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HomeMy Public PortalAbout6.b. Arboricutral Services Agreement with Green Dreams Paradise Corp_Contract No. XX-XX Page 1 of 21 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE VILLAGE OF KEY BISCAYNE AND GREEN DREAMS PARADISE CORPORATION THIS AGREEMENT (this “Agreement”) is made effective as of the day of , 2024 (the “Effective Date”), by and between the VILLAGE OF KEY BISCAYNE, FLORIDA, a Florida municipal corporation, (the “Village”), and GREEN DREAMS PARADISE CORPORATION, a Florida profit corporation (the “Contractor”). WHEREAS, the Village issued Invitation to Bid No. 2023-17 (the “ITB”) for arboricultural tree trimming services (the “Services,” as further defined below); and WHEREAS, in response to the ITB, the Contractor submitted a bid (the “Bid”) for the Services, which is incorporated herein by reference; and WHEREAS, on February 13, 2024, the Village Council approved Resolution No. 2024- 10, selecting and awarding a contract to the Contractor based on the Contractor ’s Bid for the Services; and WHEREAS, the Village desires to engage the Contractor to perform the Services and provide the deliverables as specified below. 1. Scope of Services. 1.1. The Contractor shall provide the Services in accordance with the Scope of Work/Technical Specifications attached hereto as Exhibit “A” and incorporated herein by reference (the “Services”). The Village may modify the schedule of Services set forth in Exhibit “A.” 1.2. Upon written request by the Village, the Contractor shall perform Additional Services, including Emergency Services or Supplemental Services, in accordance with Exhibit “A.” 1.2.1. The Contractor shall perform the Emergency Services for disaster debris removal in compliance and in accordance with Section 28 of this Agreement. In providing the Emergency Services for disaster debris removal, the Contractor shall also perform or assist the Village in performing the following eligibility tasks: 1.2.1.1. Damage Categorization. Contractor shall properly group all Emergency Services for disaster debris removal in accordance with FEMA’s damage categories. 1.2.1.2. Eligibility Inspections. Contractor and the Village and/or the Village’s Disaster Debris Monitoring Team will inspect each load to verify that the DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 3/11/2024 Contract No. XX-XX Page 2 of 21 contents are in accordance with the accepted definition of eligible debris, as set out in the FEMA Guidelines. 1.2.1.3. Eligibility Determinations. If any load is suspected to contain material that does not conform to the definition of eligible debris, the load will be ordered to be deposited at another landfill, receiving facility or at a special location at the Temporary Debris Storage and Reduction Site (“TDSRS”) identified by the Village. 1.3. The Contractor shall furnish all reports, documents, and information obtained pursuant to this Agreement, and recommendations during the term of this Agreement (hereinafter “Deliverables”) to the Village. 2. Term/Commencement Date. 2.1. The term of this Agreement shall be from the Effective Date through three (3) years thereafter, unless earlier terminated in accordance with Paragraph 8. Additionally, the Village Manager may renew this Agreement for two (2) additional one-year periods on the same terms as set forth herein upon written notice to the Contractor. 2.2. Contractor agrees that time is of the essence and Contractor shall complete the Services within the term of this Agreement, unless extended by the Village Manager. 3. Compensation and Payment. 3.1. Compensation for Services provided by Contractor shall be in accordance with the unit pricing and rates as set out in the Rate Schedule attached hereto as Exhibit “B.” Compensation for Services shall be in an amount not to exceed $199,400.00 for calendar years 2024, 2026, and 2028, and $212,920.00 for calendar years 2025 and 2027. 3.2. Contractor shall deliver an invoice to Village no more often than once per month detailing Services completed and the amount due to Contractor under this Agreement. Fees shall be paid in arrears each month, pursuant to Contractor’s invoice, which shall be based upon the percentage of work completed for each task invoiced. The Village shall pay the Contractor in accordance with the Florida Prompt Payment Act after approval and acceptance of the Services by the Village Manager. 3.3. Contractor’s invoices must contain the following information for prompt payment: 3.3.1. Name and address of the Contractor; 3.3.2. Purchase Order number; 3.3.3. Contract number; 3.3.4. Date of invoice; DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 3 of 21 3.3.5. Invoice number (Invoice numbers cannot be repeated. Repeated invoice numbers will be rejected); 3.3.6. Name and type of Services; 3.3.7. Timeframe covered by the invoice; and 3.3.8. Total value of invoice. Failure to include the above information will result in the delay of payment or rejection of the invoice. All invoices must be submitted electronically to payables@keybiscayne.fl.gov. 4. Subcontractors. 4.1. The Contractor shall be responsible for all payments to any subcontractors and shall maintain responsibility for all work related to the Services. 4.2. Contractor may only utilize the services of a particular subcontractor with the prior written approval of the Village Manager, which approval may be granted or withheld in the Village Manager’s sole and absolute discretion. 5. Village’s Responsibilities. 5.1. Village shall make available any maps, plans, existing studies, reports, staff and representatives, and other data pertinent to the Services and in possession of the Village, and provide criteria requested by Contractor to assist Contractor in performing the Services. 5.2. Upon Contractor’s request, Village shall reasonably cooperate in arranging access to public information that may be required for Contractor to perform the Services. 6. Contractor’s Responsibilities; Representations and Warranties. 6.1. The Contractor shall exercise the same degree of care, skill and diligence in the performance of the Services as is ordinarily provided by a Contractor under similar circumstances. If at any time during the term of this Agreement or within two (2) years from the completion of this Agreement, it is determined that the Contractor’s Deliverables or Services are incorrect, not properly rendered, defective, or fail to conform to Village requests, the Contractor shall at Contractor’s sole expense, immediately correct its Deliverables or Services. 6.2. The Contractor hereby warrants and represents that at all times during the term of this Agreement it shall maintain in good standing all required licenses, certifications and permits required under Federal, State and local laws applicable to and necessary to perform the Services for Village as an independent contractor of the Village. Contractor further warrants and represents that it has the required knowledge, expertise, and experience to perform the Services and carry out its obligations under this Agreement in a professional and first class manner. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 4 of 21 6.3. The Contractor represents that is an entity validly existing and in good standing under the laws of Florida. The execution, delivery and performance of this Agreement by Contractor have been duly authorized, and this Agreement is binding on Contractor and enforceable against Contractor in accordance with its terms. No consent of any other person or entity to such execution, delivery and performance is required. 7. Conflict of Interest. 7.1. To avoid any conflict of interest or any appearance thereof, Contractor shall not, for the term of this Agreement, provide any consulting services to any private sector entities (developers, corporations, real estate investors, etc.), with any current, or foreseeable, adversarial issues in the Village. 8. Termination. 8.1. The Village Manager, without cause, may terminate this Agreement upon five (5) calendar days’ written notice to the Contractor, or immediately with cause. 8.2. Upon receipt of the Village's written notice of termination, Contractor shall immediately stop work on the project unless directed otherwise by the Village Manager. 8.3. In the event of termination by the Village, the Contractor shall be paid for all work accepted by the Village Manager up to the date of termination, provided that the Contractor has first complied with the provisions of Paragraph 8.4. 8.4. The Contractor shall transfer all books, records, reports, working drafts, documents, maps, and data pertaining to the Services and the project to the Village, in a hard copy and electronic format within fourteen (14) days from the date of the written notice of termination or the date of expiration of this Agreement. 9. Insurance. 9.1. Contractor shall secure and maintain throughout the duration of this agreement insurance of such types and in such amounts not less than those specified below as satisfactory to Village, naming the Village as an Additional Insured, underwritten by a firm rated A-X or better by A.M. Best and qualified to do business in the State of Florida. The insurance coverage shall be primary insurance with respect to the Village, its officials, employees, agents, and volunteers naming the Village as additional insured. Any insurance maintained by the Village shall be in excess of the Contractor’s insurance and shall not contribute to the Contractor’s insurance. The insurance coverages shall include at a minimum the amounts set forth in this section and may be increased by the Village as it deems necessary or prudent. 9.1.1. Commercial General Liability coverage with limits of liability of not less than a $1,000,000 per Occurrence combined single limit for Bodily Injury and Property Damage. This Liability Insurance shall also include Completed Operations and Product Liability coverages and eliminate the exclusion with respect to property under the care, custody and control of Contractor. The General Aggregate Liability limit DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 5 of 21 and the Products/Completed Operations Liability Aggregate limit shall be in the amount of $2,000,000 each. 9.1.2. Workers Compensation and Employer’s Liability insurance, to apply for all employees for statutory limits as required by applicable State and Federal laws. The policy(ies) must include Employer’s Liability with minimum limits of $1,000,000.00 each accident. No employee, subcontractor or agent of the Contractor shall be allowed to provide Services pursuant to this Agreement who is not covered by Worker’s Compensation insurance. 9.1.3. Business Automobile Liability with minimum limits of $1,000,000 per occurrence, combined single limit for Bodily Injury and Property Damage. Coverage must be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability policy, without restrictive endorsements, as filed by the Insurance Service Office, and must include Owned, Hired, and Non-Owned Vehicles. 9.1.4. Professional Liability Insurance in an amount of not less than One Million Dollars ($1,000,000.00) per occurrence, single limit. 9.2. Certificate of Insurance. Certificates of Insurance shall be provided to the Village, reflecting the Village as an Additional Insured (except with respect to Professional Liability Insurance and Worker’s Compensation Insurance), no later than ten (10) days after award of this Agreement and prior to the execution of this Agreement by Village and prior to commencing Services. Each certificate shall include no less than (30) thirty-day advance written notice to Village prior to cancellation, termination, or material alteration of said policies or insurance. The Contractor shall be responsible for assuring that the insurance certificates required by this Section remain in full force and effect for the duration of this Agreement, including any extensions or renewals that may be granted by the Village. The Certificates of Insurance shall not only name the types of policy(ies) provided, but also shall refer specifically to this Agreement and shall state that such insurance is as required by this Agreement. The Village reserves the right to inspect and return a certified copy of such policies, upon written request by the Village. If a policy is due to expire prior to the completion of the Services, renewal Certificates of Insurance shall be furnished thirty (30) calendar days prior to the date of their policy expiration. Each policy certificate shall be endorsed with a provision that not less than thirty (30) calendar days’ written notice shall be provided to the Village before any policy or coverage is cancelled or restricted. Acceptance of the Certificate(s) is subject to approval of the Village. 9.3. Additional Insured. Except with respect to Professional Liability Insurance and Worker’s Compensation Insurance, the Village is to be specifically included as an Additional Insured for the liability of the Village resulting from Services performed by or on behalf of the Contractor in performance of this Agreement. The Contractor’s insurance, including that applicable to the Village as an Additional Insured, shall apply on a primary basis and any other insurance maintained by the Village shall be in excess of and shall not contribute to the Contractor’s insurance. The Contractor’s insurance shall contain a severability of interest provision providing that, except with respect to the total limits of DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 6 of 21 liability, the insurance shall apply to each Insured or Additional Insured (for applicable policies) in the same manner as if separate policies had been issued to each. 9.4. Deductibles. All deductibles or self-insured retentions must be declared to and be reasonably approved by the Village. The Contractor shall be responsible for the payment of any deductible or self-insured retentions in the event of any claim. 9.5. The provisions of this section shall survive termination of this Agreement. 10. Nondiscrimination. During the term of this Agreement, Contractor shall not discriminate against any of its employees or applicants for employment because of their race, color, religion, sex, or national origin, and will abide by all Federal and State laws regarding nondiscrimination. 11. Attorneys Fees and Waiver of Jury Trial. 