HomeMy WebLinkAboutContract - California Professional EngineeringPUBLIC WORK CONSTRUCTION CONTRACT
This Public Work Construction contract ("Contract") is made and entered into this 5th day of
September 2023, by and between the City of Redlands, a municipal corporation, organized and existing
under the laws of the State of California (hereinafter "City"), and California Professional Engineering,
Inc., a California corporation, (hereinafter "Contractor"). City and Contractor are sometimes
individually referred to herein as a "Party" and, together, as the "Parties."
In consideration of the mutual promises contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK: Contractor shall furnish all materials and will perform all of the work for
the following: HSIP Cycle 9 Orange Blossom Trail Phase 3 Crossings, complete all items as
required by the Contract Documents (as herein defined) and Specifications for City's HSIP Cycle
9 Orange Blossom Trail Phase 3 Crossings, City Project No. 47033, Federal Project No. HSIPL
5083(024) (the "Work").
2. CONTRACT SUM: City shall pay Contractor the sum of Two Hundred Fifty -Nine Thousand
Two Hundred Forty -Five dollars ($259,245) as consideration for its performance of the Work in
accordance with the terms and conditions set forth in the Contract Documents. Pursuant to Public
Contract Code Section 22300, Contractor has the option to deposit securities with an escrow agent
as a substitute for retention of earnings required to be withheld by City pursuant to an escrow
agreement as set forth in Public Contract Code section 22300.
3. TIME FOR COMPLETION: The Work shall be completed within One Hundred (100) calendar
days from and after the date of City's issuance of a Notice to Proceed to Contractor.
4. LIQUIDATED DAMAGES: Contractor's failure to complete the Work within the time allowed
will result in damages being sustained by City. Such damages are, and will continue to be,
impracticable and extremely difficult to determine. Accordingly, Contractor shall pay to City, or
have withheld from monies due to Contractor, the sum of Five Hundred dollars ($500) for each
consecutive calendar day in excess of the specified time for completion of the Work. Execution of
this Contract shall constitute agreement by City and Contractor that Five Hundred dollars ($500)
per day is the estimated damage to City caused by the failure of Contractor to complete the work
within the allowed time. Such sum is liquidated damages and shall not be construed as a penalty,
and may be deducted from payments due Contractor if such delay occurs.
5. CONTRACT DOCUMENTS: This Contract incorporates by reference the following: Notice
Inviting Bids, Instructions to Bidders, Contractor's Proposal, Bid Bond, Agreement, Performance
Bond, Labor and Material Bond, Plans, General Conditions, Special Provisions and Specifications,
and any addenda thereto (collectively, the "Contract Documents").
6. ATTORNEYS' FEES: In the event any action is commenced to enforce or interpret the terms or
conditions of this Contract, or the Contract Documents, the prevailing Party in such action, in
addition to any costs and other relief, shall be entitled to recover its reasonable attorneys' fees,
including fees for use of in-house counsel by a Party.
1
I:\cmo\Agreements\California Professional Engineering, Inc.-FY22-0218.doc-jm
7. RESOLUTION OF CONSTRUCTION CLAIMS: Claims by Contractor in the amount of three
hundred seventy-five thousand dollars ($375,000) or less shall be made by Contractor and
processed by the City pursuant to the provisions of Part 3, Chapter 1, Article 1.5 of the Public
Contract Code (commencing with Section 20104). All claims shall be in writing and include the
documents necessary to substantiate the claim. Nothing in subdivision (a) of Public Contract Code
Section 20104.2 shall extend the time limit or supersede the notice requirements provided in this
case from filing claims by Contractor.
8. ELIGIBILITY OF CONTRACTOR/SUBCONTRACTOR: Contractor and all of its
subcontractors shall abide by California Public Contract Code, Section 6109, and California Labor
Code Sections 1777.1 and/or 1777.7, and certify that they are not debarred and are eligible to work
on this project.
9. ASSIGNMENT OF AGREEMENT: No assignment by a Party of any rights or interests under
this Contract shall be binding on another Party without the written consent of the Party sought to
be bound.
10. SUCCESSORS AND ASSIGNS: City and Contractor each binds itself and their respective
successors and assigns in respect to all covenants, agreements, and obligations contained in the
Contract Documents.
11. SEVERABILITY: Any provision or part of the Contract Documents held to be void or
unenforceable under any law or regulation shall be deemed stricken, and all remaining provisions
shall continue to be valid and binding upon City and Contractor.
IN WITNESS WHEREOF, the Parties hereto have executed this Contract the day and year first
written above.
(SEAL)
ATTEST:
e Donaldson, City Clerk
CITY OF ' • LANDS
By:
Eddie Tejeda, Mayor
(SEAL)
Van Nguyen, President
793907
Contractor's License No.
2
I:\cmo\Agreements\California Professional Engineering, Inc.-FY22-0218.doc jm
WORKER'S COMPENSATION INSURANCE CERTIFICATION
Description of Contract: City of Redlands
Municipal Utilities and Engineering Department
HSIP Cycle 9 Orange Blossom Trail Phase 3 Crossings
City Project No. 47033,
Federal Project No. HSIPL 5083(024)
Every employer, except the State, shall secure the payment of compensation in one or more of the
following ways:
a. By being insured against liability to pay compensation by one or more insurers duly
authorized to write compensation insurance in this State.
b. By securing from the Director of Industrial Relations, a certificate of consent to self -
insure, either as an individual employer, or as one employer in a group of employers,
which may be given upon furnishing proof satisfactory to the Director of Industrial
Relations of ability to self -insure and to pay any compensation that may become due
to his or her employees.
CHECK ONE
V I am aware of the provisions of Section 3700 of the Labor Code which requires every
employer to be insured against liability for Workers' Compensation or to undertake self-insurance
in accordance with the provisions of that Code, and I will comply with such provisions before
commencing the performance of the work and activities required or permitted under this
Agreement. (Labor Code §1861).
I affirm that at all times, in performing the work and activities required or permitted under
this Agreement, I shall not employ any person in any manner such that I become subject to the
workers' compensation laws of California. However, at any time, if I employ any person such that I
become subject to the workers' compensation laws of California, immediately I shall provide the
City with a certificate of consent to self -insure, or a certification of workers' compensation
insurance.
