1367 O'Brien Response Mgmt�C —i8 77—
PURCHASING DEPARTMENT
TRANSMITTAL MEMORANDUM
To: City Clerk/ Mayor
RE: Contract O'Brien Response Management Inc., RFP 09/10 -14
V�
-0
The item(s) noted below is /are attached and forwarded to your office for the following action(s):
❑
Development Order
❑
Final Plat (original mylars)
❑
❑
Letter of Credit
❑
❑
Maintenance Bond
❑
❑
Ordinance
❑
❑
Performance Bond
❑
❑
Resolution
❑
..Once`c mo pleted, please:
Return original
rn copy
Special Instructions:
For executed signatures...
Mayor's signature
Recording
Rendering
Safe keeping (Vault)
Payment Bond
City Manager Signature
City Clerk Signature
Please advise if you have any questions regarding the above.
Thank you!
A( 4 A
From
I---/ k-- --),O
Date
T:\Dept_ forms \City Clerk Transmittal Memo - 2009.doc
DOCUMENT APPROVAL
Contract/Agreement Name: O'Brien Response Management Inc.,
Approval:
_ 1 0 6 '*— Lo //
Date
ili Ilk
Date
Date
Finance birector
City Of Sanford
Agreement With O'Brien's Response Management Inc. (RFP 09/10 -14)
This Agreement is made and entered into on the dates set forth below by and between
the: City of Sanford, whose address is 300 North Park Avenue; Sanford, Florida 32771; a
municipal corporation of the State of Florida, holding tax exempt status, hereinafter
referred to as the "City," and O'Brien's Response Management Inc., whose address is 2929
East Imperial Highway, Suite 290, Brea, California 92821, a Louisiana corporation,
authorized to do business in the State of Florida, sometimeshereinafter referred to as the
"Contractor ". The City and the Contractor are collectively referred to herein as the "parties ".
Witnesseth:
Whereas, the City desires to retain the Contractor for the work identified in various
Work Orders for various and diverse projects of the City; and
Whereas, the Contractor hereby warrants and represents to the City that it is
competent and otherwise able to provide professional and high quality services to the City;
and
Whereas, the references to the provisions of services to the City shall include to
provision of goods and the term "Work Order" shall include the term "Purchase Order"
herein; and
Whereas, this Agreement is not subject to the provisions of the Consultants
Competitive Negotiations Act,
Now, Therefore, in consideration of the mutual covenants and agreements
hereinafter contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is agreed by and between the parties
hereto as follows:
Section 1: Definitions.
Ad valorem - In proportion to the estimated value of the goods taxed.
Agreement — This document and all subsequent work orders or related contractual
documents between the City and Contractor.
Billing Period — The period of time between project commencement to the close of the
current period, (inclusive); or from the close of the previous billing period, (exclusive), to
the close of the current period, usually concurrent with the month. In no case shall this
period be less than one calendar month except for the final Billing Period.
Bona Fide - Made or carried out in good faith; sincere.
1 1 Page
City — The City of Sanford, a municipal corporation of the State of Florida holding tax
exempt status.
Contractor To include all principals of the Contractor including, but not limited to, full and
part time employees, professional or otherwise, and all other agents employed by or for
Contractor to perform its obligations hereunder.
Description of Services - Shall be written in paragraph form reasonably describing those
services the City can expect the Contractor to provide. The description shall be written in
such a manner that the type of service is clearly provided, but broad enough that all
services reasonably expected of the Contractor, including services provided by partners,
subcontractors, and other supporting professionals, can be provided to the City.
Designated Representative — A person who administers, reviews, and coordinates the
provision of services. This definition applies equally to the City and to the Contractor.
Force Majeure - Force Majeure shall include, but not be limited to, hostility, revolution, civil
commotion, strike, epidemic, fire, flood, wind, earthquake, explosion, any law,
proclamation, regulation, or ordinance or other act of government, or any act of God or any
cause whether of the same or different nature, existing or future; provided that the cause
whether or not enumerated in this Agreement is beyond the control and without the fault or
negligence of the party seeking relief under this Agreement. In the context of this
Agreement, force majeure shall not prevent the Contractor from performing , or provide an
execuse for non - performance, if those matters relate to the hurricane or similar storm or
event to which the services of the Contractor are to relate in the first instance,
Law - Said phrase shall include statutes, codes, rules, and regulations of whatsoever type
or nature enacted or adopted by a governmental entity of competent jurisdiction.
Pari Materia — of the same matter; on the same subject. Laws pari materia must be
construed with reference to each other /together when related to the same matter or
subject. The provisions of a contract/agreement are to be construed together with no
isolated construction of a particular provision such that it would defeat the overall intent of
the contract/agreement.
Submittals — Any item required by this Agreement that the Contractor must provide the
City either for inclusion as part of this Agreement or not.
Work Order - A detailed description of quantities, services, and a completion schedule
provided on a City prescribed form describing all work associated with the service to be
provided by the Contractor to the City for an agreed price referencing this agreement by
title and date.
21 Page
Section 2: Captions /Findings.
The Section headings and captions of this Agreement are for convenience and reference
only and in no way define, limit, describe the scope or intent of this Agreement or any part
thereof, or in any way affect this Agreement or construe any provision of this Agreement.
Hurricane preparedness /response and storm damage cleanup and services in Florida are
essential and critical to the maintenance of normal living and the transaction of commerce.
The fast, efficient and safe clean up of debris and stump removal in the event of a storm or
hurricane is essential to the City and the Contractor shall provide the City his employees
who are highly experienced in handling all of our equipment as well as working with
emergency personnel and the various agencies of government with whom the City will
interact including, but not limited to, the Federal Emergency Management Agency.
Section 3: Extent Of Agreement/Integration /Amendment.
(a) This Agreement, together with the exhibits, if any, constitutes the entire
integrated Agreement between the City and the Contractor and supersedes
all prior written or oral understandings in connection therewith. This
Agreement, and all the terms and provisions contained herein, including
without limitation the exhibits, if any, attached, constitute the full and
complete agreement between the parties hereto to the date hereof, and
supersedes and controls over any and all prior agreements, understandings,
representations, correspondence, and statements, whether written or oral.
The provisions of City RFP 09/10 -14 and the Contractor's response and
submissions thereto are set forth herein as if fully set forth herein verbatim.
(b) This Agreement may only be amended, supplemented, or modified by a
formal written amendment.
(c) Any alterations, amendments, deletions, or waivers of the provisions of this
Agreement shall be valid only when expressed in writing and duly signed by
the parties.
Section 4: No General City Obligation.
(a) In no event shall any obligation of the City under this Agreement be or
constitute a general obligation or indebtedness of the City, a pledge of the ad
valorem taxing power of the City or a general obligation or indebtedness of
the City within the meaning of the Constitution of the State of Florida or any
other applicable laws, but shall be payable solely from legally available
revenues and funds.
(b) The Contractor shall not have the right to compel the exercise of the ad
valorem taxing power of the City. The Contractor shall not have the right to
compel the City to submit any grant application or any application for
approval to any entity regardless of whether public or private.
31 Page
Section 5: Contractor Understanding Of Services Required.
(a) Execution of this Agreement by the Contractor is a representation that the
Contractor is familiar with local conditions and with the services to be
performed. The Contractor shall make no claim for additional time or money
based upon its failure to comply with this Agreement. The Contractor has
informed the City, and hereby represents to the City, that it has extensive
experience in performing and providing the services and /or goods described
in this Agreement and to be identified in the Work Orders, and that it is well
acquainted with the components that are properly and customarily included
within such projects and the requirements of laws, ordinances, rules,
regulations, or orders of any public authority or licensing entity having
jurisdiction over City projects. Execution of a Work Order shall be an
affirmative and irrefutable representation by the Contractor to the City that
the Contractor is fully familiar with any and all requisite work conditions of the
provisions of the services. The Contractor represents that all submissions to
the City are true and correct and that the Contractor has, and shall maintain,
the expertise and ability to provide services to the City as needed and as
outlined in the documents incorporated herein.
(b) The recitals herein are true and correct and form and constitute a material
part of this Agreement upon which the parties have relied.
(c) It is agreed that nothing herein contained is intended or should be construed
as in any manner creating or establishing a relationship of co- partners
between the parties, or as constituting the Contractor (including, but not
limited to, its officers, employees, and agents) the agent, representative, or
employee of the City for any purpose, or in any manner, whatsoever. The
Contractor is to be and shall remain forever an independent contractor with
respect to all services performed under this Agreement.
(d) Persons employed by the Contractor in the provision and performance of the
services and functions pursuant to this Agreement shall have no claim to
pension, workers' compensation, unemployment compensation, civil service
or other employee rights or privileges granted to the City's officers and
employees either by operation of law or by the City.
Section 6: General Provisions.
(a) Each party hereto represents to the other that it has undertaken all
necessary actions to execute this Agreement, and that it has the legal
authority to enter into this Agreement, and to undertake all obligations
imposed on it. The person(s) executing this Agreement for the Contractor
certifies /certify that they are authorized to bind the Contractor fully to the
terms of this Agreement.
41 Page
(b) This Agreement is for services pertaining to various and diverse disaster
management services as needed to support the City's operations, programs
and projects as set forth herein and as otherwise directed by the City to
include any and all matters that are set forth in the documents that have
been incorporated herein.
(c) The Contractor acknowledges that the City may retain other Contractors to
provide the same types of services for City projects. The City reserves the
right to select which contractor shall provide services for City projects.
(d) The Contractor acknowledges that the City has retained other contractors
and the coordination between said contractors and the Contractor may be
necessary from time -to -time for the successful completion of each Work
Order. The Contractor agrees to provide such coordination as necessary
within the Scope of Services of each Work Order.
(e) The Contractor agrees to provide and ensure coordination between goods/
services providers in order to ensure that disasters and events covered by
the Scope of Services shall be addressed in the most expeditious, thorogh
and high quality manner for the benefit of the City and its residents and
businesses..
(f) Time is of the essence of the lawful performance of the duties and
obligations contained in this Agreement to include, but not be limited to, each
Work Order. The parties covenant and agree that they shall diligently and
expeditiously pursue their respective obligations set forth in this Agreement
and each Work Order.
(g) Contractor will maintain an adequate and competent staff or professionally
qualified persons throughout the performance of this Agreement to ensure
acceptable and timely completion of each Work Order.
(h) Requirements for signing and sealing plans, reports, and documents
prepared by the Contractor shall be governed by the laws and regulations of
Seminole County and State and Federal regulatory agencies.
(i) The Contractor hereby guarantees the City that all material, supplies,
services, and equipment as listed on a Purchase Order meet the
requirements, specifications, and standards as provided for under the
Federal Occupations Safety and Health Act of 1970, as from time -to -time
amended and in force on the date hereof.
(j) No claim for services furnished by the Contractor not specifically provided for
herein shall be honored by the City.
51 Page
Section 7: Codes And Design Standards.
(a) All the services to be provided or performed by the Contractor shall in the
minimum be in conformance with commonly accepted industry and
professional codes and standards, standards of the City, and the laws of any
Federal, State, or local regulatory agencies.
(b) The Contractor shall be responsible for keeping apprised of any changing
laws applicable to the services to be performed under this Agreement.
Section 8: Subcontractors.
(a) Any Contractor proposed subcontractors shall be submitted to the City for
written approval prior to the Contractor entering into a subcontract.
Subcontractor information shall include, but not be limited to, State
registrations, business address, local business tax proof of payment, and
insurance certifications.
(b) The Contractor shall coordinate the provision of services and work product of
any City approved subcontractor and remain fully responsible for such
services and work under the terms of this Agreement.
