HomeMy WebLinkAboutOrd.5403.05-17-2021 BILL NO. 21-66 ORDINANCE NO. 541123
AN ORDINANCE AUTHORIZING THE CITY MANAGER TO
EXECUTE A TRANSPORTATION ALTERNATIVES PROGRAM
AGREEMENT WITH THE MISSOURI HIGHWAYS AND
TRANSPORTATION COMMISSION, FOR PEDESTRIAN
IMPROVEMENTS, IN THE CITY OF CAPE GIRARDEAU,
MISSOURI
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF CAPE GIRARDEAU,
MISSOURI, AS FOLLOWS :
ARTICLE 1 . The City Manager is hereby authorized and directed
to execute, on behalf of the City, a Transportation Alternative
Program Agreement (TAP-1501 (020) ) , with the Missouri Highways and
Transportation Commission for pedestrian improvements at the
intersection of US Highway 61, North Kingshighway, North Cape Rock
Drive, and Maria Louise Lane, in the City of Cape Girardeau,
Missouri. The City Clerk is hereby authorized and directed to
attest to said document and to affix the seal of the City thereto.
Said Agreement shall be in substantially the form attached hereto,
which document is hereby approved by the City Council, with such
changes therein as shall be approved by the officer of the City
executing the same .
ARTICLE 2 . This Ordinance shall be in full force and effect
ten days after its passage and approval.
PASSED AND APPROVED THIS 17TH DAY OF May , 2021 .
Bob Fox, ayor
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CCO Form: FS25
Approved: 04/95 (MGB)
Revised: 03/17 (MWH)
Modified:
CFDA Number: 20.205
CFDA Title: Highway Planning and Construction
Award name/number: TAP – 1501(020)
Award Year: 2021
Federal Agency: Federal Highway Administration, Department of Transportation
MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION
TRANSPORTATION ALTERNATIVES FUNDS
PROGRAM AGREEMENT
THIS AGREEMENT is entered into by the Missouri Highways and Transportation
Commission (hereinafter, "Commission") and City of Cape Girardeau (hereinafter, “City”).
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants, promises and
representations in this Agreement, the parties agree as follows:
(1) PURPOSE: The United States Congress has authorized, in Fixing
America’s Surface Transportation Act (FAST); 23 U.S.C. §101, §106 and §213;
SAFETEA-LU §1404 funds to be used for transportation alternatives activities. The
purpose of this Agreement is to grant the use of such transportation enhancement funds
to the City.
(2) LOCATION: The transportation alternatives funds which are the subject of
this Agreement are for the project at the following location:
Along US 61 from the north of US 61 & Kiwanis Drive intersection to
Kingsway Drive extending just east along North Cape Rock and west along
the north side of Kiwanis Drive to Maria Louise Lane then continuing along
the north side of Maria Louise Lane to the east entrance of the Cape
Girardeau Police Station.
The general location of the project is shown on attachment marked "Exhibit A" and
incorporated herein by reference.
(3) REASONABLE PROGRESS POLICY: The project as described in this
agreement is subject to the reasonable progress policy set forth in the Local Public
Agency (LPA) Manual and the final deadline specified in Exhibit B attached hereto and
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incorporated herein by reference. In the event, the LPA Manual and the final deadline
within Exhibit B conflict, the final deadline within Exhibit B controls. If the project is within
a Transportation Management Area that has a reasonable progress policy in place, the
project is subject to that policy. If the project is withdrawn for not meeting reasonable
progress, the City agrees to repay the Commission for any progress payments made to
the City for the project and agrees that the Commission may deduct progress payments
made to the City from future payments to the City. The City may not be eligible for future
Transportation Alternatives Funds if the City does not meet the reasonable progress
policy.
(4) INDEMNIFICATION:
(A) To the extent allowed or imposed by law, the City shall defend,
indemnify and hold harmless the Commission, including its members and the Missouri
Department of Transportation (MoDOT or Department) employees, from any claim or
liability whether based on a claim for damages to real or personal property or to a person
for any matter relating to or arising out of the City’s wrongful or negligent performance of
its obligations under this Agreement.
(B) The City will require any contractor procured by the City to work
under this Agreement:
1. To obtain a no cost permit from the Commission’s district
engineer prior to working on the Commission’s right-of-way, which shall be signed by an
authorized contractor representative (a permit from the Commission’s district engineer
will not be required for work outside of the Commission’s right-of-way); and
2. To carry commercial general liability insurance and
commercial automobile liability insurance from a company authorized to issue insurance
in Missouri, and to name the Commission, and MoDOT and its employees, as additional
named insureds in amounts sufficient to cover the sovereign immunity limits for Missouri
public entities as calculated by the Missouri Department of Insurance, Financial
Institutions and Professional Registration, and published annually in the Missouri Register
pursuant to Section 537.610, RSMo. The City shall cause insurer to increase the
insurance amounts in accordance with those published annually in the Missouri Register
pursuant to Section 537.610, RSMo.
(C) In no event shall the language of this Agreement constitute or be
construed as a waiver or limitation for either party’s rights or defenses with regard to each
party’s applicable sovereign, governmental, or official immunities and protections as
provided by federal and state constitution or law.
(5) AMENDMENTS: Any change in this Agreement, whether by modification
or supplementation, must be accomplished by a formal contract amendment signed and
approved by the duly authorized representatives of the City and the Commission.
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(6) COMMISSION REPRESENTATIVE: The Commission's District Engineer
is designated as the Commission's representative for the purpose of administering the
provisions of this Agreement. The Commission's representative may designate by written
notice other persons having the authority to act on behalf of the Commission in
furtherance of the performance of this Agreement.
(7) NONDISCRIMINATION ASSURANCE: With regard to work under this
Agreement, the City agrees as follows:
(A) Civil Rights Statutes: The City shall comply with all state and federal
statutes relating to nondiscrimination, including but not limited to Title VI and Title VII of
the Civil Rights Act of 1964, as amended (42 U.S.C. §2000d and §2000e, et seq.), as well
as any applicable titles of the "Americans with Disabilities Act" (42 U.S.C. §12101, et
seq.). In addition, if the City is providing services or operating programs on behalf of the
Department or the Commission, it shall comply with all applicable provisions of Title II of
the "Americans with Disabilities Act".
(B) Administrative Rules: The City shall comply with the administrative
rules of the United States Department of Transportation relative to nondiscrimination in
federally-assisted programs of the United States Department of Transportation (49 C.F.R.
Part 21) which are herein incorporated by reference and made part of this Agreement.
(C) Nondiscrimination: The City shall not discriminate on grounds of the
race, color, religion, creed, sex, disability, national origin, age or ancestry of any individual
in the selection and retention of subcontractors, including procurement of materials and
leases of equipment. The City shall not participate either directly or indirectly in the
discrimination prohibited by 49 C.F.R. §21.5, including employment practices.
(D) Solicitations for Subcontracts, Including Procurements of Material
and Equipment: These assurances concerning nondiscrimination also apply to
subcontractors and suppliers of the City. These apply to all solicitations either by
competitive bidding or negotiation made by the City for work to be performed under a
subcontract including procurement of materials or equipment. Each potential
subcontractor or supplier shall be notified by the City of the requirements of this
Agreement relative to nondiscrimination on grounds of the race, color, religion, creed,
sex, disability or national origin, age or ancestry of any individual.
(E) Information and Reports: The City shall provide all information and
reports required by this Agreement, or orders and instructions issued pursuant thereto,
and will permit access to its books, records, accounts, other sources of information, and
its facilities as may be determined by the Commission or the United States Department
of Transportation to be necessary to ascertain compliance with other contracts, orders
and instructions. Where any information required of the City is in the exclusive
possession of another who fails or refuses to furnish this information, the City shall so
certify to the Commission or the United States Department of Transportation as
appropriate and shall set forth what efforts it has made to obtain the information.
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(F) Sanctions for Noncompliance: In the event the City fails to comply
with the nondiscrimination provisions of this Agreement, the Commission shall impose
such contract sanctions as it or the United States Department of Transportation may
determine to be appropriate, including but not limited to:
1. Withholding of payments under this Agreement until the City
complies; and/or
2. Cancellation, termination or suspension of this Agreement, in
whole or in part, or both.
(G) Incorporation of Provisions: The City shall include the provisions of
paragraph (7) of this Agreement in every subcontract, including procurements of materials
and leases of equipment, unless exempted by the statutes, executive order,
administrative rules or instructions issued by the Commission or the United States
Department of Transportation. The City will take such action with respect to any
subcontract or procurement as the Commission or the United States Department of
Transportation may direct as a means of enforcing such provisions, including sanctions
for noncompliance; provided that in the event the City becomes involved or is threatened
with litigation with a subcontractor or supplier as a result of such direction, the City may
request the United States to enter into such litigation to protect the interests of the United
States.
