1253-Solid Resources Mgmt1) 53 r .
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Attachment 1 To contract between City of Sanford and Solid Resources Management
for Disaster Management Support Dated: September 8, 2008
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Contract Requirements for Federal Contact Provision Requirements Affidavit �f
The undersigned CONTRACTOR certifies that he /she will comply with all Federal contract
provisions and referenced requirements indicated below and all additional Federal Requirements
which are or may become applicable to Program work for which the City of Sanford intends to
seek reimbursement.
The U.S. Department of Transportation, Federal Highway Administration, Florida Division
(FHWA Florida Division) has issued updated procedures regarding administration for the
Emergency Relief Program. This Emergency Relief Program includes "Contract Requirements
for Debris Monitoring Agreements," which states, "Agreements for emergency work for Debris
Monitoring that are entered into by Local Governments with third parties to perform Emergency
Relief Program work for which the Local Government intends to seek reimbursement involving
FHWA Emergency Relief Program funds shall include the following required Federal Provisions
in their Debris Monitoring Agreements, a copy of which is attached."
REQUIRED FEDERAL PROVISIONS FOR
EMERGENCY RELIEF PROGRAM
DEBRIS MONITORING AGREEMENTS
1.0 Limits on Federal Participation: Federal -aid funds shall not participate in any cost which is
not incurred in conformity with applicable Federal and State laws, the regulations in 23 Code of
Federal Regulations (C.F.R.) and 49 C.F.R., and policies and procedures prescribed by the
Division Administrator of FHWA. If FHWA or the Department of Transportation determines
that any amount claimed is not eligible, federal participation may be approved in the amount
determined to be adequately supported and the Agency shall notify the Contractor in writing
citing the reasons why items and amounts are not eligible for federal participation. Where
correctable non - compliance with provisions of law or FHWA requirements exists, funds may be
withheld until compliance is obtained. Where non - compliance is not correctable, the Agency
may deny participation in parcel or project costs in part or in total.
2.0 Records:
2.1 Establishment of Maintenance of Accounting Records: Records of costs incurred under
the terms of this Agreement shall be maintained and made available upon request to the Agency
at all time during the period of this Agreement and for five years after the Department of
Transportation has closed out an Emergency Event with the Florida Division of Emergency
Management. Records of costs incurred include the Contractor's general accounting records
and the project records, together with supporting documents and records, of all subcontractors
performing work on the project, and all other records of the contractor and subcontractors
considered necessary by the Department of Transportation for a proper audit of costs.
2.2 Documentation of Project Costs: All costs charged to the project shall be supported by
properly executed payrolls, time records, invoices, contracts or vouchers, and any other
documentation evidencing in proper detail the nature and propriety of the charges.
2.3 Inspection: The Contractor, the Agency and Department authorized representatives shall
permit authorized agents of FHWA to inspect all work, workmanship, materials, payrolls, and
records and to audit the books, records, and accounts pertaining to the financing and
development of the project. The Agency reserves the right to unilaterally cancel this Agreement
for refusal by the contractor, sub - contractor or materials vendor to allow public access to all
documents, papers, letters or other material subject to the provisions of Chapter 119, Florida
Statutes, and made or received in conjunction with this Agreement (Section 287.058(1) (c),
Florida Statutes).
3.0 Disadvantaged Business Enterprise (DBE) Policy and Obligation: It is the policy of the
Agency that DBE's, as defined in 49 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 Emergency Relief
Program funds under this Agreement. The DBE requirements of applicable federal and state laws
and regulations apply to this Agreement.
The Contractor agrees to ensure that DBE's have the opportunity to participate in the
performance of this Agreement. In this regard, all Contractors shall take all necessary and
reasonable steps in accordance with applicable federal and state laws and regulations to ensure
that the DBE's have the opportunity to compete for and perform contracts. The Contractor 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. Furthermore, the Contractor agrees that each
contract signed with a recipient subcontractor must include the following assurance:
"Subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the
performance of this contract. The Subcontractor shall carry out applicable requirements of 49
C.F.R. Part 26 in the award and administration of DOT - assisted contracts. Failure by the
Subcontractor to carry out these requirements is a material breach of this contract, which may
result in the termination of this contract or such other remedy as the Agency deems appropriate."
4.0 Restrictions, Prohibitions, Controls, and Labor Provisions:
4.1 Equal Employment Opportunity: In connection with the carrying out of the project, the
Contractor shall not discriminate against any employee or applicant for employment because of
race, age, religion, color, sex, national origin, disability or marital status. The Contractor will
take affirmative action to ensure that applicants are employed and that employees are treated
during employment without regard to their race, age, religion, color, gender, national origin,
disability or marital status. Such action shall include, but not be limited to, the following:
employment upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship.