I certify under penalty of perjury under the laws of the State of California that the information and
representations made in this certificate are true and correct.
Dated this day of
, 2023.
Van Nguyen, sident
(SEAL)
(Labor Code Section 1861 provides that the above certificate must be signed and filed by the Contractor with the Owner prior to
performing the work of the contract.)
3
I:\cmo\Agreements\California Professional Engineering, Inc.-FY22-0218.doc jm
BOND PREMIUM IS SUBJECT TO CHANGE
BASED ON THE FINAL CONTRACT AMOUNT
BOND NO. EACX157000083
EXECUTED IN DUPLICATE
FAITHFUL PERFORMANCE BOND
PREMIUM: $8,197.00
Whereas, the City of Redlands ("City"), State of California, and California Professional
Engineering, Inc. (hereinafter designated as "Principal") have entered into an agreement dated
September 5, 2023 ("Agreement") whereby Principal agrees to install and complete certain public
improvements (the "Work"), which said Agreement is identified as HSIP Cycle 9 Orange Blossom
Trail Phase 3 Crossings, City Project No. 47033, Federal Project No. HSIPL 5083(024) and is
hereby referred to and made a part hereof; and
Whereas, said Principal is required under the terms of the Agreement to furnish a bond for
the faithful performance of the Work, now, therefore, we, the Principal and,
Endurance Assurance Corporation , as Surety, are held and firmly bound unto the City in the penal
sum of Two Hundred Fifty -Nine Thousand Two Hundred Forty -Five dollars ($259,245) lawful
money of the United States, for the payment of which sum we bind ourselves, and our heirs,
successors, executors and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the above bounded Principal, his or its heirs,
executors, administrators, successors or assigns, shall in all things stand to and abide by, and well
and truly keep and perform the covenants, conditions and provisions in the Agreement and any
alteration thereof made as therein provided, on his or its part, to be kept and performed at the time
and in the manner therein specified, and in all respects according to their true intent and meaning,
and shall faithfully fulfill the one-year guarantee of all materials and workmanship, and shall
defend, indemnify and save harmless the City and its elected officials, officers, agents and
employees, as therein stipulated, then this obligation shall become null and void; otherwise it shall
be and remain in full force and effect.
As a part of the obligation secured hereby and in addition to the face amount specified
therefor, there shall be included costs and reasonable expenses and fees, including reasonable
attorneys' fees, incurred by the City in successfully enforcing such obligations, all to be taxed as
costs and included in the judgment rendered.
As a condition precedent to the satisfactory completion of the Work, the above obligation
shall hold good for a period of one (1) year or longer if required by the Agreement after the
acceptance of the work by the City, during which time if the Principal shall fail to make full,
complete, and satisfactory repair and replacements and totally protect the City from loss or damage
made evident during this period from the date of completion of the Work, and resulting from or
caused by defective materials or faulty workmanship, the above obligation in penal sum thereof
shall remain in full force and effect. The obligations of Surety hereunder shall continue so long as
any obligation of the Principal remains.
Whenever the Principal shall be, and is declared by the City to be, in default under the
Agreement, the City having performed the City obligations thereunder, the Surety shall promptly
remedy the default, or shall promptly, at the City's option:
1. Complete the Work in accordance with its terms and conditions; or
4
I:\cmo\Agreements\California Professional Engineering, Inc.-FY22-0218.doc jm
2. Obtain a bid or bids for completing the Work in accordance with its terms and
conditions, and upon determination by Surety of the lowest responsive and responsible bidder,
arrange for a contract between such bidder and the City, and make available as work progresses
sufficient funds to pay the cost of completion of the Work less the balance of the Agreement price,
but not exceeding, including other costs and damages for which Surety may be liable hereunder, the
amount set forth above. The term "balance of the Agreement price," as used in this paragraph, shall
mean the total amount payable to the Principal by the City under the Agreement and any
modifications thereto, less the amount previously properly paid by the City to the Principal.
Surety expressly agrees that the City may reject any contractor or subcontractor which may
be proposed by Surety in fulfillment of its obligations in the event of default by the Principal.
Surety shall not utilize the Principal in completing the Work nor shall Surety accept a bid
from the Principal for completion of the Work if the City, when declaring the Principal in default,
notifies Surety of the City's objection to the Principal's further participation in the completion of
the Work.
No right of action shall accrue on the bond to or for the use of any person or corporation
other than the City named herein or the successors or assigns of the City. Any suit under this bond
must be instituted within the applicable statute of limitations period.
The said Surety, for value received, hereby stipulates and agrees that no change, extension
of time, alteration or addition to the terms of the Agreement or to the work to be performed
thereunder or the Specifications accompanying the same shall in any way affect its obligations on
this bond, and it does hereby waive notice of any such change, extension of time, alteration or
addition to the terms of the Agreement or to the work or to the specifications.
No final settlement between the City and the Principal shall abridge the right of any
beneficiary hereunder whose claim may be unsatisfied.
The Principal and Surety agree that if the City is required to engage the services of any
attorney in connection with the enforcement of this bond, each shall pay the City's reasonable
attorneys' fees incurred, with or without suit, in addition to the above sum.
In witness whereof, this instrument has been duly executed by the Principal and Surety
above named, on August 28 , 2023.
Califor is '• ro - ional
(SEAL)
ineering, Inc.
(Signature)
(SEAL)
Endurance Assurance Corporation
rety)
BY: Christine Woolford, Attorney -in -Fact
(Signature)
Address: 4 Manhattanville Rd.,
Purchase, NY 10577
(Seal and Notarial Acknowledgment of Telephone ( 914)468-8000
Surety)
5
I:\cmo\Agreements\California Professional Engineering, Inc.-FY22-0218.doc jm
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
County of Orange
On AUG 2 8 2023
Date
personally appeared
before me,
}
Thao Nguyen Luu , Notary Public,
Insert Name of Notary exactly as it appears on the official seal
Christine Woolford
Name(s) of Signer(s)
a
THAO NGUYEN LUU
Notary Public • California
Orange County
Commission # 2453804
My Comm. Expires Jut 18, 2027
Place Notary Seal Above
E
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
Witness my hand and official seal.