11.1. In the event of any litigation arising out of this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees and costs, including the fees and expenses of any paralegals, law clerks and legal assistants, and including fees and expenses charged for representation at both the trial and appellate levels. 11.2. IN THE EVENT OF ANY LITIGATION ARISING OUT OF THIS AGREEMENT, EACH PARTY HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY. 12. Indemnification. 12.1. Contractor shall indemnify and hold harmless the Village, its officers, agents and employees, from and against any and all demands, claims, losses, suits, liabilities, causes of action, judgment or damages, arising from Contractor’s performance or non- performance of any provision of this Agreement, including, but not limited to, liabilities arising from contracts between the Contractor and third parties made pursuant to this Agreement. Contractor shall reimburse the Village for all its expenses including reasonable attorneys’ fees and costs incurred in and about the defense of any such claim or investigation and for any judgment or damages arising from Contractor’s performance or non-performance of this Agreement. 12.2. Nothing herein is intended to serve as a waiver of sovereign immunity by the Village nor shall anything included herein be construed as consent to be sued by third parties in any matter arising out of this Agreement or any other contract. The Village is subject to section 768.28, Florida Statutes, as may be amended from time to time. 12.3. The provisions of this section shall survive termination of this Agreement. 13. Notices/Authorized Representatives. Any notices required by this Agreement shall be in writing and shall be deemed to have been properly given if transmitted by hand-delivery, by registered or certified mail with postage prepaid return receipt requested, or by a private postal DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 7 of 21 service, addressed to the parties (or their successors) at the addresses listed on the signature page of this Agreement or such other address as the party may have designated by proper notice. 14. Governing Law and Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of Florida. Venue for any proceedings arising out of this Agreement shall be proper exclusively in Miami-Dade County, Florida. 15. Entire Agreement/Modification/Amendment. 15.1. This writing contains the entire Agreement of the parties and supersedes any prior oral or written representations. No representations were made or relied upon by either party, other than those that are expressly set forth herein. 15.2. No agent, employee, or other representative of either party is empowered to modify or amend the terms of this Agreement, unless executed with the same formality as this document. 16. Ownership and Access to Records and Audits. 16.1. Contractor acknowledges that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports, compiled information, and all similar or related information (whether patentable or not) which relate to Services to the Village which are conceived, developed or made by Contractor during the term of this Agreement (“Work Product”) belong to the Village. Contractor shall promptly disclose such Work Product to the Village and perform all actions reasonably requested by the Village (whether during or after the term of this Agreement) to establish and confirm such ownership (including, without limitation, assignments, powers of attorney and other instruments). 16.2. Contractor agrees to keep and maintain public records in Contractor’s possession or control in connection with Contractor’s performance under this Agreement. The Village Manager or her designee shall, during the term of this Agreement and for a period of three (3) years from the date of termination of this Agreement, have access to and the right to examine and audit any records of the Contractor involving transactions related to this Agreement. Contractor additionally agrees to comply specifically with the provisions of Section 119.0701, Florida Statutes. Contractor shall ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law, for the duration of the Agreement, and following completion of the Agreement until the records are transferred to the Village. 16.3. Upon request from the Village’s custodian of public records, Contractor shall provide the Village with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 8 of 21 16.4. Unless otherwise provided by law, any and all records, including but not limited to reports, surveys, and other data and documents provided or created in connection with this Agreement are and shall remain the property of the Village. 16.5. Upon completion of this Agreement or in the event of termination by either party, any and all public records relating to the Agreement in the possession of the Contractor shall be delivered by the Contractor to the Village Manager, at no cost to the Village, within seven (7) days. All such records stored electronically by Contractor shall be delivered to the Village in a format that is compatible with the Village’s information technology systems. Once the public records have been delivered upon completion or termination of this Agreement, the Contractor shall destroy any and all duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. 16.6. Any compensation due to Contractor shall be withheld until all records are received as provided herein. 16.7. Contractor’s failure or refusal to comply with the provisions of this section shall result in the immediate termination of this Agreement by the Village. 16.8. Notice Pursuant to Section 119.0701(2)(a), Florida Statutes. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS. Custodian of Records: Jocelyn B. Koch Mailing address: 88 West McIntyre Street Key Biscayne, FL 33149 Telephone number: 305-365-5506 Email: jkoch@keybiscayne.fl.gov 17. Nonassignability. This Agreement shall not be assignable by Contractor unless such assignment is first approved by the Village Manager. The Village is relying upon the apparent qualifications and expertise of the Contractor, and such firm’s familiarity with the Village’s area, circumstances and desires. 18. Severability. If any term or provision of this Agreement shall to any extent be held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each remaining term and provision of this Agreement shall be valid and be enforceable to the fullest extent permitted by law. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 9 of 21 19. Independent Contractor. The Contractor and its employees, volunteers and agents shall be and remain an independent contractor and not an agent or employee of the Village with respect to all of the acts and services performed by and under the terms of this Agreement. This Agreement shall not in any way be construed to create a partnership, association or any other kind of joint undertaking, enterprise or venture between the parties. 20. Compliance with Laws. The Contractor shall comply with all applicable laws, ordinances, rules, regulations, and lawful orders of public authorities in carrying out Services under this Agreement, and in particular shall obtain all required permits from all jurisdictional agencies to perform the Services under this Agreement at its own expense. 21. Waiver. The failure of either party to this Agreement to object to or to take affirmative action with respect to any conduct of the other which is in violation of the terms of this Agreement shall not be construed as a waiver of the violation or breach, or of any future violation, breach or wrongful conduct. 22. Survival of Provisions. Any terms or conditions of either this Agreement that require acts beyond the date of the term of the Agreement, shall survive termination of the Agreement, shall remain in full force and effect unless and until the terms or conditions are completed and shall be fully enforceable by either party. 23. Prohibition of Contingency Fees. The Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the Contractor, to solicit or secure this Agreement, and that it has not paid or agreed to pay any person(s), company, corporation, individual or firm, other than a bona fide employee working solely for the Contractor, any fee, commission, percentage, gift, or any other consideration, contingent upon or resulting from the award or making of this Agreement. 24. Public Entity Crimes Affidavit. Contractor shall comply with Section 287.133, Florida Statutes (Public Entity Crimes Statute), notification of which is hereby incorporated herein by reference, including execution of any required affidavit. 25. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original and such counterparts shall constitute one and the same instrument. 26. Conflicts; Order of Priority. This document without exhibits is referred to as the “Base Agreement.” In the event of a conflict between the terms of this Base Agreement and any exhibits or attachments hereto, or any documents incorporated herein by reference, the conflict shall be resolved in the following order of priorities and the more stringent criteria for performance of the Services shall apply: 26.1. First Priority: Exhibit D – FHWA-1273; 26.2. Second Priority: Exhibit C – FEMA Contract Provisions Guide; 26.3. Third Priority: this Base Agreement; 26.4. Fourth Priority: Exhibit B – Rate Schedule; 26.5. Fifth Priority: Exhibit A – Scope of Services; 26.6. Sixth Priority: the ITB; DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 10 of 21 26.7. Seventh Priority: Work Orders, with later date taking precedence. 27. E-Verify Affidavit. In accordance with Section 448.095, Florida Statutes, the Village requires all contractors doing business with the Village to register with and use the E-Verify system to verify the work authorization status of all newly hired employees. The Village will not enter into a contract unless each party to the contract registers with and uses the E-Verify system. The contracting entity must provide of its proof of enrollment in E-Verify. For instructions on how to provide proof of the contracting entity’s participation/enrollment in E-Verify, please visit: https://www.e-verify.gov/faq/how-do-i-provide-proof-of-my-participationenrollment- in-e-verify. By entering into this Agreement, the Contractor acknowledges that it has read Section 448.095, Florida Statutes; will comply with the E-Verify requirements imposed by Section 448.095, Florida Statutes, including but not limited to obtaining E-Verify affidavits from subcontractors; and has executed the required affidavit attached hereto and incorporated herein. 28. Federally Required Clauses. In the performance of all Emergency Services under this Agreement, the Contractor shall adhere to (1) the FEMA Guidelines (as may be amended or superseded), including the FEMA Public Assistance Program and Policy Guide (PAPPG) and the FEMA Public Assistance Debris Management Guide (the “FEMA Guidelines”), (2) the contract provisions listed under 2 CFR Part 200, Appendix II, (3) all applicable contract provisions and guidance in the FEMA Contract Provisions Guide, as may be amended from time to time and which is attached hereto as Exhibit “C,” and (4) the FHWA-1273 attached hereto as Exhibit “D.” The Contractor shall comply with the following terms and provisions for all Emergency Services: 28.1. Equal Employment Opportunity. During the performance of this Agreement, the Contractor agrees as follows: 28.1.1. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 28.1.2. The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. 28.1.3. The Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 11 of 21 an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor's legal duty to furnish information. 28.1.4. The Contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 28.1.5. The Contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. 28.1.6. The Contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. 28.1.7. In the event of the Contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the Contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. 28.1.8. The Contractor will include the portion of the sentence immediately preceding subsection 28.1 and the provisions of subsections 28.1.1 through 28.1.8 in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event a Contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Contractor may request the United States to enter into such litigation to protect the interests of the United States. The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, That if the applicant so participating is a State DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 12 of 21 or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract. The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance. The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a Contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings. 28.2. Compliance with the Davis-Bacon Act. As applicable, during the performance of this Agreement, the Contractor agrees as follows: a. All transactions regarding this contract shall be done in compliance with the Davis-Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) and the requirements of 29 C.F.R. pt. 5 as may be applicable. The Contractor shall comply with 40 U.S.C. 3141-3144, and 3146-3148 and the requirements of 29 C.F.R. pt. 5 as applicable. b. Consultants are required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. c. Additionally, Consultants are required to pay wages not less than once a week. 28.3. Compliance with the Copeland “Anti-Kickback” Act. As applicable, during the performance of this Agreement, the Contractor agrees as follows: a. Contractor. The Contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into this contract. b. Subcontracts. The Contractor or subcontractor shall insert in any subcontracts the clause above and such other clauses as FEMA may by appropriate instructions require, and also a clause requiring the subcontractors to include these DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 13 of 21 clauses in any lower tier subcontracts. The prime Contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract clauses. c. Breach. A breach of the contract clauses above may be grounds for termination of the contract, and for debarment as a Contractor and subcontractor as provided in 29 C.F.R. § 5.12. 