(8) ASSIGNMENT: The City shall not assign, transfer or delegate any interest
in this Agreement without the prior written consent of the Commission.
(9) LAW OF MISSOURI TO GOVERN: This Agreement shall be construed
according to the laws of the State of Missouri. The City shall comply with all local, state
and federal laws and regulations relating to the performance of this Agreement.
(10) CANCELLATION: The Commission may cancel this Agreement at any time
for a material breach of contractual obligations by providing the City with written notice of
cancellation. Should the Commission exercise its right to cancel this Agreement for such
reasons, cancellation will become effective upon the date specified in the notice of
cancellation sent to the City.
(11) ACCESS TO RECORDS: The City and its contractors must maintain all
records relating to this Agreement, including but not limited to invoices, payrolls, etc.
These records must be available at no charge to the Federal Highway Administration
(FHWA) and the Commission and/or their designees or representatives during the period
of this Agreement and any extension, and for a period of three (3) years after the date on
which the City receives reimbursement of their final invoice from the Commission.
(12) FEDERAL-AID PROVISIONS: Because responsibility for the performance
of all functions or work contemplated as part of this project is assumed by the City, and
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the City may elect to construct part of the improvement contemplated by this Agreement
with its own forces, a copy of Section II and Section III, as contained in the United States
Department of Transportation Form Federal Highway Administration (FHWA) 1273
"Required Contract Provisions, Federal-Aid Construction Contracts," is attached and
made a part of this Agreement as Exhibit C. Wherever the term "the contractor" or words
of similar import appear in these sections, the term “the City” is to be substituted. The
City agrees to abide by and carry out the condition and obligations of "the contractor" as
stated in Section II, Equal Opportunity, and Section III, Nonsegregated Facilities, as set
out in Form FHWA 1273.
(13) ACQUISITION OF RIGHT OF WAY: With respect to the acquisition of right
of way necessary for the completion of the project, City shall acquire any additional
necessary right of way required for this project and in doing so agrees that it will comply
with all applicable federal laws, rules and regulations, including 42 U.S.C. 4601-4655, the
Uniform Relocation Assistance and Real Property Acquisition Act, as amended and any
regulations promulgated in connection with the Act.
(14) MAINTENANCE OF DEVELOPMENT: The City shall maintain the herein
contemplated improvements without any cost or expense to the Commission. All
maintenance by the City shall be done for the safety of the general public and the
esthetics of the area. In addition, if any sidewalk or bike trails are constructed on the
Commission's right-of-way pursuant to this Agreement, the City shall inspect and maintain
the sidewalk or bike trails constructed by this project in a condition reasonably safe to the
public and, to the extent allowed by law, shall indemnify and hold the Commission
harmless from any claims arising from the construction and maintenance of said sidewalk
or bike trails. If the City fails to maintain the herein contemplated improvements, the
Commission or its representatives, at the Commission's sole discretion shall notify the
City in writing of the City’s failure to maintain the improvement. If the City continues to
fail in maintaining the improvement, the Commission may remove the herein
contemplated improvement whether or not the improvement is located on the
Commission's right of way. Any removal by the Commission shall be at the sole cost and
expense of the City. Maintenance includes but is not limited to mowing and trimming
between shrubs and other plantings that are part of the improvement.
(15) PLANS: The City shall prepare preliminary and final plans and
specifications for the herein improvements. The plans and specifications shall be
submitted to the Commission for the Commission's review and approval. The
Commission has the discretion to require changes to any plans and specification prior to
any approval by the Commission.
(16) REIMBURSEMENT: The cost of the contemplated improvements will be
borne by the United States Government and by the City as follows:
(A) Any federal funds for project activities shall only be available for
reimbursement of eligible costs which have been incurred by City. Any costs incurred by
City prior to authorization from FHWA and notification to proceed from the Commission
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are not reimbursable costs. The federal share for this project will be 64 percent not to
exceed $257,291. The calculated federal share for seeking federal reimbursement of
participating costs for the herein improvements will be determined by dividing the total
federal funds applied to the project by the total participating costs. Any costs for the
herein improvements which exceed any federal reimbursement or are not eligible for
federal reimbursement shall be the sole responsibility of City. The Commission shall not
be responsible for any costs associated with the herein improvement unless specifically
identified in this Agreement or subsequent written amendments.
(17) PROGRESS PAYMENTS: The City may request progress payments be
made for the herein improvements as work progresses but not more than once every two
weeks. Progress payments must be submitted monthly. The City shall repay any
progress payments which involve ineligible costs.
(18) PROMPT PAYMENTS: Progress invoices submitted to MoDOT for
reimbursement more than thirty (30) calendar days after the date of the vendor invoice
shall also include documentation that the vendor was paid in full for the work identified in
the progress invoice. Examples of proof of payment may include a letter or e-mail from
the vendor, lien waiver or copies of cancelled checks. Reimbursement will not be made
on these submittals until proof of payment is provided. Progress invoices submitted to
MoDOT for reimbursement within thirty (30) calendar days of the date on the vendor
invoice will be processed for reimbursement without proof of payment to the vendor. If
the City has not paid the vendor prior to receiving reimbursement, the City must pay the
vendor within two (2) business days of receipt of funds from MoDOT.
(19) PERMITS: The City shall secure any necessary approvals or permits from
any federal or state agency as required for the completion of the herein improvements. If
this improvement is on the right of way of the Commission, the City must secure a permit
from the Commission prior to the start of any work on the right of way. The permits which
may be required include, but are not limited to, environmental, architectural, historical or
cultural requirements of federal or state law or regulation.
(20) INSPECTION OF IMPROVEMENTS AND RECORDS: The City shall
assure that representatives of the Commission and FHWA shall have the privilege of
inspecting and reviewing the work being done by the City’s contractor and subcontractor
on the herein project. The City shall also assure that its contractor, and all subcontractors,
if any, maintain all books, documents, papers and other evidence pertaining to costs
incurred in connection with the Transportation Enhancement Program Agreement, and
make such materials available at such contractor's office at all reasonable times at no
charge during this Agreement period, and for three (3) years from the date of final
payment under this Agreement, for inspection by the Commission, FHWA or any
authorized representatives of the Federal Government and the State of Missouri, and
copies shall be furnished, upon request, to authorized representatives of the Commission,
State, FHWA, or other Federal agencies.
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(21) CREDIT FOR DONATIONS OF FUNDS, MATERIALS, OR SERVICES: A
person may offer to donate funds, materials or services in connection with this project.
Any donated funds, or the fair market value of any donated materials or services that are
accepted and incorporated into this project shall be credited according to 23 U.S.C. §323.
(22) DISADVANTAGED BUSINESS ENTERPRISES (DBE): The Commission
will advise the City of any required goals for participation by disadvantaged business
enterprises (DBEs) to be included in the City’s proposal for the work to be performed.
The City shall submit for Commission approval a DBE goal or plan. The City shall comply
with the plan or goal that is approved by the Commission and all requirements of 49
C.F.R. Part 26, as amended.
(23) VENUE: It is agreed by the parties that any action at law, suit in equity, or
other judicial proceeding to enforce or construe this Agreement, or regarding its alleged
breach, shall be instituted only in the Circuit Court of Cole County, Missouri.
(24) NOTICE TO BIDDERS: The City shall notify the prospective bidders that
disadvantaged business enterprises shall be afforded full and affirmative opportunity to
submit bids in response to the invitation and will not be discriminated against on grounds
of race, color, sex, or national origin in consideration for an award.
(25) FINAL AUDIT: The Commission may, in its sole discretion, perform a final
audit of project costs. The United States Government shall reimburse the City, through
the Commission, any monies due. The City shall refund any overpayments as determined
by the final audit.
(26) OMB AUDIT: If the City expend(s) seven hundred fifty thousand dollars
($750,000) or more in a year in federal financial assistance it is required to have an
independent annual audit conducted in accordance with 2 CFR Part 200. A copy of the
audit report shall be submitted to MoDOT within the earlier of thirty (30) days after receipt
of the auditor's report(s), or nine (9) months after the end of the audit period. Subject to
the requirements of 2 CFR Part 200, if the City expend(s) less than seven hundred fifty
thousand dollars ($750,000) a year, the City may be exempt from auditing requirements
for that year but records must be available for review or audit by applicable state and
federal authorities.