4.2 Title VI - Civil Rights Act of 1964: The Contractor will comply with all the requirements
imposed by Title VI of the Civil Rights Act of 1964, the regulations of the U.S. Department of
Transportation issued thereunder, and the assurance by the Contractor pursuant thereto. The
Contractor shall include provisions in all contracts with third parties that ensure compliance with
Title VI of the Civil Rights Act of 1964, 49 C.F.R. Part 21, and related statutes and regulations.
4.3 Americans with Disabilities Act of 1990 (ADA): The Contractor will comply with all the
requirements as imposed by the ADA, the regulations of the Federal government issued
thereunder.
4.4 Restrictions on Lobbying: The Contractor agrees that no federally- appropriated funds have
been paid, or will be paid by or on behalf of the Contractor, to any person for influencing or
attempting to influence any officer or employee of any federal agency, a Member of Congress,
an officer or employee of Congress or any employee of a Member of Congress in connection
with the awarding of any federal contract, the making of any federal grant, the making of any
federal loan, the entering into of any cooperative agreement, and the extension, continuation,
renewal, amendment or modification of any federal contract, grant, loan, or cooperative
agreement.
If any funds other than federally- appropriated funds have been paid by the Contractor 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 any employee of a Member of
Congress in connection with this Agreement, the undersigned shall complete and submit
Standard Form -LLL, "Disclosure Form to Report Lobbing," in accordance with its instructions.
The Contractor shall require that the language of this paragraph be included in the award
documents for all subawards at all tiers (including subcontractors, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose Z#
accordingly. /f
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Detailed Damaze Inspection Report (DDIR) Documentation
FDOT suggested that revising DDIRs for cost changes alone may be redundant since cost
increases are requested utilizing the electronic modification request through the FMIS. Revising
the DDIR for cost changes duplicates this effort. Therefore FHWA will revise DDIRs only when
a scope change occurs.
Since the DDIRs are no longer being revised for cost changes, all documentation that supports
any increase in the amount originally estimated on the DDIR, must be provided at the time of
any requests to FHWA for FMIS authorizations or modifications.
On August 19, 2008, an email was shared with all emergency management contacts in Central
Office and the Districts which outlined the systematic approach to writing DDIRs for all future
storms. Tropical Storm Fay provided an opportunity to test the standardized approach for both
FHWA and FDOT. Based on that and prior experience, the major criteria for writing DDIRs
includes the following:
The FHWA must have a Governor's declaration of state of emergency (or a
Presidential declaration will suffice) to invoke the ER program and there must be
a minimum of $700,000 in statewide damage to federal -aid roadways.
FHWA requires separate DDIRs be written for site - specific damage (roadway
pavement damage, embankment washout, culverts, bridge damage, lighting, etc.).
Sites cannot be combined to meet the $5,000 minimum damage threshold. The
scope of work shall be detailed and major pay items listed on the DDIR.
If there is widespread damage, DDIRs may be written for the following individual
categories on a county -wide basis: debris, signs or signals. The scope of work
shall be item - specific on the DDIR. Note that FHWA will only write county -wide
(combining of sites to meet the $5000 threshold) DDIRs for counties that
experienced widespread damage. For this determination, FHWA will utilize the
list of counties that are eligible for Federal Emergency Management Agency
(FEMA) Public Assistance Grant Categories A -G.
If the emergency work is already underway, the DDIR should be accompanied by
a signed contract that includes all the federal requirements; such as FHWA 1273
physically attached to the contract, Buy America (if applicable), Davis -Bacon (if
applicable), etc.
Write a separate DDIR for emergency work and for permanent work (except for
site - specific roadway repair work where both work types are present). The site
limits will be determined at the discretion of the FHWA Transportation Engineer
for each DDIR.
A single DDIR can be written to include both public agency in -house force
account construction work and contract work. However, in an attempt to make
cost estimates as clear as possible, include a line item on the DDIR showing the
estimated in -house construction costs. Design or CEI may be estimated as a
percentage of the total damage estimate. Estimated FDOT indirect costs will not
be shown on the individual DDIRs.
Electronic Records for ER Program
Financial records and supporting documentation shall be retained, for a minimum of 3 years after
project completion in accordance with requirements set forth in 49 CFR Part 19. This
requirement may be satisfied through the use of electronic media. In addition to meeting federal
record retention requirements, FDOT must also ensure that they and local agencies follow the
State of Florida's Records Management Program requirements.