28.4. Compliance with the Contract Work Hours and Safety Standards Act. As applicable, during the performance of this Agreement, the Contractor agrees as follows: 28.4.1. Overtime requirements. The Contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall not require nor 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. 28.4.2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in subsection 28.2.1. of this section the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, the 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 subsection 28.2.1. of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in 28.2.1. of this section. 28.4.3. Withholding for unpaid wages and liquidated damages. The Village 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 subsection 28.2.2. of this section. 28.4.4. Subcontracts. The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in subsections 28.2.1 through 28.2.4. of this section and 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 DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 14 of 21 lower tier subcontractor with the clauses set forth in subsections 28.2.1. through 28.2.4. of this section. 28.5. Rights to Inventions Made under this Agreement. 28.5.1. As applicable, if the Contractor is engaged for the performance of experimental, developmental, or research, the Contractor’s work shall provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the Federal Government. 28.6. Clean Air Act and Federal Water Pollution Control Act. As required by Federal program legislation, the Contractor agrees to comply with the following federal requirements: 28.6.1. Clean Air Act. 28.6.1.1. The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. (2) 28.6.1.2. The Contractor agrees to report each violation to the Village and understands and agrees that the Village will, in turn, report each violation as required to assure notification to the State of Florida, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office. 28.6.1.3. The Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA. 28.6.2. Federal Water Pollution Control Act. 28.6.2.1. The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. 28.6.2.2. The Contractor agrees to report each violation to the Village and understands and agrees that the Village will, in turn, report each violation as required to assure notification to The State of Florida, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office. 28.6.2.3. The Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FEMA. 28.7. Suspension and Debarment. During the performance of this Agreement, the Contractor agrees as follows: 28.7.1. This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such the Contractor is required, and will, verify that neither Contractor, its principals (defined at 2 C.F.R. § 180.995), nor its affiliates (defined at 2 C.F.R. § DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 15 of 21 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). 28.7.2. The Contractor will comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters. 28.7.3. Contractor’s certification is a material representation of fact relied upon by the Village. If it is later determined that the Contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the State of Florida, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment. 28.7.4. The Contractor agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C throughout the period this Agreement. The Contractor further agrees to include a provision requiring such compliance in its lower-tier covered transactions. 28.8. Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended). During the performance of this Agreement, the Contractor agrees as follows: 28.8.1. The Contractor certifies to the Village that it has not and will not use Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. The required Certification is attached to this Agreement. 28.8.2. Contractor will also ensure that each tier of subcontractor(s) shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures will be forwarded from tier-to-tier up to the Village. 28.9. Procurement of Recovered Materials. As required by federal program legislation, Contractor agrees to the following: 28.9.1. In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired: 28.9.1.1. competitively within a timeframe providing for compliance with the contract performance schedule; 28.9.1.2. meeting contract performance requirements; or 28.9.1.3. at a reasonable price. 28.9.2. Information about this requirement, along with the list of EPA-designate items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/comprehensive-procurement-guideline-cpg-program. 28.9.3. The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 16 of 21 28.10. DHS Seals, Logos, and Flags. The Contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre-approval. 28.11. Compliance with Federal Law, Regulations, and Executive Orders. The Contractor acknowledges that FEMA financial assistance will be used to fund the contract only. The Contractor will comply will all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives. 28.12. No Obligation by Federal Government. Contractor acknowledges that the Federal Government is not a party to this contract and is not subject to any obligations or liabilities to the non-Federal entity, Contractor, or any other party pertaining to any matter resulting from the contract. 28.13. Program Fraud and False or Fraudulent Statements or Related Acts. The Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the Contractor actions pertaining to this Agreement. 28.14. Access to Records. 28.14.1. The Contractor agrees to provide the State of Florida, the Village , the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. 28.14.2. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. 28.14.3. The Contractor agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. 28.14.4. In compliance with the Disaster Recovery Act of 2018, the Village and the Contractor acknowledge and agree that no language in this Agreement is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States. 28.15. Affirmative Socioeconomic Steps/Small and Minority Businesses, Women’s Business Enterprises. 28.15.1. Contractor shall comply with 2 C.F.R. § 200.321, “Contracting with small and minority businesses, women’s business enterprises, and labor surplus area firms.” 28.15.2. If subcontracts are to be let, the Contractor is required to take all necessary steps identified in 2 C.F.R. § 200.321(b)(1)-(5) to ensure that small and minority businesses, women’s business enterprises, and labor surplus area firms are used when possible. 28.16. Change or Modification. To be eligible for FEMA assistance under a FEMA grant or cooperative agreement, the cost of a change, modification, change order, or constructive change must be allowable, allocable, within the scope of the grant or cooperative DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 17 of 21 agreement, and reasonable for the completion of the project scope. Accordingly, the Contractor shall comply with the following: 28.16.1. Without invalidating the Agreement, Village reserves and shall have the right, from time to time to make such increases, decreases or other changes in the character or quantity of the work as may be considered necessary or desirable to fully and properly complete the project in a satisfactory manner in accordance with the scope of the FEMA grant or cooperative agreement. Any extra or additional work within the scope of this Agreement must be accomplished by means of appropriate Field Orders or Change Orders. 28.16.2. The Village shall have the right to approve and issue Field Orders setting forth written interpretations of the intent of the project documents and ordering minor changes in work execution, providing the Field Order involves no change in the Agreement Price or the Agreement Time. 28.16.3. Changes in the quantity or character of the Work or Services within the scope of the Project which are not properly the subject of Field Orders, including all changes resulting in changes in the Agreement Price, or the Agreement Time, shall be authorized only by Change Orders approved in advance and issued in accordance with the provisions of Village’s Procurement Code, as amended from time to time. 28.17. Remedies. Village confirms that it is entitled to exercise all administrative, contractual, or other remedies permitted by law to enforce Contractor’s compliance with the terms of this Agreement, except to the extent expressly provided otherwise by this Agreement. 28.18. Prohibition on Contracting for Covered Telecommunications Equipment or Services. If applicable, the Contractor shall agree as follows: 28.18.1. The Village and the Contractor must comply with the Section 889(b)(1) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (FY2019 NDAA) and 2 C.F.R. 200.216, which prohibits the obligation or expending of federal award funds on certain telecommunication products or from certain entities for national security reasons. Towards that end, the Contractor shall ensure that the Contractor and its subcontractors do not: 28.18.2. Procure or obtain any equipment, system, or service that uses covered telecommunications equipment of services as a substantial or essential component of any system, or as critical technology of any system; 28.18.3. Enter into, extend, or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as substantial or essential component of any system or as critical technology of any system; or DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 18 of 21 28.18.4. Enter into, extend or renew contracts with entities that use covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. Additional information, including definitions for this requirement can be found in FEMA Policy 405-143-1. Prohibitions on Expending FEMA Award Funds for Covered Telecommunications Equipment or Services (Interim). 28.19. Domestic Preference for Procurements. As appropriate, and to the extent consistent with law, the Contractor should, to the greatest extent practicable, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. This includes, but is not limited to iron, aluminum, steel, cement, and other manufactured products. For purposes of this clause: 28.19.1. Produced in the United States means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. 28.19.2. Manufactured products mean items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber. 28.20. License and Delivery of Works Subject to Copyright and Data Rights. If applicable, the Contractor shall agree as follows: 28.20.1. The Contractor grants to the Village, a paid-up, royalty-free, nonexclusive, irrevocable, worldwide license in data first produced in the performance of this contract to reproduce, publish, or otherwise use, including prepare derivative works, distribute copies to the public, and perform publicly and display publicly such data. For data required by the contract but not first produced in the performance of this contract, the Contractor will identify such data and grant to the Village or acquires on its behalf a license of the same scope as for data first produced in the performance of this contract. Data, as used herein, shall include any work subject to copyright under 17 U.S.C. § 102, for example, any written reports or literary works, software and/or source code, music, choreography, pictures or images, graphics, sculptures, videos, motion pictures or other audiovisual works, sound and/or video recordings, and architectural works. Upon or before the completion of this contract, the Contractor will deliver to the Village data first produced in the performance of this contract and data required by the contract but not first produced in the performance of this contract in formats acceptable by the Village. 28.21. Safeguarding of Sensitive Information and Information Technology Security and Privacy Training. 28.21.1. Applicability. This clause is applicable when the Contractor has access to sensitive information or the Contractor’s IT system as defined in the agreement that are used to input, store, process, output and/or transmit sensitive data. If applicable, this clause DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 19 of 21 shall apply to the Contractor, its subcontractors, and Contractor employees (hereafter referred to collectively as “Contractor”). The Contractor shall insert the substance of this clause in all subcontracts. 