(27) FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT OF
2006: The City shall comply with all reporting requirements of the Federal Funding
Accountability and Transparency Act (FFATA) of 2006, as amended. This Agreement is
subject to the award terms within 2 C.F.R. Part 170.
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IN WITNESS WHEREOF, the parties have entered into this Agreement on the date last
written below.
Executed by the City on ____________________________(DATE).
Executed by the Commission on _____________________(DATE).
MISSOURI HIGHWAYS AND
TRANSPORTATION COMMISSION CITY OF CAPE GIRARDEAU
By
Title Title
ATTEST: ATTEST:
By
Secretary to the Commission
Title
Approved as to Form: Approved as to Form:
Commission Counsel
Title __________________________
Ordinance No
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City Attorney
City Manager
2021-05-17 | 6:30 PM CDT
Deputy City Clerk
Assistant Chief Engineer
2021-06-07 | 12:11 PM CDT
Exhibit A - Location of Project
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Exhibit B – Project Schedule
Project Description: TAP-1501(020)
Along US 61 from the north of US 61 & Kiwanis Drive intersection to Kingsway Drive extending
just east along North Cape Rock and west along the north side of Kiwanis Drive to Maria Louise
Lane then continuing along the north side of Maria Louise Lane to the east entrance of the Cape
Girardeau Police Station. Improvements to the existing signalized intersection will include but
will not be limited to crosswalks, turn lanes, radius widening, islands, curb, ADA sidewalks, ADA
ramps, signal modifications, & lighting modifications.
Task Date
Date funding is made available or allocated to recipient 04/13/2021
Solicitation for Professional Engineering Services (advertised) Optional
Engineering Services Contract Approved 10/13/2021
Conceptual Study (if applicable) Optional
Preliminary and Right-of-Way Plans Submittal
(if Applicable)
04/13/2022
Plans, Specifications & Estimate (PS&E) Submittal 10/13/2022
Plans, Specifications & Estimate (PS&E) Approval 12/13/2022
Advertisement for Letting 01/13/2023
Bid Opening 02/13/2023
Construction Contract Award or Planning Study completed
(REQUIRED)
03/13/2023
*Note: the dates established in the schedule above will be used in the applicable ESC between the
sponsor agency and consultant firm.
**Schedule dates are approximate as the project schedule will be actively managed and issues
mitigated through the project delivery process. The Award Date or Planning Study Date
deliverable is not approximate and a Supplemental Agreement is required to modify this date.
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Exhibit C - Required Contract Provisions
Federal-Aid Construction Contracts
DRAFTER’S NOTE: Print Form 1273 from the following website and attach as
Exhibit C http://www.fhwa.dot.gov/programadmin/contracts/1273.pdf.
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.
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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.
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. Information
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.
DocuSign Envelope ID: 36385776-438B-4A13-AD59-0DFF68D9417D
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 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.
DocuSign Envelope ID: 36385776-438B-4A13-AD59-0DFF68D9417D
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 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.
DocuSign Envelope ID: 36385776-438B-4A13-AD59-0DFF68D9417D
(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
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.
DocuSign Envelope ID: 36385776-438B-4A13-AD59-0DFF68D9417D
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.
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.
DocuSign Envelope ID: 36385776-438B-4A13-AD59-0DFF68D9417D
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 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).
DocuSign Envelope ID: 36385776-438B-4A13-AD59-0DFF68D9417D
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.
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
DocuSign Envelope ID: 36385776-438B-4A13-AD59-0DFF68D9417D
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 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:
DocuSign Envelope ID: 36385776-438B-4A13-AD59-0DFF68D9417D
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.
* * * * *
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).
DocuSign Envelope ID: 36385776-438B-4A13-AD59-0DFF68D9417D
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.
ATTACHMENT A - EMPLOYMENT AND MATERIALS
PREFERENCE FOR APPALACHIAN DEVELOPMENT
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS
ROAD CONTRACTS
This provision is applicable to all Federal-aid projects funded under
the Appalachian Regional Development Act of 1965.
1. During the performance of this contract, the contractor
undertaking to do work which is, or reasonably may be, done as on-
site work, shall give preference to qualified persons who regularly
reside in the labor area as designated by the DOL wherein the contract
work is situated, or the subregion, or the Appalachian counties of the
State wherein the contract work is situated, except:
a. To the extent that qualified persons regularly residing in the area
are not available.
b. For the reasonable needs of the contractor to employ supervisory
or specially experienced personnel necessary to assure an efficient
execution of the contract work.
c. For the obligation of the contractor to offer employment to
present or former employees as the result of a lawful collective
bargaining contract, provided that the number of nonresident persons
employed under this subparagraph (1c) shall not exceed 20 percent of
the total number of employees employed by the contractor on the
contract work, except as provided in subparagraph (4) below.
2. The contractor shall place a job order with the State Employment
Service indicating (a) the classifications of the laborers, mechanics
and other employees required to perform the contract work, (b) the
number of employees required in each classification, (c) the date on
which the participant estimates such employees will be required, and
(d) any other pertinent information required by the State Employment
Service to complete the job order form. The job order may be placed
with the State Employment Service in writing or by telephone. If
during the course of the contract work, the information submitted by
the contractor in the original job order is substantially modified, the
participant shall promptly notify the State Employment Service.
3. The contractor shall give full consideration to all qualified job
applicants referred to him by the State Employment Service. The
contractor is not required to grant employment to any job applicants
who, in his opinion, are not qualified to perform the classification of
work required.
4. If, within one week following the placing of a job order by the
contractor with the State Employment Service, the State Employment
Service is unable to refer any qualified job applicants to the
contractor, or less than the number requested, the State Employment
Service will forward a certificate to the contractor indicating the
unavailability of applicants. Such certificate shall be made a part of
the contractor's permanent project records. Upon receipt of this
certificate, the contractor may employ persons who do not normally
reside in the labor area to fill positions covered by the certificate,
notwithstanding the provisions of subparagraph (1c) above.
5. The provisions of 23 CFR 633.207(e) allow the
contracting agency to provide a contractual preference for the use of
mineral resource materials native to the Appalachian region.
6. The contractor shall include the provisions of Sections 1 through 4
of this Attachment A in every subcontract for work which is, or
reasonably may be, done as on-site work.
DocuSign Envelope ID: 36385776-438B-4A13-AD59-0DFF68D9417D
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
CCO Form: FS25
Approved: 04/95 (MGB)
Revised: 03/17 (MWH)
Modified:
CFDA Number: 20.205
CFDA Title: Highway Planning and Construction
Award name/number: TAP — 1501(020)
Award Year: 2021
Federal Agency: Federal Highway Administration, Department of Transportation
MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION
TRANSPORTATION ALTERNATIVES FUNDS
PROGRAM AGREEMENT
THIS AGREEMENT is entered into by the Missouri Highways and Transportation
Commission (hereinafter, "Commission") and City of Cape Girardeau (hereinafter, "City").
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants, promises and
representations in this Agreement, the parties agree as follows:
(1) PURPOSE: The United States Congress has authorized, in Fixing
America's Surface Transportation Act (FAST); 23 U.S.C. §101, §106 and §213;
SAFETEA-LU §1404 funds to be used for transportation alternatives activities. The
purpose of this Agreement is to grant the use of such transportation enhancement funds
to the City.
(2) LOCATION: The transportation alternatives funds which are the subject of
this Agreement are for the project at the following location:
Along US 61 from the north of US 61 & Kiwanis Drive intersection to
Kingsway Drive extending just east along North Cape Rock and west along
the north side of Kiwanis Drive to Maria Louise Lane then continuing along
the north side of Maria Louise Lane to the east entrance of the Cape
Girardeau Police Station.
The general location of the project is shown on attachment marked "Exhibit A" and
incorporated herein by reference.
(3) REASONABLE PROGRESS POLICY: The project as described in this
agreement is subject to the reasonable progress policy set forth in the Local Public
Agency (LPA) Manual and the final deadline specified in Exhibit B attached hereto and
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
incorporated herein by reference. In the event, the LPA Manual and the final deadline
within Exhibit B conflict, the final deadline within Exhibit B controls. If the project is within
a Transportation Management Area that has a reasonable progress policy in place, the
project is subject to that policy. If the project is withdrawn for not meeting reasonable
progress, the City agrees to repay the Commission for any progress payments made to
the City for the project and agrees that the Commission may deduct progress payments
made to the City from future payments to the City. The City may not be eligible for future
Transportation Alternatives Funds if the City does not meet the reasonable progress
policy.