(c) Any subcontract shall be in writing and shall incorporate this Agreement and
require the subcontractors to assume performance of the Contractor duties
commensurately with the Contractor's duties to the City under this
Agreement, it being understood that nothing herein shall in any way relieve
the Contractor from any of its duties under this Agreement. The Contractor
shall provide the City with executed copies of all subcontracts.
Section 9: Assignability.
The Contractor shall not sublet, assign, or transfer any interest in this Agreement, or claims
for the money due or to become due out of this Agreement to a bank, trust company, or
other financial institution without written City approval. When approved by the City, written
notice of such assignment or transfer shall be furnished promptly to the City.
Section 10: Commencement/implementation Schedule Of Agreement.
(a) The Contractor shall commence the provision of services as described in this
Agreement immediately upon execution of this Agreement and execution of a
Work Order or as may be directed under the emergency management
powers of various City officials and officers. The City may seek other firms to
provide the same services.
(b) The Contractor and the City agree to make every effort to adhere to the
schedules established for the various Work Orders as described in each
61 Page
Work Order or, in the case of immediate responses to emergencies as may
be directed under the emergency management powers of various City
officials and officers. However, if the Contractor is delayed at any time in the
provision of services by any act or omission of the City, or of any employee
of the City, or by any other Contractor employed by the City, or by changes
ordered by the City, or by strikes, lock outs, fire, unusual delay in
transportation, unavoidable casualties, or any other allowable cause of force
majeure, as may be permitted under this Agreement, and not resulting from
the inactions or actions of the Contractor and beyond the Contractor's control
which would not reasonably be expected to occur in connection with or
during performance or provision of the services, or by delay authorized by
the City pending a decision, or by any cause which the City shall decide to
justify the delay, the time of completion shall be extended for such
reasonable time as the City may decide in its sole and absolute discretion. It
is further expressly understood and agreed that the Contractor shall not be
entitled to any damages or compensation, or be reimbursed for any losses
on account of any delay or delays resulting from any of the aforesaid causes
or any other cause whatsoever. The Contractor shall become familiar with
the City's emergency management system of the City and may take direction
from as various City officials and officers who are vested with emergency
management powers.
Section 11: Length Of Agreement.
(a) Unless terminated, this Agreement shall be in effect until December 31, 2011
and shall automatically renew for one year periods unless action to terminate
this Agreement is taken by a party consistent with the provisions of this
Agreement.
(b) Should s party wish to not have this Agreement automatically renewed, the
City shall provide written notice to the Contractor thirty days prior to the
automatic renewal subject; however, to the completion of all pending Work
Orders.
Section 12: Description Of Services.
(a) The Contractor agrees to perform various and diverse disaster services as
accordance with Work Orders and other directions consistent with this
Agreement issued by the City to the Contractor from time -to -time. For the
purposes of this Agreement the use of the terms "disaster" and "emergency"
are synonymous.
(b) The Contractor shall diligently and in a professional and timely manner
perform and provide the services contemplated by this Agreement. Unless
modified in writing by the parties hereto, the duties of the Contractor shall not
be construed to exceed the provision of the services pertaining to this
71 Page
Agreement; provided, however, that the Contractor recognizes the need to
respond proactively and creatively to address circumstances arising in
disaster events..
Section 13: Contractor Responsibilities.
(a) The Contractor shall be responsible for the professional quality, accepted
standards, technical accuracy and the coordination of all services furnished
by the Contractor under this Agreement as well as the conduct of its staff,
personnel, employees, and agents. The Contractor shall work closely with
the City on all aspects of the provision of the services. With respect to
services, the Contractor shall be responsible for the quality, technical
accuracy, competence, methodology, accuracy, and the coordination of all of
the following which are listed for illustration purposes and not as a limitation:
documents, analysis, reports, data, plans, plats, maps, surveys,
specifications, and any and all other services of whatever type or nature
furnished by the Contractor under this Agreement. The Contractor shall,
without additional compensation, correct or revise any errors or deficiencies
in its plans, analysis, data, reports, designs, drawings, specifications, and
any and all other services of whatever type or nature.
(b) The Contractor shall furnish a Contractor Designated Representative to
administer, review, and coordinate the provision of services under each Work
Order as well as the services required by the City as a general matter.
(c) Neither City review, approval, or acceptance of, nor payment for, any of the
services required under this Agreement shall be construed to operate as a
waiver of any rights or of any cause of action arising out of the performance
of this Agreement. The Contractor shall be and shall remain liable to the City
in accordance with applicable law for all damages to the City caused by the
Contractor's negligent or improper performance or failure to perform any of
the services furnished under this Agreement.
(d) The rights and remedies of the Contractor provided for under this
Agreement, are in addition to any other rights and remedies provided by law.
(e) In the event the Contractor fails to comply with the terms and conditions of
this Agreement, the City shall notify the Contractor's Designated
Representative in writing so that the Contractor may take remedial action.
(f) Time is of the essence in the performance of all services provided by the
Contractor under the terms of this Agreement and each and every Work
Order as well as in effectively responding to the diverse known and unknown
impacts that disaster circumstances will have on the City and its citizens and
businesses. It is critical and essential to provide citizens of the City with
normal living conditions as soon as possible in the event of a disaster and to
3. • o
maintain normal economic life within the City.
Section 14: City Rights And Responsibilities.
(a) The City shall reasonably cooperate with the Contractor in a timely fashion at
no cost to the Contractor as set forth in this Section.
(b) The City shall furnish a City Designated Representative to administer,
review, and coordinate the provision of services under each Work Order.
(c) The City shall make City personnel available where, in the City's opinion,
they are required and necessary to assist the Contractor. The availability
and necessity of said personnel to assist the Contractor shall be determined
solely at the discretion of the City.
(d) The City shall furnish the Contractor with existing data, records, maps, plans,
specifications, reports, fiscal data, and other engineering information that is
available in the City's files that is necessary or useful to the Contractor for
the performance of the Work. All such documents conveyed by the City shall
be, and remain the property of, the City and shall be returned to the City
upon completion of the Work to be performed by the Contractor.
(e) The City shall examine all Contractor reports, sketches, drawing, estimates,
proposals, and other documents presented to the City and indicate the City's
approval or disapproval within a reasonable time so as not to materially delay
the provisions of the services of the Contractor.
(f) The City shall provide access to and make provisions for the Contractor to
enter upon public and private lands as required for the Contractor within a
reasonable time to perform work as necessary to complete the Work Order.
(g) The City shall transmit instructions, relevant information, and provide
interpretation and definition of City policies and decisions with respect to any
and all materials and other matters pertinent to the services covered by this
Agreement.
(h) The City shall give written notice to the Contractor whenever the City's
Designated Representative knows of a development that affects the services
provided and performed under this Agreement, timing of the Contractor's
provision of services, or a defect or change necessary in the services of the
Contractor. In disaster situatons communications shall occur in accordance
with the City's emergency management plan and protocols with emergecny
powers being vested in various officials and officers.
(i) The rights and remedies of the City provided for under this Agreement are in
addition to any other rights and remedies provided by law; the City may
91 Page
assert its right of recovery by any appropriate means including, but not
limited to, set -off, suit, withholding, recoupment, or counterclaim, either
during or after performance of this Agreement.
Q) The City shall be entitled to recover any and all legal costs including, but not
limited to, attorney fees and other legal costs that it may incur in any legal
actions it may pursue in the enforcement of the terms and conditions of this
Agreement or the responsibilities of the Contractor in carrying out the duties
and responsibilities deriving from this Agreement.
(k) The failure of the City to insist in any instance upon the strict performance of
any provision of this Agreement, or to exercise any right or privilege granted
to the City hereunder shall not constitute or be construed as a waiver of any
such provision or right and the same shall continue in force.
(1) Neither the City's review, approval or acceptance of, nor payment for, any of
the services required shall be construed to operate as a waiver of any rights
under this Agreement nor or any cause of action arising out of the
performance of this Agreement and the Contractor shall be and always
remain liable to the City in accordance with applicable law for any and all
damages to the City caused by the Contractor's negligent or wrongful
provision or performance of any of the services furnished under this
Agreement.
(m) All deliverable analysis, reference data, survey data, plans and reports, or
any other form of written instrument or document that may result from the
Consutant's services or have been created during the course of the
Contractor's performance under this Agreement shall become the property of
the City after final payment is made to the Contractor.
(n) In the event the City fails to comply with the terms and conditions of this
Agreement, the Contractor shall notify the City's Designated Representative
in writing so that the City may take remedial action.
Section 15: Waiver.
The failure of the City to insist in any instance upon the strict performance of any provision
of this Agreement, or to exercise any right or privilege granted to the City hereunder, shall
not constitute or be construed as a waiver of any such provision or right and the same shall
continue in force.
Section 16: Force Majeure.
Neither party shall be considered in default in performance of its obligations hereunder to
the extent that performance of such obligations, or any of them, is delayed or prevented by
101 Page
force majeure. The principle of force majeure is limited in this Agreement as otherwise
noted in this Agreement.
Section 17: Standards Of Conduct.
(a) The Contractor warrants that it has not employed or retained any company or
person, other than a bona fide employee working solely for the Contractor, to
solicit or secure this Agreement and that the Contractor has not paid or
agreed to pay any person, company, corporation, individual, or firm other
than a bona fide employee working solely for the Contractor, any fee,
commission, percentage, gift, or any other consideration, contingent upon or
resulting from the award of making this Agreement.
(b) If the City determines that any employee or representative of the Contractor
is not satisfactorily performing his or her assigned duties or is demonstrating
improper conduct pursuant to any assignment or work performed under this
Agreement, the City shall so notify the Contractor, in writing. The Contractor
shall immediately remove such employee or representative of the Contractor
from such assignment.
(c) The Contractor hereby certifies (in this writing) that no undisclosed conflict of
interest exists with respect to the Agreement, including, but not limited to,
any conflicts that may be due to representation of other clients, customers or
vendees, other contractual relationships of the Contractor, or any interest in
property that the Contractor may have. The Contractor further certifies that
any conflict of interest that arises during the term of this Agreement shall be
immediately disclosed in writing to the City. Violation of this Section shall be
considered as justification for immediate termination of this Agreement.
(d) The Contractor shall not engage in any action that would create a conflict of
interest for any City employee or other person during the course of
performance of, or otherwise related to, this Agreement or which would
violate or cause others to violate the provisions of Part III, Chapter 112,
Florida Statutes, relating to ethics in government.
(e) The City will not intentionally award publicly- funded contracts to any
Contractor who knowingly employs unauthorized alien workers, constituting a
violation of the employment provisions contained in 8 U.S.C. Section
1324a(e) Section 274A(e) of the Immigration and NationallyAct (INA)]. The
City shall consider the employment by the Contractor of unauthorized aliens,
a violation of Section 274A (e) of the INA. Such violation by the Contractor
of the employment provisions contained in Section 274A (e) of the INA shall
be grounds for immediate termination of this Agreement by the City. The
Contractor shall maintain an ongoing and thorough employment practice to
ensure that illegal aliens are not employed by the Contractor.
11 1 Page
(f) The Contractor shall comply with the requirements of the Americans with
Disabilities Act (ADA), and any and all related Federal or State laws which
prohibits discrimination by public and private entities on the basis of
disability.
(g) The Contractor shall not discriminate on the grounds of race, color, religion,
sex, or national origin in the performance of work under this Agreement or
violate any laws pertaining to civil rights, equal protection, or discrimination.
(h) If the Contractor or an affiliate is placed on a discriminatory vendor list, such
action may result in termination by the City. The Contractor shall certify,
upon request by the City that it is qualified to submit a bid under Section
287.134 (2) (c), Florida Statutes, relating to public entity crimes.