28.21.2. Definitions. As used in this clause— “Personally Identifiable Information (PII)” means information that can be used to distinguish or trace an individual's identity, such as name, social security number, or biometric records, either alone, or when combined with other personal or identifying information that is linked or linkable to a specific individual, such as date and place of birth, or mother’s maiden name. The definition of PII is not anchored to any single category of information or technology. Rather, it requires a case-by-case assessment of the specific risk that an individual can be identified. In performing this assessment, it is important for an agency to recognize that non-personally identifiable information can become personally identifiable information whenever additional information is made publicly available—in any medium and from any source— that, combined with other available information, could be used to identify an individual. PII is a subset of sensitive information. Examples of PII include, but are not limited to: name, date of birth, mailing address, telephone number, Social Security number (SSN), email address, zip code, account numbers, certificate/license numbers, vehicle identifiers including license plates, uniform resource locators (URLs), static Internet protocol addresses, biometric identifiers such as fingerprint, voiceprint, iris scan, photographic facial images, or any other unique identifying number or characteristic, and any information where it is reasonably foreseeable that the information will be linked with other information to identify the individual. (a) Sensitive Information, as used in this clause, means any information, which if lost, misused, disclosed, or, without authorization is accessed, or modified, could adversely affect the national or homeland security interest, the conduct of Federal programs, or the privacy to which individuals are entitled under section 552a of title 5, United States Code (the Privacy Act), but which has not been specifically authorized under criteria established by an Executive Order or an Act of Congress to be kept secret in the interest of national defense, homeland security or foreign policy. This definition includes the following categories of information: (1) Protected Critical Infrastructure Information (PCII) as set out in the Critical Infrastructure Information Act of 2002 (Title II, Subtitle B, of the Homeland Security Act, Pub. L. 107-296, 196 Stat. 2135), as amended, the implementing regulations thereto (Title 6, Code of Federal Regulations, part 29) as amended, the applicable PCII Procedures Manual, as amended, and any supplementary guidance officially communicated by an authorized official of the Department of Homeland Security (including the PCII Program Manager or his/her designee); (2) Sensitive Security Information (SSI), as defined in Title 49, Code of Federal Regulations, part 1520, as amended, “Policies and Procedures of Safeguarding and DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Page 20 of 21 Control of SSI,” as amended, and any supplementary guidance officially communicated by an authorized official of the Department of Homeland Security (including the Assistant Secretary for the Transportation Security Administration or his/her designee); (3) Information designated as “For Official Use Only,” which is unclassified information of a sensitive nature and the unauthorized disclosure of which could adversely impact a person's privacy or welfare, the conduct of Federal programs, or other programs or operations essential to the national or homeland security interest; and (4) Any information that is designated “sensitive” or subject to other controls, safeguards or protections in accordance with subsequently adopted homeland security information handling procedures. (b) “Information Technology Resources” include, but are not limited to, computer equipment, networking equipment, telecommunications equipment, cabling, network drives, computer drives, network software, computer software, software programs, intranet sites, and internet sites. (c) Contractor employees working on this contract must complete such forms as may be necessary for security or other reasons, including the conduct of background investigations to determine suitability. Completed forms shall be submitted as directed by the Contracting Officer. Upon the Contracting Officer's request, the Contractor's employees shall be fingerprinted, or subject to other investigations as required. All Contractor’s employees requiring recurring access to Government facilities or access to sensitive information or IT resources are required to have a favorably adjudicated background investigation prior to commencing work on this contract unless this requirement is waived under Departmental procedures. (d) The Contracting Officer may require the Contractor to prohibit individuals from working on the contract if the Government deems their initial or continued employment contrary to the public interest for any reason, including, but not limited to, carelessness, insubordination, incompetence, or security concerns. (e) Work under this contract may involve access to sensitive information. Therefore, the Contractor shall not disclose, orally or in writing, any sensitive information to any person unless authorized in writing by the Contracting Officer. For those Contractor employees authorized access to sensitive information, the Contractor shall ensure that these persons receive training concerning the protection and disclosure of sensitive information both during and after contract performance. (f) The Contractor shall include the substance of this clause in all subcontracts at any tier where the subcontractor may have access to Government facilities, sensitive information, or resources. [Remainder of page intentionally left blank. Signature pages follow.] DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Green Dreams Paradise Corp.6021 SW 185 WaySouthwest Ranches, Fl. 33332954-680-6360 DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Exhibit A: Scope of Services EXHIBIT A SCOPE OF WORK/TECHNICAL SPECIFICATIONS [THIS PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 8 SECTION 2A. SCOPE OF WORK / TECHNICAL SPECIFICATIONS 2.1 SCOPE OF WORK: CONTRACTOR shall provide all labor, materials and equipment, tools, and vehicles/transportation necessary to perform arboriculture services for the maintenance of all trees within the VILLAGE’s rights- of-way, landscape buffers, parks, and facilities as shown in Attachment “C”. Work includes but is not limited to mobilizing/staging, tree pruning, aerial work, tree removal, stump grinding, utilization of hand power pruning tools, chipping, cleanup, disposal, demobilizing/breakdown, and maintenance of traffic to ensure that the Work and Services are performed at all Sites in a manner that will meet the Performance Standards and all requirements of the ITB. 2.2 SCHEDULE OF WORK All Work shall be performed Monday through Friday between the hours of 8:00 AM and 6:30 PM. However, work on Harbor Drive and areas around the schools should occur after 9:00 AM and should not occur at dismissal times. Work on Crandon Boulevard should occur after 9:30 AM. The Contractor shall comply with Chapter 17 of the Village Code (i.e., the Village’s Noise Ordinance). There will be No Work performed on weekends or holidays unless the Project Manager gives prior written approval. The Contractor shall submit documentation to the Project Manager with a schedule before Work is to be started. The Contractor shall notify the Project Manager in the event of scheduling delays, changes, or comments/complaints received from the public. The Contractor shall provide the necessary personnel, material, equipment in order to perform the Work only within the specified dates below: Hardwood Pruning: April 15th – June 30th Coconut Pruning, 1st Annual Round: May 1st – June 30th (Along Crandon Blvd. June 15th – June 30th) Coconut Pruning, 2nd Annual Round: August 15th – October 30th (Along Crandon Blvd. October 15th – October 30th) 2.3 PERSONNEL REQUIREMENTS/QUALIFICATIONS (a) General The Contractor must manage the total Work effort required to assure fully adequate and timely completion of these Services in accordance with the Performance Standards. Such management includes, but is not limited to, planning, scheduling, report preparation, establishing and maintaining records, and quality control. The Contractor must provide staff with the necessary management expertise to assure the performance of the required Work; trained and experienced field and office personnel who meet established standards to perform the Work required effectively and who exhibit the capability to perform with minimum supervision. It is DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 9 the Village’s preference that turnover is kept to a minimum with personnel to ensure a continuity of operations through the Contract term. (b) Field Supervisor The Contractor must provide on-site, full-time Field Supervisor(s) to manage Contractor’s personnel at each Site. This person (and their substitute) must have full authority to act on behalf of the Contractor on all matters relating to the daily performance of the Work at the Site(s). The Field Supervisor must be the central point of contact in the field for the Village; must effectively communicate in English; is capable of writing schedules and monthly reports, and of noting any deficiencies that need correcting. The Field Supervisor must understand and be able to fulfill, completely and clearly, the Performance Standards and reporting requirements of the Contract. A résumé for the Field Supervisor must be submitted with the Contractor’s Proposal, which must include all contact information (i.e., telephone, email address, cell phone, etc.). The Field Supervisor must have a minimum of three (3) years of experience on contracts of similar size, scope, and complexity, and must remain on-site at all times while Work is being performed under the Contract. When the on-site working Field Supervisor is absent for the day or an extended period (more than 4 hours), the Project Manager must be notified, and the Contractor must appoint a qualified substitute. Within five (5) days of execution of the Contract, the Contractor must provide the Project Manager with a cellular phone number for the Field Supervisor(s) where they can be reached at all times. (c) Arborist The Contractor must employ an International Society of Arboriculture (ISA) Certified Arborist to supervise on-site at all times that tree work is being performed at the Site. The Arborist will certify the quality and grade of each tree, including the quality of the root system, prior to installation in the landscape. Tree work includes, but is not limited to, planting/installing, maintaining (pruning, trimming, treating), and removing any tree in the contracted area. Arborist will ensure that all Work is performed in accordance with the American National Standards Institute ANSI A-300 and associated Best Management Practices for Tree Pruning and Safety. A résumé for the Arborist must be submitted, along with proof of current certification. It is the Contractor’s responsibility to ensure that the Arborist remains current and compliant in their certification throughout the duration of the Contract. (d) Personnel Qualifications The Contractor must furnish sufficient competent and qualified personnel to perform all Work specified in the Contract. The Contractor must perform a background check on all proposed personnel, and only those individuals who have passed the background check must be authorized to work under this Contract. The Contractor must submit to the Project Manager within fourteen (14) days of the Effective Date of the Agreement, a list of all personnel proposed to work under the Contract. The list must be updated immediately when changes occur. Contractor shall comply with all federal, state, and local laws and ordinances when performing any work relating to the Contract. As required by local and state authorities for Contractor’s line of work, Contractor shall maintain all valid licenses and certifications for Contractor and for Contractor personnel. Contractor shall timely provide any license or certificate to the Project Manager upon request. It is the Contractor’s responsibility to ensure that anyone performing work follows the recommendations of Florida-Friendly Best Management Practices for Protection of Water Resources by the Green Industries. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 10 (e) Uniform/Appearance The Contractor personnel located at Sites must present a neat appearance and must wear distinct clothing bearing the Contractor’s name for easy identification. All the Contractor personnel, including the Field Supervisor, must wear a distinctive, neat, and freshly laundered uniform, which the Contractor must supply at no cost to the personnel. Any color or color combination may be used for the uniforms. The following clothing types are not to be worn: tube tops, tank tops, shorts, leotards, sandals, cutoffs, multicolored pants/shorts, items in disrepair, or any other inappropriate or offensive clothing as determined by the Project Manager to be unacceptable for representing the Village. The Project Manager may request the removal of any personnel not properly uniformed. (f) Standards of Conduct The Contractor must maintain satisfactory standards of personnel competency, conduct, appearance, and integrity, and must take such disciplinary action against his/her personnel, as necessary. Each Contractor personnel is expected to adhere to standards of conduct that reflect credit on themselves, their employer, the community, and the Village. Being that the Contractor will be visible at all times to the public during the performance of its duties under the Contract, the Contractor should ensure its personnel continue to adhere to standards of conduct while on breaks. Contractor’s personnel must not smoke, vape, sleep, or lay down in public view at any time during the Work. If any of Contractor’s personnel are found smoking, vaping, sleeping, or laying down in public view by Village staff, or if such activity is reported by the public and verified by the Village, the Village may impose a performance penalty of $250 per occurrence assessed to the Contractor. (g) Alcohol and Controlled Substances Contract employees must not possess, distribute, or consume, any controlled substance or alcohol on the Sites. Any Contractor personnel under the influence of alcohol or a controlled substance must not be permitted to perform any Work under the Contract. Anyone found to be in violation of this requirement will be permanently prohibited from performing any Work under this Contract. Actions taken under this Section must not relieve the Contractor of the obligation to provide sufficient personnel to perform adequate and timely Work as required in this Contract. (h) Personnel Safety Requirements The Contractor must require their personnel to comply with the instructions pertaining to conduct, safety and health regulations forming a part of this Contract. All equipment operators must wear Personal Protection Equipment as required or recommended by the equipment manufacturer and OSHA; and, all power equipment, power and mechanical tools, mowers, vehicles, etc. must be operated within the safety parameters defined by OSHA. Equipment must be carefully maintained and operated with proper safety guards and devices installed and fully operational and with discretion when near pedestrians or vehicles. All personnel must wear a safety vest when working by roads and in areas with vehicular traffic. (i) Personnel Training/Operating of Equipment The Contractor must ensure that all employees have been properly trained, certified, and/or licensed to operate power equipment, power and mechanical tools, mowers, vehicles, etc., and must maintain records of all training, qualifications and certifications to be made available for the Village’s review upon request. The Contractor must provide training to all employees, at the DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 11 Contractor’s expense, to ensure the competencies in performing tasks are met to prevent the endangerment of personnel or the public. At no time must the safeguards on lawn mower, edger, weed eater or any other power equipment with factory installed safety measures be altered, turned off or used improperly. All safeguards must always be in place and operational. 