HomeMy WebLinkAboutReso 61-2020 (20-114)City of South San Francisco P.O. Box 711 (City Hall,
• 400 Grand Avenue)
South San Francisco, CA
• City Council
Resolution: RES 61-2020
File Number: 20-114 Enactment Number: RES 61-2020
RESOLUTION AWARDING A CONSTRUCTION CONTRACT TO
G BORTOLOTTO & CO., INC. OF SAN CARLOS, CALIFORNIA
FOR THE OBAG 2: STREET REHABILITATION PROJECT
(PROJECT NO. ST193D) IN AN AMOUNT NOT TO EXCEED
$1,273,489.30, AUTHORIZING A TOTAL CONSTRUCTION
BUDGET OF $1,591,861.30, AND AUTHORIZING THE CITY
MANAGER TO EXECUTE AGREEMENTS ON BEHALF OF THE
CITY.
WHEREAS, the OBAG 2: Street Rehabilitation Project will rehabilitate sections of City of South San
Francisco ("City") streets at Alida Way, Camaritas Avenue, Hickey Boulevard, San Felipe Avenue, and
South Spruce Avenue; and
WHEREAS, this rehabilitation consists of mill and overlay of the asphalt surface, and improvements to
the curb ramps, including adjusting utility covers, concrete repairs, base repairs, and replacement of
pavement stripings and markings; and
WHEREAS, staff advertised the Notice Inviting Bids for construction of the project on February 28 and
March 6, 2020; and
WHEREAS, on April 17, 2020, staff received five (5) sealed bids with the lowest responsive and
responsible bid supplied by G Bortolotto & CO., of San Carlos, California with a bid amount of
$1,273,489.30; and
WHEREAS, pursuant to Public Contract Code §20166, Public Works contracts, if awarded, are
ordinarily awarded to the lowest responsible bidder whose bid is responsive to the solicitation; and
WHEREAS, a construction contingency of 15% ($191,023.00) will be used for any additional costs
related to design or construction method changes during the construction operations; and
WHEREAS, a construction management and administration of 10% ($127,349.00) will cover staff time
and consultant costs to oversee and manage the contractor; and
WHEREAS, the project is included in the City of South San Francisco's Fiscal Year 2019-2020 Capital
Improvement Program (Project No. st1903).
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of South San Francisco that
the City Council hereby awards a construction contract, a draft of which is attached hereto as Exhibit A,
for the OBAG 2: Street Rehabilitation Project to G Bortolotto & Co., Inc. of San Carlos, California, in
an amount not to exceed $1,273,489.30 conditioned on G Bortolotto & Co.'s timely execution of the
Project
City of South San Francisco Page 1
File Number. 20-114
Enactment Number. RES 61-2020
contract and submission of all required documents, including but not limited to, certificates of insurance
and endorsement, in accordance with the Project documents.
BE IT FURTHER RESOLVED the City Council authorizes a total project construction budget of
$1,591,861.30 and authorizes the City Manager to utilize unspent amount of the total Project, if
necessary, towards additional construction contingency and construction management and administration
budget.
BE IT FURTHER RESOLVED the City Council authorizes the City Engineer or their appointee
authority to approve and exercise discretionary authority as to the final construction by providing a
signature or review on the plans or associated documents.
BE IT FURTHER RESOLVED the City Manager is hereby authorized to execute the agreement and any
other related documents on behalf of the City upon timely submission by G Bortolotto & Co., Inc of the
signed contract and all other documents, subject to approval by the City Attorney.
BE IT FURTHER RESOLVED that the city Council authorizes the City Manager to take any other
related actions consistent with the intention of the Resolution.
Exhibit A: Draft Agreement
At a meeting of the City Council on 5/13/2020, a motion was made by Councilmember Nagales, seconded by
Councilmember Nicolas, that this Resolution be approved. The motion passed.
Yes: 5 Mayor Garbarino, Vice Mayor Addiego, Councilmember Nagales, Councilmember
Nicolas, and Councilmember Matsumoto
Attest by W L &WL
+sa Govea Acosta, City Clerk
City of South San Francisco Page 2
Page A-i
EXHIBIT A
DRAFT FORM OF AGREEMENT
CITY OF SOUTH SAN FRANCISCO
OBAG 2: STREET REHABILITATION PROJECT – STP
PROJECT NO. ST193D; BID NO. 2636
FEDERAL AID PROJECT NO. STPL 5177(042)
PART I - PROPOSAL
PROPOSAL FORMS
FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS
Page A-ii
CITY OF SOUTH SAN FRANCISCO
ENGINEERING DIVISION
FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS
TABLE OF CONTENTS
Page No.
1. Scope of Work A-1
2. The Contract Documents A-1
3. Equipment - Performance of Work A-2
4. Contract Price A-2
5. Rights of City to Increase Working Days A-2
6. Option of City to Terminate Agreement in Event
of Failure to Complete Work A-2
7. Termination of Contract for Convenience A-3
8. Performance by Sureties A-5
9. Hold-Harmless Agreement and Contractor's Insurance A-6
10. Insurance A-6
11. Proof of Carriage of Insurance A-7
12. Provisions Cumulative A-8
13. Form FHWA 1273 A-8
14. Federal Minimum Wage Rates A-8
15. Notices A-8
16. Interpretation A-8
Attachment A – Escrow Agreement for Security Deposits in Lieu of Retention
Attachment B – FHWA Form 1273
Attachment C – Federal Minimum Wage Rates
Page A-1 of 9
FORM OF AGREEMENT FOR PUBLIC IMPROVEMENTS
THIS AGREEMENT made and entered into this ____, day of ______, _____, between the CITY
OF SOUTH SAN FRANCISCO, a municipal corporation and political subdivision of the State of
California, hereinafter called “CITY”, and <Contractor>, Inc., hereinafter called “CONTRACTOR”1.
W I T N E S S E T H:
WHEREAS, City has taken appropriate proceedings to authorize construction of the public work
and improvements herein provided and execution of this contract.
WHEREAS, a notice was duly published for bids for the contract for the improvements
hereinafter described.
WHEREAS, on ____________, notice duly given, the City Council (“Council”) of said City
awarded the contract for the construction of the improvements hereinafter described to the Contractor,
which Contractor said Council found to be the lowest responsible bidder for said improvements.
WHEREAS, City and Contractor desire to enter into this agreement for the construction of said
improvements pursuant to the terms, definitions, and conditions set forth in the General Provisions and
other Contract Documents.
IT IS AGREED as follows:
1. Scope of Work. Contractor shall perform the Work described briefly as follows:
The Work consists of the furnishing of all labor, materials, tools, equipment, and services
necessary for the construction of the OBAG 2: STREET REHABILIATION PROJECT – STP,
PROJECT NO. ST193D, BID NO. 2636 in accordance with the Contract Documents.
Also included are any such other items or details not mentioned above that are required by the
Contract Documents, which are to be constructed or furnished and installed as shown on the plans, as
specified herein and as directed by the Engineer.
The aforementioned improvements are further described in the "Contract Documents" hereinafter
referred to.
2. The Contract Documents. The complete Contract consists of the following documents:
(A) Notice Inviting Bids
(B) Part I – Submitted Proposal (as accepted)
(C) This Agreement, including Contractor’s Payment Bond, Faithful Performance
Bond and Guaranty Bond.
(D) Part II – General Conditions
1. 1The term "Contractor" as used herein is employed without distinction as to either number or gender
and shall include whenever the context shall permit all agents, representatives, employees, servants,
subcontractors and business or social invitees.
Page A-2 of 9
(E) Part III – Special Provisions: Special Conditions and Technical Specifications,
including State Standard Specifications dated 2018, sections 10-99, as revised in
Revised Standard Specifications (RSS) dated April 19, 2019
(F) Part IV – Project Plans, approved 02/27/2020
(G) Administrative subsections of the State Standard Specifications dated 2018, as
specifically referenced in contract Parts I-IV and as revised in RSS dated April
19, 2019
All rights and obligations of City and Contractor are fully set forth and described in the contract
documents.
All of the above-named documents are intended to cooperate, so that any work called for in one
and not mentioned in the other, or vice versa, is to be executed the same as if mentioned in all said
documents. The documents comprising the complete contract will hereinafter be referred to as “the
Contract Documents.”