Signature
OPTIONAL
Signature of Notary Public
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of the form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Number of Pages:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
❑ Individual
Corporate Officer—Title(s):`
❑ Partner ❑ Limited ❑ General
Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer's Name:
❑ Individual
❑ Corporate Officer .----Title(s):
❑ Partner ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
SOMPO INTERNATIONAL
POWER OF ATTORNEY
1043
KNOW ALL BY THESE PRESENTS, that Endurance Assurance Corporation, a Delaware corporation ("EAC"), Endurance American Insurance Company, a Delaware
corporation ("EAIC"), Lexon Insurance Company, a Texas corporation ("LIC"), and/or Bond Safeguard Insurance Company, a South Dakota corporation ("BSIC"), each,
a "Company" and collectively, "Sompo International," do hereby constitute and appoint: Yung T. Mullick, James W. Moilanen, Irene Luong, P. Austin Neff, Emilie
George, Christine Woolford, Danielle Hanson as true and lawful Attorney(s)-In-Fact to make, execute, seal, and deliver for, and on its behalf as surety or co -surety;
bonds and undertakings given for any and all purposes, also to execute and deliver on its behalf as aforesaid renewals, extensions, agreements, waivers, consents or
stipulations relating to such bonds or undertakings provided, however, that no single bond or undertaking so made, executed and delivered shall obligate the Company for
any portion of the penal sum thereof in excess of the sum of One Hundred Million Dollars ($100,000,000.00).
Such bonds and undertakings for said purposes, when duly executed by said attorney(s)-in-fact, shall be binding upon the Company as fully and to the same extent as if
signed by the President of the Company under its corporate seal attested by its Corporate Secretary.
This appointment is made under and by authority of certain resolutions adopted by the board of directors of each Company by unanimous written consent effective the 30th
day of March, 2023 for BSIC and LIC and the 17th day of May, 2023 for EAC and EAIC, a copy of which appears below under the heading entitled "Certificate".
This Power of Attorney is signed and sealed by facsimile under and by authority of the following resolution adopted by the board of directors of each Company by
unanimous written consent effective the 30th day of March, 2023 for BSIC and LIC and the 17th day of May, 2023 for EAC and EAIC and said resolution has not since
been revoked, amended or repealed:
RESOLVED, that the signature of an individual named above and the seal of the Company may be affixed to any such power of attorney or any certificate relating thereto
by facsimile, and any such power of attorney or certificate bearing such facsimile signature or seal shall be valid and binding upon the Company in the future with respect
to any bond or undertaking to which it is attached.
IN WITNESS WHEREOF, each Company has caused this instrument to be signed by the following officers, and its corporate seal to be affixed this 25th day of
May, 2023.
Endrance Assurance Corporatiopy Endurance American
In ura ci
By: 9)"
Richard Appel; M,Rrr&,, enior Counsel
so�55urano 0.,„
2 SEAL'
2002
a
r'yrorruru 111110 '
By: 1024a ( d By:
Richard AppepSVP.&,kenior Counsel Ricard Appel;
4 �c3�Po4 rF,�7T°'c
E),
r
1996 O €
DELAWARE 3/4
ACKNOWLEDGEMENT
Lexon Insurance Company Bond Safeguard
In urataceColppar
By:
ourisel Ric
and Appel; SVP.8o,,4eniot 1outfsel
0 A
SOUTH n
DAKOTA O
0 INSURANCE
Zp, COMPANY a
''" �� r�ggru,r m nunfloU gip""`.
On this 25th day of May, 2023, before me, personally came the above signatories known to me, who being duly sworn, did depose and say that he/t0y,t4 ff tafpic er of each
of the Companies; and that he executed said instrument on behalf of each Company by authority of his offic�under th9 by4ws of each Company„ ,,,f0,4 ,.
CERTIFICATE
I, the undersigned Officer of each Company, DO HEREBY CERTIFY that:
1. That the original power of attorney of which the foregoing is a copy was duly executed on behalf of each Company and has not since been revoked, amended or modified;
that the undersigned has compared the foregoing copy thereof with the original power of attorney, and that the same is a true and correct copy of the original power of
attorney and of the whole thereof;
2. The following are resolutions which were adopted by the board of directors of each Company by unanimous written consent effective 30th day of March, 2023 for BSIC
and LIC and the 17th day of May, 2023 for EAC and EAIC and said resolutions have not since been revoked, amended or modified:
"RESOLVED, that each of the individuals named below is authorized to make, execute, seal and deliver for and on behalf of the Company any and all bonds,
undertakings or obligations in surety or co -surety with others: RICHARD M. APPEL, MATTHEW E. CURRAN, MARGARET HYLAND, SHARON L. SIMS,
CHRISTOPHER L. SPARRO,
and be it further
RESOLVED, that each of the individuals named above is authorized to appoint attorneys -in -fact for the purpose of making, executing, sealing and delivering bonds,
undertakings or obligations in surety or co -surety for and on behalf of the Company."
3. The undersigned further certifies that the above resolutions are true and correct copies of the resolutions as so recorded and of the whole thereof.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal this 28th day of AU • USt %, 2023 .
STATE 'ti 1.
`. NON ANyEE
By: _PUBLIC
Amy Taylor, Not ublic My Commission Expires 3/9f27
i
By:
Dame S. rie,' retary
NOTICE: U. S. TREASURY DEPARTMENT'S OFFICE OF FOREIGN ASSETS CONTROL (OFAC)
No coverage Is provided by this Notice nor can it be construed to replace any provisions of any surety bond or other surety coverage provided. This Notice provides information concerning
possible Impact on your surety coverage due to directives issued by OFAC. Please read this Notice carefully.