2.4 EQUIPMENT AND MATERIALS All equipment provided by the Contractor for work hereunder shall meet all OSHA, ANSI, NFPA, and all other Federal and State requirements. Failure by the successful bidder to provide adequate equipment may result in termination of this Contract. Equipment shall include but not be limited to aerial equipment, trucks, chipping equipment, power, and hand tools. All power operating equipment must be operated within the safety parameters as defined by the manufacturer and OSHA; and must be carefully maintained and operated with proper safety guards and devices, and with discretion when near the public and vehicular traffic. The Contractor shall be required to follow the "State of Florida Manual on Traffic Control and Safe Practices." The Contractor shall be responsible for providing all safety gear, equipment, and traffic control devices for Contractor personnel and maintenance personnel. In case of any street or lane closures, a Maintenance of Traffic (MOT) shall be provided to the Village. 2.5 PLANS AND REPORTS (a) Maintenance & Service Plan The Contractor must prepare a Maintenance and Service Plan (“M&S”) establishing a program for meeting the Performance Standards of the Contract Documents. The Contractor must submit the M&S to the Project Manager within fourteen (14) days of the Effective Date of the Agreement, for review and acceptance. Should the Project Manager recommend or require revisions, the Contractor must make the necessary revisions and resubmit a revised M&S to the Project Manager within seven (7) days. The M&S must: • Outline the Contractor’s overall strategy for providing the Tree Trimming/Pruning Services contained in the Contract Documents. • Establish the Contractor’s program of inspections and maintenance for each Contract year, to include a month-to-month breakdown by Task. • Project a level of unscheduled work (including Re-Work). • Document basis for the Contractor’s Annual Execution Plan – i.e., the Contractor’s schedule of activities and resources (labor and material) to accomplish the Contractor’s program. • Provide the Contractor’s standard operating procedures, emergency operating procedures, safety plan, and contingency plans, when applicable. Once accepted, the Contractor’s M&S Plan will provide the baseline for tracking the Work and expenditures against the Contract and for evaluating performance in accordance with the Contract Documents. (b) Quality Control Plan The Contractor must submit a Quality Control Plan (“QCP”) to the Project Manager for review and acceptance. The rationale underpinning the QCP is that the Contractor is responsible for Quality Control (“QC”) to assure that the Work performed meets the Performance Standards DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 12 established in the Contract. All methods, procedures, and forms must support this rationale. QC inspections must be performed by qualified personnel (i.e. personnel knowledgeable of all technical aspects of the Work, which would allow identification/discovery of improperly performed services). Schedule and frequency of QC reports is left to the Contractor’s discretion, however, all completed inspection reports must be submitted to the Project Manager as part of the Monthly Report outlined below. (c) Monthly Report The Contractor must furnish a monthly report (“Report”) to the Project Manager, provided as a hard copy AND electronic copy, no later than the fifteenth (15th) of each month that must consist of four (4) parts, broken down as follows: Part 1 Prior month’s Basic Services accomplished, identified by park or roadway and the date(s) the Work was performed. Part 2 Prior month’s Re-Work accomplished, identified by park or roadway, and the date(s) the Work was performed. Part 3 Prior month’s Additional Services accomplished, identified by park or roadway, and the date(s) the Work was performed. Part 4 Prior month’s QC Reports conducted under the QCP. 2.6 CHANGE ORDERS Without invalidating the Contract Documents, the Village reserves the right to make increases, decreases or other changes in the character or quantity of the Work under the Contract Documents as may be considered necessary or desirable to complete the Work in a manner satisfactory to the Village. The Village reserves the right to order changes, which may result in additions to or reductions from the amount, type or value of the Work shown in the Contract, and which are within the general scope of the Contract Documents, and all such changes will be authorized only by a change order (“CO”) approved in advance and issued in accordance with provisions of the Contract Documents. For Contractor initiated change orders, the Contractor is required to provide the Project Manager with a detailed Request for Change Order (“RCO”) in a form approved by the Village, which must include the requested revisions to the Contract, including, but not limited to, adjustments in the Contract Price and/or Contract Time. The Contractor must provide sufficient supporting documentation to demonstrate the reasonableness of the RCO. The Village may require Contractor to provide additional data including, but not limited to, a cost breakdown of material costs, labor costs, labor rates by trade, work classifications, and overhead rates to support the RCO. If applicable, the RCO must include any schedule revisions accompanied by an explanation of the cost impact of the proposed change. Failure to include schedule revisions in an RCO will be deemed as the Contractor’s acknowledgement that the changes included in an RCO will not affect the project schedule. In the event a satisfactory adjustment cannot be reached, and a CO has not been issued or time is of the essence, the Village reserves the right, at its sole option to direct the Contractor to proceed on a time and materials basis or make such arrangements as may be deemed necessary to complete the proposed additional Work. Where the Village directs the Contractor to proceed on a time and materials basis, the DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 13 Contractor must maintain detailed records of all labor and material costs to be compensated by the Village. 2.7 INSPECTION OF WORK The Project Manager, other Village representatives, and other public entities having jurisdiction over the Work must always have access to the Work. Inspectors have no authority to permit deviations from, or to relax any of the provisions of the Contract Documents or to delay the Work by failure to inspect the materials and Work with reasonable promptness without the written permission or instruction of Project Manager. (a) Contract Surveillance If Non-Compliant Work is identified, through random or unannounced inspections, or any other circumstance in which the Village becomes aware of Non-Compliant Work, the Contractor will be notified in writing within two (2) business days and provided documentation. Where possible, Contractor must correct all Non-Compliant Work within two (2) business days, during which time the Contractor must not be assessed any payment reduction. Failure to correct the Non-Compliant Work must result in the Village assessing a payment reduction for each day the Non-Compliant Work remains out of compliance with the Performance Standards. The payment reduction will be assessed against the Contractor’s monthly invoice, accruing from the date of notification of the Non-Compliant Work through issuance of a notification of compliance, excluding those instances where the Village has provided a grace period for the Contractor to correct the Work and the Contractor has corrected the Work within the grace period. When inspection efforts identify Non-Compliant Work, the Contractor will be notified per the procedure set forth above and the Village will conduct a subsequent inspection to ensure compliance. The Village will incur additional administrative expenses for the additional time required to re-inspect Contractor Work. The Village will assess a payment reduction of $250.00 to cover the administrative expenses associated with each re-inspection effort; such reduction will be in addition to other payment reductions that may apply per the Contract. The Contractor must be assessed the administrative fee in accordance with the Payment Reduction provisions of Section “2C.” 2.8 ADDITIONAL SERVICES The Village may request the Contractor to perform Additional Services that are not part of the Basic Services. (a) Work Orders The Village will issue a Work Order for all Additional Services to be performed by the Contractor. Upon receipt of a request for additional work from the Project Manager, the Contractor must prepare a Work Order Proposal in a form approved by the Project Manager. Work Order Proposals must use a time and materials basis unless otherwise specified by the Project Manager. The Proposer shall not include markup on any materials. The Village may require Contractor to submit receipts to verify material costs. The Work Order Proposal must include the following: i. A detailed description of the work to be performed, and if required, the method(s) to be used in performing the work. ii. Information on materials to be used including any mark-up details and Material Safety Data Sheets (MSDS). DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 14 iii. The number of hours, hourly rate, and total cost per the classification of personnel to be used based on the hourly rates contained in the Contract. Should a classification or hourly rate not exist, the additions must be subject to the approval of the Project Manager, and the classification or hourly rate will be added to the Contract through a Change Order. vi. Timeframe for completion of the work from the issuance of a Notice to Proceed by the Village. v. Description and cost of any specialized equipment to be used for the work. (Such cost is only permissible where the Contractor must rent the equipment. The cost will be reimbursed at the actual cost to the Contractor). (b) Emergency Services Upon notification by the Project Manager, through the issuance of a Work Order, the Contractor is required to perform emergency tree trimming/pruning services in areas covered under the Contract. Upon notification of an emergency, the Contractor must respond to the Project Manager or Village Manager within two (2) hours to initiate Emergency Services. Upon receiving direction from the Project Manager, the Contractor personnel must begin emergency work within two (2) hours. i. The Contractor must prepare an Emergency Response Plan (“ERP”) within thirty (30) days after execution of the Contract, to be submitted to the Project Manager for review and approval. The ERP must outline the Contractor’s response procedures in the event of an emergency, damage, or adverse weather conditions, including hurricanes, tropical storms, or flooding. The ERP must address the Contractor’s coordination procedures with the Village. ii. The ERP must include a provision for Contractor personnel to supplement the Village’s staff in hurricane preparedness, evacuation plans, and hurricane disaster response. (c) Supplemental Services Supplemental Services are defined as tree trimming/pruning services not covered under Basic or Emergency Services, such as preparing a Site for a special event, tree removal, or trimming/pruning of trees damaged by a third party or force majeure. i. When Supplemental Services are needed, the Village will provide a written request to the Contractor that will include the work to be performed and the information to be provided by the Contractor. ii. The Contractor will provide the Project Manager with a Work Order Proposal for review. If requested service has a Contract unit price associated with it, the Proposal shall use the Contract unit price. Upon acceptance of the Work Order Proposal, which may be revised through negotiations if the requested service does not have an associated Contract unit price, the Project Manager shall issue a Work Order for the Contractor to perform the Additional Services. iii. The Project Manager will notify the Contractor at least forty-eight (48) hours prior to a special event. 2.9 DEFINITION OF TERMS 1. Additional Services means those services that are not included in the Basic Services, such as Emergency Services or Supplemental Services. 2. Basic Services must include tree trimming/pruning as required by the Performance Work Statement (“PWS”). DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 15 3. Change Order means a written document ordering a change in the Contract price or Contract time or a material change in the Work. 4. Contract means the agreement that will be executed by the Contractor and the Village subsequent to approval of award by the Village. 5. Contract Documents means the Contract as may be amended from time to time, and plans, specifications, addendums, clarifications, directives, Change Orders, Work Orders, Work Order Proposals, payments and other such documents issued under or relating to the Contract. 6. Contractor means the business entity who has entered into Contract to provide goods or services to the Village and who will be responsible for the acceptable performance of any Work and for the payment of all legal debts pertaining to the Work under the Contract. 7. Customer Complaints or Comments means comments or complaints received by the Village from Village residents or businesses pertaining to Services provided by the Contractor. 8. Days mean calendar days unless otherwise specifically stated in the Contract. 9. Emergency Service means service that requires expeditious action to mitigate a hazardous condition or safety risk. 10. Excluded Damage means damage due to an outside third party, force majeure, or directly by the Village’s personnel (e.g., vehicular accidents, lighting strikes, hurricanes, etc.). 11. Hazardous Condition means debris or litter that is greater than 1 square foot in area, greater than 6” in length, or a rigid protrusion above the ground in excess of 4”. 12. Inspector means an authorized representative of the Village assigned to make necessary inspections of materials and Work performed by the Contractor. 13. Materials mean goods or equipment or used or consumed in the performance of the Work. 14. Median means the area in the center of the ROW consisting of Turf or Landscaping. 