3. Equipment - Performance of Work. Contractor shall furnish all tools, equipment,
apparatus, facilities, labor, and materials necessary to perform and complete in a good and workmanlike
manner the Work of general construction as called for, and for the manner designated in, and in strict
conformity with, the plans and specifications for said Work entitled:
OBAG 2: STREET REHABILIATION PROJECT – STP
The equipment, apparatus, facilities, labor, and materials shall be furnished and said Work
performed and completed as required in said plans and specifications under the direction and supervision
and subject to the approval of the Engineer of said City or the Engineer’s designated assistant.
4. Contract Price. City shall pay, and Contractor shall accept, in full payment for the Work
agreed to be done the sum of __________________________________ ($). Said price is determined by
the lump sum price contained in Contractor's bid proposal (“Bid”). The lump sum price and unit prices
are set forth in the completed Bid forms attached hereto and made a part hereof as if set forth herein
verbatim. In the event work is performed or materials furnished in addition to those set fort h in
Contractor's bid and the specifications herein, such work and materials will be paid for at the unit prices
therein contained. Said amount shall be paid in installments as hereinafter provided.
5. Rights of City to Increase Working Days. If such Work is not completed within the time
specified, the Engineer shall have the right to increase the number of working days in the amount it may
determine will best serve the interest of the City. If it desires to increase said number of working days, it
shall have the further right to charge to Contractor and deduct from the final payment for the Work the
actual cost of engineering, inspection, superintendence, and other overhead expenses which are directly
chargeable to Contractor and which accrue during the period of such extension, except that the cost of the
final service and preparation of the final estimates shall not be included in such charges, provided,
however, that no extension of time for the completion of such Work shall be allowed unless at least
twenty (20) calendar days prior to the time herein fixed for the completion thereof or the time fixed by the
Engineer for such completion as extended, Contractor shall have filed application for extension thereof, in
writing with the Engineer.
6. Option of City to Terminate Agreement in Event of Failure to Complete Work. If at any
time in the opinion of the Engineer, the Contractor has refused or failed to prosecute the Work or any
Page A-3 of 9
severable part thereof, with such diligence as will insure its work, or any compl etion within the time
specified, or any extensions thereof, or shall have failed to complete said work within such time, or if
Contractor should be adjudged a bankrupt, or if Contractor should make a general assignment for the
benefit of Contractor's creditors, or if a receiver should be appointed in the event of Contractor's
insolvency, or if Contractor, or any Subcontractor, should violate any of the provisions of this Agreement,
the Engineer may give written notice to Contractor, and Contractor's sureties of its intention to terminate
this Agreement, such notice to contain the reasons for such intention to terminate this Agreement, and
unless within five calendar (5) days after the serving of such notice, such violation shall cease and
satisfactory arrangements for the correction thereof be made, this Agreement may, at the option of City,
upon expiration of said time, cease and terminate. Any excess of cost arising therefrom over and above
the contract price will be charged against the Contractor and the Contractor’s sureties who will be liable
therefore. In the event of such termination, all money due the Contractor or retained under the terms of
this contract shall be forfeited to the City; but such forfeiture will not release the Contractor or the
Contractor’s sureties from liability or failure to fulfill the contract. The Contractor and the Contractor’s
sureties will be credited with the amount of money so forfeited toward any excess of cost over and above
the contract price, arising from the suspension termination of the operations of the contract and the
completion of the Work by the City as above provided, and the Contractor will be so credited with any
surplus remaining after all just claims for such completion have been paid.
In the determination of the question whether there has been any such noncompliance with the
contract as to warrant the suspension termination or annulment thereof, the decision of the Engineer shall
be binding on all parties to the contract.
7. Termination of Contract for Convenience. The City also reserves the right to terminate
the contract at any time upon a determination by the Engineer in the Engineer's sole discretion that
termination of the contract is in the best interest of the City. If the City elects to terminate the c ontract for
convenience, the termination of the contract and the total compensation payable to the Contractor shall be
governed by the following:
(A) The City will issue the Contractor a written notice signed by the Engineer,
specifying that the contract is terminated. Upon receipt of said written notice, the Contractor will be
relieved of further responsibility for damage to the Work (excluding materials) as specified in Section
VII-17, "Contractor's Responsibility for the Work," of the General Conditions and, except as otherwise
directed in writing by the Engineer, the Contractor shall:
(1) Stop all work under the contract except that specifically directed to be completed prior to
acceptance.
(2) Perform work the Engineer deems necessary to secure the project for ter mination.
(3) Remove equipment and plant from the site of the Work.
(4) Take such action as is necessary to protect materials from damage.
(5) Notify all subcontractors and suppliers that the contract is being terminated and that their
contracts or orders are not to be further performed unless otherwise authorized in writing by the
Engineer.
(6) Provide the Engineer with an inventory list of all materials previously produced,
purchased or ordered from suppliers for use in the Work and not yet used in the Work, including
its storage location, and such other information as the Engineer may request.
Page A-4 of 9
(7) Dispose of materials not yet used in the Work as directed by the Engineer. It shall be the
Contractor's responsibility to provide the City with good title to all materials purchas ed by the
City hereunder, including materials for which partial payment has been made as provided in
Section IX -2, “Progress Payments,” of the General Conditions and with bills of sale or other
documents of title for such materials.
(8) Subject to the prior written approval of the Engineer, settle all outstanding liabilities and
all claims arising out of subcontracts or orders for materials terminated hereunder. To the extent
directed by the Engineer, the Contractor shall assign to the City all the right, titl e, and interest of
the Contractor under subcontracts or orders for materials terminated hereunder.
(9) Furnish the Engineer with the documentation required to be furnished by the Contractor
under the provisions of the contract, including, on projects as to which Federal and State funds
are involved, all documentation required under the Federal and State requirements included in the
contract.
(10) Take such other actions as the Engineer may direct.
(B) Acceptance of the contract as hereinafter specified shall not relieve the
Contractor of responsibility for damage to materials. The Contractor shall continue to be responsible for
damage to materials after issuance of the Notice of Termination, except as follows:
(1) The Contractor’s responsibility for damage to materials for which partial payment has
been made as provided in Section IX-2, “Progress Payments,” of the General Conditions and for
materials furnished by the City for use in the Work and unused shall terminate when the Engineer
certifies that such materials have been stored in the manner and at the locations the Engineer has
directed.
(2) The Contractor’s responsibility for damage to materials purchased by the City subsequent
to the issuance of the notice that the contract is to be terminated shall terminate when title a nd
delivery of such materials has been taken by the City.
(3) When the Engineer determines that the Contractor has completed the Work under the
contract directed to be completed prior to termination and such other work as may have been
ordered to secure the project for termination, the Contractor will recommend that the Engineer
formally accept the contract to the extent performed, and immediately upon and after such
acceptance by the Engineer, the Contractor will not be required to perform any further Work
thereon and shall be relieved of the Contractor's contractual responsibilities for injury to persons
or property which occurs after the formal acceptance of the project by the Engineer.
(C) Termination of the contract shall not relieve the surety of its obligati on for any
just claims arising out of the work performed.
(D) The total compensation to be paid to the Contractor shall be determined by the
Engineer on the basis of the following:
(1) The reasonable cost to the Contractor, without profit, for all work performed under the
contract, including mobilization, demobilization and work done to secure the project for
termination. In determining the reasonable cost, deductions will be made for the cost of materials
Page A-5 of 9
to be retained by the Contractor, amounts realized by the sale of materials, and for other
appropriate credits against the cost of the work. When, in the opinion of the Engineer, the cost of
a contract item of work is excessively high due to costs incurred to remedy or replace defective or
rejected work, the reasonable cost to be allowed will be the estimated reasonable cost of
performing such work in compliance with the requirements of the plans and specifications and the
excessive actual cost shall be disallowed.
(2) A reasonable allowance for profit on the cost of the work performed as determined under
Subsection (1), provided the Contractor establishes to the satisfaction of the Engineer that it is
reasonably probable that the Contractor would have made a profit had the contract been
completed and provided further, that the profit allowed shall in no event exceed four (4) percent
of said cost.
(3) The reasonable cost to the Contractor of handling material returned to the vendor,
delivered to the City, or otherwise disposed of as directed by the Engineer.