The Office of Foreign Assets Control (OFAC) administers and enforces sanctions policy, based on Presidential declarations of "national emergency". OFAC has identified and listed
numerous foreign agents, front organizations, terrorists, terrorist organizations, and narcotics traffickers as "Specially Designated Nationals and Blocked Persons". This list can be located
on the United States Treasury's website — https://www.treasury.gov/resource-center/sanctions/SDN-List,
In accordance with OFAC regulations, if it is determined that you or any other person or entity claiming the benefits of any coverage has violated U.S. sanctions law or is a Specially
Designated National and Blocked Person, as identified by OFAC, any coverage will be considered a blocked or frozen contract and all provisions of any coverage provided are immediately
subject to OFAC. When a surety bond or other form of surety coverage is considered to be such a blocked or frozen contract, no payments nor premium refunds may be made without
authorization from OFAC. Other limitations on the premiums and payments rnay also apply.
Any reproductions are void.
Surety Claims Submission: LexonClaimAdministration(asompo-intl.com
Telephone: 615-553-9500 Mailing Address: Sompo International; 12890 Lebanon Road; Mount Juliet, TN 37122-2870
EXECUTED IN DUPLICATE BOND NO. EACX157000083
PREMIUM LISTED
ON PERFORMANCE BOND
LABOR AND MATERIAL BOND
Whereas, the City Council of the City of Redlands, State of California, and California
Professional Engineering, Inc. (hereinafter designated as "Principal") have entered into an
agreement (the "Agreement") whereby Principal agrees to install and complete certain designated
public improvements (the "Work"), which said agreement, dated September 5, 2023, and identified
as HSIP Cycle 9 Orange Blossom Trail Phase 3 Crossings, City Project No. 47033, Federal Project
No. HSIPL 5083(024) is hereby referred to and made a part hereof; and
Whereas, under the terms of the Agreement, Principal is required before commending the
performance of the Work, to file a good and sufficient Labor and Material bond with the City of
Redlands to secure the claims to which reference is made in Title 3 (commencing with Section
9550) of Part 6 of Division 4 of the Civil Code of the State of California.
Now, therefore, said Principal and the undersigned as corporate surety, are held firmly
bound unto the City and all contractors, subcontractors, laborers, material men and other persons
employed in the performance of the Agreement and referred to in the aforesaid Code of Civil
Procedure in the sum of Two Hundred Fifty -Nine Thousand Two Hundred Forty -Five dollars
($259,245) for materials furnished or labor thereon of any kind, or for amounts due under the
Unemployment Insurance Act with respect to such work or labor, that said surety will pay the same
in an amount not exceeding the amount hereinabove set forth, and also in case suit is brought upon
this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees,
including reasonable attorneys' fees, incurred by the City in successfully enforcing such obligation,
to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment
therein rendered.
It is hereby expressly stipulated and agreed that this bond shall insure to the benefit of any
and all persons, companies and corporations entitled to file claims under Title 3 (commencing with
Section 9550) of Part 6 of Division 4 of the Civil Code, so as to give a right of action to them or
their assigns in any suit brought upon this bond.
Should the condition of this bond be fully performed, then this obligation shall become null
and void, otherwise it shall be and remain in full force and effect.
The surety hereby stipulates and agrees that no change, extension of time, alteration or
addition to the terms of the Agreement or the specifications accompanying the same shall in any
manner affect its obligations on this bond, and it does hereby waive notice of any such change,
extension of time, alteration or addition.
SIGNATURES ON NEXT PAGE
6
I:\cmo\Agreements\California Professional Engineering, Inc.-FY22-0218.doc jm
In witness whereof, this instrument has been duly executed by the Principal and surety
above named, on _ August 28 , 2023.
(SEAL) (SEAL)
California Pr c essional Engineg, Inc.
(Signatur
(Seal and Notarial Acknowledgement of Surety)
Endurance Assurance Corporation
B
Addi
S )
Christine Woolford, Attorney -in -Fact
Signature)
4 Manhattanville Rd.,
Purchase, NY 10577
Telephone: ( 914) 468-8000
7
I:\cmo\Agreements\California Professional Engineering, Inc.-FY22-0218.doc jm
CALIFORNIA ALL- PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached,
and not the truthfulness, accuracy, or validity of that document.
State of California }
County of Los Angeles
}
On August 30, 2023 before me, Diem Chu, Notary Public
(Here insert name and title of the officer)
personally appeared Van Nguyen
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public Signature
(Notary Public Seal)
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
(Title or description of attached document)
(Title or description of attached document continued)
Number of Pages _ Document Date
CAPACITY CLAIMED BY THE SIGNER
❑ Individual (s)
O Corporate Officer
President, Secretary
(Title)
❑ Partner(s)
❑ Attorney -in -Fact
❑ Trustee(s)
❑ Other
2015 Version .t_r,
\` ,0\EM CH0 ',,
8733.4i, �-
ory
LJ
.closgnCIFOCLT-,p 'V,'
INSTRUCTIONS EOK''OMPLETING THIS FORM
Tltis firm complies trilh current ('olilrnnto shames regarding 'marl- wording and.
i/'needed. should he rumple/Cd and Wlucllea 10 the dncumenl. I rknou'ledgnrenl.s
lion other stoles nun• hr romplcled lnr docrtnnvuS being seal 10 thal slide su
us the trordin fines not rryuire the ('ol{/nrnio nnur o_10 riololo ('oli/urnn tct olurr
lou'.
• State and County inli/rmatiun must he the Slate and County where the document
signers) personalk appeared belore the lunar_ public for acknowledgment.
• Date of notarization must be the date that the signer(s) personallv appeared which
must also he the same date the ucl<noeledoment is completed.
• The rotor' public must print his or her name ❑S it appears \\ithin his or her
commission rollowed by a comma and then your title (nutar public).
• Print the mullets) of document signer(s) \\ho personally appear at the time or
notarisation.
• Indicate the correct singular or plural liwins by crossing off incorrect (brills (i.e.
lie/she/they. is /are ) or circling the correct forms. Failure to correctly indicate this
information nrn lead to rejection ufdocument recording.
• The notary seal impression must be clear and photographically reproducible.
Impression most not cover test or lines. If seal impression smudges, re -seal if a
sufficient area permits_ other cise complete a different acknowledgment form.
• Signature of the notary public must match the signature on file with the office of
the county clerk.
• Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document.
• Indicate title or type or attached document. number or pages and date.