(4) INDEMNIFICATION:
(A) To the extent allowed or imposed by law, the City shall defend,
indemnify and hold harmless the Commission, including its members and the Missouri
Department of Transportation (MoDOT or Department) employees, from any claim or
liability whether based on a claim for damages to real or personal property or to a person
for any matter relating to or arising out of the City's wrongful or negligent performance of
its obligations under this Agreement.
(B) The City will require any contractor procured by the City to work
under this Agreement:
1. To obtain a no cost permit from the Commission's district
engineer prior to working on the Commission's right-of-way, which shall be signed by an
authorized contractor representative (a permit from the Commission's district engineer
will not be required for work outside of the Commission's right-of-way); and
2. To carry commercial general liability insurance and
commercial automobile liability insurance from a company authorized to issue insurance
in Missouri, and to name the Commission, and MoDOT and its employees, as additional
named insureds in amounts sufficient to cover the sovereign immunity limits for Missouri
public entities as calculated by the Missouri Department of Insurance, Financial
Institutions and Professional Registration, and published annually in the Missouri Register
pursuant to Section 537.610, RSMo. The City shall cause insurer to increase the
insurance amounts in accordance with those published annually in the Missouri Register
pursuant to Section 537.610, RSMo.
(C) In no event shall the language of this Agreement constitute or be
construed as a waiver or limitation for either party's rights or defenses with regard to each
party's applicable sovereign, governmental, or official immunities and protections as
provided by federal and state constitution or law.
(5) AMENDMENTS: Any change in this Agreement, whether by modification
or supplementation, must be accomplished by a formal contract amendment signed and
approved by the duly authorized representatives of the City and the Commission.
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
(6) COMMISSION REPRESENTATIVE: The Commission's District Engineer
is designated as the Commission's representative for the purpose of administering the
provisions of this Agreement. The Commission's representative may designate by written
notice other persons having the authority to act on behalf of the Commission in
furtherance of the performance of this Agreement.
(7) NONDISCRIMINATION ASSURANCE: With regard to work under this
Agreement, the City agrees as follows:
(A) Civil Rights Statutes: The City shall comply with all state and federal
statutes relating to nondiscrimination, including but not limited to Title VI and Title VII of
the Civil Rights Act of 1964, as amended (42 U.S.C. §2000d and §2000e, et seq.), as well
as any applicable titles of the "Americans with Disabilities Act" (42 U.S.C. §12101, et
seq.). In addition, if the City is providing services or operating programs on behalf of the
Department or the Commission, it shall comply with all applicable provisions of Title II of
the "Americans with Disabilities Act".
(B) Administrative Rules: The City shall comply with the administrative
rules of the United States Department of Transportation relative to nondiscrimination in
federally -assisted programs of the United States Department of Transportation (49 C.F.R.
Part 21) which are herein incorporated by reference and made part of this Agreement.
(C) Nondiscrimination: The City shall not discriminate on grounds of the
race, color, religion, creed, sex, disability, national origin, age or ancestry of any individual
in the selection and retention of subcontractors, including procurement of materials and
leases of equipment. The City shall not participate either directly or indirectly in the
discrimination prohibited by 49 C.F.R. §21.5, including employment practices.
(D) Solicitations for Subcontracts, Including Procurements of Material
and Equipment: These assurances concerning nondiscrimination also apply to
subcontractors and suppliers of the City. These apply to all solicitations either by
competitive bidding or negotiation made by the City for work to be performed under a
subcontract including procurement of materials or equipment. Each potential
subcontractor or supplier shall be notified by the City of the requirements of this
Agreement relative to nondiscrimination on grounds of the race, color, religion, creed,
sex, disability or national origin, age or ancestry of any individual.
(E) Information and Reports: The City shall provide all information and
reports required by this Agreement, or orders and instructions issued pursuant thereto,
and will permit access to its books, records, accounts, other sources of information, and
its facilities as may be determined by the Commission or the United States Department
of Transportation to be necessary to ascertain compliance with other contracts, orders
and instructions. Where any information required of the City is in the exclusive
possession of another who fails or refuses to furnish this information, the City shall so
certify to the Commission or the United States Department of Transportation as
appropriate and shall set forth what efforts it has made to obtain the information.
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
(F) Sanctions for Noncompliance: In the event the City fails to comply
with the nondiscrimination provisions of this Agreement, the Commission shall impose
such contract sanctions as it or the United States Department of Transportation may
determine to be appropriate, including but not limited to:
Withholding of payments under this Agreement until the City
complies; and/or
2. Cancellation, termination or suspension of this Agreement, in
whole or in part, or both.
(G) Incorporation of Provisions: The City shall include the provisions of
paragraph (7) of this Agreement in every subcontract, including procurements of materials
and leases of equipment, unless exempted by the statutes, executive order,
administrative rules or instructions issued by the Commission or the United States
Department of Transportation. The City will take such action with respect to any
subcontract or procurement as the Commission or the United States Department of
Transportation may direct as a means of enforcing such provisions, including sanctions
for noncompliance; provided that in the event the City becomes involved or is threatened
with litigation with a subcontractor or supplier as a result of such direction, the City may
request the United States to enter into such litigation to protect the interests of the United
States.
(8) ASSIGNMENT: The City shall not assign, transfer or delegate any interest
in this Agreement without the prior written consent of the Commission.
(9) LAW OF MISSOURI TO GOVERN: This Agreement shall be construed
according to the laws of the State of Missouri. The City shall comply with all local, state
and federal laws and regulations relating to the performance of this Agreement.
(10) CANCELLATION: The Commission may cancel this Agreement at any time
for a material breach of contractual obligations by providing the City with written notice of
cancellation. Should the Commission exercise its right to cancel this Agreement for such
reasons, cancellation will become effective upon the date specified in the notice of
cancellation sent to the City.
(11) ACCESS TO RECORDS: The City and its contractors must maintain all
records relating to this Agreement, including but not limited to invoices, payrolls, etc.
These records must be available at no charge to the Federal Highway Administration
(FHWA) and the Commission and/or their designees or representatives during the period
of this Agreement and any extension, and for a period of three (3) years after the date on
which the City receives reimbursement of their final invoice from the Commission.
(12) FEDERAL -AID PROVISIONS: Because responsibility for the performance
of all functions or work contemplated as part of this project is assumed by the City, and
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
the City may elect to construct part of the improvement contemplated by this Agreement
with its own forces, a copy of Section II and Section III, as contained in the United States
Department of Transportation Form Federal Highway Administration (FHWA) 1273
"Required Contract Provisions, Federal -Aid Construction Contracts," is attached and
made a part of this Agreement as Exhibit C. Wherever the term "the contractor" or words
of similar import appear in these sections, the term "the City" is to be substituted. The
City agrees to abide by and carry out the condition and obligations of "the contractor" as
stated in Section II, Equal Opportunity, and Section III, Nonsegregated Facilities, as set
out in Form FHWA 1273.
(13) ACQUISITION OF RIGHT OF WAY: With respect to the acquisition of right
of way necessary for the completion of the project, City shall acquire any additional
necessary right of way required for this project and in doing so agrees that it will comply
with all applicable federal laws, rules and regulations, including 42 U.S.C. 4601-4655, the
Uniform Relocation Assistance and Real Property Acquisition Act, as amended and any
regulations promulgated in connection with the Act.
(14) MAINTENANCE OF DEVELOPMENT: The City shall maintain the herein
contemplated improvements without any cost or expense to the Commission. All
maintenance by the City shall be done for the safety of the general public and the
esthetics of the area. In addition, if any sidewalk or bike trails are constructed on the
Commission's right-of-way pursuant to this Agreement, the City shall inspect and maintain
the sidewalk or bike trails constructed by this project in a condition reasonably safe to the
public and, to the extent allowed by law, shall indemnify and hold the Commission
harmless from any claims arising from the construction and maintenance of said sidewalk
or bike trails. If the City fails to maintain the herein contemplated improvements, the
Commission or its representatives, at the Commission's sole discretion shall notify the
City in writing of the City's failure to maintain the improvement. If the City continues to
fail in maintaining the improvement, the Commission may remove the herein
contemplated improvement whether or not the improvement is located on the
Commission's right of way. Any removal by the Commission shall be at the sole cost and
expense of the City. Maintenance includes but is not limited to mowing and trimming
between shrubs and other plantings that are part of the improvement.
(15) PLANS: The City shall prepare preliminary and final plans and
specifications for the herein improvements. The plans and specifications shall be
submitted to the Commission for the Commission's review and approval. The
Commission has the discretion to require changes to any plans and specification prior to
any approval by the Commission.