First Pass Timing Definition for Debris Removal
Several of the District staff indicated they needed further clarification from FHWA on the
duration of first pass completion, after the initial first push operation. The first pass is meant to
be accomplished as one continuous operation on the same section of roadway before relocating
the clean up operation team to the next section or site. FHWA allows different types of debris
(vegetative, white goods, etc.) to be picked up over a period of a few days, but it should not
extend over several weeks. FHWA recognizes that HazMat operations might be required as a
separate operation. The FHWA Transportation Engineer will make the final determination on
these issues. Please refer to the Florida Division's Frequently Asked Questions (FAQ) for
additional requirements regarding debris removal.
Pre -event Contracts
Much discussion centered on the section of the July 16, 2008, letter that dealt with pre -event
contracts. FHWA reiterates that they have approved the use of pre -event contracts (based on
scopes developed by the FDOT State Maintenance Office for statewide application) for cut &
toss and debris removal, three types of signals and generators, and permanent lighting or signal
repair. However, FHWA has not yet received for review a standard state -wide scope for pre -
event contracts for CEI monitoring or for signs. In addition, the use of electronic debris
monitoring for the ER program has not been approved. Although there have been several staff
discussions and vendor demonstrations, the FDOT has not submitted any data analysis, including
cost comparisons, or a standard statewide scope for FHWA's review and approval.
One of the requests that FDOT made was for FHWA to further define for local contracts was the
meaning of "consistent with scope" from Page 3 of July 16, 2008, letter. Consistent means that
the contract contains all the same basic criteria as the state standard scope includes.
Verbal Contracts, Small Purchases, Purchase Orders
A question about the use of verbal contracts has come as a result of the ER audits. The FHWA
will not accept verbal contracts for eligible work. FHWA will only reimburse work outlined in a
contractual document that includes a scope of work, estimated cost or actual unit cost. A
purchase order may be used as a contract if the cost of the work is less than $100,000 per federal
small purchase requirements in 49 CFR 18.36.
Consultant Acquisition
There were many questions about the hiring of consultants. Consultant Engineering services, in
order to be eligible for reimbursement under the FHWA ER program, must be procured by
public agencies in accordance with FDOT Procedure No. 375- 040 -130, Emergency Procurement
During Governor Declared Emergencies or by following the normal process for "Acquisition of
Professional Services." Professional consultant services which are permissible under Emergency
Procurement Procedure No. 375- 040 -130 are:
1. New contracts after the event occurs: If FHWA reimbursement will be requested, at
least three (3) quotes /proposals should be obtained, but in no way should it prevent, hinder, or
delay necessary action in coping with an emergency. During emergencies, many of the formal
procurement steps may be expedited in order to speed up the execution of the contract. FHWA
recognizes after a major disaster there may be situations where there is only time to obtain quotes
from a single firm.
2. Existing professional services contracts: Existing contracts may be used to provide
for emergency services if the emergency service required falls within the original intent of the
contract, or the scope of services /specification specifically addressed providing for emergency
situations. An existing contract may be utilized if. a) The existing contract was procured by the
normal federal -aid procedures and processes for federal -aid work; b) The existing contract was
federalized, thus already performing federal -aid work, not only state funded work; c) a separate
task order with scope and cost must be established d) the emergency services are authorized in
accordance with FDOT Procedure No. 375- 040 -130.
3. Pre -event contracts: Consultant pre -event contracts, such as for CEI services, may be
eligible for FHWA reimbursement under the ER program if procured using established state
procedures. However, FHWA must review and approve the standard scope developed for
statewide use, as has been done for other types of pre -event contracts. To date these have not
been submitted to the FHWA. Therefore, any pre -event consultant contract runs the risk of
being determined ineligible if all of the federal aid requirements have not been met.
CEI services for monitoring debris removal should be established utilizing the processes
described above. FHWA has not approved the use of a "contractor" acquisition process,
described by one District, to acquire companies doing disaster relief that do not meet the criteria
for "professional engineering firms ". We understand this to be a service contract that provides
qualified staff to perform monitoring and management for debris removal and does not involve
any construction inspection or sampling and testing. To date, no information describing or
justifying this method has been provided to the FHWA for review.
The cost method used by one District of paying average costs by position plus 15% is not
acceptable since it conflicts with federal regulations. For cost -plus contracts, federal regulations
require that the consultant be paid actual audited costs for labor and overhead expenses.
When local agencies hire consultants to perform engineering services they must be in
conformance with 23 CFR 172 and the "Brooks Act," (competitive negotiation) in title 40 USC,
section 1101 -1104; since it applies to local agencies the same way it applies to state agencies.