(4) A reasonable allowance for the Contractor’s administrative costs in determining the
amount payable due to termination of the contract.
(5) A reasonable credit to the City for defective or incomplete work not corrected.
All records of the Contractor and subcontractors necessary to determine compensation in
accordance with the provisions of this Section 5 shall be open to inspection or audit by representatives of
the City at all times after issuance of the Notice of Termination and for a period of three (3) years,
thereafter, and such records shall be retained for that period.
After acceptance of the Work by the Engineer, the Engineer may make payments on the basis of
interim estimates pending issuance of the Final Estimate in accordance with Section IX-7, “Final
Payment,” of the General Conditions when, in the Engineer's opinion, the amount thus paid, together with
all amounts previously paid or allowed, will not result in total compensation in excess of that to which the
Contractor will be entitled. All payments, including payment upon the Final Estimate shall be subject to
deduction for prior payments and amounts, if any, to be kept or retained under the provisions of the
contract.
If this contract is terminated by the City for cause, and it is later determined that the proper basis
for a termination for cause did not exist, the termination shall be deemed to have been a termination for
convenience and governed by the terms of this contract dealing with such termination.
If the contract is terminated by the City for cause or convenience, such termination shall neither
act as a waiver by the City of its right to require the Contractor to correct defects in the Work performed
by the Contractor nor void any warranties applicable to the Work performed under the contract.
The provisions of this Section 5 shall be included in all subcontracts.
In the event of conflict between the termination provisions of this Section 8 and any other
provision or the contract, this Section 5 shall prevail.
8. Performance by Sureties. In the event of any termination as herein before provided, City
shall immediately give written notice thereof to Contractor and Contractor's sureties and the sureties shall
have the right to take over and perform the Agreement, provided, however, that if the sure ties, within five
(5) working days after giving them said notice of termination, do not give the City written notice of their
Page A-6 of 9
intention to take over the performance of the Agreement and do not commence performance thereof
within five (5) working days after notice to the City of such election, City may take over the Work and
prosecute the same to completion by contract or by any other method it may deem advisable, for the
account, and at the expense, of Contractor, and the sureties shall be liable to City for any excess cost or
damages occasioned City thereby; and, in such event, City may, without liability for so doing, take
possession of and utilize in completing the Work such materials, appliances, plant, and other property
belonging to Contractor as may be on the site of the Work and necessary therefore. Should Contractor
contract in an individual capacity, the surety bond shall contain the following provision: “Should
Contractor contract in the Contractor’s individual capacity, the death of the Contractor shall not relieve
the surety of its obligations.”
9. Hold-Harmless Agreement and Contractor's Insurance. Contractor agrees to, and shall,
hold City, its elective and appointive boards, officers, agents, and employees harmless from any liability
for damage or claims for damage for personal injury, including death, as well as from claims for property
damage which may arise from Contractor's or any of Subcontractor's operations under this Agreement,
whether such operations be by Contractor or by any Subcontractor or Subcontractors, or by any one or
more persons directly or indirectly employed by, or acting as agent for, Contractor or any Subcontractor
or Subcontractors. Contractor agrees to, and shall, defend City and its elective and appointive boards,
officers, agents, and employees from any suits or actions at law or in equity for damages caused, or
alleged to have been caused, by reason of any of the aforesaid operations, provided as follows:
(A) The City does not, and shall not, waive any rights against Contractor which it may have
by reason of the aforesaid hold-harmless agreement, because of the acceptance by City, or the
deposit with City by Contractor, of any of the insurance policies hereinafter described in
Paragraph 15, “Insurance” hereof.
(B) That the aforesaid hold-harmless agreement by Contractor shall apply to all damages and
claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of
the aforesaid operations of Contractor or any Subcontractor, regardless of whether or not such
insurance policies shall have been determined to be applicable to any of such damages or claims
for damages.
10. Insurance. The Contractor shall take out and maintain during the life of this Agreement
the following policies of insurance:
(A) Workers' Compensation and Employers' Liability Insurance providing full
statutory coverage.
In signing this Agreement, the Contractor makes the following certification, required by
Section 1861 of the California Labor Code:
"I am aware of the provisions of Section 3700 of the California Labor Code which
require every employer to be insured against liability for Workers' Compensation
or to undertake self-insurance in accordance with the provisions of that Code, and
I will comply with such provisions before commencing the performance of the
work of this contract".
(B) Comprehensive General Liability Insurance.
Public Liability Insurance (includes premises, elevator - if applicable, products,
completed operations, personal injury and contractual):
Page A-7 of 9
(1) Bodily Injury Liability:
$ 500,000 each person $1,000,000 each occurrence
(2) Property Damage Liability [includes XCU (explosion, collapse, and underground
damage); water damage and broad form property damage or third party liability]:
$ 500,000 per occurrence
(C) Comprehensive Automobile Liability Insurance (includes owned, non-owned,
and hired vehicles):
(1) Bodily Injury Liability:
$ 500,000 per person $1,000,000 each occurrence
(2) Property Damage Liability:
$ 500,000 each occurrence
(D) It is agreed that the insurance required by Subsections B and C, in an aggregate
amount of not less than ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000), shall
be extended to include as additional insured the City of South San Francisco, its elective and appointive
boards, commissions, officers, agents, employees, with respect to operations performed by the Contractor,
as described herein. Evidence of this insurance described above shall be provided to City upon execution
of this Agreement and shall be subject to approval of the City Attorn ey as to form, amount, and carrier.
The policy of insurance shall also contain a provision indicating that such insurance shall not be reduced
or cancelled except upon thirty (30) calendar days written notice to City. In addition, the following
endorsement shall be made on said policy of insurance:
"The following are named as additional insured on the above policies: The City of South
San Francisco, its elective and appointive boards, officers, agents, and employees."
"Notwithstanding any other provision in this policy, the insurance afforded hereunder to
the City of South San Francisco shall be primary as to any other insurance or re-insurance
covering or available to the City of South San Francisco, and such other insurance or
reinsurance shall not be required to contribute to any liability or loss until and unless the
approximate limit of liability afforded hereunder is exhausted."
The above requirements that the City be named as additional insured, that the insurance
shall be primary to any other, and that the insurance not be cancelled without notice, shall be provided in
the form of an endorsement signed by an authorized representative of the insurance company providing
coverage, who shall declare his or her authority to sign on behalf of the insurer.
11. Proof of Carriage of Insurance. Contractor shall furnish City through the Engineer,
concurrently with the execution hereof, with satisfactory proof of carriage of the insurance required and
that each carrier shall give City at least thirty (30) calendar days prior notice of the cancellation or change
of any policy during the effective period of this contract. Further, if the Contractor’s insurance policy
includes a self-insured retention that must be paid by a named insured as a precondition of the insurer’s
liability, or which has the effect of providing that payments of the self -insured retention by others,
including additional insureds or insurers do not serve to satisfy the self-insured retention, such provisions
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must be modified by special endorsement so as to not apply to the additional insured coverage required by
this agreement so as to not prevent any of the parties to this agreement from satisfying or paying the self -
insured retention required to be paid as a precondition to the insurer’s liabili ty. Additionally, the
certificates of insurance must note whether the policy does or does not include any self -insured retention
and also must disclose the deductible.
12. Provisions Cumulative. The provisions of this Agreement are cumulative, and in addition
to and not in limitation of, any other rights or remedies available to City.
13. Form FHWA 1273. For a Federal-aid contract, form FHWA-1273 is included in this
Agreement as Attachment B. Comply with its provisions. Interpret the training and promotion section as
specified in section 7-1.11A of the State Standard Specifications.
14. Federal Minimum Wage Rates – For a Federal-aid contract, federal minimum wage rates
apply and are included in the Agreement as Attachment C.
15. Notices. All notices shall be in writing and delivered in person or transmitted by certified
mail, postage prepaid.
Notices required to be given to City shall be addressed as follows:
City Clerk
City Hall, 400 Grand Avenue
South San Francisco, California 94080
Notices required to be given to Contractor shall be addressed as follows:
_________________________________________________________________________
_________________________________________________________________________
Notices required to be given sureties of Contractor shall be addressed as follows:
_________________________________________________________________________
Notices required to be given to the Escrow Agent of Contractor, if any, shall be addressed as
follows:
_________________________________________________________________________
16. Interpretation. As used herein, any gender includes each other gender, the singular
includes the plural, and vice versa.