(16) REIMBURSEMENT: The cost of the contemplated improvements will be
borne by the United States Government and by the City as follows:
(A) Any federal funds for project activities shall only be available for
reimbursement of eligible costs which have been incurred by City. Any costs incurred by
City prior to authorization from FHWA and notification to proceed from the Commission
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
are not reimbursable costs. The federal share for this project will be 64 percent not to
exceed $257,291. The calculated federal share for seeking federal reimbursement of
participating costs for the herein improvements will be determined by dividing the total
federal funds applied to the project by the total participating costs. Any costs for the
herein improvements which exceed any federal reimbursement or are not eligible for
federal reimbursement shall be the sole responsibility of City. The Commission shall not
be responsible for any costs associated with the herein improvement unless specifically
identified in this Agreement or subsequent written amendments.
(17) PROGRESS PAYMENTS: The City may request progress payments be
made for the herein improvements as work progresses but not more than once every two
weeks. Progress payments must be submitted monthly. The City shall repay any
progress payments which involve ineligible costs.
(18) PROMPT PAYMENTS: Progress invoices submitted to MoDOT for
reimbursement more than thirty (30) calendar days after the date of the vendor invoice
shall also include documentation that the vendor was paid in full for the work identified in
the progress invoice. Examples of proof of payment may include a letter or e-mail from
the vendor, lien waiver or copies of cancelled checks. Reimbursement will not be made
on these submittals until proof of payment is provided. Progress invoices submitted to
MoDOT for reimbursement within thirty (30) calendar days of the date on the vendor
invoice will be processed for reimbursement without proof of payment to the vendor. If
the City has not paid the vendor prior to receiving reimbursement, the City must pay the
vendor within two (2) business days of receipt of funds from MoDOT.
(19) PERMITS: The City shall secure any necessary approvals or permits from
any federal or state agency as required for the completion of the herein improvements. If
this improvement is on the right of way of the Commission, the City must secure a permit
from the Commission prior to the start of any work on the right of way. The permits which
may be required include, but are not limited to, environmental, architectural, historical or
cultural requirements of federal or state law or regulation.
(20) INSPECTION OF IMPROVEMENTS AND RECORDS: The City shall
assure that representatives of the Commission and FHWA shall have the privilege of
inspecting and reviewing the work being done by the City's contractor and subcontractor
on the herein project. The City shall also assure that its contractor, and all subcontractors,
if any, maintain all books, documents, papers and other evidence pertaining to costs
incurred in connection with the Transportation Enhancement Program Agreement, and
make such materials available at such contractor's office at all reasonable times at no
charge during this Agreement period, and for three (3) years from the date of final
payment under this Agreement, for inspection by the Commission, FHWA or any
authorized representatives of the Federal Government and the State of Missouri, and
copies shall be furnished, upon request, to authorized representatives of the Commission,
State, FHWA, or other Federal agencies.
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
(21) CREDIT FOR DONATIONS OF FUNDS, MATERIALS, OR SERVICES: A
person may offer to donate funds, materials or services in connection with this project.
Any donated funds, or the fair market value of any donated materials or services that are
accepted and incorporated into this project shall be credited according to 23 U.S.C. §323.
(22) DISADVANTAGED BUSINESS ENTERPRISES (DBE): The Commission
will advise the City of any required goals for participation by disadvantaged business
enterprises (DBEs) to be included in the City's proposal for the work to be performed.
The City shall submit for Commission approval a DBE goal or plan. The City shall comply
with the plan or goal that is approved by the Commission and all requirements of 49
C.F.R. Part 26, as amended.
(23) VENUE: It is agreed by the parties that any action at law, suit in equity, or
other judicial proceeding to enforce or construe this Agreement, or regarding its alleged
breach, shall be instituted only in the Circuit Court of Cole County, Missouri.
(24) NOTICE TO BIDDERS: The City shall notify the prospective bidders that
disadvantaged business enterprises shall be afforded full and affirmative opportunity to
submit bids in response to the invitation and will not be discriminated against on grounds
of race, color, sex, or national origin in consideration for an award.
(25) FINAL AUDIT: The Commission may, in its sole discretion, perform a final
audit of project costs. The United States Government shall reimburse the City, through
the Commission, any monies due. The City shall refund any overpayments as determined
by the final audit.
(26) OMB AUDIT: If the City expend(s) seven hundred fifty thousand dollars
($750,000) or more in a year in federal financial assistance it is required to have an
independent annual audit conducted in accordance with 2 CFR Part 200. A copy of the
audit report shall be submitted to MoDOT within the earlier of thirty (30) days after receipt
of the auditor's report(s), or nine (9) months after the end of the audit period. Subject to
the requirements of 2 CFR Part 200, if the City expend(s) less than seven hundred fifty
thousand dollars ($750,000) a year, the City may be exempt from auditing requirements
for that year but records must be available for review or audit by applicable state and
federal authorities.
(27) FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT OF
2006: The City shall comply with all reporting requirements of the Federal Funding
Accountability and Transparency Act (FFATA) of 2006, as amended. This Agreement is
subject to the award terms within 2 C.F.R. Part 170.
[Remainder of Page Intentionally Left Blank]
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
IN WITNESS WHEREOF, the parties have entered into this Agreement on the date last
written below.
2021-05-17 1 6:30 PM CDT
Executed by the City on (DATE).
Executed by the Commission on
MISSOURI HIGHWAYS AND
TRANSPORTATION COMMISSION
Lf
uSigned by: -I-6 f. Sdu atr
Title Assistant Chief Engineer
ATTEST:
DocuSigned by:
Secretary to the Commission
Approved as to Form:
LDocuSignedJJby:
Tuan s� ZIJ�P.vr,
Commission Counsel
2021-06-07
12:11 PM CDT (DATE).
CITY OF CAPE GIRARDEAU
DocuSigned by:
By SCR
Title C'ty Manager
ATTEST:
DocuSigned by:
B
Y
Title Deputy City Clerk
Approved as to Form:
DocuSigned by:
€816468...
Title city Attorney
Ordinance No ,rj
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
Exhibit A - Location of Project
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PRELIMINARY CONCEPT
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CITY OF CAPE GIRARDEAU - 2429 TAP GRANT APPLICATION 140 70 0 140 Feet
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401 Independence Street Cape Girardeau, MO 63703 (573) 339-6327 I Tel (573) 339-6303 I Fax
w w.cilycfcapegirardeau.orglde elopment
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
Exhibit B — Project Schedule
Project Description: TAP -1501(020)
Along US 61 from the north of US 61 & Kiwanis Drive intersection to Kingsway Drive extending
just east along North Cape Rock and west along the north side of Kiwanis Drive to Maria Louise
Lane then continuing along the north side of Maria Louise Lane to the east entrance of the Cape
Girardeau Police Station. Improvements to the existing signalized intersection will include but
will not be limited to crosswalks, turn lanes, radius widening, islands, curb, ADA sidewalks, ADA
ramps, signal modifications, & lighting modifications.
Task
Date
Date funding is made available or allocated to recipient
04/13/2021
Solicitation for Professional Engineering Services advertised
Optional
Engineering Services Contract Approved
10/13/2021
Conceptual Stud if applicable)
Optional
Preliminary and Right -of -Way Plans Submittal
if Applicable)
04/13/2022
Plans, Specifications & Estimate PS&E Submittal
10/13/2022
Plans, Specifications & Estimate PS&E Approval
12/13/2022
Advertisement for Letting
01/13/2023
Bid Opening
02/13/2023
Construction Contract Award or Planning Study completed
(REQUIRED)
03/13/2023
*Note: the dates established in the schedule above will be used in the applicable ESC between the
sponsor agency and consultant firm.
**Schedule dates are approximate as the project schedule will be actively managed and issues
mitigated through the project delivery process. The Award Date or Planning Study Date
deliverable is not approximate and a Supplemental Agreement is required to modify this date.
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
Exhibit C - Required Contract Provisions
Federal -Aid Construction Contracts
DRAFTER'S NOTE: Print Form 1273 from the following website and attach as
Exhibit C http.//www.fhwa.dot.gov/programadmin/contracts/1273.pdf.
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
VH. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
Df. 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).
FHWA-1273 -- Revised May 1, 2012
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.
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
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.
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. Information
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.
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
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.
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.
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.