15. Non-Compliant Work means Work performed by the Contractor that has been determined through Village inspection to not meet the Performance Standards. 16. Notice to Proceed means the written letter or directive issued by the Village Manager or designee acknowledging that all conditions precedent to award have been met and directing that the Contractor may begin Work. 17. Notification of Adjustment means a form prepared by Village and delivered to Contractor detailing pending payment adjustments. 18. Notification of Compliance means a form prepared by Village and delivered to Contractor approving Work corrections requested by Village and completed by Contractor. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 16 19. Notification of Non-Compliance means a form prepared by Village and delivered to Contractor detailing Work corrections requested by Village to be completed by Contractor. 20. Performance Standards means the desired results established for each Type of Work such as tree trimming/pruning, etc. necessary to be deemed Satisfactory. 21. Project means a task or series of tasks that the Contractor must complete in accordance with the Contract Documents. 22. Project Manager means the individual assigned by the Village Manager or designee to manage a Project. 23. Quality Assurance (“QA”) means those actions taken by the Village to assure Services meet the Satisfactory Performance Standards established by the Contract Documents. 24. Quality Control (“QC”) means those actions taken by the Contractor to ensure the Contractor’s performance meets the Performance Standards. 25. Quality Control Plan (“QCP”) means the document provided by the Contractor outlining how they will assure the Quality Control (“QC”) of the Work. 26. Re-Work means corrective Work performed by the Contractor, at no cost to the Village, to meet the Performance Standards 27. Satisfactory means Work performed by the Contractor that has been determined through Village inspection to meet the Performance Standards. 28. Site(s) means the location(s) where Work is to be performed under the Contract, as reflected in Exhibits E attached. 29. Subcontractor means a person, firm or corporation having a direct contract with Contractor, including one who furnishes material, equipment or services necessary to perform the Work. 30. Task(s) means the components of Work required by the Contract Documents, which includes, but is not limited to tree trimming/pruning, supervision, reporting, maintenance of traffic for tree trimming/pruning operations, and debris removal and disposal. 31. Village means the Village Council of the Village of Key Biscayne or the Village Manager, as applicable. 32. Village Manager means the duly appointed chief administrative officer of the Village of Key Biscayne or designee. 33. Work as used herein refers to all reasonably necessary and inferable labor, material, equipment, and services, whether or not specifically stated, to be provided by the Contractor to fulfill its obligations under the Contract Documents. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 17 34. Work Order means a document issued by the Village awarding Additional Services to a Contractor. 35. Work Order Proposal means a document prepared by the Contractor, at the request of the Village for Work to be performed under Additional Services. SECTION 2B. PERFORMANCE WORK STANDARDS 2.10 PERFORMANCE STANDARDS The Contractor shall ensure that the Tree Trimming/Pruning Services are performed in a manner that will meet the Performance Standards described herein. The Performance Standards are established to result in the desired health and appearance of all trees and palms covered by the Contract. The Contractor shall use current techniques and standards approved by UF/IFAS and the International Society of Arboriculture. The Contractor shall prune selectively to improve plant structure and health, and to enhance fruiting, flowering, or appearance. All Work on Trees and Palms, must be supervised by the Arborist and performed in accordance with the American National Standards Institute (ANSI) A-300 and associated Best Management Practices for Tree Pruning and Safety. When performing corrective pruning, the Contractor shall maintain the structural integrity, natural shape, and characteristics of the species. (a) Trees Trees are to be trimmed to remove no more than 25% of the foliage at any given time, with the specific amount to be removed based upon the health and species of the tree to be pruned. All pruning cuts shall consist of proper reduction or removal cuts per ANSI A300 (Part I) Standards. The objectives of tree pruning are to mitigate risk, manage health, develop or improve the structure, provide clearance, manage the size and/or shape, or enhance views. Overall, cuts should be made to branches three inches (3”) in diameter or less when practical to preserve the natural form of the tree and reduce the visibility of pruning scars. i. The Contractor shall ensure that the central leader (trunk) of all trees is maintained (no topping/heading, hat-racking, or shearing). The Contractor shall remove interfering or crossed limbs. ii. The Contractor shall perform crown cleaning, defined as the removal of dead branches two inches (2”) in diameter and greater. iii. The Contractor shall remove adventitious shoots/sucker growth, except where needed to restore the desired branch structure. Suckers at the base of trees shall be removed with pruners and never herbicides. iv. Clearance Specifications: a. The Contractor shall maintain branches and limbs a minimum of two feet away from all buildings, signs, light poles, etc. b. Prune to provide eight feet (8’) of clearance over walkways (sidewalks, paths). c. Prune to provide sixteen feet (16’) of clearance over roadways and parking areas. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 18 d. Use directional pruning to encourage growth away from the specified clearance area and to develop a compatible and stable structure. v. The Contractor shall inform the Project Manager of trees that are diseased or dying that should be considered for removal. Tree removal is not included within this scope of work and will be assigned a Work Order as specified under Additional Services. (b) Palms Palms are to be pruned to remove dead, dying, and diseased fronds, as well as fruiting bodies and stalks and petiole stubs. i. The Contractor shall make reasonable efforts to avoid removing leaves that are growing horizontally or upward (i.e., retain all leaves within a “9–3” frame), except if fronds are being removed as part of a pest management program or as part of hurricane/storm preparation. Palms are to be trimmed like a “Wide V,” under the supervision of the Arborist. ii. The Contractor shall cut fronds close to the petiole base but shall not damage living trunk tissue. iii. The Contractor shall assess the discoloration of lower palm leaves for nutritional deficiencies and create a corrective action fertilizer plan if necessary. iv. Coconuts Removal: The Contractor will monitor and remove all coconuts to ensure pedestrian safety and to avoid damage to vehicles, buildings, and equipment. SECTION 2C. COMPENSATION 2.11 GENERALLY The rates specified below shall be in effect for the entire term of the Agreement, including any renewal or extension term(s), unless otherwise expressly stated below. Any goods or services required under this Agreement for which no specific fee or cost is expressly stated in this Fee Schedule shall be deemed to be included, at no extra cost, within the costs and fees expressly provided for in this Section 2C. 2.12 PAYMENT REDUCTION FOR NON-COMPLIANCE (a) Reductions for Non-Compliant Work All Work is subject to inspection by the Project Manager, Inspector, or other authorized Village representative, as may be designated by the Village from time to time. As a result of these inspections, resident input, or any other notification of quality issues that the Village may receive, if Work is found to be non-compliant with the Performance Standards, the Village may reduce payments to the Contractor by an amount equal to the value of the Unsatisfactory or Non-Compliant Work. The Project Manager will determine the appropriate reduction using the procedures provided for in this Section. Reductions may be deducted from any payment due the Contractor. (b) Payment Adjustments The Project Manager will inform the Contractor, in writing, of all Non-Compliant Work that has not been corrected within the two (2) day requirement by delivering a Notification of Adjustment that provides details, including the type(s) and dollar amount(s) of proposed reductions. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 19 The Contractor may, within ten (10) working days of receipt of the Notification of Adjustment, submit to the Village Manager a written objection to the adjustment containing specific reasons why any or all of the proposed reductions are not justified. Written objections must be supported by specific facts that justify reconsideration and/or adjustment of the reduction amount. Failure to respond to a Notification of Adjustment will be interpreted to mean that the Contractor accepts the deduction as proposed. All or a portion of the final payment may be delayed or withheld until the Project Manager makes a final decision on any pending proposed reduction(s). (c) Reductions The Reduction rate for the Work will be calculated using the fixed unit rate established in the Contract for the type(s) of Work performed. Application of Reductions i. The Village may assess payment reductions for any Non-Compliant Work against any outstanding payment due the Contractor. ii. The Village may assess a fee of $250.00 for each re-inspection where Work is identified as Non-Compliant Work and a re-inspection is required. Such fee is assessed as liquidated damages to offset the administrative costs to the Village to conduct the inspection and any necessary re-inspection. iii. The Village may retain payment up to 20% of any or all outstanding invoices for Work performed due to the Contractor’s failure to provide any Report required by the Contract Documents. Fees for Basic Services: Fees for Basic Services shall be in accordance with Contractor’s fee schedule attached hereto as Exhibit “B”. 2.13 FEES FOR ADDITIONAL SERVICES Fees for Additional Services shall be in accordance with Contractor’s fee schedule attached hereto as Exhibit “B”. SECTION 2D. RESIDENTIAL TREE TRIMMING SERVICES 2.14 RESIDENTIAL TREE TRIMMING SERVICES The Village of Key Biscayne is dedicated to promoting preventive maintenance landscaping practices within residential properties as a proactive measure to mitigate the frequency and adverse effects of power outages. One such measure includes promoting and facilitating for residents the ability to regularly clear palm trees, trees, and trees branches/limbs away from electrical equipment and lines to help prevent outages. The Occupational Safety and Health Administration (OSHA) refers to this service as line- clearance tree trimming and defines it as the pruning, trimming, repairing, maintaining, removing, or clearing of trees or the cutting of brush that is near energized power lines. Although not included within and outside the Scope of Service for this Agreement, if requested by a single family and/or multifamily property owners (residential customers), the Contractor shall provide pricing for line-clearance tree trimming. Prior to providing such services for a residential customer, the Contractor shall promptly provide that residential customer with a firm written proposal as to the total cost of the service within fifteen (15) business days of the residential customer’s request for proposal. No additional DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Arboricultural Services – ITB # 2023-17 20 costs beyond those listed in the written proposal may be charged by the Contractor. Should the residential customer and the Contractor reach an agreement, the Contractor may then proceed with providing line- clearance tree trimming services, provided that: (a) The Contractor uses personnel with all relevant line-clearance tree trimming qualifications necessary to perform such services near power lines and adhere to all applicable standards set by the National Electric Safety Code (NESC), American National Standard Institute (ANSI), and Occupational Safety and Health Administration (OSHA). (b) The Contractor complies with all OSHA regulations and safety standards that apply to line- clearance tree trimming, which is separate from an organization that operates or controls the operating procedures for electric power generation, transmission, or distribution lines or equipment. These standards include but are not limited to 29 CFR 1910.268 and/or 29 CFR 1910.331 through 1910.335. (c) The Contractor follows industry standard directional pruning guidelines, ANSI A-300, set by the American National Standards Institute (ANSI) to protect the health of trees while helping them to grow away from power lines. (d) The Contractor is licensed and insured, and complies with all applicable Local, State, and Federal laws, codes, ordinances, and/or permits. (e) The optional additional service provided does not directly, or indirectly, conflict, or impede the Contractor’s ability to perform all required tree trimming services, and service schedules, within Village rights-of-way and required by this Agreement. If the Contractor provides the above-mentioned additional line-clearance tree trimming services requested by a residential customer, the payment shall be made directly to the Contractor by the residential customer. END OF SECTION DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Exhibit B: Rate Schedule EXHIBIT B RATE SCHEDULE [THIS PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Exhibit C: FEMA Contract Provisions Guide EXHIBIT C FEMA CONTRACT PROVISIONS GUIDE [THIS PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D i Contract Provisions Guide Navigating Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards Procurement Disaster Assistance Team (PDAT) June 2021 (FI-207-21-0001) DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide ii This page intentionally left blank. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 1 Table of Contents Introduction .................................................................................................................................. 