Page A-9 of 9
IN WITNESS WHEREOF, two (2) identical counterparts of this Agreement, consisting of twelve
(9) pages (being pages A-1 through A-9), each of which counterparts shall for all purposes be deemed an
original of said Agreement, have been duly executed by the parties hereinabove named, on the day and
year first hereinabove written.
ATTEST: CITY: City of South San Francisco,
a municipal corporation
_______________________________ By: _____________________________
City Clerk Mike Futrell, City Manager
CONTRACTOR:_______________________
__________________________________
ATTEST: By:_______________________________
(If Contractor is an individual, so state.
_____________________________ If Contractor is a Corporation, a corporate seal
or signatures of the President or Vice President
and the Secretary Treasurer are required).
App-1
ATTACHMENT A
ESCROW AGREEMENT FOR
SECURITY DEPOSITS IN LIEU OF RETENTION
THIS ESCROW AGREEMENT is made and entered into by and between the City of South San Francisco
whose address is 400 Grand Ave., P.O. Box 711, South San Francisco, CA 94083, hereinafter referred to as "City," and
________________________________________,whose address is
___________________________________________________________, hereinafter called “Contractor” and
______________________________________________________________,whose address is
___________________________________________________________, hereinafter called “Escrow Agent.”
For the consideration hereinafter set forth, the Owner, Contractor, and Escrow Agent agree as follows:
1. Pursuant to Section 22300 of the Public Contract Code of the State of California, Contractor has the
option to deposit securities with Escrow Agent as a substitute for retention earnings required to be withheld by Owner
pursuant to the Construction Contract entered into between the Owner and Contractor for __________________ in the
amount of _______________dollars ($_____) dated ___________ (hereinafter referred to as the “Contract”).
Alternately, on written request of the Contractor, the Owner shall make payments of the retention earnings directly to
the Escrow Agent. When the Contractor deposits the securities as a substitute for Contract earnings, the Escrow Agent
shall notify the Owner within 10 working days of the deposit. The market value of the securities at the time of the
substitution shall be at least equal to the cash amount then required to be withheld as retention under the terms of the
Contract between the Owner and Contractor. Securities shall be held in the name of _______________, and shall
designate the Contractor as the beneficial owner.
2. The Owner shall make progress payments to the Contractor for those funds which otherwise would be
withheld from progress payments pursuant to the Contract provisions, provided that the Escrow Agent holds securities
in the form and amount specified above.
3. When the Owner makes payment of retentions earned directly to the Escrow Agent, the Escrow Agent
shall hold them for the benefit of the Contractor until the time that the escrow created under this contract is terminated.
The Contractor may direct the investment of the payments into securities. All terms and conditions of this agreement
and the rights and responsibilities of the parties shall be equally applicable and binding when the Owner pays the
Escrow Agent directly.
4. Contractor shall be responsible for paying all fees for the expenses incurred by Escrow Agent in
administering the Escrow Account and all expenses of the Owner. These expenses and payment terms shall be
determined by the Owner, Contractor, and Escrow Agent.
5. The interest earned on the securities or the money market accounts held in escrow and all interest
earned on that interest shall be for the sole account of Contractor and shall be subject to withdrawal by Contractor at
any time and from time to time without notice to the Owner.
6. Contractor shall have the right to withdraw all or any part of the principal in the Escrow Account only
by written notice to Escrow Agent accompanied by written authorization from the Owner to the Escrow Agent that
Owner consents to the withdrawal of the amount sought to be withdrawn by Contractor.
7. The Owner shall have a right to draw upon the securities in the event of default by the Contractor.
Upon seven day’s written notice to the Escrow Agent from the Owner of the default, the Escrow Agent shall
immediately convert the securities to cash and shall distribute the cash as instructed by the Owner.
8. Upon receipt of written notification from the Owner certifying that the Contract is final and complete,
and that the Contractor has complied with all requirements and procedures applicable to the Contract, Escrow Agent
shall release to Contractor all securities and interest on deposit less escrow fees and charges of the Escrow Account.
The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payments of
fees and charges.
App-2
9. Escrow Agent shall rely on the written notifications from the Owner and the Contractor pursuant to
Sections (5) to (8), inclusive, of this Agreement, and the Owner and Contractor shall hold Escrow Agent harmless from
Escrow Agent’s release and disbursement of the securities and interest as set forth above.
10. The names of the persons who are authorized to give written notice or to receive written notice on
behalf of the Owner and on behalf of Contractor in connection with the foregoing, and exemplars of their respective
signatures are as follows:
On behalf of Owner: On behalf of Contractor:
__________________________________ __________________________________
Title Title
__________________________________ __________________________________
Name Name
__________________________________ __________________________________
Signature Signature
__________________________________ __________________________________
Address Address
On behalf of Escrow Agent:
__________________________________
Title
__________________________________
Name
__________________________________
Signature
__________________________________
Address
At the time the Escrow Account is opened, the Owner and Contractor shall deliver to the Escrow Agent a fully
executed counterpart of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the date first
set forth above.
Owner: Contractor:
__________________________________ __________________________________
Title Title
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__________________________________ __________________________________
Name Name
__________________________________ __________________________________
Signature Signature
Approved as to form: Attest:
_____________________________________ __________________________________
City Attorney Date City-Clerk
App-4
ATTACHMENT B
FORM FHWA-1273
App-5
FHWA-1273 -- Revised May 1, 2012
REQUIRED CONTRACT PROVISIONS
FEDERAL-AID CONSTRUCTION CONTRACTS
I. General
II. Nondiscrimination
III. Nonsegregated Facilities
IV. Davis-Bacon and Related Act Provisions
V. Contract Work Hours and Safety Standards Act Provisions
VI. Subletting or Assigning the Contract
VII. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
IX. Implementation of Clean Air Act and Federal Water Pollution
Control Act
X. Compliance with Governmentwide Suspension and Debarment
Requirements
XI. Certification Regarding Use of Contract Funds for Lobbying
ATTACHMENTS
A. Employment and Materials Preference for Appalachian Development
Highway System or Appalachian Local Access Road Contracts (included
in Appalachian contracts only)
I. GENERAL
1. Form FHWA-1273 must be physically incorporated in each
construction contract funded under Title 23 (excluding emergency
contracts solely intended for debris removal). The contractor (or
subcontractor) must insert this form in each subcontract and further
require its inclusion in all lower tier subcontracts (excluding purchase
orders, rental agreements and other agreements for supplies or
services).
The applicable requirements of Form FHWA-1273 are incorporated by
reference for work done under any purchase order, rental agreement or
agreement for other services. The prime contractor shall be responsible
for compliance by any subcontractor, lower-tier subcontractor or service
provider.
Form FHWA-1273 must be included in all Federal-aid design-build
contracts, in all subcontracts and in lower tier subcontracts (excluding
subcontracts for design services, purchase orders, rental agreements
and other agreements for supplies or services). The design-builder shall
be responsible for compliance by any subcontractor, lower-tier
subcontractor or service provider.
Contracting agencies may reference Form FHWA-1273 in bid proposal
or request for proposal documents, however, the Form FHWA-1273 must
be physically incorporated (not referenced) in all contracts, subcontracts
and lower-tier subcontracts (excluding purchase orders, rental
agreements and other agreements for supplies or services related to a
construction contract).
2. Subject to the applicability criteria noted in the following sections,
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.
3. A breach of any of the stipulations contained in these Required
Contract Provisions may be sufficient grounds for withholding of progress
payments, withholding of final payment, termination of the contract,
suspension / debarment or any other action determined to be appropriate
by the contracting agency and FHWA.
4. Selection of Labor: During the performance of this contract, the
contractor shall not use convict labor for any purpose within the limits of
a construction project on a Federal-aid highway unless it is labor
performed by convicts who are on parole, supervised release, or
probation. The term Federal-aid highway does not include roadways
functionally classified as local roads or rural minor collectors.
II. NONDISCRIMINATION
The provisions of this section related to 23 CFR Part 230 are applicable
to all Federal-aid construction contracts and to all related construction
subcontracts of $10,000 or more. The provisions of 23 CFR Part 230 are
not applicable to material supply, engineering, or architectural service
contracts.