The contractor is to obtain information as to the referral practices
and policies of the labor union except that to the extent such
information is within the exclusive possession of the labor union and
such labor union refuses to furnish such information to the contractor,
the contractor shall so certify to the 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):
The requirements of 49 CFR Part 26 and the State DOT's
U.S. DOT -approved DBE program are incorporated by reference.
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.
DocuSign Envelope ID: 36385776-4388-4A13-AD59-ODFF68D9417D
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 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.
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(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
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.
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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.
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.
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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
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 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).
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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.
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
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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 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 (hgps://www.epls.ggv/), 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:
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
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 (lis://www.epts.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.
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).
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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.
ATTACHMENT A - EMPLOYMENT AND MATERIALS
PREFERENCE FOR APPALACHIAN DEVELOPMENT
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS
ROAD CONTRACTS
This provision is applicable to all Federal -aid projects funded under
the Appalachian Regional Development Act of 1965.
1. During the performance of this contract, the contractor
undertaking to do work which is, or reasonably may be, done as on-
site work, shall give preference to qualified persons who regularly
reside in the labor area as designated by the DOL wherein the contract
work is situated, or the subregion, or the Appalachian counties of the
State wherein the contract work is situated, except:
a. To the extent that qualified persons regularly residing in the area
are not available.
b. For the reasonable needs of the contractor to employ supervisory
or specially experienced personnel necessary to assure an efficient
execution of the contract work.
c. For the obligation of the contractor to offer employment to
present or former employees as the result of a lawful collective
bargaining contract, provided that the number of nonresident persons
employed under this subparagraph (lc) shall not exceed 20 percent of
the total number of employees employed by the contractor on the
contract work, except as provided in subparagraph (4) below.
2. The contractor shall place a job order with the State Employment
Service indicating (a) the classifications of the laborers, mechanics
and other employees required to perform the contract work, (b) the
number of employees required in each classification, (c) the date on
which the participant estimates such employees will be required, and
(d) any other pertinent information required by the State Employment
Service to complete the job order form. The job order maybe placed
with the State Employment Service in writing or by telephone. If
during the course of the contract work, the information submitted by
the contractor in the original job order is substantially modified, the
participant shall promptly notify the State Employment Service.
3. The contractor shall give full consideration to all qualified job
applicants referred to him by the State Employment Service. The
contractor is not required to grant employment to any job applicants
who, in his opinion, are not qualified to perform the classification of
work required.
4. If, within one week following the placing of a job order by the
contractor with the State Employment Service, the State Employment
Service is unable to refer any qualified job applicants to the
contractor, or less than the number requested, the State Employment
Service will forward a certificate to the contractor indicating the
unavailability of applicants. Such certificate shall be made a part of
the contractor's permanent project records, Upon receipt of this
certificate, the contractor may employ persons who do not normally
reside in the labor area to fill positions covered by the certificate,
notwithstanding the provisions of subparagraph (1 c) above.
5. The provisions of 23 CFR 633.207(e) allow the
contracting agency to provide a contractual preference for the use of
mineral resource materials native to the Appalachian region.
6. The contractor shall include the provisions of Sections 1 through 4
of this Attachment A in every subcontract for work which is, or
reasonably may be, done as on-site work.
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CCO Form: FS25
Approved: 04/95 (MGB)
Revised: 03/17 (MWH)
Modified:
CFDA Number: 20.205
CFDA Title: Highway Planning and Construction
Award name/number: TAP — 1501(020)
Award Year: 2021
Federal Agency: Federal Highway Administration, Department of Transportation
MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION
TRANSPORTATION ALTERNATIVES FUNDS
PROGRAM AGREEMENT
THIS AGREEMENT is entered into by the Missouri Highways and Transportation
Commission (hereinafter, "Commission") and City of Cape Girardeau (hereinafter, "City").
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants, promises and
representations in this Agreement, the parties agree as follows:
(1) PURPOSE: The United States Congress has authorized, in Fixing
America's Surface Transportation Act (FAST); 23 U.S.C. §101, §106 and §213;
SAFETEA-LU §1404 funds to be used for transportation alternatives activities. The
purpose of this Agreement is to grant the use of such transportation enhancement funds
to the City.
(2) LOCATION: The transportation alternatives funds which are the subject of
this Agreement are for the project at the following location:
Along US 61 from the north of US 61 & Kiwanis Drive intersection to
Kingsway Drive extending just east along North Cape Rock and west along
the north side of Kiwanis Drive to Maria Louise Lane then continuing along
the north side of Maria Louise Lane to the east entrance of the Cape
Girardeau Police Station.
The general location of the project is shown on attachment marked "Exhibit A" and
incorporated herein by reference.
(3) REASONABLE PROGRESS POLICY: The project as described in this
agreement is subject to the reasonable progress policy set forth in the Local Public
Agency (LPA) Manual and the final deadline specified in Exhibit B attached hereto and
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incorporated herein by reference. In the event, the LPA Manual and the final deadline
within Exhibit B conflict, the final deadline within Exhibit B controls. If the project is within
a Transportation Management Area that has a reasonable progress policy in place, the
project is subject to that policy. If the project is withdrawn for not meeting reasonable
progress, the City agrees to repay the Commission for any progress payments made to
the City for the project and agrees that the Commission may deduct progress payments
made to the City from future payments to the City. The City may not be eligible for future
Transportation Alternatives Funds if the City does not meet the reasonable progress
policy.
(4) INDEMNIFICATION:
(A) To the extent allowed or imposed by law, the City shall defend,
indemnify and hold harmless the Commission, including its members and the Missouri
Department of Transportation (MoDOT or Department) employees, from any claim or
liability whether based on a claim for damages to real or personal property or to a person
for any matter relating to or arising out of the City's wrongful or negligent performance of
its obligations under this Agreement.
(B) The City will require any contractor procured by the City to work
under this Agreement:
1. To obtain a no cost permit from the Commission's district
engineer prior to working on the Commission's right-of-way, which shall be signed by an
authorized contractor representative (a permit from the Commission's district engineer
will not be required for work outside of the Commission's right-of-way); and
2. To carry commercial general liability insurance and
commercial automobile liability insurance from a company authorized to issue insurance
in Missouri, and to name the Commission, and MoDOT and its employees, as additional
named insureds in amounts sufficient to cover the sovereign immunity limits for Missouri
public entities as calculated by the Missouri Department of Insurance, Financial
Institutions and Professional Registration, and published annually in the Missouri Register
pursuant to Section 537.610, RSMo. The City shall cause insurer to increase the
insurance amounts in accordance with those published annually in the Missouri Register
pursuant to Section 537.610, RSMo.
(C) In no event shall the language of this Agreement constitute or be
construed as a waiver or limitation for either party's rights or defenses with regard to each
party's applicable sovereign, governmental, or official immunities and protections as
provided by federal and state constitution or law.
(5) AMENDMENTS: Any change in this Agreement, whether by modification
or supplementation, must be accomplished by a formal contract amendment signed and
approved by the duly authorized representatives of the City and the Commission.
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(6) COMMISSION REPRESENTATIVE: The Commission's District Engineer
is designated as the Commission's representative for the purpose of administering the
provisions of this Agreement. The Commission's representative may designate by written
notice other persons having the authority to act on behalf of the Commission in
furtherance of the performance of this Agreement.
(7) NONDISCRIMINATION ASSURANCE: With regard to work under this
Agreement, the City agrees as follows:
(A) Civil Rights Statutes: The City shall comply with all state and federal
statutes relating to nondiscrimination, including but not limited to Title VI and Title VII of
the Civil Rights Act of 1964, as amended (42 U.S.C. §2000d and §2000e, et seq.), as well
as any applicable titles of the "Americans with Disabilities Act" (42 U.S.C. §12101, et
seq.). In addition, if the City is providing services or operating programs on behalf of the
Department or the Commission, it shall comply with all applicable provisions of Title II of
the "Americans with Disabilities Act".
(B) Administrative Rules: The City shall comply with the administrative
rules of the United States Department of Transportation relative to nondiscrimination in
federally -assisted programs of the United States Department of Transportation (49 C.F.R.
Part 21) which are herein incorporated by reference and made part of this Agreement.
(C) Nondiscrimination: The City shall not discriminate on grounds of the
race, color, religion, creed, sex, disability, national origin, age or ancestry of any individual
in the selection and retention of subcontractors, including procurement of materials and
leases of equipment. The City shall not participate either directly or indirectly in the
discrimination prohibited by 49 C.F.R. §21.5, including employment practices.