(i) If the Contractor or an affiliate is placed on the convicted vendor list following
a conviction for a public entity crime, such action may result in termination by
the City. The Contractor shall certify, upon request by the City, that is
qualified to submit a bid under Section 287.133(2)(a), Florida Statutes,
relating to public entity crimes.
Q) The Contractor shall certify, upon request by the City, that the Contractor
maintains a drug free workplace policy in accordance with Section 287.0878,
Florida Statutes. Failure to submit this certification may result in termination.
(k) The Contractor agrees to comply with Federal, State, and local
environmental, health, and safety laws and regulations applicable to the
services provided to the City. The Contractor agrees that any program or
initiative involving the work that could adversely affect any personnel
involved, citizens, residents, users, neighbors or the surrounding
environment will ensure compliance with any and all employment safety,
environmental and health laws. The Contractor shall work closely with the
Federal Emergency Management Agency on behalf of the City as well as all
other governmental and non - governmental entities and agencies providing
emergency /disaster assistance to the City.
(1) If applicable, in accordance with Section 216.347, Florida Statutes, the
Contractor shall not use funds provided by this Agreement forthe purpose of
lobbying the Legislature, the Judicial Branch, or State agency.
(m) The Contractor shall not publish any documents or release information
regarding this Agreement to the media without prior approval of the City.
(n) The Contractor shall ensure that all services are provided to the City after the
Contractor has obtained, at its sole and exclusive expense, any and all
permits, licenses, permissions, approvals or similar consents.
121Page
(o) The Contractor shall ensure that all taxes due from the Contractor are paid in
a timely and complete manner including, but not limited to, the City's local
business tax.
Section 18: Notices.
131 Page
23 CFR Part 635.410 Buy America Requirements
(a) Whenever either party desires to give notice unto the other, it must be given by
written notice, sent by registered United States mail, with return receipt requested,
addressed to the party for whom it is intended, at the place last specified, and the
place for giving of notice shall remain such until it shall have been changed by
written notice in compliance with the provisions of this Section.
(b) For the present, the parties designate the following as the representative places
for giving of notice, to -wit:
(1) For the City:
City Manager
300 North Park Avenue
Sanford, Florida 32771
With a copy to:
Purchasing Manager
300 North Park Avenue
Sanford, Florida 32771
(2) For the Contractor
Keith Forster, CFO
O'Brien's Response Management Inc.
2929 East Imperial Place
Suite 290
Brea, California 92821 -6729
(c) Written notice requirements of this Agreement shall be strictly construed and such
requirements are a condition precedent to pursuing any rights or remedies
hereunder. The Contractor agrees not to claim any waiver by City of such notice
requirements based upon City having actual knowledge, implied, verbal or
constructive notice, lack of prejudice, or any other grounds as a substitute for the
failure of the Contractor to comply with the express written notice requirements
herein. Computer notification (e -mails and message boards) shall not constitute
proper written notice under the terms of the Agreement.
Section 19: Designated Representatives.
(a) The City Manager or the Designated Representative represents the City in all
matters pertaining to and arising from the work and the performance of this
Agreement.
(b) The City Manager or the Designated Representative shall have the following
responsibilities:
141Page
23 CFR Part 635.410 Buy America Requirements
(1) Examination of all work and rendering, in writing, decisions indicating the
City's approval or disapproval within a reasonable time so as not to
materially delay the work of the Contractor;
(2) Transmission of instructions, receipt of information, and interpretation and
definition of City's policies and decisions with respect to design, materials,
and other matters pertinent to the work covered by this Agreement;
(3) Giving prompt written notice to the Contractor whenever the City knows of a
defect or change necessary in the project; and
(c) Until further written notice, the City's Designated Representative for this
Agreement is:
Purchasing Manager
City of Sanford
300 North Park Avenue
Sanford, Florida 32771
(d) Until further written notice, the Contractor's Designated Representative for this
Agreement is:
Steve Branham, Executive Vice President
O'Brien's Response Management Inc.
2200 Eller Drive
Fort Lauderdale, Florida 33316
Section 20: Work Orders.
(a) The provision of services to be performed under this Agreement may commence
upon the issuance of a Work Order from the City to the Contractor or as may be
effectuated under the City's emergency management system by officers and
officials vested with emergency powers. Each Work Order shall reference this
agreement by title and date, include a detailed description of quantities, services,
and a completion schedule, and will be provided on Contractor letterhead.
Services described in said Work Order will commence upon the issuance of a City
Notice -To- Proceed. After the fact Work Orders may be issued to document work
that is accomplished in truly exigent circumstances, but the presumption under this
Agreement shall be that there is adequate time to formalize work assignments.
(b) The services required to be performed by a Work Order shall clearly defined, the
Work Order and shall be issued on a "Fixed Fee" basis. The Contractor shall
perform all services required by the Work Order but in no event shall the
Contractor be paid more than the negotiated Fixed Fee amount stated therein.
(c) The Contractor agrees to adhere to the schedules established in the various Work
Orders issued under this Agreement.
(e) The Contractor may invoice the amount due based on the percentage of total
Work Order services actually performed and completed; but in no event shall the
151Page
23 CFR Part 635.410 Buy America Requirements
invoice amount exceed a percentage of the Fixed Fee amount equal to a
percentage of the total services actually completed.
Section 21: Change Orders.
(a) The City may revise the Description of Services set forth in any particular Work
Order.
(b) Revisions to any Work Order shall be authorized in writing by the City as a Change
Order. Each Change Order shall include a schedule of completion for the services
authorized. Change Orders shall identify this Agreement and the appropriate
Work Order number. The Change Orders may contain additional instructions or
provisions specific upon certain aspects of this Agreement pertinent to the services
to be provided. Such supplemental instructions or provisions shall not be
construed as a modification of this Agreement. An Agreement between the parties
on and execution of any Change Order shall constitute a final settlement and a full
accord and satisfaction of all matters relating to the change and to the impact of
the change on unchanged goods and/or work, including all direct and indirect costs
of whatever nature, and all adjustments to the Contractor schedule.
(c) If instructed by the City, the Contractor shall change or revise work that has been
performed, and if such work is not required as a result of error, omission or
negligence of the Contractor, the Contractor may be entitled to additional
compensation. The Contractor must submit for City approval a revised proposal
with a revised fee quotation. Additional compensation, if any, shall be agreed
upon before commencement of any such additional work and shall be incorporated
into the work by Change Order to the Work Order.
Section 22: Compensation.
(a) Compensation to the Contractor for the services performed on each Work Order
shall be as set forth the Work Order /Change Order. The rates of compensation set
forth in the response to the RFP (exhibit) attached hereto are incorporated herein.
With regard to services or goods that are not specifically detailed, the City and the
Contractor shall negotiate pricing.
(b) The City shall not pay for reimbursable items such as gas, tolls, mileage, meals,
etc. and other items not directly attritbutable to items produced for each Work
Order.
(c) Any work performed by the Contractor without written approval by the City's
designated Representative shall not be compensated. Any work performed by the
Contractor without approval by the City is performed at the Contractor's own
election.
(d) In the event the City fails to provide compensation under the terms and conditions
of this Agreement, the Contractor shall notify the City's Designated Representative
in order that the City may take remedial action.
161 Page
23 CFR Part 635.410 Buy America Requirements
Section 23: Invoice Process.
(a) Payments shall be made by the City to the Contractor when requested as work
progresses for services furnished, but not more than once monthly. Each Work
Order shall be invoiced separately. The Contractor shall render to the City, at the
close of each calendar month, an itemized invoice properly dated, describing all
services rendered, the cost of the services, the name and address of the
Contractor, Work Order Number, Contract Number and all other information
required by this Agreement.
(b) Invoices which are in an acceptable form to the City and without disputable items
will be processed for payment within thirty days of receipt by the City.
(c) The Contractor will be notified of any disputable items contained in invoices
submitted by the Contractor within fifteen days of receipt by the City with an
explanation of the deficiencies.
(d) The City and the Contractor will make every effort to resolve all disputable items
contained in the Contractor's invoices.
(f) Each invoice shall reference this Agreement, the appropriate Work Order and
Change Order if applicable, the billing period, and include the Project Status
Report for the period being billed.
(f) The Florida Prompt Payment Act shall apply when applicable.
(g) Invoices are to be forwarded directly to:
Finance Director
City Of Sanford
300 North Park Avenue
Sanford, Florida 32771
Section 24: Termination Of Agreement.
(a) The City may terminate this Agreement or any Work Order for convenience at
any time.
(b) The City may also terminate this Agreement upon the City determining that any
one or more of the following reasons exist:
(1) If, in the City's opinion, adequate progress under a Work Order, specially,
or this Agreement, generally, is not being made by the Contractor; or
171 Page
23 CFR Part 635.410 Buy America Requirements
(2) If, in the City's opinion, the quality of the services provided by the
Contractor is /are not in conformance with commonly accepted professional
standards, standards of the City, the requirements of Federal or State
regulatory agencies, and the Contractor has not corrected such deficiencies
in a timely manner as reasonably determined by the City; or
(3) The Contractor or any employee or agent of the Contractor is indicted or
has a direct charge issued against him for any crime arising out of or in
conjunction with any work that has been performed by the Contractor; or
(4) The Contractor becomes involved in either voluntary or involuntary
bankruptcy proceedings, or makes an assignment for the benefit of
creditors; or
(5) The Contractor violates the Standards of Conduct provisions herein or any
provision of State or local law or any provision of the City Code of Conduct.
In the event of any of the causes described in this Section, the City's Designated
Representative may send a certified letter requesting that the Contractor show
cause why the Agreement or any Work Order should not be terminated. If
assurance satisfactory to the City of corrective measures to be made within a
reasonable time is not given to the City within fourteen calendar days of the receipt
of the letter, the City may consider the Contractor to be in default, and may
immediately terminate this Agreement or any Work Order in progress under this
Agreement.
(c) In the event that this Agreement or a Work Order is terminated for cause and it is
later determined that the cause does not exist, then this Agreement or the Work
Order shall be deemed terminated for convenience by the City and the City shall
have the right to so terminate this Agreement without any recourse by the
Contractor.
Section 25: Termination By Contractor For Cause.
(a) The Contractor may terminate this Agreement if the City fails to pay the Contractor
in accordance with this Agreement.
(b) In the event of either of the causes described in Subsection (a), the Contractor
shall send a certified letter requesting that the City show cause why the Agreement
should not be terminated. If adequate assurances are not given to the Contractor
within fourteen calendar days of the receipt of said show cause notice, the
Contractor may consider the City to be in default, and may immediately terminate
this Agreement.
Section 26: Termination By The City Without Cause.
(a) Notwithstanding any other provision of this Agreement, the City shall have
the right at any time to terminate this Agreement in its entirely without cause, or
181 Page
23 CFR Part 635.410 Buy America Requirements
terminate any specific Work Order without cause, if such termination is deemed
by the City to be in the public interest, provided that thirty calendar days prior
written notice is given to the Contractor of the City's intent to terminate.
(b) In the event that this Agreement is terminated, the City shall identify any specific
Work Order(s) or work being terminated and the specific Work Order(s) or work to
be continued to completion pursuant to the provisions of this Agreement.
(c) This Agreement will remain in full force and effect as to all authorized Work
Order(s) that is /are to be continued to completion.
191 Page
23 CFR Part 635.410 Buy America Requirements
Section 27: Payment In The Event Of Termination.
In the event this Agreement or any Work Order is terminated or canceled prior to final completion
payment for the unpaid portion of the services provided by the Contractor to the date of
termination and any additional services shall be paid to the Contractor.