In addition, the contractor and all subcontractors must comply with the
following policies: Executive Order 11246, 41 CFR 60, 29 CFR 1625-
1627, Title 23 USC Section 140, the Rehabilitation Act of 1973, as
amended (29 USC 794), Title VI of the Civil Rights Act of 1964, as
amended, and related regulations including 49 CFR Parts 21, 26 and 27;
and 23 CFR Parts 200, 230, and 633.
The contractor and all subcontractors must comply with: the
requirements of the Equal Opportunity Clause in 41 CFR 60-1.4(b) and,
for all construction contracts exceeding $10,000, the Standard Federal
Equal Employment Opportunity Construction Contract Specifications in
41 CFR 60-4.3.
Note: The U.S. Department of Labor has exclusive authority to determine
compliance with Executive Order 11246 and the policies of the Secretary
of Labor including 41 CFR 60, and 29 CFR 1625-1627. The contracting
agency and the FHWA have the authority and the responsibility to
ensure compliance with Title 23 USC Section 140, the Rehabilitation Act
of 1973, as amended (29 USC 794), and Title VI of the Civil Rights Act of
1964, as amended, and related regulations including 49 CFR Parts 21,
26 and 27; and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR 230, Appendix A, with
appropriate revisions to conform to the U.S. Department of Labor (US
DOL) and FHWA requirements.
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, 29 CFR 1625-1627, 41 CFR 60
and 49 CFR 27) 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 provisions of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.) set
forth under 28 CFR 35 and 29 CFR 1630 are incorporated by reference
in this contract. In the execution of this contract, the contractor agrees to
comply with the following minimum specific requirement activities of
EEO:
a. The contractor will work with the contracting agency and the Federal
Government to ensure that it has made every good faith effort to provide
equal opportunity with respect to all of its terms and conditions of
employment and in their review of activities under the contract.
b. The contractor will accept as its 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, pre-apprenticeship, and/or on-
the-job training."
2. EEO Officer: The contractor will designate and make known to the
contracting officers an EEO Officer who will have the responsibility for
and must be capable of effectively administering and promoting an
active EEO program and who must be assigned adequate authority and
responsibility to do so.
App-7
3. Dissemination of Policy: All members of the contractor's staff
who are authorized to hire, supervise, promote, and discharge
employees, or who recommend such action, or who are
substantially involved in such action, will be made fully cognizant
of, and will implement, the contractor's EEO policy and
contractual responsibilities to provide EEO in each grade and
classification of employment. To ensure that the above
agreement will be met, the following actions will be taken as a
minimum:
a. Periodic meetings of supervisory and personnel office
employees will be conducted before the start of work and then not
less often than once every six months, at which time the
contractor's EEO policy and its implementation will be reviewed
and explained. The meetings will be conducted by the EEO
Officer.
b. All new supervisory or personnel office employees will be
given a thorough indoctrination by the EEO Officer, covering all
major aspects of the contractor's EEO obligations within thirty
days following their reporting for duty with the contractor.
c. All personnel who are engaged in direct recruitment for the
project will be instructed by the EEO Officer in the contractor's
procedures for locating and hiring minorities and women.
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 minorities
and women 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 minorities and women. To meet this requirement, the
contractor will identify sources of potential minority group
employees, and establish with such identified sources procedures
whereby minority and women 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, the contractor is
expected to observe the provisions of that agreement to the
extent that the system meets the contractor's compliance with
EEO contract provisions. Where implementation of such an
agreement has the effect of discriminating against minorities or
women, or obligates the contractor to do the same, such
implementation violates Federal nondiscrimination provisions.
c. The contractor will encourage its present employees to refer
minorities and women as applicants for employment. Inform ation
and procedures with regard to referring such 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, 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
its 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 their avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and
increasing the skills of minorities and women who are applicants
for employment or current employees. Such efforts should be
aimed at developing full journey level status employees in the
type of trade or job classification involved.
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. In the event a special
provision for training is provided under this contract, this
subparagraph will be superseded as indicated in the special
provision. The contracting agency may reserve training positions
for persons who receive welfare assistance in accordance with 23
U.S.C. 140(a).
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 employees who are minorities and women
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 good faith
efforts to obtain the cooperation of such unions to increase
opportunities for minorities and women. 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 good faith efforts to develop, in
cooperation with the unions, joint training programs aimed toward
qualifying more minorities and women for membership in the
unions and increasing the skills of minorities and women so that
they may qualify for higher paying employment.
b. The contractor will use good faith efforts to incorporate an
EEO clause into each union agreement to the end that such union
will be contractually bound to refer applicants without regard to
their race, color, religion, sex, national origin, age or disability.
c. The contractor is to obtain information as to the referral
practices and policies of the labor union except that to the extent
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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 contracting
agency 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 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
minorities and women. The failure of a union to provide sufficient
referrals (even though it is obligated to provide exclusive referrals
under the terms of a collective bargaining agreement) does not
relieve the contractor from the requirements of this paragraph. 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 contracting agency.
8. Reasonable Accommodation for Applicants / Employees
with Disabilities: The contractor must be familiar with the
requirements for and comply with the Americans with Disabilities
Act and all rules and regulations established there under.
Employers must provide reasonable accommodation in all
employment activities unless to do so would cause an undue
hardship.
9. 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. The
contractor shall take all necessary and reasonable steps to
ensure nondiscrimination in the administration of this contract.
a. The contractor shall notify all potential subcontractors and
suppliers and lessors of their EEO obligations under this contract.
b. The contractor will use good faith efforts to ensure
subcontractor compliance with their EEO obligations.
10. Assurance Required by 49 CFR 26.13(b):
a. The requirements of 49 CFR Part 26 and the State DOT’s
U.S. DOT-approved DBE program are incorporated by reference.
b. The contractor or subcontractor shall not discriminate on the
basis of race, color, national origin, or sex in the performance of
this contract. The contractor shall carry out applicable
requirements of 49 CFR Part 26 in the award and administration
of DOT-assisted contracts. Failure by the contractor to carry out
these requirements is a material breach of this contract, which
may result in the termination of this contract or such other remedy
as the contracting agency deems appropriate.
11. 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 the date of the final payment to the contractor for
all contract work and shall be available at reasonable times and
places for inspection by authorized representatives of the
contracting agency and the FHWA.
a. The records kept by the contractor shall document the
following:
(1) The number and work hours 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; and
(3) The progress and efforts being made in locating, hiring,
training, qualifying, and upgrading minorities and women;
b. The contractors and subcontractors will submit an annual
report to the contracting agency 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. The staffing data should
represent the project work force on board in all or any part of the
last payroll period preceding the end of July. If on-the-job training
is being required by special provision, the contractor will be
required to collect and report training data. The employment data
should reflect the work force on board during all or any part of the
last payroll period preceding the end of July.
III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal-aid construction
contracts and to all related construction subcontracts of $10,000
or more.
The contractor must ensure that facilities provided for employees
are provided in such a manner that segregation on the basis of
race, color, religion, sex, or national origin cannot result. The
contractor may neither require such segregated use by written or
oral policies nor tolerate such use by employee custom. The
contractor's obligation extends further to ensure that its
employees are not assigned to perform their services at any
location, under the contractor's control, where the facilities are
segregated. The term "facilities" includes waiting rooms, work
areas, restaurants and other eating areas, time clocks, restrooms,
washrooms, locker rooms, and other storage or dressing areas,
parking lots, drinking fountains, recreation or entertainment areas,
transportation, and housing provided for employees. The
contractor shall provide separate or single-user restrooms and
necessary dressing or sleeping areas to assure privacy between
sexes.
IV. DAVIS-BACON AND RELATED ACT PROVISIONS
This section is applicable to all Federal-aid construction projects
exceeding $2,000 and to all related subcontracts and lower-tier
subcontracts (regardless of subcontract size). The requirements
apply to all projects located within the right-of-way of a roadway
that is functionally classified as Federal-aid highway. This
excludes roadways functionally classified as local roads or rural
minor collectors, which are exempt. Contracting agencies may
elect to apply these requirements to other projects.
The following provisions are from the U.S. Department of Labor
regulations in 29 CFR 5.5 “Contract provisions and related
matters” with minor revisions to conform to the FHWA-1273
format and FHWA program requirements.