• Indicate the capacity claimed by the signer. II the claimed capacity is a
corporate officer, indicate the title (i.e. CEO. CPO. Secretor ).
• Securely attach this document to the signed document with ❑ staple.
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
County of Orange
On AUG 2 8 2023 before me,
Date
personally appeared
}
Thao Nguyen Luu , Notary Public,
Insert Name of Notary exactly as it appears on the official seal
Christine Woolford
Name(s) of Signer(s)
4f,owAi4_-
THAO NGUYEN LUU
Notary Public California
Orange County
Commission k 2453804
My Comm, Expires Jul 18, 2027
Place Notary Seal Above
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
Witness my hand and official seal.
Signature ---
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of the form to another document.
Description of Attached Document
Title or Type of Document:
Document Date:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
Number of Pages:
❑ Individual
❑ Corporate Officer —Title(s):
❑ Partner ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer's Name:
❑ Individual
❑ Corporate Officer --Title(s):
❑ Partner ❑ Limited ❑ General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
SOMPO INTERNATIONAL
yhmar INSURANCE
POWER OF ATTORNEY
1043
KNOW ALL BY THESE PRESENTS, that Endurance Assurance Corporation, a Delaware corporation ("EAC"), Endurance American Insurance Company, a Delaware
corporation ("EAIC"), Lexon Insurance Company, a Texas corporation ("LIC"), and/or Bond Safeguard Insurance Company, a South Dakota corporation ("BSIC"), each,
a "Company" and collectively, "Sompo International," do hereby constitute and appoint: Yung T. Mullick, James W. Moilanen, Irene Luong, P. Austin Neff, Emilie
George, Christine Woolford, Danielle Hanson as true and lawful Attorney(s)-In-Fact to make, execute, seal, and deliver for, and on its behalf as surety or co -surety;
bonds and undertakings given for any and all purposes, also to execute and deliver on its behalf as aforesaid renewals, extensions, agreements, waivers, consents or
stipulations relating to such bonds or undertakings provided, however, that no single bond or undertaking so made, executed and delivered shall obligate the Company for
any portion of the penal sum thereof in excess of the sum of One Hundred Million Dollars ($100,000,000.00).
Such bonds and undertakings for said purposes, when duly executed by said attorney(s)-In-fact, shall be binding upon the Company as fully and to the same extent as if
signed by the President of the Company under its corporate seal attested by Its Corporate Secretary.
This appointment is made under and by authority of certain resolutions adopted by the board of directors of each Company by unanimous written consent effective the 30th
day of March, 2023 for BSIC and LIC and the 17t11 day of May, 2023 for EAC and EAIC, a copy of which appears below under the heading entitled "Certificate".
This Power of Attorney is signed and sealed by facsimile under and by authority of the following resolution adopted by the board of directors of each Company by
unanimous written consent effective the 30th day of March, 2023 for BSIC and LIC and the 17th day of May, 2023 for EAC and EAIC and said resolution has not since
been revoked, amended or repealed:
RESOLVED, that the signature of an Individual named above and the seal of the Company may be affixed to any such power of attorney or any certificate relating thereto
by facsimile, and any such power of attorney or certificate bearing such facsimile signature or seal shall be valid and binding upon the Company in the future with respect
to any bond or undertaking to which it is attached.
IN WITNESS WHEREOF, each Company has caused this instrument to be signed by the following officers, and its corporate seal to be affixed this 25th day of
May, 2023.
En rance Assurance Corporatio
.1)y)By: ele,
Richard Appel; A,V &, enior Counsel
��gLVranC� a,,y.
0 Gasp O h qT 0 ss
SEAL
c : 2002 m .i
j,, L ELAWARE , yd
Endurance America_ n Lexon Insurance Company
In uracpp
By:j f.
Richard Appeh,,$MP t..4 nior Counsel
�� an (s4''
P G >2 r,
s oP,poP�rFa�a G
SEAL
199E .
y' DELAWARE b.
ACKNOWLEDGEMENT
By:
Richard Appel;
Bond Safeguard
In urarace Co r pally
By:
ourisel Ricl(ard Appelt,,,SVP.&, eniolr'"Gfoun`sel
p INS(/
' A •
SOUTH 0
DAKOTA 10
INSURANCE
COMPANY
On this 25th day of May, 2023, before me, personally came the above signatories known to me, who being duly sworn, did depose and say that he/tlipy l'Off ttficer of each
of the Companies; and that he executed said instrument on behalf of each Company by authority of his offic under th? by ws of each Company, ' t���..•..top '...
STATE
TENZoe
SCE.
NOTARY
PVOLIO
Amy Taylor, Not ryy Public'i My Commisstbn Expires 3/9✓27„'
oos
By:
CERTIFICATE
I, the undersigned Officer of each Company, DO HEREBY CERTIFY that:
1. That the original power of attorney of which the foregoing is a copy was duly executed on behalf of each Company and has not since been revoked, amended or modified;
that the undersigned has compared the foregoing copy thereof with the original power of attorney, and that the same is a true and correct copy of the original power of
attorney and of the whole thereof;
2. The following are resolutions which were adopted by the board of directors of each Company by unanimous written consent effective 30th day of March, 2023 for BSIC
and LIC and the 17th day of May, 2023 for EAC and EAIC and said resolutions have not since been revoked, amended or modified:
"RESOLVED, that each of the individuals named below is authorized to make, execute, seal and deliver for and on behalf of the Company any and all bonds,
undertakings or obligations in surety or co -surety with others: RICHARD M. APPEL, MATTHEW E. CURRAN, MARGARET HYLAND, SHARON L. SIMS,
CHRISTOPHER L. SPARRO,
and be it further
RESOLVED, that each of the individuals named above is authorized to appoint attorneys -in -fact for the purpose of making, executing, sealing and delivering bonds,
undertakings or obligations in surety or co -surety for and on behalf of the Company."
3. The undersigned further certifies that the above resolutions are true and correct copies of the resolutions as so recorded and of the whole thereof.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal this 28th day of AU e ust / 2023 .