4 Summary of Applicable Federal Procurement Standards ............................................................... 5 Policy and Guidance Document(s) Incorporated and Superseded ................................................. 6 Document Management and Maintenance ..................................................................................... 6 Contract Provisions Quick Reference Guide .................................................................................... 7 Required Contract Provisions ...................................................................................................... 9 1. Remedies ................................................................................................................................ 9 1.1 Applicability ............................................................................................................... 9 1.2 Additional Considerations ........................................................................................ 9 2. Termination for Cause and Convenience .............................................................................. 9 2.1 Applicability ............................................................................................................... 9 3. Equal Employment Opportunity ........................................................................................... 10 3.1 Applicability ............................................................................................................. 10 3.2 Key Definitions ........................................................................................................ 10 3.3 Required Language ................................................................................................ 10 4. Davis-Bacon Act .................................................................................................................... 13 4.1 Applicability ............................................................................................................. 13 4.2 Additional Requirements ....................................................................................... 14 4.3 Required Language ................................................................................................ 14 5. Copeland “Anti-Kickback” Act .............................................................................................. 14 5.1 Applicability ............................................................................................................. 15 5.2 Additional Requirements ....................................................................................... 15 5.3 Suggested Language ............................................................................................. 16 6. Contract Work Hours and Safety Standards Act ................................................................. 16 6.1 Applicability ............................................................................................................. 16 6.2 Additional Requirements ....................................................................................... 17 6.3 Required Language ................................................................................................ 17 DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 2 6.4 Suggested Language ............................................................................................. 18 7. Rights to Inventions Made Under a Contract or Agreement .............................................. 18 7.1 Applicability ............................................................................................................. 19 7.2 Key Definitions ....................................................................................................... 19 8. Clean Air Act and Federal Water Pollution Control Act ....................................................... 19 8.1 Applicability ............................................................................................................. 19 8.2 Suggested Language ............................................................................................. 19 9. Debarment and Suspension ................................................................................................ 20 9.1 Applicability ............................................................................................................. 20 9.2 Additional Requirements ....................................................................................... 21 9.3 Suggested Language ............................................................................................. 21 10. Byrd Anti-Lobbying Amendment ........................................................................................... 22 10.1 Applicability ............................................................................................................. 23 10.2 Suggested Language ............................................................................................. 23 10.3 Required Certification ............................................................................................ 23 11. Procurement of Recovered Materials .................................................................................. 25 11.1 Applicability ............................................................................................................. 25 11.2 Additional Requirements ....................................................................................... 25 11.3 Suggested Language ............................................................................................. 25 12. Prohibition on Contracting for Covered Telecommunications Equipment or Services ..... 26 12.1 Applicability ............................................................................................................. 26 12.2 Suggested Language ............................................................................................. 27 13. Domestic Preferences for Procurements ............................................................................ 29 13.1 Applicability ............................................................................................................. 29 13.2 Suggested Language ............................................................................................. 29 FEMA Recommended Contract Provisions............................................................................... 30 1. Access to Records ................................................................................................................. 30 1.1 Suggested Language for All Procurements .......................................................... 30 DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 3 1.2 Additional Suggested Language Applicable to Contracts Entered into After August 1, 2017 Under a Major Disaster or Emergency Declaration .................. 31 2. Changes ................................................................................................................................. 31 2.1 Applicability ............................................................................................................. 31 3. DHS Seal, Logo, and Flags ................................................................................................... 31 3.1 Applicability ............................................................................................................. 31 3.2 Suggested Language .................................................................................................. 31 4. Compliance with Federal Law, Regulations, And Executive Orders and Acknowledgement of Federal Funding ........................................................................................................................... 32 4.1 Applicability ............................................................................................................. 32 4.2 Suggested Language ............................................................................................. 32 5. No Obligation by Federal Government ................................................................................ 32 5.1 Applicability ............................................................................................................. 32 5.2 Suggested Language ............................................................................................. 33 6. Program Fraud and False or Fraudulent Statements or Related Acts............................... 33 6.1 Applicability ............................................................................................................. 33 6.2 Suggested Language ............................................................................................. 33 7. Affirmative Socioeconomic Steps ........................................................................................ 33 7.1 Applicability ............................................................................................................. 34 7.2 Suggested Language ............................................................................................. 34 8. Copyright and Data Rights ................................................................................................... 34 8.1 Applicability ............................................................................................................. 34 8.2 Suggested Language ............................................................................................. 34 Appendix .................................................................................................................................... 36 Acronyms .......................................................................................................................................... 36 Definitions ........................................................................................................................................ 37 DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 4 Introduction FEMA grant recipients and subrecipients (also known as non-federal entities or NFEs)1 will often use contractors to help them carry out work under their awards. These contracts are a commercial transaction between the NFE and its contractor, and FEMA has no contractual relationship with NFEs’ contractors. Although FEMA is not a party to the contract, if an NFE is using federal funding to pay for the contract, the NFE must comply with federal laws, including the federal procurement standards. This Guide is applicable to all NFEs purchasing in support of declarations and FEMA awards issued on or after November 12, 2020 and reflects Office of Management and Budget (OMB) revisions to the federal procurement standards. For FEMA declarations and awards issued between December 26, 2014 and November 11, 2020 please refer to the Contract Provisions Template. While the Contract Provisions Template is only directly applicable to FEMA’s Public Assistance (PA) Program, all FEMA grant recipients and subrecipients are encouraged to review this resource since it provides guidance on the federal procurement under grants regulations. The federal procurement standards for NFEs are described in Title 2 of the Code of Federal Regulations (C.F.R.), Part 200, sections 200.317-200.327. 2 C.F.R. § 200.327 states that “the non- federal entity's contracts must contain the applicable provisions described in Appendix II to this part” (emphasis added). This Guide is designed to help FEMA grant recipients and subrecipients navigate Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards, including providing mandatory language and/or suggested language for each required contract provision. This Guide also describes contract clauses that FEMA recommends in addition to those required by 2 C.F.R. Part 200. This Guide provides:  Sample language or references to find sample language for some of the federally required clauses.  Required language for clauses that require exact language. 1 Non-federal entity is defined as a state, local government, Indian tribe, institution of higher education, or nonprofit organization carrying out a federal award as a recipient or subrecipient. 2 C.F.R. § 200.1. State is defined as “any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any agency or instrumentality thereof exclusive of local governments.” 2 C.F.R. § 200.1. The term “non-state entity” therefore refers to a non-federal entity other than a state, which includes local and tribal governments as well as nonprofit organizations. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 5  Sample language for some of the federally recommended clauses. This Guide does not provide:  Sample language for certain federally required or recommended clauses that must be included in accordance with the NFE’s applicable laws, rules, and procedures.  Provisions required by applicable state, tribal, or local laws or rules separate from the federal provisions. Many of the provisions described in this Guide only apply when certain circumstances are present, such as the type of work being procured, the dollar amount, or the date when it is procured. Each section will describe the applicable requirements. NOTE: The NFE is solely responsible for ensuring that all language included in its contracts meets the requirements of 2 C.F.R. Part 200, including 2 C.F.R. § 200.327 and Appendix II. While the Contract Provisions Guide provides general guidance, NFEs should reach out to their applicable FEMA grant program representative(s) if they have specific questions on the applicability of the contract provisions to a particular FEMA grant program. NFEs are encouraged to visit www.fema.gov for additional information regarding FEMA grant programs and www.fema.gov/grants/procurement for procurement under grants reference material. Summary of Applicable Federal Procurement Standards For the NFE to determine which federal procurement rules to follow, it must first determine whether it is a state entity or a non-state entity. Below are the federal procurement rules applicable to state and non-state entities effective November 12, 2020:  State entities 2, including their agencies and instrumentalities, must follow their own documented procurement policies and procedures when purchasing under a FEMA award pursuant to 2 C.F.R. § 200.317. These entities must also comply with socioeconomic affirmative steps (2 C.F.R. § 200.321), requirement for domestic preferences for procurement (2 C.F.R. § 200.322), the requirements for procurement of recovered materials (2 C.F.R. § 200. 