Section 28: Action Following Termination.
Upon receipt of notice of termination, given by either party, the terminated party shall promptly
discontinue the provision of all services, unless the notice provides otherwise.
Section 29: Suspension.
(a) The performance or provision of the Contractor's services under any Work Order
under this Agreement may be suspended by the City at any time.
(b) In the event the City suspends the performance or provision of the Contractor's
services hereunder, the City shall so notify the Contractor in writing. Such
suspension becoming effective upon the date stated in the notice. The City shall
pay to the Contractor within thirty days all compensation which has become due to
and payable to the Contractor to the effective date of such suspension. The City
shall thereafter have no further obligation for payment to the Contractor for the
suspended provision of services unless and until the City's designated
representative notifies the Contractor in writing that the provision of the services of
the Contractor called for hereunder are to be resumed by the Contractor.
(c) Upon receipt of written notice from the City that the Contractor's provision of
services hereunder are to be resumed, the Contractor shall continue to provide the
services to the City.
Section 30: Alternative Dispute Resolution (ADR).
(a) In the event of a dispute related to any performance or payment obligation
arising under this Agreement, the parties agree to exhaust any alternative
dispute resolution procedures reasonably imposed by the City prior to filing suit
or otherwise pursuing legal remedies.
(b) The Contractor agrees that it will file no suit or otherwise pursue legal remedies
based on facts or evidentiary materials that were not presented for consideration
to the City in alternative dispute resolution procedures or which the Contractor had
knowledge and failed to present during the City procedures.
(c) In the event that City procedures are exhausted and a suit is filed or legal
remedies are otherwise pursued, the parties shall exercise best efforts to resolve
disputes through voluntary mediation. Mediator selection and the procedures to
be employed in voluntary mediation shall be mutually acceptable to the parties.
201 Page
23 CFR Part 635.410 Buy America Requirements
Costs of voluntary mediation shall be shared equally among the parties
participating in the mediation.
Section 31: Severability.
(a) If any term, provision or condition contained in this Agreement shall, to any extent,
be held invalid or unenforceable, the remainder of this Agreement, or the
application of such term, provision or condition to persons or circumstances other
than those in respect of which it is invalid or unenforceable, shall not be affected
thereby, and each term, provision, and condition of this Agreement shall be valid
and enforceable to the fullest extent permitted by law when consistent with equity
and the public interest.
(b) All provisions of this Agreement shall be read and applied in pari materia with all
other provisions hereof.
(c) Violation of this Agreement by the Contractor is recognized by the parties to
constitute irreparable harm to the City.
Section 32: Controlling Laws/Venue /Interpretation.
(a) This Agreement is to be governed by the laws of the State of Florida.
(b) Venue for any legal proceeding related to this Agreement shall be in the
Eighteenth Judicial Circuit Court in and for Seminole County, Florida and the City
shall, at all times, have and maintain the home venue privilege.
(c) This Agreement is the result of bona fide arms length negotiations between the
City and the Contractor and all parties have contributed substantially and
materially to the preparation of the Contract. Accordingly, this Agreement shall not
be construed or interpreted more strictly against any one party than against any
other party.
Section 33: Indemnity.
(a) To the fullest extent permitted by law, the Contractor shall indemnify, hold
harmless, and defend the City, its agents, servants, officers, officials, and
employees, or any of them, from and against any and all claims, damages, losses,
and expenses including, but not limited to, attorneys fees and other legal costs
such as those for paralegal, investigative, and legal support services, and the
actual costs incurred for expert witness testimony arising out of or resulting from
the performance or provision of services required under this Agreement, provided
that same is caused in whole or part by the error, omission, negligent act, failure to
act, malfeasance, misfeasance, conduct, or misconduct of the Contractor, its
agents, servants, officers, officials, employees, or SubContractors.
21 1 Page
23 CFR Part 635.410 Buy America Requirements
(b) In accordance with Section 725.06, Florida Statutes, adequate consideration has
been provided to the Contractor for this obligation, the receipt and sufficiency of
which is hereby specifically acknowledged.
(c) Nothing herein shall be deemed to affect the rights, privileges, and immunities of
the City as set forth in Section 768.28, Florida Statutes.
(d) In claims against any person or entity indemnified under this Section by an
employee of the Contractor or its agents or SubContractors, anyone directly or
indirectly employed by them or anyone for whose acts they may be liable, the
indemnification obligation under this Section shall not be limited by a limitation on
amount or type of damages, compensation, or benefits payable by or for the
Contractor or its agents or SubContractors, under Workers Compensation acts,
disability benefits acts, or other employee benefit acts.
(e) The execution of this Agreement by the Contractor shall obligate the Contractor to
comply with the indemnification provision in this Agreement; however, the
Contractor must also comply with the provisions of this Agreement relating to
insurance coverages.
(f). To the extent that services provided by the Contractor to the City under this
Agreement relate to the "planning, design, construction, administration, study,
evaluation, consulting, or other professional and technical support services
furnished in connection with any actual or proposed construction, improvement,
alteration, repair, maintenance, operation, management, relocation, demolition,
excavation, or other facility, land, air, water, or utility development or
improvement," the indemnification set forth herein shall not apply and the
limitation of liability set forth in Section 725.08, Florida Statutes, shall be applicable
consistent, however, with all terms and conditions of this Agreement.
(g) Each party shall not be liable for any damage or injury to the other party, or any
other person, or to any property which results from the negligent actions of the
other party. Each party hereby, to the extent and limit permitted by State law, but
without obligation to provide insurance of any nature to the other party, shall hold
harmless and indemnify the other party from and against any and all liability,
assertions, loss, claims, damages, costs, attorney's fees, judgments and expenses
of whatsoever kind or nature which the other party may sustain, suffer or incur
or be required to pay by reason of a loss resulting from the negligent acts or
omissions of the party. To the extent and limit permitted by State law, in the event
that any action, suit or proceeding is brought against a party upon any alleged
liability arising out of this Agreement asserted to have resulted from the negligence
of the other party, the party against whom the action, suit or proceeding is brought
shall promptly provide notice in writing thereof to the other party by registered or
certified mail addressed to the party against whom the action, suit or proceeding is
brought at the address herein provided. Upon receiving such notice, the party
receiving notice, at its own expense, shall diligently defend the party against whom
the action, suit, or proceeding is brought against such assertions, actions, lawsuits,
or proceedings and take any and all appropriate actions to prevent the obtaining of
a judgment against the party against whom the action, suit or proceeding is
221 Page
23 CFR Part 635.410 Buy America Requirements
brought. Nothing in this Agreement or any action relating to this Agreement shall
be construed as a waiver of sovereign immunity beyond the limits set forth in
Section 768.28, Florida Statutes, even if the indemnity action sounds in contract
rather than tort. Persons employed by a party and the agents of that party taking
actions pursuant to this Agreement shall have no claim to pension, workers'
compensation, unemployment compensation, civil service or other employee rights
or privileges granted to the other party's officers and employees. Additionally,
there are no third party beneficiaries to this Agreement.
Section 34: Insurance.
(a) The Contractor shall obtain or possess and continuously maintain the following
insurance coverage, from a company or companies, with a Best Rating of A- or
better, authorized to do business in the State of Florida and in a form acceptable
to the City and with only such terms and conditions as may be acceptable to the
City:
(1) Workers Compensation /Employer Liability: The Contractor shall provide
Worker Compensation insurance for all employees engaged in the work
under this Agreement in accordance with the laws of the State of Florida.
Employers' Liability Insurance at limits not less than the following:
$100,000 Each Accident
$100,000 Disease Each Employee
$500,000 Disease Aggregate
(2) Comprehensive General Liability: The Contractor shall provide coverage for
all operations including, but not limited to, contractual, independent
Contractor, products and complete operations and personal injury with
limits not less than the following:
$1,000,000 Bodily Injury & Property Damage - each occurrence
$1,000,000 Personal & Advertising Injury - each occurrence
$2,000,000 General Aggregate
$2,000,000 Products /Completed Operations Aggregates limit
$5,000 Medical Payments
$100,000 Fire Damage Legal Liability
(3) Comprehensive Business Automobile Liability: The Contractor shall provide
complete coverage with a combined single limit of not less than $1,000,000
Bodily Injury and Property Damage in accordance with the laws of the State
of Florida, as to the ownership, maintenance, and use of all owned, non -
owned, leased or hired vehicles.
(4) Other Required Insurance Coverage: Where unusual operations are
necessary to complete the work, such as Longshoremen and Harbor
Workers' Exposures, use of aircraft or watercraft, use of explosives, and
any high risk circumstances. No aircraft, watercraft or explosives shall be
231 Page
23 CFR Part 635.410 Buy America Requirements
used without the express advance written approval of the City which may,
thereupon, required additional insurance coverages.
(b) All insurance other than Workers Compensation and Professional Liability that
must be maintained by the Contractor shall specifically include the City as an
additional insured. All insurance minimum coverages extend to any subcontractor,
and the Contractor shall be responsible for all Subcontractors.
(c) The Contractor shall provide Certificates of Insurance to the City evidencing that
all such insurance is in effect prior to the issuance of the first Work Order under
this Agreement. These Certificates of Insurance shall become part of this
Agreement. Neither approval by the City nor failure to disapprove the insurance
furnished by a Contractor shall relieve the Contractor of the Contractor's full
responsibility for performance of any obligation including the Contractor's
indemnification of the City under this Agreement. If, during the period which an
insurance company is providing the insurance coverage required by this
Agreement, an insurance company shall: (1) lose its Certificate of Authority, (2) no
longer comply with Section 440.57, Florida Statutes, or (3) fail to maintain the
requisite Best's Rating and Financial Size Category, the Contractor shall, as soon
as the Contractor has knowledge of any such circumstance, immediately notify the
City and immediately replace the insurance coverage provided by the insurance
company with a different insurance company meeting the requirements of this
Agreement. Until such time as the Contractor has replaced the unacceptable
insurer with an insurance rating acceptable to the City, the Contractor shall be
deemed to be in default of this Agreement.
(d) The insurance coverage shall contain a provision that requires that prior to any
changes in the coverage, except increases in aggregate coverage, thirty days prior
notice will be given to the City by submission of a new Certificate of Insurance.
(e) The Contractor shall provide Certificate of Insurance directly to the City's
Designated Representative. The certificates shall clearly indicate that the
Contractor has obtained insurance of the type, amount, and classification required
by this Agreement.
(f) Nothing in this Agreement or any action relating to this Agreement shall be
construed as the City waiver of sovereign immunity beyond the limits set forth in
Section 768.28, Florida Statutes.
(g) The City shall not be obligated or liable under the terms of this Agreement to any
party other than the Contractor. There are no third party beneficiaries to this
Agreement that have any right against the City; provided, however, that the owners
of vehicles towed hereunder are considered to be third -party beneficiaries in
consideration of their forbearance in allowing their vehicles to be towed and are
declared to have standing to enforce the provisions of this Agreement where the
provisions inure to their benefit. It is further understood that such owner shall,
upon prevailing, be entitled to recovery of reasonable costs, expenses, and
attorney's fees.
241 Page
23 CFR Part 635.410 Buy America Requirements
(h) The Contractor is an independent Contractor and not an agent, representative, or
employee of the City. The City shall have no liability except as specifically
provided in this Agreement.
(g) All insurance shall be primary to, and not contribute with, any insurance or self -
insurance maintained by the City.
(h) All insurance requirements shall be effectual and run to the benefit of the City
notwithstanding any statutory limitations relative to indemnification.
Section 35: Equal Opportunity Em ployment/Non- Discrimination.