By:
Dante S. +rie retary
NOTICE: U. S. TREASURY DEPARTMENT'S OFFICE OF FOREIGN ASSETS CONTROL (OFAC)
No coverage is provided by this Notice nor can it be construed to replace any provisions of any surety bond or other surety coverage provided. This Notice provides information concerning
possible impact on your surety coverage due to directives issued by OFAC. Please read this Notice carefully.
The Office of Foreign Assets Control (OFAC) administers and enforces sanctions policy, based on Presidential declarations of "national emergency". OFAC has Identified and listed
numerous foreign agents, front organizations, terrorists, terrorist organizations, and narcotics traffickers as "Specially Designated Nationals and Blocked Persons". This list can be located
on the United States Treasury's website — https://www.treasury.gov/resource-center/sanctions/SDN-List.
In accordance with OFAC regulations, if It is determined that you or any other person or entity claiming the benefits of any coverage has violated U.S. sanctions law or is a Specially
Designated National and Blocked Person, as identified by OFAC, any coverage will be considered a blocked or frozen contract and all provisions of any coverage provided are immediately
subject to OFAC. When a surety bond or other form of surety coverage is considered to be such a blocked or frozen contract, no payments nor premium refunds may be made without
authorization from OFAC. Other limitations on the premiums and payments may also apply.
Any reproductions are void.
Surety Claims Submission: LexonClaimAdministrationt sompo-intl.com
Telephone: 615.553-9500 Mailing Address: Sompo International; 12890 Lebanon Road; Mount Juliet, TN 37122-2870
REQUIRED CONTRACT
PROVISIONS FEDERAL -AID
CONSTRUCTION CONTRACTS
I. General
II. Nondiscrimination
III. Non -segregated 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. Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion
XI. Certification Regarding Use of Contract Funds for Lobbying
XII. Use of United States -Flag Vessels:
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, United States Code,
as required in 23 CFR 633.102(b) (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). 23 CFR633.102(e).
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. 23
CFR 633.102(e).
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) in accordance with 23 CFR 633.102. 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
solicitation -for -bids or request -for -proposals 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). 23 CFR 633.102(b).
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. 23 CFR
633.102(d).
9
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. 23 U.S.C. 114(b).The term
Federal -aid highway does not include roadways functionally
classified as local roads or rural minor collectors. 23 U.S.C.
101(a).
II. NONDISCRIMINATION (23 CFR 230.107(a); 23 CFR Part
230, Subpart A, Appendix A; EO 11246)
The provisions of this section related to 23 CFR Part 230,
Subpart A, Appendix A 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 Part
60, 29 CFR Parts 1625-1627, 23 U.S.C. 140, Section 504 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 794), Title VI
of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et
seq.), 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 Part 60, and
29 CFR Parts 1625-1627. The contracting agency and the
FHWA have the authority and the responsibility to ensure
compliance with 23 U.S.C. 140, Section 504 of the Rehabilitation
Act of 1973, as amended (29 U.S.C. 794), and Title VI of the
Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et seq.),
and related regulations including 49 CFR Parts 21, 26, and 27;
and 23 CFR Parts 200, 230, and 633.
The following provision is adopted from 23 CFR Part 230,
Subpart A, 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 (see 28 CFR Part 35, 29
CFR Part 1630, 29 CFR Parts 1625-1627, 41 CFR Part 60 and 49
CFR Part 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 Part 35 and 29 CFR
Part 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. 23 CFR 230.409 (g)(4) & (5).
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, sexual orientation,
gender identity, 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 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 or other
knowledgeable company official.
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.
10
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, sexual orientation, gender identity, national
origin, age or disability. The following procedures shall be followed:
a. The contractor will conduct periodic inspections of project sites
to ensure that working conditions and employee facilities do not
indicate discriminatory treatment of project site personnel.
b. The contractor will periodically evaluate the spread of wages
paid within each classification to determine any evidence of
discriminatory wage practices.
c. The contractor will periodically review selected personnel actions
in depth to determine whether there is evidence of discrimination.
Where evidence is found, the contractor will promptly take corrective
action. If the review indicates that the discrimination may extend
beyond the actions reviewed, such corrective action shall include all
affected persons.
d. The contractor will promptly investigate all complaints of alleged
discrimination made to the contractor in connection with its
obligations under this contract, will attempt to resolve such
complaints, and will take appropriate corrective action within a
reasonable time. If the investigation indicates that the discrimination
may affect persons other than the complainant, such corrective action
shall include such other persons. Upon completion of each
investigation, the contractor will inform every complainant of all of
their avenues of appeal.
6. Training and Promotion:
a. The contractor will assist in locating, qualifying, and increasing
the skills of minorities and women who are applicants for
employment or current employees. Such efforts should be aimed at
developing full journey level status employees in the type of trade or
job classification involved.
b. Consistent with the contractor's work force requirements and as
permissible under Federal and State regulations, the contractor shall
make full use of training programs (i.e., apprenticeship and on-the-
job training programs for the geographical area of contract
performance). In the event a special provision for training is provided
under this contract, this subparagraph will be superseded as
Indicated in the special provision. The contracting agency may
reserve training positions for persons who receive welfare
assistance in accordance with 23 U.S.C. 140(a).
c. The contractor will advise employees and applicants for
employment of available training programs and entrance
requirements for each.
d. The contractor will periodically review the training and
promotion potential of employees who are minorities and women
and will encourage eligible employees to apply for such training and
promotion.
7. Unions: If the contractor relies in whole or in part upon unions as
a source of employees, the contractor will use good faith efforts to
obtain the cooperation of such unions to increase opportunities for
minorities and women. 23 CFR 230.409. 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, sexual orientation, gender identity, 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, sexual orientation, gender identity, 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 thereunder. 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, sexual orientation, gender identity,
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, 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:
11
a. The requirements of 49 CFR Part 26 and the State DDT's
FHWA-approved Disadvantaged Business Enterprise (DBE) program
are incorporated by reference.
b. The contractor, subrecipient 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 recipient
deems appropriate, which may include, but is not limited to:
(1) Withholding monthly progress payments;
(2) Assessing sanctions;
(3) Liquidated damages; and/or
(4) Disqualifying the contractor from future bidding as non -
responsible.
c. The Title VI and nondiscrimination provisions of U.S. DOT Order
1050.2A at Appendixes A and E are incorporated by reference. 49
CFR Part 21,
11. Records and Reports: The contractor shall keep such records
as necessary to document compliance with the EEO requirements.