1. Minimum wages
a. All laborers and mechanics employed or working upon the
site of the work, will be paid unconditionally and not less often
than once a week, and without subsequent deduction or rebate on
any account (except such payroll deductions as are permitted by
regulations issued by the Secretary of Labor under the Copeland
Act (29 CFR part 3)), the full amount of wages and bona fide
fringe benefits (or cash equivalents thereof) due at time of
payment computed at rates not less than those contained in the
App-9
wage determination of the Secretary of Labor which is attached
hereto and made a part hereof, regardless of any contractual
relationship which may be alleged to exist between the contractor
and such laborers and mechanics.
Contributions made or costs reasonably anticipated for bona fide
fringe benefits under section 1(b)(2) of the Davis-Bacon Act on
behalf of laborers or mechanics are considered wages paid to
such laborers or mechanics, subject to the provisions of
paragraph 1.d. of this section; also, 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 29 CFR
5.5(a)(4). 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. The wage
determination (including any additional classification and wage
rates conformed under paragraph 1.b. of this section) and the
Davis-Bacon poster (WH–1321) 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.
b. (1) The contracting officer shall require that any class of
laborers or mechanics, including helpers, which is not listed in the
wage determination and which is to be employed under the
contract shall be classified in conformance with the wage
determination. The contracting officer shall approve an additional
classification and wage rate and fringe benefits therefore only
when the following criteria have been met:
(i) The work to be performed by the classification requested
is not performed by a classification in the wage determination;
and
(ii) The classification is utilized in the area by the
construction industry; and
(iii) The proposed wage rate, including any bona fide fringe
benefits, bears a reasonable relationship to the wage rates
contained in the wage determination.
(2) If the contractor and the laborers and mechanics to be
employed in the classification (if known), 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
Administrator of the Wage and Hour Division, Employment
Standards Administration, U.S. Department of Labor,
Washington, DC 20210. The 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.
(3) In the event the contractor, the laborers or mechanics to
be employed in the 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. The Wage and
Hour 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.
(4) The wage rate (including fringe benefits where
appropriate) determined pursuant to paragraphs 1.b.(2) or
1.b.(3) of this section, shall be paid to all workers performing
work in the classification under this contract from the first day
on which work is performed in the classification.
c. 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 shall
either pay the benefit as stated in the wage determination or shall
pay another bona fide fringe benefit or an hourly cash equivalent
thereof.
d. If the contractor does not make payments to a trustee or
other third person, the contractor may consider as 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.
2. Withholding
The contracting agency shall upon its own action or upon written
request of an authorized representative of the Department of
Labor, withhold or cause to be withheld from the contractor 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, so 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 contracting agency 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.
3. Payrolls and basic records
a. Payrolls and basic records relating thereto shall be
maintained by the contractor during the course of the work and
preserved for a period of three years thereafter for all laborers
and mechanics working at the site of the work. Such records shall
contain the name, address, and social security number of each
such worker, his or her correct classification, hourly rates of
wages paid (including rates of contributions or costs anticipated
for bona fide fringe benefits or cash equivalents thereof of the
types described in section 1(b)(2)(B) of the Davis-Bacon Act),
daily and weekly number of hours worked, deductions made and
actual wages paid. Whenever the Secretary of Labor has found
under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or
mechanic include the amount of any costs reasonably anticipated
in providing benefits under a plan or program described in section
1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain
records which show that the commitment to provide such benefits
is enforceable, that the plan or program is financially responsible,
and that the plan or program has been communicated in writing to
the laborers or mechanics affected, and records which show the
App-10
costs anticipated or the actual cost incurred in providing such
benefits. Contractors employing apprentices or trainees under
approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of trainee
programs, the registration of the apprentices and trainees, and
the ratios and wage rates prescribed in the applicable programs.
b. (1) The contractor shall submit weekly for each week in
which any contract work is performed a copy of all payrolls to the
contracting agency. The payrolls submitted shall set out
accurately and completely all of the information required to be
maintained under 29 CFR 5.5(a)(3)(i), except that full social
security numbers and home addresses shall not be included on
weekly transmittals. Instead the payrolls shall only need to include
an individually identifying number for each employee ( e.g. , the
last four digits of the employee's social security number). The
required weekly payroll information may be submitted in any form
desired. Optional Form WH–347 is available for this purpose from
the Wage and Hour Division Web site at
http://www.dol.gov/esa/whd/forms/wh347instr.htm or its successor
site. The prime contractor is responsible for the submission of
copies of payrolls by all subcontractors. Contractors and
subcontractors shall maintain the full social security number and
current address of each covered worker, and shall provide them
upon request to the contracting agency for transmission to the
State DOT, the FHWA or the Wage and Hour Division of the
Department of Labor for purposes of an investigation or audit of
compliance with prevailing wage requirements. It is not a violation
of this section for a prime contractor to require a subcontractor to
provide addresses and social security numbers to the prime
contractor for its own records, without weekly submission to the
contracting agency..
(2) Each payroll submitted shall be accompanied by a “Statement
of Compliance,” signed by the contractor or subcontractor or his
or her agent who pays or supervises the payment of the persons
employed under the contract and shall certify the following:
(i) That the payroll for the payroll period contains the
information required to be provided under §5.5 (a)(3)(ii) of
Regulations, 29 CFR part 5, the appropriate information is
being maintained under §5.5 (a)(3)(i) of Regulations, 29 CFR
part 5, and that such information is correct and complete;
(ii) That each 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 Regulations, 29 CFR part 3;
(iii) That each laborer or mechanic has been paid not less
than the applicable wage rates and fringe benefits or cash
equivalents for the classification of work performed, as
specified in the applicable wage determination incorporated
into the contract.
(3) 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 3.b.(2) of this section.
(4) The falsification of any of the above certifications may
subject the contractor or subcontractor to civil or criminal
prosecution under section 1001 of title 18 and section 231 of
title 31 of the United States Code.
c. The contractor or subcontractor shall make the records
required under paragraph 3.a. of this section available for
inspection, copying, or transcription by authorized representatives
of the contracting agency, the State DOT, the FHWA, or the
Department of Labor, 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 FHWA may, after written notice to the
contractor, the contracting agency or the State DOT, take such
action 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.
4. Apprentices and trainees
a. Apprentices (programs of the USDOL).
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 U.S. Department of
Labor, Employment and Training Administration, Office of
Apprenticeship Training, Employer and Labor Services, or with a
State Apprenticeship Agency recognized by the Office, or if a
person is employed in his or 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 Office of Apprenticeship Training, Employer
and Labor Services or a State Apprenticeship Agency (where
appropriate) to be eligible for probationary employment as an
apprentice.
The allowable ratio of apprentices to journeymen 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 worker 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 on 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 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's hourly rate) specified in the contractor's or
subcontractor's registered program shall be observed.
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 journeymen 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 determines that a
different practice prevails for the applicable apprentice
classification, fringes shall be paid in accordance with that
determination.
In the event the Office of Apprenticeship Training, Employer and
Labor Services, or a State Apprenticeship Agency recognized by
the Office, withdraws approval of an apprenticeship program, the
contractor will no longer be permitted to utilize apprentices at less
than the applicable predetermined rate for the work performed
until an acceptable program is approved.
App-11
b. Trainees (programs of the USDOL).
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 U.S. Department of Labor,
Employment and Training Administration.
The ratio of trainees to journeymen on the job site shall not be
greater than permitted under the plan approved by the
Employment and Training Administration.
Every trainee must be paid at not less than the rate specified in
the approved program for the trainee's level of progress,
expressed as a percentage of the journeyman 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 wage rate on the wage determination which provides
for less than full fringe benefits for apprentices. 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.
In the event the Employment and Training Administration
withdraws approval of a training program, the contractor 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. Equal employment opportunity. The utilization of apprentices,
trainees and journeymen under this part shall be in conformity
with the equal employment opportunity requirements of Executive
Order 11246, as amended, and 29 CFR part 30.
d. Apprentices and Trainees (programs of the U.S. DOT).
Apprentices and trainees working under apprenticeship and skill
training programs which have been certified by the Secretary of
Transportation as promoting EEO in connection with Federal-aid
highway construction programs are not subject to the
requirements of paragraph 4 of this Section IV. The straight time
hourly wage rates for apprentices and trainees under such
programs will be established by the particular programs. The ratio
of apprentices and trainees to journeymen shall not be greater
than permitted by the terms of the particular program.