(D) Solicitations for Subcontracts, Including Procurements of Material
and Equipment: These assurances concerning nondiscrimination also apply to
subcontractors and suppliers of the City. These apply to all solicitations either by
competitive bidding or negotiation made by the City for work to be performed under a
subcontract including procurement of materials or equipment. Each potential
subcontractor or supplier shall be notified by the City of the requirements of this
Agreement relative to nondiscrimination on grounds of the race, color, religion, creed,
sex, disability or national origin, age or ancestry of any individual.
(E) Information and Reports: The City shall provide all information and
reports required by this Agreement, or orders and instructions issued pursuant thereto,
and will permit access to its books, records, accounts, other sources of information, and
its facilities as may be determined by the Commission or the United States Department
of Transportation to be necessary to ascertain compliance with other contracts, orders
and instructions. Where any information required of the City is in the exclusive
possession of another who fails or refuses to furnish this information, the City shall so
certify to the Commission or the United States Department of Transportation as
appropriate and shall set forth what efforts it has made to obtain the information.
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(F) Sanctions for Noncompliance: In the event the City fails to comply
with the nondiscrimination provisions of this Agreement, the Commission shall impose
such contract sanctions as it or the United States Department of Transportation may
determine to be appropriate, including but not limited to:
Withholding of payments under this Agreement until the City
complies; and/or
2. Cancellation, termination or suspension of this Agreement, in
whole or in part, or both.
(G) Incorporation of Provisions: The City shall include the provisions of
paragraph (7) of this Agreement in every subcontract, including procurements of materials
and leases of equipment, unless exempted by the statutes, executive order,
administrative rules or instructions issued by the Commission or the United States
Department of Transportation. The City will take such action with respect to any
subcontract or procurement as the Commission or the United States Department of
Transportation may direct as a means of enforcing such provisions, including sanctions
for noncompliance; provided that in the event the City becomes involved or is threatened
with litigation with a subcontractor or supplier as a result of such direction, the City may
request the United States to enter into such litigation to protect the interests of the United
States.
(8) ASSIGNMENT: The City shall not assign, transfer or delegate any interest
in this Agreement without the prior written consent of the Commission.
(9) LAW OF MISSOURI TO GOVERN: This Agreement shall be construed
according to the laws of the State of Missouri. The City shall comply with all local, state
and federal laws and regulations relating to the performance of this Agreement.
(10) CANCELLATION: The Commission may cancel this Agreement at any time
for a material breach of contractual obligations by providing the City with written notice of
cancellation. Should the Commission exercise its right to cancel this Agreement for such
reasons, cancellation will become effective upon the date specified in the notice of
cancellation sent to the City.
(11) ACCESS TO RECORDS: The City and its contractors must maintain all
records relating to this Agreement, including but not limited to invoices, payrolls, etc.
These records must be available at no charge to the Federal Highway Administration
(FHWA) and the Commission and/or their designees or representatives during the period
of this Agreement and any extension, and for a period of three (3) years after the date on
which the City receives reimbursement of their final invoice from the Commission.
(12) FEDERAL -AID PROVISIONS: Because responsibility for the performance
of all functions or work contemplated as part of this project is assumed by the City, and
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the City may elect to construct part of the improvement contemplated by this Agreement
with its own forces, a copy of Section II and Section III, as contained in the United States
Department of Transportation Form Federal Highway Administration (FHWA) 1273
"Required Contract Provisions, Federal -Aid Construction Contracts," is attached and
made a part of this Agreement as Exhibit C. Wherever the term "the contractor" or words
of similar import appear in these sections, the term "the City" is to be substituted. The
City agrees to abide by and carry out the condition and obligations of "the contractor" as
stated in Section II, Equal Opportunity, and Section III, Nonsegregated Facilities, as set
out in Form FHWA 1273.
(13) ACQUISITION OF RIGHT OF WAY: With respect to the acquisition of right
of way necessary for the completion of the project, City shall acquire any additional
necessary right of way required for this project and in doing so agrees that it will comply
with all applicable federal laws, rules and regulations, including 42 U.S.C. 4601-4655, the
Uniform Relocation Assistance and Real Property Acquisition Act, as amended and any
regulations promulgated in connection with the Act.
(14) MAINTENANCE OF DEVELOPMENT: The City shall maintain the herein
contemplated improvements without any cost or expense to the Commission. All
maintenance by the City shall be done for the safety of the general public and the
esthetics of the area. In addition, if any sidewalk or bike trails are constructed on the
Commission's right-of-way pursuant to this Agreement, the City shall inspect and maintain
the sidewalk or bike trails constructed by this project in a condition reasonably safe to the
public and, to the extent allowed by law, shall indemnify and hold the Commission
harmless from any claims arising from the construction and maintenance of said sidewalk
or bike trails. If the City fails to maintain the herein contemplated improvements, the
Commission or its representatives, at the Commission's sole discretion shall notify the
City in writing of the City's failure to maintain the improvement. If the City continues to
fail in maintaining the improvement, the Commission may remove the herein
contemplated improvement whether or not the improvement is located on the
Commission's right of way. Any removal by the Commission shall be at the sole cost and
expense of the City. Maintenance includes but is not limited to mowing and trimming
between shrubs and other plantings that are part of the improvement.
(15) PLANS: The City shall prepare preliminary and final plans and
specifications for the herein improvements. The plans and specifications shall be
submitted to the Commission for the Commission's review and approval. The
Commission has the discretion to require changes to any plans and specification prior to
any approval by the Commission.
(16) REIMBURSEMENT: The cost of the contemplated improvements will be
borne by the United States Government and by the City as follows:
(A) Any federal funds for project activities shall only be available for
reimbursement of eligible costs which have been incurred by City. Any costs incurred by
City prior to authorization from FHWA and notification to proceed from the Commission
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are not reimbursable costs. The federal share for this project will be 64 percent not to
exceed $257,291. The calculated federal share for seeking federal reimbursement of
participating costs for the herein improvements will be determined by dividing the total
federal funds applied to the project by the total participating costs. Any costs for the
herein improvements which exceed any federal reimbursement or are not eligible for
federal reimbursement shall be the sole responsibility of City. The Commission shall not
be responsible for any costs associated with the herein improvement unless specifically
identified in this Agreement or subsequent written amendments.
(17) PROGRESS PAYMENTS: The City may request progress payments be
made for the herein improvements as work progresses but not more than once every two
weeks. Progress payments must be submitted monthly. The City shall repay any
progress payments which involve ineligible costs.
(18) PROMPT PAYMENTS: Progress invoices submitted to MoDOT for
reimbursement more than thirty (30) calendar days after the date of the vendor invoice
shall also include documentation that the vendor was paid in full for the work identified in
the progress invoice. Examples of proof of payment may include a letter or e-mail from
the vendor, lien waiver or copies of cancelled checks. Reimbursement will not be made
on these submittals until proof of payment is provided. Progress invoices submitted to
MoDOT for reimbursement within thirty (30) calendar days of the date on the vendor
invoice will be processed for reimbursement without proof of payment to the vendor. If
the City has not paid the vendor prior to receiving reimbursement, the City must pay the
vendor within two (2) business days of receipt of funds from MoDOT.
(19) PERMITS: The City shall secure any necessary approvals or permits from
any federal or state agency as required for the completion of the herein improvements. If
this improvement is on the right of way of the Commission, the City must secure a permit
from the Commission prior to the start of any work on the right of way. The permits which
may be required include, but are not limited to, environmental, architectural, historical or
cultural requirements of federal or state law or regulation.
(20) INSPECTION OF IMPROVEMENTS AND RECORDS: The City shall
assure that representatives of the Commission and FHWA shall have the privilege of
inspecting and reviewing the work being done by the City's contractor and subcontractor
on the herein project. The City shall also assure that its contractor, and all subcontractors,
if any, maintain all books, documents, papers and other evidence pertaining to costs
incurred in connection with the Transportation Enhancement Program Agreement, and
make such materials available at such contractor's office at all reasonable times at no
charge during this Agreement period, and for three (3) years from the date of final
payment under this Agreement, for inspection by the Commission, FHWA or any
authorized representatives of the Federal Government and the State of Missouri, and
copies shall be furnished, upon request, to authorized representatives of the Commission,
State, FHWA, or other Federal agencies.
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(21) CREDIT FOR DONATIONS OF FUNDS, MATERIALS, OR SERVICES: A
person may offer to donate funds, materials or services in connection with this project.
Any donated funds, or the fair market value of any donated materials or services that are
accepted and incorporated into this project shall be credited according to 23 U.S.C. §323.
(22) DISADVANTAGED BUSINESS ENTERPRISES (DBE): The Commission
will advise the City of any required goals for participation by disadvantaged business
enterprises (DBEs) to be included in the City's proposal for the work to be performed.