The Contractor agrees that it will not discriminate against any employee or applicant for
employment for work under this Agreement because of race, color, religion, sex, age, national
origin, or disability and will take affirmative steps to ensure that applicants are employed and
employees are treated during employment without regard to race, color, religion, sex, age,
national origin, or disability. This provision shall include, but not be limited to, the following:
employment, upgrading, demotion or transfer; recruitment advertising; layoff or termination; rates
of pay or their forms or compensation; and selection for training, including apprenticeship. The
Contractor, moreover, shall comply with all the requirements as imposed by the Americans with
Disability Act, the regulations of the Federal government issued thereunder, and any and all
requirements of Federal or State law related thereto.
Section 36: Access To Records /Audit/Public Records.
(a) The Contractor shall maintain books, records, documents, time and costs
accounts, and other evidence directly related to its provision or performance of
services under this Agreement. All time records and cost data shall be maintained
in accordance with generally accepted accounting principles.
(b) The Contractor shall maintain and allow access to the records required under this
Section for a minimum period of five years after the completion of the provision or
performance services under this Agreement and date of final payment for said
services, or date of termination of this Agreement.
(c) The City reserves the right to unilaterally terminate this Agreement if the
Contractor refuses to allow public access to all documents, papers, letters, or other
materials subject to provisions of Chapter 119, Florida Statutes, and other
applicable law, and made or received by the Contractor in conjunction, in anyway,
with this Agreement.
(d) The City may perform, or cause to have performed, an audit of the records of the
Contractor before or after final payment to support final payment under any Work
Order issued hereunder. This audit shall be performed at a time mutually
agreeable to the Contractor and the City subsequent to the close of the final fiscal
period in which services are provided or performed. Total compensation to the
Contractor may be determined subsequent to an audit as provided for in this
Section, and the total compensation so determined shall be used to calculate final
251 Page
23 CFR Part 635.410 Buy America Requirements
payment to the Contractor. Conduct of this audit shall not delay final payment as
required by this Section.
(e) In addition to the above, if Federal, State, County, or other entity funds are used
for any services under this Agreement, the Comptroller General of the United
States or the Chief Financial Officer of the State of Florida, or the County of
Seminole, or any representative, shall have access to any books, documents,
papers, and records of the Contractor which are directly pertinent to services
provided or performed under this Agreement for purposes of making audit,
examination, excerpts, and transcriptions.
(f) In the event of any audit or inspection conducted reveals any overpayment by the
City under the terms of the Agreement, the Contractor shall refund such
overpayment to the City within thirty days of notice by the City of the request for
the refund.
(g) The Contractor agrees to fully comply with all State laws relating to public records
as determined by the City.
(h) The Contractor agrees that if any litigation, claim, or audit is started before the
expiration of the record retention period established above, the records shall be
retained until all litigation, claims, or audit findings involving the records have been
resolved and final action taken.
Section 37: Counterparts.
This Agreement may be executed in any number of counterparts, each of which shall be deemed
an original, but all of which, taken together, shall constitute one and the same document.
Section 38:
The following terms and conditions apply to this Agreement and, in the event of conflict with the
provisions of Sections 1 through 27, the following shall prevail:
Required Contract Provisions Federal -Aid Construction Contracts
General
Nondiscrimination
Ill. Nonsegregated Facilities
iv. Payment of Predetermined Minimum Wage
v. Statements and Payrolls
vi. Record of Materials, Supplies, and Labor
vii. Subletting or Assigning the Contract
viii. Safety: Accident Prevention
261Page
23 CFR Part 635.410 Buy America Requirements
Ix. False Statements Concerning Highway Projects
X. Implementation of Clean Air Act and Federal Water Pollution Control Act
xl. Certification Regarding Debarment, Suspension Ineligibility, and Voluntary Exclusion
xll. Certification Regarding Use of Contract Funds for Lobbying
Attachments
GENERAL
These contract provisions shall apply to all work performed on the contract by the
contractor's own organization and with the assistance of workers under the contractor's
immediate superintendence and to all work performed on the contract by piecework, station
work, or by subcontract.
2. Except as otherwise provided for in each section, the contractor shall insert in each
subcontract all of the stipulations contained in these Required Contract Provisions, and
further require their inclusion in any lower tier subcontract or purchase order that may in
turn be made. The Required Contract Provisions shall not be incorporated by reference in
any case. The prime contractor shall be responsible for compliance by any subcontractor or
lower tier subcontractor with these Required Contract Provisions.
3. A breach of any of the stipulations contained in these Required Contract Provisions shall be
sufficient grounds for termination of the contract.
4. A breach of the following clauses of the Required Contract Provisions may also be grounds
for debarment as provided in 29 CFR 5.12:
Section I, paragraph 2;
Section IV, paragraphs 1, 2, 3, 4, and 7;
Section V, paragraphs 1 and 2a through 2g.
5. Disputes arising out of the labor standards provisions of Section IV (except paragraph 5)
and Section V of these Required Contract Provisions shall not be subject to the general
disputes clause of this contract. Such disputes shall be resolved in accordance with the
procedures of the U.S. Department of Labor (DOL) as set forth in 29 CFR 5, 6, and 7.
Disputes within the meaning of this clause include disputes between the contractor (or 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:
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. 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.
271 Page
23 CFR Part 635.410 Buy America Requirements
II. NONDISCRIMINATION
(Applicable to all Federal -aid construction contracts and to all related subcontracts of $10,000 or
more.)
1. Equal Employment Opportunity: Equal employment opportunity (EEO) requirements not to
discriminate and to take affirmative action to assure equal opportunity as set forth under
laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60) and
orders of the Secretary of Labor as modified by the provisions prescribed herein, and
imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative action
standards for the contractor's project activities under this contract. The Equal Opportunity
Construction Contract Specifications set forth under 41 CFR 60 -4.3 and the provisions of
the American Disabilities Act of 1990 (42 U.S.C. 12101 et se .) set forth under 28 CFR 35
and 29 CFR 1630 are incorporated by reference in this contract. In the execution of this
contract, the contractor agrees to comply with the following minimum specific requirement
activities of EEO:
a. The contractor will work with the State highway agency (SHA) and the Federal
Government in carrying out EEO obligations and in their review of his/her activities
under the contract.
b. The contractor will accept as his operating policy the following statement:
"It is the policy of this Company to assure that applicants are employed, and that employees
are treated during employment, without regard to their race, religion, sex, color, national
origin, age or disability. Such action shall include: employment, upgrading, demotion, or
transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other
forms of compensation; and selection for training, including apprenticeship,
preapprenticeship, and /or on- the -job training."
2. EEO Officer: The contractor will designate and make known to the SHA contracting officers
an EEO Officer who will have the responsibility for and must be capable of effectively
administering and promoting an active contractor program of EEO and who must be
assigned adequate authority and responsibility to do so.
3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire,
supervise, promote, and discharge employees, or who recommend such action, or who are
substantially involved in such action, will be made fully cognizant of, and will implement,
the contractor's EEO policy and contractual responsibilities to provide EEO in each grade
and classification of employment. To ensure that the above agreement will be met, the
following actions will be taken as a minimum:
a. Periodic meetings of supervisory and personnel office employees will be conducted
before the start of work and then not less often than once every six months, at
which time the contractor's EEO policy and its implementation will be reviewed
and explained. The meetings will be conducted by the EEO Officer.
b. All new supervisory or personnel office employees will be given a thorough
indoctrination by the EEO Officer, covering all major aspects of the contractor's
EEO obligations within thirty days following their reporting for duty with the
contractor.
281 Page
23 CFR Part 635.410 Buy America Requirements
C. All personnel who are engaged in direct recruitment for the project will be
instructed by the EEO Officer in the contractor's procedures for locating and hiring
minority group employees.
d. Notices and posters setting forth the contractor's EEO policy will be placed in areas
readily accessible to employees, applicants for employment and potential
employees.
e. The contractor's EEO policy and the procedures to implement such policy will be
brought to the attention of employees by means of meetings, employee handbooks,
or other appropriate means.
4. Recruitment: When advertising for employees, the contractor will include in all
advertisements for employees the notation: "An Equal Opportunity Employer." All such
advertisements will be placed in publications having a large circulation among minority
groups in the area from which the project work force would normally be derived.
a. The contractor will, unless precluded by a valid bargaining agreement, conduct
systematic and direct recruitment through public and private employee referral
sources likely to yield qualified minority group applicants. To meet this
requirement, the contractor will identify sources of potential minority group
employees, and establish with such identified sources procedures whereby minority
group applicants may be referred to the contractor for employment consideration.
b. In the event the contractor has a valid bargaining agreement providing for exclusive
hiring hall referrals, he is expected to observe the provisions of that agreement to
the extent that the system permits the contractor's compliance with EEO contract
provisions. (The DOL has held that where implementation of such agreements have
the effect of discriminating against minorities or women, or obligates the contractor
to do the same, such implementation violates Executive Order 11246, as amended.)
C. The contractor will encourage his present employees to refer minority group
applicants for employment. Information and procedures with regard to referring
minority group applicants will be discussed with employees.
5. Personnel Actions: Wages, working conditions, and employee benefits shall be established
and administered, and personnel actions of every type, including hiring, upgrading,
promotion, transfer, demotion, layoff, and termination, shall be taken without regard to
race, color, religion, sex, national origin, age or disability. The following procedures shall
be followed:
a. The contractor will conduct periodic inspections of project sites to insure that
working conditions and employee facilities do not indicate discriminatory treatment
of project site personnel.
b. The contractor will periodically evaluate the spread of wages paid within each
classification to determine any evidence of discriminatory wage practices.
C. The contractor will periodically review selected personnel actions in depth to
determine whether there is evidence of discrimination. Where evidence is found,
291 Page
23 CFR Part 635.410 Buy America Requirements
the contractor will promptly take corrective action. If the review indicates that the
discrimination may extend beyond the actions reviewed, such corrective action shall
include all affected persons.
d. The contractor will promptly investigate all complaints of alleged discrimination
made to the contractor in connection with his obligations under this contract, will
attempt to resolve such complaints, and will take appropriate corrective action
within a reasonable time. If the investigation indicates that the discrimination may
affect persons other than the complainant, such corrective action shall include such
other persons. Upon completion of each investigation, the contractor will inform
every complainant of all of his avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and increasing the skills of
minority group and women employees, and applicants for employment.
b. Consistent with the contractor's work force requirements and as permissible under
Federal and State regulations, the contractor shall make full use of training
programs, i.e., apprenticeship, and on-the-job training programs for the
geographical area of contract performance. Where feasible, 25 percent of
apprentices or trainees in each occupation shall be in their first year of
apprenticeship or training. In the event a special provision for training is provided
under this contract, this subparagraph will be superseded as indicated in the special
provision.
C. The contractor will advise employees and applicants for employment of available
training programs and entrance requirements for each.
d. The contractor will periodically review the training and promotion potential of
minority group and women employees and will encourage eligible employees to
apply for such training and promotion.
7. Unions: If the contractor relies in whole or in part upon unions as a source of employees,
the contractor will use his /her best efforts to obtain the cooperation of such unions to
increase opportunities for minority groups and women within the unions, and to effect
referrals by such unions of minority and female employees. Actions by the contractor either
directly or through a contractor's association acting as agent will include the procedures set
forth below:
a. The contractor will use best efforts to develop, in cooperation with the unions, joint
training programs aimed toward qualifying more minority group members and
women for membership in the unions and increasing the skills of minority group
employees and women so that they may qualify for higher paying employment.
b. The contractor will use best efforts to incorporate an EEO clause into each union
agreement to the end that such union will be contractually bound to refer applicants
without regard to their race, color, religion, sex, national origin, age or disability.