5. Compliance with Copeland Act requirements. The
contractor shall comply with the requirements of 29 CFR part 3,
which are incorporated by reference in this contract.
6. Subcontracts. The contractor or subcontractor shall insert
Form FHWA-1273 in any subcontracts and also require the
subcontractors to include Form FHWA-1273 in any lower tier
subcontracts. The prime contractor shall be responsible for the
compliance by any subcontractor or lower tier subcontractor with
all the contract clauses in 29 CFR 5.5.
7. Contract termination: debarment. A breach of the contract
clauses in 29 CFR 5.5 may be grounds for termination of the
contract, and for debarment as a contractor and a subcontractor
as provided in 29 CFR 5.12.
8. Compliance with Davis-Bacon and Related Act
requirements. All rulings and interpretations of the Davis-Bacon
and Related Acts contained in 29 CFR parts 1, 3, and 5 are
herein incorporated by reference in this contract.
9. Disputes concerning labor standards. Disputes arising out of
the labor standards provisions of this contract shall not be subject
to the general disputes clause of this contract. Such disputes shall
be resolved in accordance with the procedures of the Department
of Labor set forth in 29 CFR parts 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 U.S.
Department of Labor, or the employees or their representatives.
10. Certification of eligibility.
a. By entering into this contract, the contractor certifies that
neither it (nor he or she) nor any person or firm who has an
interest in the contractor's firm is a person or firm ineligible to be
awarded Government contracts by virtue of section 3(a) of the
Davis-Bacon Act or 29 CFR 5.12(a)(1).
b. No part of this contract shall be subcontracted to any person or
firm ineligible for award of a Government contract by virtue of
section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
c. The penalty for making false statements is prescribed in the
U.S. Criminal Code, 18 U.S.C. 1001.
V. CONTRACT WORK HOURS AND SAFETY STANDARDS
ACT
The following clauses apply to any Federal-aid construction
contract in an amount in excess of $100,000 and subject to the
overtime provisions of the Contract Work Hours and Safety
Standards Act. These clauses shall be inserted in addition to the
clauses required by 29 CFR 5.5(a) or 29 CFR 4.6. As used in this
paragraph, the terms laborers and mechanics include watchmen
and guards.
1. Overtime requirements. No contractor or subcontractor
contracting for any part of the contract work which may require or
involve the employment of laborers or mechanics shall require or
permit any such laborer or mechanic in any workweek in which he
or she is employed on such work to work in excess of forty hours
in such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the
basic rate of pay for all hours worked in excess of forty hours in
such workweek.
2. Violation; liability for unpaid wages; liquidated damages.
In the event of any violation of the clause set forth in paragraph
(1.) of this section, the contractor and any subcontractor
responsible therefor shall be liable for the 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 or mechanic,
including watchmen and guards, employed in violation of the
clause set forth in paragraph (1.) of this section, in the sum of $10
App-12
for each calendar day on which such individual was required or
permitted to work in excess of the standard workweek of forty
hours without payment of the overtime wages required by the
clause set forth in paragraph (1.) of this section.
3. Withholding for unpaid wages and liquidated damages.
The FHWA or the contacting agency shall upon its own action or
upon written request of an authorized representative of the
Department of Labor withhold or cause to be withheld, from any
moneys payable on account of work performed by the contractor
or subcontractor under any such contract or any other Federal
contract with the same prime contractor, or any other federally-
assisted contract subject to the Contract Work Hours and Safety
Standards Act, which is held by the same prime contractor, such
sums as may be determined to be necessary to satisfy any
liabilities of such contractor or subcontractor for unpaid wages
and liquidated damages as provided in the clause set forth in
paragraph (2.) of this section.
4. Subcontracts. The contractor or subcontractor shall insert in
any subcontracts the clauses set forth in paragraph (1.) through
(4.) of this section and also a clause requiring the subcontractors
to include these clauses in any lower tier subcontracts. The prime
contractor shall be responsible for compliance by any
subcontractor or lower tier subcontractor with the clauses set forth
in paragraphs (1.) through (4.) of this section.
VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal-aid construction
contracts on the National Highway System.
1. The contractor shall perform with its own organization contract
work amounting to not less than 30 percent (or a greater
percentage if specified elsewhere in the contract) of the total
original contract price, excluding any specialty items designated
by the contracting agency. 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 635.116).
a. The term “perform work with its own organization” refers to
workers employed or leased 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 or lower tier subcontractor, agents
of the prime contractor, or any other assignees. The term may
include payments for the costs of hiring leased employees from
an employee leasing firm meeting all relevant Federal and State
regulatory requirements. Leased employees may only be
included in this term if the prime contractor meets all of the
following conditions:
(1) the prime contractor maintains control
over the supervision of the day-to-day activities of the leased
employees;
(2) the prime contractor remains responsible for the quality of
the work of the leased employees;
(3) the prime contractor retains all power to accept or exclude
individual employees from work on the project; and
(4) the prime contractor remains ultimately responsible for the
payment of predetermined minimum wages, the submission of
payrolls, statements of compliance and all other Federal
regulatory requirements.
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 or propose on the contract as a
whole and in general are to be limited to minor components of the
overall contract.
2. The contract amount upon which the requirements set forth in
paragraph (1) of Section VI is computed includes the cost of
material and manufactured products which are to be purchased or
produced by the contractor under the contract provisions.
3. The contractor shall furnish (a) a competent superintendent or
supervisor who is employed by the firm, has full authority to direct
performance of the work in accordance with the contract
requirements, and is in charge of all construction operations
(regardless of who performs the work) and (b) such other of its
own organizational resources (supervision, management, and
engineering services) as the contracting officer determines is
necessary to assure the performance of the contract.
4. No portion of the contract shall be sublet, assigned or
otherwise disposed of except with the written consent of the
contracting officer, or authorized representative, and such
consent when given shall not be construed to relieve the
contractor of any responsibility for the fulfillment of the contract.
Written consent will be given only after the contracting agency
has assured that each subcontract is evidenced in writing and that
it contains all pertinent provisions and requirements of the prime
contract.
5. The 30% self-performance requirement of paragraph (1) is not
applicable to design-build contracts; however, contracting
agencies may establish their own self-performance requirements.
VII. SAFETY: ACCIDENT PREVENTION
This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts.
1. In the performance of this contract the contractor shall comply
with all applicable Federal, State, and local laws governing safety,
health, and sanitation (23 CFR 635). The contractor shall provide
all safeguards, safety devices and protective equipment and take
any other needed actions as it determines, or as the contracting
officer may determine, to be reasonably necessary to protect the
life and health of employees on the job and the safety of the
public and to protect property in connection with the performance
of the work covered by the contract.
2. It is a condition of this contract, and shall be made a condition
of each subcontract, which the contractor enters into pursuant to
this contract, that the contractor and any subcontractor shall not
permit any employee, in performance of the contract, to work in
surroundings or under conditions which are unsanitary, hazardous
or dangerous to his/her health or safety, as determined under
construction safety and health standards (29 CFR 1926)
promulgated by the Secretary of Labor, in accordance with
Section 107 of the Contract Work Hours and Safety Standards
Act (40 U.S.C. 3704).
3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that
the Secretary of Labor or authorized representative thereof, shall
have right of entry to any site of contract performance to inspect
or investigate the matter of compliance with the construction
safety and health standards and to carry out the duties of the
Secretary under Section 107 of the Contract Work Hours and
Safety Standards Act (40 U.S.C.3704).
VIII. FALSE STATEMENTS CONCERNING HIGHWAY
PROJECTS
This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts.
App-13
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, Form FHWA-
1022 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:
18 U.S.C. 1020 reads as follows:
"Whoever, being an officer, agent, or employee of the United
States, or of any State or Territory, or whoever, whether a person,
association, firm, or corporation, knowingly makes any false
statement, false representation, or false report as to the
character, quality, quantity, or cost of the material used or to be
used, or the quantity or quality of the work performed or to be
performed, or the cost thereof in connection with the submission
of plans, maps, specifications, contracts, or costs of construction
on any highway or related project submitted for approval to the
Secretary of Transportation; or
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the
character, quality, quantity, or cost of any work performed or to be
performed, or materials furnished or to be furnished, in connection
with the construction of any highway or related project approved
by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact in any statement, certificate, or
report submitted pursuant to provisions of the Federal-aid Roads
Act approved July 1, 1916, (39 Stat. 355), as amended and
supplemented;
Shall be fined under this title or imprisoned not more than 5
years or both."