To help ensure compliance it is expected that the FDOT standard boilerplate for contract
requirements (such as discrimination, non - lobbying provisions, etc.) be followed by local
agencies when they hire consultants. As a point of clapification, the FHWA 1273 applies only to
construction contracts; thus, it does not apply to professional services such as CEI monitoring
contracts for roadway construction, debris removal, sign and signal repair. In no cases can the
consultant providing inspection be hired by a contractor, the CEI must be independently hired by
the public agency.
Local Aaencv Force Account
As part of discussions in the Districts, FDOT asked for guidance on how local agency force
account (in- house) construction work should be estimated, if not by percentage. By definition,
force account is the actual cost of labor, equipment, and materials expended by the local or state
agency. Thus, percentage estimates are not allowed by FHWA and the agencies electing to
participate in the ER program should provide the estimated cost of labor, equipment and
materials. After the work has been completed they are allowed to invoice and claim for
reimbursement the actual costs incurred. It is required they set up an adequate tracking
mechanism to provide the detailed information as outlined above.
Insurance and the ER Program
If there is insurance coverage for damage, the ER Program can not pay for items covered by the
insurance. We expect the agencies to pursue insurance first. FDOT will need to show there are
additional costs not supported by a pending insurance claim and then that documentation will be
attached to the DDIR. The DDIR amount will be for the difference between storm damage and
insurance claim. The practice of refunding the ER program back when claims are finalized is an
unacceptable practice. If insurance will not pay for all eligible damage, the ER program can pay
for the remaining balance as long as it is for ER eligible work.
Clarification of DCE Memo 22 -08
After the issuance in August 2008 of DCE Memo 22 -08, several requests for clarification were
directed to both FDOT Central Office and FHWA. It should be noted that the first section of
FDOT DCE Memo 22 -08 is intended to describe the use of regular federal -aid funds to repair
damage. The discussion dealing specifically with ER eligibility is described in Section 7. It is
FHWA's position that a roadway under construction should be treated the same as a roadway
with an inherent deficient condition unless a roadway segment cross section has been completed
in conformance with the project's contract requirements. Therefore, FHWA generally will NOT
reimburse for fixing damages on active construction projects with ER funding unless damage
occurs on a segment of the roadway in which the cross section has been completed. Regular
federal aid funds may still be used for the repairs provided the repair work is determined to be
outside the requirements of the construction contract, thus it is not the contractor's responsibility
to make the repairs at no additional cost under the contract terms.
Summary
FHWA recommends that this guidance be shared with all FDOT employees who may be
involved with the ER program, and urge that it be shared with FDOT's local agency partners
throughout the state. Additionally, the Florida Division has also developed on -line web -based
training which can be found at http: / /www.fhwa.dot.gov /fldiv /index.htm and clicking the
"Emergency Relief Online Training" link. This training covers the major topics of discussion
regarding the Emergency Relief program for Florida, and includes discussions on Debris issues,
Detailed Damage Inspection Reports (DDIRs), eligible vs. ineligible items, and Emergency
Repairs vs. Permanent Repairs. The training is 89 minutes long, with two optional videos that
would add an additional 19 and 22 minutes to the viewing time. The above link also has the
most current version of the Emergency Relief FAQ, which is a living document that gets updated
periodically.
FHWA will pursue providing dissemination of updates for the ER program to FEMA.
FDOT is encouraged to update their internal FDOT ER Manual to be consistent with the FHWA
ER Manual (August 2003 version) and FAQ document.
If you have any questions please contact Mr. Chris Richter or Mr. Chad Thompson at (850) 942-
9650.
CONTRACTOR: S Lam' CS0UjCCF1 - T N C
Signature: A/fw, D ate:
Printed Name: ScLc d - �`''` yz e Title: C Q 1' is —b 4
Date:
Affix Corporate Seal
STATE OF rL,02 )
)SS
COUNTY OF S &,M i�V0 c.e )
The foregoing instrument was acknowledged before me this 2 , - day of Auaa,s r
2001, by 7Y+etc= D C. G.CWt6e of Sou D TA/ e_ firm),
on behalf of the firm. He /She is personally known to me or has produced
r" w2 (1>4 ->2c ✓eA-S (mac C&-WS t identification.
Print Name - Z t - 6 CI-4 C — S l m rnD(nlj
Notary Public in and for the County
and State Aforementioned
My commission expires:
DEBRA C. SIMMONS
Notary Public, State of Florida
My comm. expires July 25, 2012
No.OD784069
FBAshton Agency,Ine. (800)451 -48 54 54