301 Page
23 CFR Part 635.410 Buy America Requirements
C. The contractor is to obtain information as to the referral practices and policies of the
labor union except that to the extent such information is within the exclusive
possession of the labor union and such labor union refuses to furnish such
information to the contractor, the contractor shall so certify to the SHA and shall set
forth what efforts have been made to obtain such information.
d. In the event the union is unable to provide the contractor with a reasonable flow of
minority and women referrals within the time limit set forth in the collective
bargaining agreement, the contractor will, through independent recruitment efforts,
fill the employment vacancies without regard to race, color, religion, sex, national
origin, age or disability; making full efforts to obtain qualified and /or qualifiable
minority group persons and women. (The DOL has held that it shall be no excuse
that the union with which the contractor has a collective bargaining agreement
providing for exclusive referral failed to refer minority employees.) In the event the
union referral practice prevents the contractor from meeting the obligations
pursuant to Executive Order 11246, as amended, and these special provisions, such
contractor shall immediately notify the SHA.
8. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The
contractor shall not discriminate on the grounds of race, color, religion, sex, national origin,
age or disability in the selection and retention of subcontractors, including procurement of
materials and leases of equipment.
a. The contractor shall notify all potential subcontractors and suppliers of his/her EEO
obligations under this contract.
b. Disadvantaged business enterprises (DBE), as defined in 49 CFR 23, shall have
equal opportunity to compete for and perform subcontracts which the contractor
enters into pursuant to this contract. The contractor will use his best efforts to solicit
bids from and to utilize DBE subcontractors or subcontractors with meaningful
minority group and female representation among their employees. Contractors shall
obtain lists of DBE construction firms from SHA personnel.
C. The contractor will use his best efforts to ensure subcontractor compliance with
their EEO obligations.
9. Records and Reports: The contractor shall keep such records as necessary to document
compliance with the EEO requirements. Such records shall be retained for a period of three
years following completion of the contract work and shall be available at reasonable times
and places for inspection by authorized representatives of the SHA and the FHWA.
a. The records kept by the contractor shall document the following:
1. The number of minority and non - minority group members and women
employed in each work classification on the project;
2. The progress and efforts being made in cooperation with unions, when
applicable, to increase employment opportunities for minorities and women;
31 1 Page
23 CFR Part 635.410 Buy America Requirements
3. The progress and efforts being made in locating, hiring, training, qualifying,
and upgrading minority and female employees; and
4. The progress and efforts being made in securing the services of DBE
subcontractors or subcontractors with meaningful minority and female
representation among their employees.
b. The contractors will submit an annual report to the SHA each July for the duration
of the project, indicating the number of minority, women, and non - minority group
employees currently engaged in each work classification required by the contract
work. This information is to be reported on Form FHWA -1391. If on-the-job
training is being required by special provision, the contractor will be required to
collect and report training data.
III. NONSEGREGATED FACILITIES
(Applicable to all Federal -aid construction contracts and to all related subcontracts of $10,000 or
more.)
a. By submission of this bid, the execution of this contract or subcontract, or the consummation of this
material supply agreement or purchase order, as appropriate, the bidder, Federal -aid construction
contractor, subcontractor, material supplier, or vendor, as appropriate, certifies that the firm does not
maintain or provide for its employees any segregated facilities at any of its establishments, and that the firm
does not permit its employees to perform their services at any location, under its control, where segregated
facilities are maintained. The firm agrees that a breach of this certification is a violation of the EEO
provisions of this contract. The firm further certifies that no employee will be denied access to adequate
facilities on the basis of sex or disability.
b. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas,
restrooms and washrooms, restaurants and other eating areas, timeclocks, locker rooms, and other storage
or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and
housing facilities provided for employees which are segregated by explicit directive, or are, in fact,
segregated on the basis of race, color, religion, national origin, age or disability, because of habit, local
custom, or otherwise. The only exception will be for the disabled when the demands for accessibility
override (e.g. disabled parking).
C. The contractor agrees that it has obtained or will obtain identical certification from proposed
subcontractors or material suppliers prior to award of subcontracts or consummation of material supply
agreements of $10,000 or more and that it will retain such certifications in its files.
IV. PAYMENT OF PREDETERMINED MINIMUM WAGE
(Applicable to all Federal -aid construction contracts exceeding $2,000 and to all related
subcontracts, except for projects located on roadways classified as local roads or rural minor
collectors, which are exempt.)
0. 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
321 Page
23 CFR Part 635.410 Buy America Requirements
by regulations (29 CFR 3) issued by the Secretary of Labor under the Copeland Act
(40 U.S.C. 276c)] the full amounts of wages and bona fide fringe benefits (or cash
equivalents thereof) due at time of payment. The payment shall be computed at
wage rates not less than those contained in the wage determination of the Secretary
of Labor (hereinafter "the wage determination ") which is attached hereto and made
a part hereof, regardless of any contractual relationship which may be alleged to
exist between the contractor or its subcontractors and such laborers and mechanics.
The wage determination (including any additional classifications and wage rates
conformed under paragraph 2 of this Section IV and the DOL poster (WH -1321) or
Form FHWA -1495) shall be posted at all times by the contractor and its
subcontractors at the site of the work in a prominent and accessible place where it
can be easily seen by the workers. For the purpose of this Section, contributions
made or costs reasonably anticipated for bona fide fringe benefits under Section
1(b)(2) of the Davis -Bacon Act (40 U.S.C. 276a) on behalf of laborers or mechanics
are considered wages paid to such laborers or mechanics, subject to the provisions
of Section IV, paragraph 3b, hereof. Also, for the purpose of this Section, regular
contributions made or costs incurred for more than a weekly period (but not less
often than quarterly) under plans, funds, or programs, which cover the particular
weekly period, are deemed to be constructively made or incurred during such
weekly period. Such laborers and mechanics shall be paid the appropriate wage rate
and fringe benefits on the wage determination for the classification of work actually
performed, without regard to skill, except as provided in paragraphs 4 and 5 of this
Section IV.
b. Laborers or mechanics performing work in more than one classification may be
compensated at the rate specified for each classification for the time actually
worked therein, provided, that the employer's payroll records accurately set forth the
time spent in each classification in which work is performed.
C. All rulings and interpretations of the Davis -Bacon Act and related acts contained in
29 CFR 1, 3, and 5 are herein incorporated by reference in this contract.
Classification:
a. The SHA contracting officer shall require that any class of laborers or mechanics
employed under the contract, which is not listed in the wage determination, shall be
classified in conformance with the wage determination.
b. The contracting officer shall approve an additional classification, wage rate and
fringe benefits only when the following criteria have been met:
1. the work to be performed by the additional classification requested is not
performed by a classification in the wage determination;
2. the additional classification is utilized in the area by the construction
industry;
the proposed wage rate, including any bona fide fringe benefits, bears a
reasonable relationship to the wage rates contained in the wage
determination; and
331 Page
23 CFR Part 635.410 Buy America Requirements
4. with respect to helpers, when such a classification prevails in the area in
which the work is performed.
C. If the contractor or subcontractors, as appropriate, the laborers and mechanics (if
known) to be employed in the additional classification or their representatives, and
the contracting officer agree on the classification and wage rate (including the
amount designated for fringe benefits where appropriate), a report of the action
taken shall be sent by the contracting officer to the DOL, Administrator of the
Wage and Hour Division, Employment Standards Administration, Washington,
D.C. 20210. The Wage and Hour Administrator, or an authorized representative,
will approve, modify, or disapprove every additional classification action within 30
days of receipt and so advise the contracting officer or will notify the contracting
officer within the 30 -day period that additional time is necessary.
d. In the event the contractor or subcontractors, as appropriate, the laborers or
mechanics to be employed in the additional classification or their representatives,
and the contracting officer do not agree on the proposed classification and wage rate
(including the amount designated for fringe benefits, where appropriate), the
contracting officer shall refer the questions, including the views of all interested
parties and the recommendation of the contracting officer, to the Wage and Hour
Administrator for determination. Said Administrator, or an authorized
representative, will issue a determination within 30 days of receipt and so advise the
contracting officer or will notify the contracting officer within the 30 -day period
that additional time is necessary
e. The wage rate (including fringe benefits where appropriate) determined pursuant to
paragraph 2c or 2d of this Section IV shall be paid to all workers performing work
in the additional classification from the first day on which work is performed in the
classification.
2. 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.
3. Apprentices and Trainees (Programs of the U.S. DOL) and Helpers:
a. Apprentices:
341 Page
23 CFR Part 635.410 Buy America Requirements
Apprentices will be permitted to work at less than the predetermined rate for
the work they performed when they are employed pursuant to and
individually registered in a bona fide apprenticeship program registered
with the DOL, Employment and Training Administration, Bureau of
Apprenticeship and Training, or with a State apprenticeship agency
recognized by the Bureau, or if a person is employed in his/her first 90 days
of probationary employment as an apprentice in such an apprenticeship
program, who is not individually registered in the program, but who has
been certified by the Bureau of Apprenticeship and Training or a State
apprenticeship agency (where appropriate) to be eligible for probationary
employment as an apprentice.
2. The allowable ratio of apprentices to journeyman -level employees on the
job site in any craft classification shall not be greater than the ratio
permitted to the contractor as to the entire work force under the registered
program. Any employee listed on a payroll at an apprentice wage rate, who
is not registered or otherwise employed as stated above, shall be paid not
less than the applicable wage rate listed in the wage determination for the
classification of work actually performed. In addition, any apprentice
performing work on the job site in excess of the ratio permitted under the
registered program shall be paid not less than the applicable wage rate on
the wage determination for the work actually performed. Where a contractor
or subcontractor is performing construction on a project in a locality other
than that in which its program is registered, the ratios and wage rates
(expressed in percentages of the journeyman -level hourly rate) specified in
the contractor's or subcontractor's registered program shall be observed.
3. Every apprentice must be paid at not less than the rate specified in the
registered program for the apprentice's level of progress, expressed as a
percentage of the journeyman -level hourly rate specified in the applicable
wage determination. Apprentices shall be paid fringe benefits in accordance
with the provisions of the apprenticeship program. If the apprenticeship
program does not specify fringe benefits, apprentices must be paid the full
amount of fringe benefits listed on the wage determination for the
applicable classification. If the Administrator for the Wage and Hour
Division determines that a different practice prevails for the applicable
apprentice classification, fringes shall be paid in accordance with that
determination.
4. In the event the Bureau of Apprenticeship and Training, or a State
apprenticeship agency recognized by the Bureau, withdraws approval of an
apprenticeship program, the contractor or subcontractor will no longer be
permitted to utilize apprentices at less than the applicable predetermined
rate for the comparable work performed by regular employees until an
acceptable program is approved.
b. Trainees:
351 Page
23 CFR Part 635.410 Buy America Requirements
1. Except as provided in 29 CFR 5.16, trainees will not be permitted to work
at less than the predetermined rate for the work performed unless they are
employed pursuant to and individually registered in a program which has
received prior approval, evidenced by formal certification by the DOL,
Employment and Training Administration.
2. The ratio of trainees to journeyman -level employees on the job site shall not
be greater than permitted under the plan approved by the Employment and
Training Administration. Any employee listed on the payroll at a trainee
rate who is not registered and participating in a training plan approved by
the Employment and Training Administration shall be paid not less than the
applicable wage rate on the wage determination for the classification of
work actually performed. In addition, any trainee performing work on the
job site in excess of the ratio permitted under the registered program shall
be paid not less than the applicable wage rate on the wage determination for
the work actually performed.