The City shall submit for Commission approval a DBE goal or plan. The City shall comply
with the plan or goal that is approved by the Commission and all requirements of 49
C.F.R. Part 26, as amended.
(23) VENUE: It is agreed by the parties that any action at law, suit in equity, or
other judicial proceeding to enforce or construe this Agreement, or regarding its alleged
breach, shall be instituted only in the Circuit Court of Cole County, Missouri.
(24) NOTICE TO BIDDERS: The City shall notify the prospective bidders that
disadvantaged business enterprises shall be afforded full and affirmative opportunity to
submit bids in response to the invitation and will not be discriminated against on grounds
of race, color, sex, or national origin in consideration for an award.
(25) FINAL AUDIT: The Commission may, in its sole discretion, perform a final
audit of project costs. The United States Government shall reimburse the City, through
the Commission, any monies due. The City shall refund any overpayments as determined
by the final audit.
(26) OMB AUDIT: If the City expend(s) seven hundred fifty thousand dollars
($750,000) or more in a year in federal financial assistance it is required to have an
independent annual audit conducted in accordance with 2 CFR Part 200. A copy of the
audit report shall be submitted to MoDOT within the earlier of thirty (30) days after receipt
of the auditor's report(s), or nine (9) months after the end of the audit period. Subject to
the requirements of 2 CFR Part 200, if the City expend(s) less than seven hundred fifty
thousand dollars ($750,000) a year, the City may be exempt from auditing requirements
for that year but records must be available for review or audit by applicable state and
federal authorities.
(27) FEDERAL FUNDING ACCOUNTABILITY AND TRANSPARENCY ACT OF
2006: The City shall comply with all reporting requirements of the Federal Funding
Accountability and Transparency Act (FFATA) of 2006, as amended. This Agreement is
subject to the award terms within 2 C.F.R. Part 170.
[Remainder of Page Intentionally Left Blank]
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
IN WITNESS WHEREOF, the parties have entered into this Agreement on the date last
written below.
2021-05-17 1 6:30 PM CDT
Executed by the City on (DATE).
Executed by the Commission on
MISSOURI HIGHWAYS AND
TRANSPORTATION COMMISSION
Lf
uSigned by: -I-6 f. Sdu atr
Title Assistant Chief Engineer
ATTEST:
DocuSigned by:
Secretary to the Commission
Approved as to Form:
LDocuSignedJJby:
Tuan s� ZIJ�P.vr,
Commission Counsel
2021-06-07
12:11 PM CDT (DATE).
CITY OF CAPE GIRARDEAU
DocuSigned by:
By SCR
Title C'ty Manager
ATTEST:
DocuSigned by:
B
Y
Title Deputy City Clerk
Approved as to Form:
DocuSigned by:
€816468...
Title city Attorney
Ordinance No ,rj
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
Exhibit A - Location of Project
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PRELIMINARY CONCEPT
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CITY OF CAPE GIRARDEAU - 2429 TAP GRANT APPLICATION 140 70 0 140 Feet
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401 Independence Street Cape Girardeau, MO 63703 (573) 339-6327 I Tel (573) 339-6303 I Fax
w w.cilycfcapegirardeau.orglde elopment
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
Exhibit B — Project Schedule
Project Description: TAP -1501(020)
Along US 61 from the north of US 61 & Kiwanis Drive intersection to Kingsway Drive extending
just east along North Cape Rock and west along the north side of Kiwanis Drive to Maria Louise
Lane then continuing along the north side of Maria Louise Lane to the east entrance of the Cape
Girardeau Police Station. Improvements to the existing signalized intersection will include but
will not be limited to crosswalks, turn lanes, radius widening, islands, curb, ADA sidewalks, ADA
ramps, signal modifications, & lighting modifications.
Task
Date
Date funding is made available or allocated to recipient
04/13/2021
Solicitation for Professional Engineering Services advertised
Optional
Engineering Services Contract Approved
10/13/2021
Conceptual Stud if applicable)
Optional
Preliminary and Right -of -Way Plans Submittal
if Applicable)
04/13/2022
Plans, Specifications & Estimate PS&E Submittal
10/13/2022
Plans, Specifications & Estimate PS&E Approval
12/13/2022
Advertisement for Letting
01/13/2023
Bid Opening
02/13/2023
Construction Contract Award or Planning Study completed
(REQUIRED)
03/13/2023
*Note: the dates established in the schedule above will be used in the applicable ESC between the
sponsor agency and consultant firm.
**Schedule dates are approximate as the project schedule will be actively managed and issues
mitigated through the project delivery process. The Award Date or Planning Study Date
deliverable is not approximate and a Supplemental Agreement is required to modify this date.
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
Exhibit C - Required Contract Provisions
Federal -Aid Construction Contracts
DRAFTER'S NOTE: Print Form 1273 from the following website and attach as
Exhibit C http.//www.fhwa.dot.gov/programadmin/contracts/1273.pdf.
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
VH. Safety: Accident Prevention
VIII. False Statements Concerning Highway Projects
Df. 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).
FHWA-1273 -- Revised May 1, 2012
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.
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
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.
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. Information
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.
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
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.
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.
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.
The contractor is to obtain information as to the referral practices
and policies of the labor union except that to the extent such
information is within the exclusive possession of the labor union and
such labor union refuses to furnish such information to the contractor,
the contractor shall so certify to the 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):
The requirements of 49 CFR Part 26 and the State DOT's
U.S. DOT -approved DBE program are incorporated by reference.
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.
DocuSign Envelope ID: 36385776-4388-4A13-AD59-ODFF68D9417D
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 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.
DocuSign Envelope ID: 36385776-4388-4A13-AD59-ODFF68D9417D
(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
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.
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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.
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.
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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
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 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).
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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.
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
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
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 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 (hgps://www.epls.ggv/), 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:
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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 (lis://www.epts.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.
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).
DocuSign Envelope ID: 36385776-4386-4A13-AD59-ODFF68D9417D
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.
ATTACHMENT A - EMPLOYMENT AND MATERIALS
PREFERENCE FOR APPALACHIAN DEVELOPMENT
HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS
ROAD CONTRACTS
This provision is applicable to all Federal -aid projects funded under
the Appalachian Regional Development Act of 1965.
1. During the performance of this contract, the contractor
undertaking to do work which is, or reasonably may be, done as on-
site work, shall give preference to qualified persons who regularly
reside in the labor area as designated by the DOL wherein the contract
work is situated, or the subregion, or the Appalachian counties of the
State wherein the contract work is situated, except:
a. To the extent that qualified persons regularly residing in the area
are not available.
b. For the reasonable needs of the contractor to employ supervisory
or specially experienced personnel necessary to assure an efficient
execution of the contract work.
c. For the obligation of the contractor to offer employment to
present or former employees as the result of a lawful collective
bargaining contract, provided that the number of nonresident persons
employed under this subparagraph (lc) shall not exceed 20 percent of
the total number of employees employed by the contractor on the
contract work, except as provided in subparagraph (4) below.
2. The contractor shall place a job order with the State Employment
Service indicating (a) the classifications of the laborers, mechanics
and other employees required to perform the contract work, (b) the
number of employees required in each classification, (c) the date on
which the participant estimates such employees will be required, and
(d) any other pertinent information required by the State Employment
Service to complete the job order form. The job order maybe placed
with the State Employment Service in writing or by telephone. If
during the course of the contract work, the information submitted by
the contractor in the original job order is substantially modified, the
participant shall promptly notify the State Employment Service.
3. The contractor shall give full consideration to all qualified job
applicants referred to him by the State Employment Service. The
contractor is not required to grant employment to any job applicants
who, in his opinion, are not qualified to perform the classification of
work required.
4. If, within one week following the placing of a job order by the
contractor with the State Employment Service, the State Employment
Service is unable to refer any qualified job applicants to the
contractor, or less than the number requested, the State Employment
Service will forward a certificate to the contractor indicating the
unavailability of applicants. Such certificate shall be made a part of
the contractor's permanent project records, Upon receipt of this
certificate, the contractor may employ persons who do not normally
reside in the labor area to fill positions covered by the certificate,
notwithstanding the provisions of subparagraph (1 c) above.
5. The provisions of 23 CFR 633.207(e) allow the
contracting agency to provide a contractual preference for the use of
mineral resource materials native to the Appalachian region.
6. The contractor shall include the provisions of Sections 1 through 4
of this Attachment A in every subcontract for work which is, or
reasonably may be, done as on-site work.