FHWA-47, and in the units shown on Form FHWA-47.
c. Furnish, upon the completion of the contract, to the SHA
resident engineer on Form FHWA-47 together with the data required
In paragraph 1b relative to materials and supplies, a final labor
summary of all contract work indicating the total hours worked and
the total amount earned.
2. At the prime contractor's option, either a single report covering
all contract work or separate reports for the contractor and for each
subcontract shall be submitted.n
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
Page 5
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 require-
ments, 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 Qlven
shall not be construed to relieve the contractor of any responSibility
for the fulfillment of the contract. Written consent will be given only
after the SHA has assured that each subcontract is evidenced In
writing and that it contains all pertinent provisions and requirements
of the prime contract.
VIII. SAFETY: ACCIDENT PREVENTION
1. In the performance of this contract the contractor shall comply
with all applicable Federal, State, and local laws governing safety,
health, and sanitation (23 CFR 635). The contractor shall provide all
safeguards, safety devices and protective equipment and take any
other needed actions as it determines, or as the SHA contracting
officer may determine, to be reasonably necessary to protect the life
and health of employees on the job and the safety of the public and
to protect property In connection with the performance of the work
covered by the contract.
2. It Is a condition of this contract, and shall be made a condition
of each subcontract, which the contractor enters into pursuant to this
contract, that the contractor and any subcontractor shall not permit
any employee, in performance of the contract, to work In surround-
ings or under conditions which are unsanitary, hazardous or danger-
ous to hislher 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 confor-
mity with approved plans and specifications and a high deqree 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 honestiy 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 concemed 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 state-
ment, false representation, or false report as to the character, quality,
Page 6
quantity, or cost of the material used or to be used, or the quantity or
quality of the work petformed or to be petformed, 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 representa-
tion, false report or false claim with respect to the character, quality,
quantity, or cost of any work petformed or to be petformed, 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 representa-
tion as to material fact in any statement, certificate, or report
submitted pursuant to provisions of tha Federal-aid Roads Act
approved July 1, 1916, (39 Stat. 355), as amended and supple-
mented;
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 ~., as amended by Pub.L. 91-604),
and under the Federal WaterF'olTution Control Act, as amended (33
U.S.C. 1251 ~~., as amended by Pub.L. 92-500), Executive Order
11738, and regUlations in implementation thereof (40 CFR 15) is not
listed, on the date of 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 EP A 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 Transac-
tions:
(Applicable to all Federal-aid contracts - 49 CFR 29)
a. By signing and submiWng 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 p'articipant
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 deter-
mined 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
Form FHWA-1273 (Rev. 3-94)
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 leams 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," .partic!pant," '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 transac-
tion 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 "Certifica-
tion 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 solicita-
tions 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 'Usts of Parties Excluded From Federal Procurement
or Nonprocurement Programs. (Nonprocurement Ust) which is
compiled by the General Services Administration.
I. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render in
good faith the certification required by this clause. The knowledge
and information of participant IS not required to exceed that which is
normally possessed by a prudent person in the ordinary course of
business dealings.
j. Except for transactions authorized under paragraph f of
these Instructions, if a participant in a covered transaction knowingly
enters into a lower tier covered transaction with a person who is
suspended, debarred, ineligible, or voluntarily excluded from
participation in this transaction, in addition to other remedies available
to the Federal Govemment, the department or agency may terminate
this transaction for cause or default.
Form FHWA-1273 (Rev. 3-94)
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 obtain-
ing, attemptin9 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 govemmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph 1 b of
this certification; and
d. Have not within a 3-year period preceding this applica-
tion/proposal had one or more public transactions (Federal, State or
local) terminated for cause or default.
2. Where the prospective primary participant is unable to certify to
any of the statements in this certification, such prospective participant
shall attach an explanation to this proposal.