3. Every trainee must be paid at not less than the rate specified in the approved
program for his /her level of progress, expressed as a percentage of the
journeyman -level hourly rate specified in the applicable wage
determination. Trainees shall be paid fringe benefits in accordance with the
provisions of the trainee program. If the trainee program does not mention
fringe benefits, trainees shall be paid the full amount of fringe benefits
listed on the wage determination unless the Administrator of the Wage and
Hour Division determines that there is an apprenticeship program associated
with the corresponding journeyman -level wage rate on the wage
determination which provides for less than full fringe benefits for
apprentices, in which case such trainees shall receive the same fringe
benefits as apprentices.
4. In the event the Employment and Training Administration withdraws
approval of a training program, the contractor or subcontractor will no
longer be permitted to utilize trainees at less than the applicable
predetermined rate for the work performed until an acceptable program is
approved.
C. Helpers:
Helpers will be permitted to work on a project if the helper classification is specified and
defined on the applicable wage determination or is approved pursuant to the conformance
procedure set forth in Section IV.2. Any worker listed on a payroll at a helper wage rate,
who is not a helper under a approved definition, shall be paid not less than the applicable
wage rate on the wage determination for the classification of work actually performed.
4. 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
361Page
23 CFR Part 635.410 Buy America Requirements
apprentices and trainees to journeymen shall not be greater than permitted by the terms of
the particular program.
5. Withholding:
The SHA shall upon its own action or upon written request of an authorized
representative of the DOL withhold, or cause to be withheld, from the contractor or
subcontractor under this contract or any other Federal contract with the same prime
contractor, or any other Federally- assisted contract subject to Davis -Bacon prevailing wage
requirements which is held by the same prime contractor, as much of the accrued payments
or advances as may be considered necessary to pay laborers and mechanics, including
apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full
amount of wages required by the contract. In the event of failure to pay any laborer or
mechanic, including any apprentice, trainee, or helper, employed or working on the site of
the work, all or part of the wages required by the contract, the SHA contracting officer may,
after written notice to the contractor, take such action as may be necessary to cause the
suspension of any further payment, advance, or guarantee of funds until such violations
have ceased.
6. Overtime Requirements:
No contractor or subcontractor contracting for any part of the contract work which may
require or involve the employment of laborers, mechanics, watchmen, or guards (including
apprentices, trainees, and helpers described in paragraphs 4 and 5 above) shall require or
permit any laborer, mechanic, watchman, or guard in any workweek in which he /she is
employed on such work, to work in excess of 40 hours in such workweek unless such
laborer, mechanic, watchman, or guard receives compensation at a rate not less than one -
and- one -half times his /her basic rate of pay for all hours worked in excess of 40 hours in
such workweek.
7. Violation:
Liability for Unpaid Wages; Liquidated Damages: In the event of any violation of the
clause set forth in paragraph 7 above, the contractor and any subcontractor responsible
thereof shall be liable to the affected employee for his/her unpaid wages. In addition, such
contractor and subcontractor shall be liable to the United States (in the case of work done
under contract for the District of Columbia or a territory, to such District or to such
territory) for liquidated damages. Such liquidated damages shall be computed with respect
to each individual laborer, mechanic, watchman, or guard employed in violation of the
clause set forth in paragraph 7, in the sum of $10 for each calendar day on which such
employee was required or permitted to work in excess of the standard work week of 40
hours without payment of the overtime wages required by the clause set forth in paragraph
7.
8. Withholding for Unpaid Wages and Liquidated Damages:
The SHA shall upon its own action or upon written request of any authorized
representative of the DOL withhold, or cause to be withheld, from any monies payable on
account of work performed by the contractor or subcontractor under any such contract or
any other Federal contract with the same prime contractor, or any other Federally- assisted
371 Page
23 CFR Part 635.410 Buy America Requirements
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.)
0. 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.
1. Payrolls and Payroll Records:
a. Payrolls and basic records relating thereto shall be maintained by the contractor and
each subcontractor during the course of the work and preserved for a period of 3
years from the date of completion of the contract for all laborers, mechanics,
apprentices, trainees, watchmen, helpers, and guards working at the site of the
work.
b. The payroll records shall contain the name, social security number, and address of
each such employee; his or her correct classification; hourly rates of wages paid
(including rates of contributions or costs anticipated for bona fide fringe benefits or
cash equivalent thereof the types described in Section I (b)(2)(B) of the Davis
Bacon Act); daily and weekly number of hours worked; deductions made; and
actual wages paid. In addition, for Appalachian contracts, the payroll records shall
contain a notation indicating whether the employee does, or does not, normally
reside in the labor area as defined in Attachment A, paragraph 1. Whenever the
Secretary of Labor, pursuant to Section IV, paragraph 3b, has found that the wages
of any laborer or mechanic include the amount of any costs reasonably anticipated
in providing benefits under a plan or program described in Section I (b)(2)(B) of the
Davis Bacon Act, the contractor and each subcontractor shall maintain records
which show that the commitment to provide such benefits is enforceable, that the
plan or program is financially responsible, that the plan or program has been
communicated in writing to the laborers or mechanics affected, and show the cost
anticipated or the actual cost incurred in providing benefits. Contractors or
subcontractors employing apprentices or trainees under approved programs shall
maintain written evidence of the registration of apprentices and trainees, and ratios
and wage rates prescribed in the applicable programs.
C. Each contractor and subcontractor shall furnish, each week in which any contract
work is performed, to the SHA resident engineer a payroll of wages paid each of its
employees (including apprentices, trainees, and helpers, described in Section IV,
paragraphs 4 and 5, and watchmen and guards engaged on work during the
preceding weekly payroll period). The payroll submitted shall set out accurately and
completely all of the information required to be maintained under paragraph 2b of
this Section V. This information may be submitted in any form desired. Optional
381 Page
23 CFR Part 635.410 Buy America Requirements
Form WH -347 is available for this purpose and may be purchased from the
Superintendent of Documents (Federal stock number 029 - 005- 0014 -1), U.S.
Government Printing Office, Washington, D.C. 20402. The prime contractor is
responsible for the submission of copies of payrolls by all subcontractors.
d. Each payroll submitted shall be accompanied by a "Statement of Compliance,"
signed by the contractor or subcontractor or his /her agent who pays or supervises
the payment of the persons employed under the contract and shall certify the
following:
1. that the payroll for the payroll period contains the information required to
be maintained under paragraph 2b of this Section V and that such
information is correct and complete,
2. that such laborer or mechanic (including each helper, apprentice, and
trainee) employed on the contract during the payroll period has been paid
the full weekly wages earned, without rebate, either directly or indirectly,
and that no deductions have been made either directly or indirectly from the
full wages earned, other than permissible deductions as set forth in the
Regulations, 29 CFR 3;
3. that each laborer or mechanic has been paid not less that the applicable
wage rate and fringe benefits or cash equivalent for the classification of
worked performed, as specified in the applicable wage determination
incorporated into the contract.
e. The weekly submission of a properly executed certification set forth on the reverse
side of Optional Form WH -347 shall satisfy the requirement for submission of the
"Statement of Compliance" required by paragraph 2d of this Section V.
f. The falsification of any of the above certifications may subject the contractor to
civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231.
g. The contractor or subcontractor shall make the records required under paragraph 2b
of this Section V available for inspection, copying, or transcription by authorized
representatives of the SHA, the FHWA, or the DOL, and shall permit such
representatives to interview employees during working hours on the job. If the
contractor or subcontractor fails to submit the required records or to make them
available, the SHA, the FHWA, the DOL, or all may, after written notice to the
contractor, sponsor, applicant, or owner, take such actions as may be necessary to
cause the suspension of any further payment, advance, or guarantee of funds.
Furthermore, failure to submit the required records upon request or to make such
records available may be grounds for debarment action pursuant to 29 CFR 5.12.
VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR
0. On all Federal -aid contracts on the National Highway System, except those which provide solely
for the installation of protective devices at railroad grade crossings, those which are constructed on a force
account or direct labor basis, highway beautification contracts, and contracts for which the total final
construction cost for roadway and bridge is less than $1,000,000 (23 CFR 635) the contractor shall:
391 Page
23 CFR Part 635.410 Buy America Requirements
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 lb relative to furnishing
materials and supplies, a final labor summary of all contract work indicating the
total hours worked and the total amount earned.
I . At the prime contractor's option, either a single report covering all contract work or separate reports
for the contractor and for each subcontract shall be submitted.
VII. SUBLETTING OR ASSIGNING THE CONTRACT
0. The contractor shall perform with its own organization contract work amounting to not less than 30
percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price,
excluding any specialty items designated by the State. Specialty items may be performed by subcontract
and the amount of any such specialty items performed may be deducted from the total original contract
price before computing the amount of work required to be performed by the contractor's own organization
(23 CFR 635).
a. "Its own organization" shall be construed to include only workers employed and
paid directly by the prime contractor and equipment owned or rented by the prime
contractor, with or without operators. Such term does not include employees or
equipment of a subcontractor, assignee, or agent of the prime contractor.
b. "Specialty Items" shall be construed to be limited to work that requires highly
specialized knowledge, abilities, or equipment not ordinarily available in the type of
contracting organizations qualified and expected to bid on the contract as a whole
and in general are to be limited to minor components of the overall contract.
1. 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.
2. The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the
firm, has full authority to direct performance of the work in accordance with the contract requirements, and
is in charge of all construction operations (regardless of who performs the work) and (b) such other of its
own organizational resources (supervision, management, and engineering services) as the SHA contracting
officer determines is necessary to assure the performance of the contract.
3. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written
consent of the SHA contracting officer, or authorized representative, and such consent when given shall not
be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written
401 Page
23 CFR Part 635.410 Buy America Requirements
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
0. 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.
1. It is a condition of this contract, and shall be made a condition of each subcontract, which the
contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit
any employee, in performance of the contract, to work in surroundings or under conditions which are
unsanitary, hazardous or dangerous to his /her health or safety, as determined under construction safety and
health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of
the Contract Work Hours and Safety Standards Act (40 U.S.C. 333).
2. 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).
41 1 Page
23 CFR Part 635.410 Buy America Requirements
IX. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS
In order to assure high quality and durable construction in conformity with approved plans and
specifications and a high degree of reliability on statements and representations made by engineers,
contractors, suppliers, and workers on Federal -aid highway projects, it is essential that all persons
concerned with the project perform their functions as carefully, thoroughly, and honestly as
possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to
the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness
of these and similar acts, the following notice shall be posted on each Federal -aid highway project
(23 CFR 635) in one or more places where it is readily available to all persons concerned with the
project:
NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL -AID HIGHWAY PROJECTS
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever,
whether a person, association, firm, or corporation, knowingly makes any false statement, false
representation, or false report as to the character, quality, quantity, or cost of the material used or to be
used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection
with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or
related project submitted for approval to the Secretary of Transportation, or
Whoever knowingly makes any false statement, false representation, false report or false claim with respect
to the character, quality, quantity, or cost of any work performed or to be performed, ormaterials furnished or
to be furnished, in connection with the construction of any highway or related project approved by the
Secretary of Transportation; or
Whoever knowingly makes any false statement or false representation as to material fact in any statement,
certificate, or report submitted pursuant to provisions of the Federal -aid Roads Act approved July 1, 1916,
(39 Stat. 355), as amended and supplemented;
Shall be fined not more than $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:
0. 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 SeMc ., as amended by Pub.L. 91 -604),
and under the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et SeMc ., 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.
421 Page
23 CFR Part 635.410 Buy America Requirements
1. 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.
2. That the firm shall promptly notify the SHA of the receipt of any communication from the Director,
Office of Federal Activities, EPA, indicating that a facility that is or will be utilized for the contract is
under consideration to be listed on the EPA List of Violating Facilities.