IX. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL
WATER POLLUTION CONTROL ACT
This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts.
By submission of this bid/proposal or the execution of this
contract, or subcontract, as appropriate, the bidder, proposer,
Federal-aid construction contractor, or subcontractor, as
appropriate, will be deemed to have stipulated as follows:
1. That any person who is or will be utilized in the performance
of this contract is not prohibited from receiving an award due to a
violation of Section 508 of the Clean Water Act or Section 306 of
the Clean Air Act.
2. That the contractor agrees to include or cause to be included
the requirements of paragraph (1) of this Section X in every
subcontract, and further agrees to take such action as the
contracting agency may direct as a means of enforcing such
requirements.
X. CERTIFICATION REGARDING DEBARMENT,
SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION
This provision is applicable to all Federal-aid construction
contracts, design-build contracts, subcontracts, lower-tier
subcontracts, purchase orders, lease agreements, consultant
contracts or any other covered transaction requiring FHWA
approval or that is estimated to cost $25,000 or more – as
defined in 2 CFR Parts 180 and 1200.
1. Instructions for Certification – First Tier Participants:
a. By signing and submitting this proposal, the prospective first
tier 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 first tier 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 first tier 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 contracting agency
determined to enter into this transaction. If it is later determined
that the prospective participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal
Government, the contracting agency may terminate this
transaction for cause of default.
d. The prospective first tier participant shall provide immediate
written notice to the contracting agency to whom this proposal is
submitted if any time the prospective first tier 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," "participant," "person," "principal," and "voluntarily
excluded," as used in this clause, are defined in 2 CFR Parts 180
and 1200. “First Tier Covered Transactions” refers to any
covered transaction between a grantee or subgrantee of Federal
funds and a participant (such as the prime or general contract).
“Lower Tier Covered Transactions” refers to any covered
transaction under a First Tier Covered Transaction (such as
subcontracts). “First Tier Participant” refers to the participant who
has entered into a covered transaction with a grantee or
subgrantee of Federal funds (such as the prime or general
contractor). “Lower Tier Participant” refers any participant who
has entered into a covered transaction with a First Tier Participant
or other Lower Tier Participants (such as subcontractors and
suppliers).
f. The prospective first 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 entering into this transaction.
g. The prospective first tier 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 Transactions," provided
by the department or contracting agency, entering into this
covered transaction, without modification, in all lower tier covered
transactions and in all solicitations for lower tier covered
transactions exceeding the $25,000 threshold.
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 is responsible for
App-14
ensuring that its principals are not suspended, debarred, or
otherwise ineligible to participate in covered transactions. To
verify the eligibility of its principals, as well as the eligibility of any
lower tier prospective participants, each participant may, but is not
required to, check the Excluded Parties List System website
(https://www.epls.gov/), which is compiled by the General Services
Administration.
i. Nothing contained in the foregoing shall be construed to
require the establishment of a system of records in order to
render in good faith the certification required by this clause. The
knowledge and information of the prospective 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.
* * * * *
2. Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion – First Tier Participants:
a. The prospective first tier participant certifies to the best of its
knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from
participating in covered transactions by any Federal department
or agency;
(2) Have not within a three-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 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;
(3) 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
(a)(2) of this certification; and
(4) Have not within a three-year period preceding this
application/proposal had one or more public transactions
(Federal, State or local) terminated for cause or default.
b. Where the prospective participant is unable to certify to any
of the statements in this certification, such prospective participant
shall attach an explanation to this proposal.
2. Instructions for Certification - Lower Tier Participants:
(Applicable to all subcontracts, purchase orders and other lower
tier transactions requiring prior FHWA approval or estimated to
cost $25,000 or more - 2 CFR Parts 180 and 1200)
a. By signing and submitting this proposal, the prospective
lower tier is providing the certification set out below.
b. The certification in this clause is a material representation of
fact upon which reliance was placed when this transaction was
entered into. If it is later determined that the prospective lower tier
participant knowingly rendered an erroneous certification, in
addition to other remedies available to the Federal Government,
the department, or agency with which this transaction originated
may pursue available remedies, including suspension and/or
debarment.
c. The prospective lower tier participant shall provide
immediate written notice to the person to which this proposal is
submitted if at any time the prospective lower tier participant
learns that its certification was erroneous by reason of changed
circumstances.
d. The terms "covered transaction," "debarred," "suspended,"
"ineligible," "participant," "person," "principal," and "voluntarily
excluded," as used in this clause, are defined in 2 CFR Parts 180
and 1200. You may contact the person to which this proposal is
submitted for assistance in obtaining a copy of those regulations.
“First Tier Covered Transactions” refers to any covered
transaction between a grantee or subgrantee of Federal funds
and a participant (such as the prime or general contract). “Lower
Tier Covered Transactions” refers to any covered transaction
under a First Tier Covered Transaction (such as subcontracts).
“First Tier Participant” refers to the participant who has entered
into a covered transaction with a grantee or subgrantee of Federal
funds (such as the prime or general contractor). “Lower Tier
Participant” refers any participant who has entered into a covered
transaction with a First Tier Participant or other Lower Tier
Participants (such as subcontractors and suppliers).
e. The prospective lower tier participant agrees by submitting
this proposal that, should the proposed covered transaction be
entered into, it shall not knowingly enter into any lower tier
covered transaction with a person who is debarred, suspended,
declared ineligible, or voluntarily excluded from participation in
this covered transaction, unless authorized by the department or
agency with which this transaction originated.
f. The prospective lower tier participant further agrees by
submitting this proposal that it will include this 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 exceeding the
$25,000 threshold.
g. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that is not debarred, suspended, ineligible, or
voluntarily excluded from the covered transaction, unless it knows
that the certification is erroneous. A participant is responsible for
ensuring that its principals are not suspended, debarred, or
otherwise ineligible to participate in covered transactions. To
verify the eligibility of its principals, as well as the eligibility of any
lower tier prospective participants, each participant may, but is not
required to, check the Excluded Parties List System website
(https://www.epls.gov/), which is compiled by the General Services
Administration.
h. Nothing contained in the foregoing shall be construed to
require establishment of a system of records in order to render in
good faith the certification required by this clause. The knowledge
and information of participant is not required to exceed that which
is normally possessed by a prudent person in the ordinary course
of business dealings.
i. Except for transactions authorized under paragraph e of
these instructions, if a participant in a covered transaction
knowingly enters into a lower tier covered transaction with a
person who is suspended, debarred, ineligible, or voluntarily
excluded from participation in this transaction, in addition to other
remedies available to the Federal Government, the department or
agency with which this transaction originated may pursue
available remedies, including suspension and/or debarment.
* * * * *
App-15
Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion--Lower Tier Participants:
1. The prospective lower tier participant certifies, by submission
of this proposal, that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded from participating in covered
transactions by any Federal department or agency.
2. Where the prospective lower tier participant is unable to certify
to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
* * * * *
XI. CERTIFICATION REGARDING USE OF CONTRACT FUNDS
FOR LOBBYING
This provision is applicable to all Federal-aid construction
contracts and to all related subcontracts which exceed $100,000
(49 CFR 20).
1. The prospective participant certifies, by signing and submitting
this bid or proposal, to the best of his or her knowledge and belief,
that:
a. No Federal appropriated funds have been paid or will be
paid, by or on behalf of the undersigned, to any person for
influencing or attempting to influence an officer or employee of
any Federal agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress
in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
b. If any funds other than Federal appropriated funds have
been paid or will be paid to any person for influencing or
attempting to influence an officer or employee of any Federal
agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard
Form-LLL, "Disclosure Form to Report Lobbying," in accordance
with its instructions.
2. This certification is a material representation of fact upon
which reliance was placed when this transaction was made or
entered into. Submission of this certification is a prerequisite for
making or entering into this transaction imposed by 31 U.S.C.
1352. Any person who fails to file the required certification shall
be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure.
3. The prospective participant also agrees by submitting its bid
or proposal that the participant 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.