2. Instructions for Certification - Lower Tier Covered Transac-
tions:
(Applicable to all subcontracts, purchase orders and other lower
tier transactions of $25,000 or more - 49 CFR 29)
a. By signing and submitting this proposal, the prospective
lower tier is providing the certification set out below.
b. The certification in this clause is a material representation
of fact upon which reliance was placed when this transaction was
entered Into. If it is later determined that the prospective lower tier
participant knowingly rendered an erroneous certification, in <Iddition
to other remedies available to the Federal Government, the depart-
ment, or agency with which this transaction originated may pursue
available remedies, including suspension and/or debarment.
c. The prospective lower tier participant shall provide immedi-
ate written notice to the person to which this proposal is submitted if
at any time the prospective lower tier participant leams that its
certification was erroneous by reason of changed circumstances.
d. The terms .covered transaction," .debarred," .sus.f'ended,"
.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.
e. The prospective lower tier participant agrees by submitting
this proposal that, should the proposed covered transaction be
entered into, it shall not knowingly enter into any lower tier covered
transaction with a person who is debarred, suspended, declared
ineligible, or voluntarily excluded from participation in this covered
transaction, unless authorized by the department or agency with
which this transaction originated.
f. The prospective lower tier participant further agrees by
submitting this proposal that it will include this cia use titled .Certifica-
tion Regarding Debarment, Suspension, Ineligibility and Voluntary
Exclusion-Lower Tier Covered Transaction,' without modification, in
all lower tier covered transactions and in all solicitations for lower tier
covered transactions.
g. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or voluntarily
exciuded from the covered transaction, unless it knows that the
certification is erroneous. A participant may decide the method and
Page 7
frequency by which it detennines the eligibility of its principals. Each
participant may, but is not required to, check the Nonprocurement
List.
h. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render in
good faith the certification required by this clause. The knowledge
and infonnation of participant is not required to exceed that which is
nonnally possessed by a prudent person in the ordinary course of
business dealings.
i. Except for transactions authorized under paragraph e of
these instructions, if a participant in a covered transaction knowingly
enters into a lower tier covered transaction with a person who is
suspended, debarred, ineligible, or voluntarily excluded from
participation in this transaction, in addition to other remedies available
to the Federal Govemment, the department or agency with which this
transaction originated may pursue available remedies, including
suspension and/or debannent.
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 debannent, declared ineligible, or volun-
tarily 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.
Page 8
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 ofthe 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
awardint:l of any Federal contract, the makin!;J of any Federal grant.
the makmg of any Federal loan, the entering mto 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 ofthis 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.
Form FHWA-1273 (Rev. 3-94)
ATTACHMENT A. EMPLOYMENT PREFERENCE FOR
APPALACHIAN CONTRACTS
(Applicable to Appalachian contracts only.)
1. During the performance of this contract, the contractor under-
taking 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 1 c shall not exceed 20 percent of
the total number of employees employed by the contractor on the
contract work, except as provided in subparagraph 4 below.
2. The contractor shall place a job order with the State Employ-
ment 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,
Form FHWA-1273 (Rev 3-94)
(c) the date on which he estimates such employees will be required,
and (d) any other pertinent information required by the State Employ-
ment 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 contrac-
tor, or less than the number requested, the State Employment
Service will forward a certificate to the contractor indicating the
unavailability of applicants. Such certificate shall be made a part of
the contractor's permanent project records. Upon receipt of this
certificate, the contractor may employ persons who do not normally
reside in the labor area to fill positions covered by the certificate,
notwithstanding the provisions of subparagraph 1 c above.
5. The contractor shall include the provisions of Sections 1
through 4 of this Attachment A in every subcontract for work which is,
or reasonably may be, done as on-site work.
Page 9
EXHIBIT B
EXHIBIT B
FEE SCHEDULE
Monroe County
On-call Professional Engineering Services
Bermello Ajamil & Partners, Inc.
Title Billing Rates I hr
Project ManaQer $155.00
Senior EnQineer $155.00
Engineer $110.00
Deputv Proiect manager $75.00
Jr EnQineer $$70.00
Estimator $90.00
Inspector $90.00
Junior Field Inspector $75.00
Senior CADD Tech $80.00
Junior CADD Tech $55.00
Specification Writer $60.00
Grant research / writer $60.00
Public information officer $50.00
Clerical Administrative Assistant $50.00
Rates valid for one year through December 31,2010.