3. 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
0. Instructions for Certification - Primary Covered Transactions:
(Applicable to all Federal -aid contracts - 49 CFR 29)
a. By signing and submitting this proposal, the prospective primary participant is
providing the certification set out below.
b. The inability of a person to provide the certification set out below will not
necessarily result in denial of participation in this covered transaction. The
prospective participant shall submit an explanation of why it cannot provide the
certification set out below. The certification or explanation will be considered in
connection with the department or agency's determination whether to enter into this
transaction. However, failure of the prospective primary participant to furnish a
certification or an explanation shall disqualify such a person from participation in
this transaction.
C. The certification in this clause is a material representation of fact upon which
reliance was placed when the department or agency determined to enter into this
transaction. If it is later determined that the prospective primary participant
knowingly rendered an erroneous certification, in addition to other remedies
available to the Federal Government, the department or agency may terminate this
transaction for cause of default.
d. The prospective primary participant shall provide immediate written notice to the
department or agency to whom this proposal is submitted if any time the
prospective primary participant learns that its certification was erroneous when
submitted or has become erroneous by reason of changed circumstances.
e. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier
covered transaction," "participant," "person," "primary covered transaction,"
"principal," "proposal," and "voluntarily excluded," as used in this clause, have the
meanings set out in the Definitions and Coverage sections of rules implementing
Executive Order 12549. You may contact the department or agency to which this
proposal is submitted for assistance in obtaining a copy of those regulations.
431 Page
23 CFR Part 635.410 Buy America Requirements
f. The prospective primary participant agrees by submitting this proposal that, should
the proposed covered transaction be entered into, it shall not knowingly enter into
any lower tier covered transaction with a person who is debarred, suspended,
declared ineligible, or voluntarily excluded from participation in this covered
transaction, unless authorized by the department or agency entering into this
transaction.
g. The prospective primary participant further agrees by submitting this proposal that
it will include the clause titled "Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion -Lower Tier Covered Transaction," provided
by the department or agency entering into this covered transaction, without
modification, in all lower tier covered transactions and in all solicitations for lower
tier covered transactions.
h. A participant in a covered transaction may rely upon a certification of a prospective
participant in a lower tier covered transaction that is not debarred, suspended,
ineligible, or voluntarily excluded from the covered transaction, unless it knows
that the certification is erroneous. A participant may decide the method and
frequency by which it determines the eligibility of its principals. Each participant
may, but is not required to, check the nonprocurement portion of the "Lists of
Parties Excluded From Federal Procurement or Nonprocurement Programs"
( Nonprocurement List) which is compiled by the General Services Administration.
Nothing contained in the foregoing shall be construed to require establishment of a
system of records in order to render in good faith the certification required by this
clause. The knowledge and information of participant is not required to exceed that
which is normally possessed by a prudent person in the ordinary course of business
dealings.
j. Except for transactions authorized under paragraph f of these instructions, if a
participant in a covered transaction knowingly enters into a lower tier covered
transaction with a person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to other remedies
available to the Federal Government, the department or agency may terminate this
transaction for cause or default.
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion- -
Primary Covered Transactions
11. 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 judgment
rendered against them for commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public
441Page
23 CFR Part 635.410 Buy America Requirements
transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false statements, or receiving stolen property;
C. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity
(Federal, State or local) with commission of any of the offenses enumerated in paragraph lb of this
certification; and
d. Have not within a 3 -year period preceding this application/proposal had one or more public
transactions (Federal, State or local) terminated for cause or default.
12. 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.
Instructions for Certification - Lower Tier Covered Transactions:
(Applicable to all subcontracts, purchase orders and other lower tier transactions of $25,000
or more - 49 CFR 29)
By signing and submitting this proposal, the prospective lower tier is providing the certification set
out below.
a. The certification in this clause is a material representation of fact upon which reliance was placed
when this transaction was entered into. If it is later determined that the prospective lower tier participant
knowingly rendered an erroneous certification, in addition to other remedies available to the Federal
Government, the department, or agency with which this transaction originated may pursue available
remedies, including suspension and /or debarment.
b. The prospective lower tier participant shall provide immediate written notice to the person to which
this proposal is submitted if at any time the prospective lower tier participant learns that its certification
was erroneous by reason of changed circumstances.
C. The terms "covered transaction," "debarred," "suspended," "ineligible," "primary covered
transaction," "participant," "person," "principal," "proposal," and "voluntarily excluded," as used in this
clause, have the meanings set out in the Definitions and Coverage sections of rules implementing
Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in
obtaining a copy of those regulations.
d. The prospective lower tier participant agrees by submitting this proposal that, should the proposed
covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction
with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in
this covered transaction, unless authorized by the department or agency with which this transaction
originated.
e. The prospective lower tier participant further agrees by submitting this proposal that it will include
this clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion -
Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
451 Page
23 CFR Part 635.410 Buy America Requirements
f. A participant in a covered transaction may rely upon a certification of a prospective participant in a
lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the
covered transaction, unless it knows that the certification is erroneous. A participant may decide the
method and frequency by which it determines the eligibility of its principals. Each participant may, but is
not required to, check the Nonprocurement List.
g. Nothing contained in the foregoing shall be construed to require establishment of a system of
records in order to render in good faith the certification required by this clause. The knowledge and
information of participant is not required to exceed that which is normally possessed by a prudent person in
the ordinary course of business dealings.
h. Except for transactions authorized under paragraph e of these instructions, if a participant in a
covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended,
debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other
remedies available to the Federal Government, the department or agency with which this transaction
originated may pursue available remedies, including suspension and /or debarment.
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion- -
Lower Tier Covered Transactions:
9. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its
principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily
excluded from participation in this transaction by any Federal department or agency.
10. Where the prospective lower tier participant is unable to certify to any of the statements in this
certification, such prospective participant shall attach an explanation to this proposal.
XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING
(Applicable to all Federal -aid construction contracts and to all related subcontracts which exceed
$100,000 - 49 CFR 20)
0. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of
his or her knowledge and belief, that:
No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to
any person for influencing or attempting to influence an officer or employee of any Federal agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in
connection with the awarding of any Federal contract, the making of any Federal grant, the making of any
Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
a. 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.
461 Page
23 CFR Part 635.410 Buy America Requirements
1. This certification is a material representation of fact upon which reliance was placed when this
transaction was made or entered into. Submission of this certification is a prerequisite for making or
entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required
certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each
such failure.
2. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall
require that the language of this certification be included in all lower tier subcontracts, which exceed
$100,000 and that all such recipients shall certify and disclose accordingly.
ATTACHMENT A _ € MD V11ACA ITPREF€R €NCE FO ARRAIAGNIAN CONTRACTS
•
IRWIN
•
23 CFR Part 635.410 Buy America Requirements
-23 CFR Part 635.410 Buy America Requirements.
(a) The provisions of this section shall prevail and be given precedence over any requirements
of this subpart which are contrary to this section. However, nothing in this section shall be
construed to be contrary to the requirements of §635.409(a) of this subpart.
(b) No Federal -aid highway construction project is to be authorized for advertisement or
otherwise authorized to proceed unless at least one of the following requirements is met:
(1) The project either: (i) Includes no permanently incorporated steel or iron materials, or (ii) if
steel or iron materials are to be used, all manufacturing processes, including application of a
coating, for these materials must occur in the United States. Coating includes all processes
which protect or enhance the value of the material to which the coating is applied.
(2) The State has standard contract provisions that require the use of domestic materials and
products, including steel and iron materials, to the same or greater extent as the provisions set
forth in this section.
(3) The State elects to include alternate bid provisions for foreign and domestic steel and iron
materials which comply with the following requirements. Any procedure for obtaining alternate
bids based on furnishing foreign steel and iron materials which is acceptable to the Division
Administrator may be used. The contract provisions must (i) require all bidders to submit a bid
based on furnishing domestic steel and iron materials, and (ii) clearly state that the contract will
be awarded to the bidder who submits the lowest total bid based on furnishing domestic steel
and iron materials unless such total bid exceeds the lowest total bid based on furnishing foreign
steel and iron materials by more than 25 percent.
(4) When steel and iron materials are used in a project, the requirements of this section do not
prevent a minimal use of foreign steel and iron materials, if the cost of such materials used does
not exceed one -tenth of one percent (0.1 percent) of the total contract cost or $2,500, whichever
is greater. For purposes of this paragraph, the cost is that shown to be the value of the steel and
iron products as they are delivered to the project.
(c)(1) A State may request a waiver of the provisions of this section if;
(i) The application of those provisions would be inconsistent with the public interest; or
(ii) Steel and iron materials /products are not produced in the United States in sufficient and
reasonably available quantities which are of a satisfactory quality.
(2) A request for waiver, accompanied by supporting information, must be submitted in writing to
the Regional Federal Highway Administrator ( RFHWA) through the FHWA Division
Administrator. A request must be submitted sufficiently in advance of the need for the waiver in
order to allow time for proper review and action on the request. The RFHWA will have approval
authority on the request.
(3) Requests for waivers may be made for specific projects, or for certain materials or
products in specific geographic areas, or for combinations of both, depending on the
circumstances.
481 Page
23 CFR Part 635.410 Buy America Requirements
(4) The denial of the request by the RFHWA may be appealed by the State to the Federal
Highway Administrator (Administrator), whose action on the request shall be considered
administratively final.
(5) A request for a waiver which involves nationwide public interest or availability issues or
more than one FHWA region may be submitted by the RFHWA to the Administrator for
action.
(6) A request for waiver and an appeal from a denial of a request must include facts and
justification to support the granting of the waiver. The FHWA response to a request or
appeal will be in writing and made available to the public upon request. Any request for a
nationwide waiver and FHWA's action on such a request may be published in the Federal
Register for public comment.
(7) In determining whether the waivers described in paragraph (c)(1) of this section will be
granted, the FHWA will consider all appropriate factors including, but not limited to, cost,
administrative burden, and delay that would be imposed if the provision were not waived.
(d) Standard State and Federal -aid contract procedures may be used to assure compliance
with the requirements of this section.
[48 FR 53104, Nov. 25, 1983, as amended at 49 FR 18821, May 3, 1984; 58 FR 38975,
July 21, 1993]
With regard to debris monitoring services:
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 (5) 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
491 Page
23 CFR Part 635.410 Buy America Requirements
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 contractor 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
501 Page
23 CFR Part 635.410 Buy America Requirements
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 so certify.
51 1 Page
23 CFR Part 635.410 Buy America Requirements
Section 39: Exhibits.
Each exhibit, if any, referred to and attached to this Agreement is an essential part of this
Agreement. The exhibits, if any, and any amendments or revisions thereto, even if not
physically attached hereto, shall be treated as if they are part of this Agreement. The City
shall determine the contents of this Agreement relative to exhibits.
SIGNATURE PAGE FOLLOWS
521 Page
23 CFR Part 635.410 Buy America Requirements
In Witness Whereof, the parties hereto have made and executed this Agreement on
the respective dates under each signature: the City through its City Commission taking
official action and the Contractor signing by and through its duly authorized corporate
officer having the full and complete authority to execute same.
Attest- �
,j
Keith Forster, Secretary/Treasurer
O'Brien's a agement Inc.
By: —
Steve Branham, Executive Vice President
Government Services
Date: .1fb�crihGy 13 zo
Attest:
l
e� • l
,Janet Dougherty, Ci Clerk
City Of Sanford
AAAIMMM
Date: r -
Approved as to form and legal sufficiency.
i lia . Colbert City Attorn
/- 2 /_ //
Z,6 �!
A M
531 Page