Such records shall be retained for a period of three years following
the date of the final payment to the contractor for all contract work
and shall be available at reasonable times and places for inspection
by authorized representatives of the contracting agency and the
FHWA.
a. The records kept by the contractor shall document the following:
(1) The number and work hours of minority and non -minority
group members and women employed in each work
classification on the project;
(2) The progress and efforts being made in cooperation with
unions, when applicable, to increase employment opportunities
for minorities and women; and
(3) The progress and efforts being made in locating, hiring,
training, qualifying, and upgrading minorities and women.
b. The contractors and subcontractors will submit an annual
report to the contracting agency each July for the duration of the
project indicating the number of minority, women, and non -minority
group employees currently engaged in each work classification
required by the contract work. This information is to be reported on
Form FHWA-1391. The staffing data should represent the project
work force on board in all or any part of the last payroll period
preceding the end of July. If on-the-job training is being required by
special provision, the contractor will be required to collect and report
training data. The employment data should reflect the work force on
board during all or any part of the last payroll period preceding the
end of July.
III. NONSEGREGATED FACILITIES
This provision is applicable to all Federal -aid construction contracts
and to all related construction subcontracts of more than $10,000.
41 CFR 60-1.5.
As prescribed by 41 CFR 60-1.8, 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, sexual
orientation, gender identity, 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), in accordance with 29
CFR 5.5. The requirements apply to all projects located within the
right-of-way of a roadway that is functionally classified as Federal -
aid highway. 23 U.S.C. 113. This excludes roadways functionally
classified as local roads or rural minor collectors, which are exempt.
23 U.S.C. 101. Where applicable law requires that projects be
treated as a project on a Federal -aid highway, the provisions of this
subpart will apply regardless of the location of the project. Examples
include: Surface Transportation Block Grant Program projects
funded under 23 U.S.C. 133 [excluding recreational trails projects],
the Nationally Significant Freight and Highway Projects funded
under 23 U.S.C. 117, and National Highway Freight Program
projects funded under 23 U.S.C. 167.
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.
12
1. Minimum wages (29 CFR 5.5)
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, 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 Administrator for determination.
The Administrator, or an authorized representative, will issue
a determination within 30 days of receipt and so advise the
contracting officer or will notify the contracting officer within
the 30-day period that additional time is necessary.
(4) The wage rate (including fringe benefits where
appropriate) determined pursuant to paragraphs 1.b.(2) or
1.b.(3) of this section, shall be paid to all workers performing
work in the classification under this contract from the first
day on which work is performed in the classification,
c. Whenever the minimum wage rate prescribed in the contract for
a class of laborers or mechanics includes a fringe benefit which Is
not expressed as an hourly rate, the contractor shall either pay the
benefit as stated in the wage determination or shall pay another
bona fide fringe benefit or an hourly cash equivalent thereof.
d. If the contractor does not make payments to a trustee or other
third person, the contractor may consider as part of the wages of
any laborer or mechanic the amount of any costs reasonably
anticipated in providing bona fide fringe benefits under a plan or
program, Provided, That the Secretary of Labor has found, upon the
written request of the contractor, that the applicable standards of the
Davis -Bacon Act have been met. The Secretary of Labor may
require the contractor to set aside in a separate account assets for
the meeting of obligations under the plan or program.
2. Withholding (29 CFR 5.5)
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.
13
3. Payrolls and basic records (29 CFR 5.5)
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. 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 29 CFR
5.5(a)(3)(ii), the appropriate information is being maintained
under 29 CFR 5.5(a)(3)(i), 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 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 18 U.S.C. 1001 and 31 U.S.C. 231.
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 (29 CFR 5.5)
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.
14
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. 23 CFR 230.111(e)(2). 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 as provided in 29 CFR 5.5.
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 as provided in 29 CFR 5.5.
9. Disputes concerning labor standards. As provided in 29 CFR
5.5, 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 (29 CFR 5.5)
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.
15
V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT
Pursuant to 29 CFR 5.5(b), 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. 29 CFR 5.5.
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 currently
provided in 29 CFR 5.5(b)(2)* 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. 29 CFR
5.5.
* $27 as of January 23, 2019 (See 84 FR 213-01, 218) as may be
adjusted annually by the Department of Labor; pursuant to the
Federal Civil Penalties Inflation Adjustment Act of 1990).
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. 29 CFR 5.5.
4. Subcontracts. The contractor or subcontractor shall insert in any
subcontracts the clauses set forth in paragraphs 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. 29 CFR 5.5,
VI. SUBLETTING OR ASSIGNING THE CONTRACT
This provision is applicable to all Federal -aid construction contracts
on the National Highway System pursuant to 23 CFR 635.116.
1. The contractor shall perform with its own organization contract
work amounting to not less than 30 percent (or a greater percentage
if specified elsewhere in the contract) of the total original contract
price, excluding any specialty items designated by the contracting
agency. Specialty items may be performed by subcontract and the
amount of any such specialty items performed may be deducted
from the total original contract price before computing the amount of
work required to be performed by the contractor's own organization
(23 CFR 635.116).
a. The term "perform work with its own organization" in paragraph
1 of Section VI 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:
(based on longstanding interpretation)
(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. 23 CFR 635.102.
2. Pursuant to 23 CFR 635.116(a), 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. Pursuant to 23 CFR 635.116(c), 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. (based on long-standing interpretation of 23 CFR 635.116).
5. The 30-percent self -performance requirement of paragraph (1) is not
applicable to design -build contracts; however, contracting agencies
may establish their own self -performance requirements. 23 CFR
635.116(d).
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 Part 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. 23 CFR 635.108.
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 Part 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). 29 CFR 1926.10.
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 Part
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
16
Whoever knowingly makes any false statement, false
representation, false report or false claim with respect to the
character, quality, quantity, or cost of any work performed or to be
performed, or materials furnished or to be furnished, in connection
with the construction of any highway or related project approved
by the Secretary of Transportation; or
Whoever knowingly makes any false statement or false
representation as to material fact In any statement, certificate, or
report submitted pursuant to provisions of the Federal -aid Roads
Act approved July 11, 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 (42 U.S.C. 7606; 2 CFR
200.88; EO 11738)
This provision is applicable to all Federal -aid construction
contracts in excess of $150,000 and to all related subcontracts. 48
CFR 2.101; 2 CFR 200.326.
By submission of this bid/proposal or the execution of this contract
or subcontract, as appropriate, the bidder, proposer, Federal -aid
construction contractor, subcontractor, supplier, or vendor agrees
to comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and
the Federal Water Pollution Control Act, as amended (33 U.S.C.
1251-1387). Violations must be reported to the Federal Highway
Administration and the Regional Office of the Environmental
Protection Agency. 2 CFR Part 200, Appendix II.
The contractor agrees to include or cause to be included the
requirements of this Section In every subcontract, and further
agrees to take such action as the contracting agency may direct
as a means of enforcing such requirements. 2 CFR 200.326.
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. 2 CFR 180.220 and 1200.220.
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. 2
CFR 180.320.
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. 2
CFR 180.325.
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. 2 CFR 180.345 and 180.350.
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, Subpart I,
180.900-180.1020, and 1200. "First Tier Covered Transactions" refers to
any covered transaction between a recipient or subrecipient 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 recipient or subrecipient 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. 2 CFR
180.330.
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. 2 CFR 180,220
and 180.300.
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. 2 CFR
180.300; 180.320, and 180.325. A participant is responsible for ensuring
that its principals are not suspended, debarred, or otherwise ineligible to
participate in covered transactions. 2 CFR 180.335. 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 System for Award Management website
(https://www.sam.gov/). 2 CFR 180.300, 180.320, and 180.325,
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.
17
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 CFR 180.325.
2. Certification Regarding Debarment, Suspension, Ineligibility
and Voluntary Exclusion — First Tier Participants:
a. The prospective first tier participant certifies to the best of its
knowledge and belief, that it and its principals:
(1) Are not presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from
participating in covered transactions by any Federal department
or agency, 2 CFR 180.335;.
(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,
2 CFR 180.800;
(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, 2 CFR 180.700 and 180.800; 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. 2 CFR
180.335(d).
(5) Are not a corporation that has been convicted of a felony
violation under any Federal law within the two-year period
preceding this proposal (USDOT Order 4200.6 implementing
appropriations act requirements); and
(6) Are not a corporation with any unpaid Federal tax liability that
has been assessed, for which all judicial and administrative
remedies have been exhausted, or have lapsed, and that is not
being paid in a timely manner pursuant to an agreement with the
authority responsible for collecting the tax liability (USDOT Order
4200.6 implementing appropriations act requirements).
b. Where the prospective participant is unable to certify to any of
the statements in this certification, such prospective participant
should attach an explanation to this proposal. 2 CFR 180.335 and
180.340.
3. 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). 2 CFR 180.220 and
1200.220.
a. By signing and submitting this proposal, the prospective lower tier
participant is providing the certification set out below.
18
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. 2
CFR 180.365.
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,
Subpart I, 180.900 — 180.1020, 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 recipient or subrecipient 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 recipient or subrecipient 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. 2 CFR 1200.220 and 1200.332.
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. 2 CFR 180.220 and 1200.220.
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
System for Award Management website (https://www.sam.gov/),
which is compiled by the General Services Administration. 2 CFR
180.300, 180.320, 180.330, and 180.335.
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. 2 CFR 180.325.
***
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:
(a) is presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded from participating in
covered transactions by any Federal department or agency, 2
CFR 180.355;
(b) is a corporation that has been convicted of a felony violation
under any Federal law within the two-year period preceding this
proposal (USDOT Order 4200.6 implementing appropriations act
requirements); and
(c) is a corporation with any unpaid Federal tax liability that has
been assessed, for which all judicial and administrative remedies
have been exhausted, or have lapsed, and that is not being paid
in a timely manner pursuant to an agreement with the authority
responsible for collecting the tax liability. (USDOT Order 4200.6
implementing appropriations act requirements)
2. Where the prospective lower tier participant is unable to certify to
any of the statements in this certification, such prospective
participant should 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 Part
20, App. A.
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.
19
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.
XII. USE OF UNITED STATES -FLAG VESSELS:
This provision is applicable to all Federal -aid construction contracts,
design -build contracts, subcontracts, lower -tier subcontracts,
purchase orders, lease agreements, or any other covered
transaction. 46 CFR Part 381.
This requirement applies to material or equipment that is acquired for
a specific Federal -aid highway project. 46 CFR 381.7. It is not
applicable to goods or materials that come into inventories
independent of an FHWA funded -contract.
When oceanic shipments (or shipments across the Great Lakes) are
necessary for materials or equipment acquired for a specific Federal -
aid construction project, the bidder, proposer, contractor,
subcontractor, or vendor agrees:
1. To utilize privately owned United States -flag commercial vessels
to ship at least 50 percent of the gross tonnage (computed
separately for dry bulk carriers, dry cargo liners, and tankers)
involved, whenever shipping any equipment, material, or
commodities pursuant to this contract, to the extent such vessels are
available at fair and reasonable rates for United States -flag
commercial vessels. 46 CFR 381.7.
2. To furnish within 20 days following the date of loading for
shipments originating within the United States or within 30 working
days following the date of loading for shipments originating outside
the United States, a legible copy of a rated, 'on -board' commercial
ocean bill -of -lading in English for each shipment of cargo described
in paragraph (b)(1) of this section to both the Contracting Officer
(through the prime contractor in the case of subcontractor bills -of -
lading) and to the Office of Cargo and Commercial Sealift (MAR-
620), Maritime Administration, Washington, DC 20590. (MARAD
requires copies of the ocean carrier's (master) bills of lading, certified
onboard, dated, with rates and charges. These bills of lading may
contain business sensitive information and therefore may be
submitted directly to MARAD by the Ocean Transportation
Intermediary on behalf of the contractor). 46 CFR 381.7.