323) and ensure that all necessary contract provisions are included in their contracts (2 C.F.R § 200.327).  NFEs other than states (collectively referred to as non-state entities 3), which include local governments, tribes and eligible private nonprofit organizations, must have documented procurement policies and procedures, which reflect applicable local, state or tribal law, and ensure compliance with the federal requirements listed at 2 C.F.R. §§ 200.318 – 200.327. 2 A state entity is “any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any agency or instrumentality thereof exclusive of local governments.” 2 C.F.R. § 200.1 3 A non-state entity is any non-federal entity (as defined above) other than a state (as defined above). DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 6 In the case of noncompliance with the federal procurement rules, FEMA may apply a remedy, as appropriate, in accordance with its authorities found at 2 C.F.R. § 200.339 Remedies for Noncompliance. Policy and Guidance Document(s) Incorporated and Superseded This Guide supersedes the Contract Provisions Template and other provisions pertaining to the procurement under grants process in policy or guidance circulated prior to the publication date of the Contract Provisions Guide. This Guide provides the most updated and authoritative information regarding required provisions under Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards and FEMA-recommended contract provisions. Document Management and Maintenance FEMA Policy FI-207-21-0001, Contract Provisions Guide, will be reviewed, reissued, revised, and/or rescinded within four years for the issue date. The Procurement Disaster Assistance Team (PDAT), a subcomponent of FEMA’s Grant Programs Directorate’s (GPD) Policy Division, developed this Guide to provide accurate and updated information to assist both FEMA staff and FEMA award recipients and subrecipients navigate Appendix II to Part 200—Contract Provisions for Non-Federal Entity Contracts Under Federal Awards. PDAT is responsible for the management and maintenance of this Guide. Comments and feedback from FEMA personnel and stakeholders regarding this Guide should be directed to the Grants Program Directorate Policy Division at FEMA headquarters (HQ) at FEMA- GPD-Policy@fema.dhs.gov. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 7 Contract Provisions Quick Reference Guide Tables A and B are designed to help FEMA grant recipients and subrecipients conduct a quick reference of the applicability of a specific contract provision and whether sample contract language is included within this Guide to incorporate within the NFE’s contract. The Tables are divided between the required contract provisions set forth under 2 C.F.R. Part 200 Appendix II and those that FEMA recommends in addition to those required by 2 C.F.R. Part 200. Table A: Required Contract Provisions (continued next page) Provision (Appendix II Section) Applicability Sample Contract Language Included 1 Legal/contractual/administrative remedies for breach of contract Greater than Simplified Acquisition Threshold (SAT)- $250,000 No. It is based on NFE’s procedures. 2 Termination for cause and convenience Greater than $10,000 No. It is based on NFE’s procedures. 3 Equal Employment Opportunity Construction work Yes. Exact language from 41 C.F.R. § 60-1.4(b) included. 4 Davis-Bacon Act Construction work Yes, via reference to required language at 29 C.F.R. § 5.5(a). 5 Copeland “Anti-Kickback” Act Construction work greater than $2,000 Yes. 6 Contract Work Hours and Safety Standards Act Greater than $100,000 + mechanics or laborers Yes. Exact language required from 29 C.F.R. § 5.5(b). 7 Rights to inventions made under a contract or agreement Funding agreement Yes. 8 Clean Air Act and federal Water Pollution Control Act Greater than $150,000 Yes. 9 Debarment and Suspension Greater than $25,000 Yes. 10 Byrd Anti-Lobbying Amendment Greater than $100,000; and Certification required for all contracts greater than $100,000 Yes. Clause and certification. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 8 Provision (Appendix II Section) Applicability Sample Contract Language Included 11 Procurement of Recovered Materials NFE is a state or political subdivision of a state. Work involves the use of materials and the contract is for more than $10,000. Yes. 12 Prohibition on Contracting for Covered Telecommunications Equipment or Services All FEMA declarations and awards issued on or after November 12, 2020. Yes. 13 Domestic Preferences for Procurements All FEMA declarations and awards issued on or after November 12, 2020. Yes. Table B: Recommended Contract Provisions Provision Applicability Sample Contract Language Included 1 Access to Records All Yes. 2 Contract Changes or Modifications All No. It depends on nature of contract and end-item procured. 3 DHS Seal, Logo, and Flags All Yes. 4 Compliance with federal Law, Regulations and Executive Orders All Yes. 5 No Obligation by Federal Government All Yes. 6 Program Fraud and False or Fraudulent Statements or Related Acts All Yes. 7 Affirmative Socioeconomic Steps State entities: all FEMA declarations and awards issued on or after November 12, 2020. Non-state entities: all procurements Yes. 8 Copyright All procurements that may involve creation of copyrightable material. Yes. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 9 Required Contract Provisions 1. Remedies Contracts for more than the federal simplified acquisition threshold (SAT), the dollar amount below which an NFE may purchase property or services using small purchase methods, currently set at $250,000 for procurements made on or after June 20, 2018,4 must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and must provide for sanctions and penalties as appropriate.5 1.1 Applicability This contract provision is required for contracts over the SAT, currently set at $250,000 for procurements made on or after June 20, 2018. Although not required for contracts at or below the SAT, FEMA suggests including a remedies provision. 1.2 Additional Considerations For FEMA’s Assistance to Firefighters Grant (AFG) Program, recipients must include a penalty clause in all contracts for any AFG-funded vehicle, regardless of dollar amount. In that situation, the contract must include a clause addressing that non-delivery by the contract’s specified date or other vendor nonperformance will require a penalty of no less than $100 per day until such time that the vehicle, compliant with the terms of the contract, has been accepted by the recipient. This penalty clause should, however, account for force majeure or acts of god. AFG recipients should refer to the applicable year’s Notice of Funding Opportunity (NOFO) for additional information, which can be accessed at FEMA.gov. 2. Termination for Cause and Convenience Contracts for more than $10,000 must address termination for cause and for convenience by the non-federal entity, including how it will be carried out and the basis for settlement.6 2.1 Applicability This contract provision is required for procurements exceeding $10,000. FEMA suggests including a termination for cause and for convenience in all contracts even when not required. 4 See FEMA Grant Programs Directorate Information Bulletin No. 434, Increases and Changes to the Micro- Purchase and Simplified Acquisition Thresholds (Aug. 28, 2018), https://www.fema.gov/sites/default/files/2020- 08/ib_434_changes_micro_purch_simp_acquisition_thresholds.pdf. For procurements subject to 2 C.F.R. Part 200 that were made before June 20, 2018, the SAT was $150,000. 5 2 C.F.R. Part 200, Appendix II, § A. 6 See 2 C.F.R. Part 200, Appendix II, § B. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 10 3. Equal Employment Opportunity Any contract that uses federal funds to pay for construction work is a “federally assisted construction contract” and must include the equal opportunity clause found in 2 C.F.R. Part 200, unless otherwise stated in 41 C.F.R. Part 60.7 3.1 Applicability This contract provision is required for all procurements that meet the definition of a “federally assisted construction contract.” 3.2 Key Definitions  Federally Assisted Construction Contract: The regulation at 41 C.F.R. § 60-1.3 defines a federally assisted construction contract as “any agreement or modification thereof between any applicant and a person for construction work which is paid for in whole or in part with funds obtained from the Government or borrowed on the credit of the Government pursuant to any federal program involving a grant, contract, loan, insurance or guarantee, or undertaken pursuant to any federal program involving such grant, contract, loan, insurance, or guarantee, or any application or modification thereof approved by the Government for a grant, contract, loan, insurance, or guarantee under which the applicant itself participates in the construction work.”  Construction Work: The regulation at 41 C.F.R. § 60-1.3 defines construction work as “the construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.”  Contract: The regulation at 41 C.F.R. § 60-1.3 defines contract as “any Government contract or subcontract or any federally assisted construction contract or subcontract.”  Additional definitions pertaining to this contract provision can be found at 41 C.F.R. § 60-1.3. 3.3 Required Language The regulation at 41 C.F.R. § 60-1.4(b) requires, except as otherwise provided or exempted in 41 C.F.R. Part 60, the insertion of the following contract clause: “During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual 7 See 2 C.F.R. Part 200, Appendix II, § C. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 11 orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin. (3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information. (4) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (5) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. (6) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. (7) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 12 sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States. The applicant further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a state or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the contract. The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance. The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, Government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the applicant agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings.” DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 13 4. Davis-Bacon Act This statute requires that contractors must pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in the Secretary of Labor’s wage determination. Additionally, contractors are required to pay wages at least once per week.8 Additional requirements are listed below, and relevant definitions are at 29 C.F.R. § 5.2. NFEs should refer to the applicable NOFO or other program guidance or contact their applicable FEMA grant representative for additional information on how to implement this requirement. 4.1 Applicability When required by the federal program legislation, prime construction contracts over $2,000 awarded by NFEs must include a provision for compliance with the Davis-Bacon Act.9 The Davis-Bacon Act only applies to the Emergency Management Performance Grant Program,10 Homeland Security Grant Program,11 Nonprofit Security Grant Program,12 Tribal Homeland Security Grant Program,13 Port Security Grant Program,14 Transit Security Grant Program,15 Intercity Passenger Rail Program,16 and Rehabilitation of High Hazard Potential Dams Program.17 Unless otherwise stated in a program’s authorizing statute, it does not apply to other FEMA grant and cooperative agreement programs, including the PA Program. . 8 See id.; 40 U.S.C. §§ 3141-3144 and 3146-3148. The Davis-Bacon Act is supplemented by Department of Labor regulations at 29 C.F.R. Part 5 (Labor Standards Provisions Applicable to Contracts Covering federally Financed and Assisted Construction) 9 2 C.F.R. Part 200, Appendix II, § D. 10 See section 611(j)(9) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), Pub. L. No. 93-288 (codified as amended at 42 U.S.C. § 5196(j)(9)). 11 See section 2008(b)(4)(B)(ii) of the Homeland Security Act of 2002, Pub. L. No. 107-296 (codified as amended at 6 U.S.C. § 609(b)(4)(B)(ii)) (citing to section 611(j)(9) of the Stafford Act). 12 Id. The Davis-Bacon Act only applies to the Nonprofit Security Grant Program (NSGP) where that program is funded as a carve-out of the appropriations for the Homeland Security Grant Program (HSGP). See, e.g., Department of Homeland Security Appropriations Act, 2020, Pub. L. No. 116-93, Title III, Protection, Preparedness, Response, and Recovery, Federal Emergency Management Agency, Federal Assistance §§ 1-2. Compare id. with section 2009 of the Homeland Security Act of 2002 (6 U.S.C. § 609a) (authorizing NSPG as a stand-alone program where the Davis-Bacon Act does not apply, but as of the date of publication of this document, NSGP has not been funded as a standalone program). 13 See section 2008(b)(4)(B)(ii) of the Homeland Security Act of 2002. 14 See section 102 of the Maritime Transportation Security Act of 2002 (MTSA), Pub. L. No. 107-295 (codified as amended at 46 U.S.C. § 70107); 46 U.S.C. § 70107(b)(2). While the MTSA requires that PSGP construction activities are carried out consistent with section 611(j)(8) of the Stafford Act, a subsequent amendment to the Stafford Act by section 3 of Pub. L. No. 109-308 in 2006 redesignated the text of section 611(j)(8) to 611(j)(9). The cross-reference in the MTSA has not been updated. 15 See section 1406 of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act), Pub. L. No. 110-53 (6 U.S.C. § 1135) (applying the requirements of section 49 U.S.C. § 5307); 49 U.S.C. § 5333 (applying the Davis-Bacon Act to grants provided under 49 U.S.C. § 5307). 16 See section 1513(h) of the 9/11 Act (6 U.S.C. § 1163(h)) (citing to 49 U.S.C. § 24312, which requires compliance with the Davis-Bacon Act). 17 See section 8A(d)(2)(E) of the National Dam Safety Program Act (codified as amended at 33 U.S.C. § 467f- 2(d)(2)(E)) (requiring compliance with 42 U.S.C. § 5196(j)(9), which is section 611(j)(9) of the Stafford Act that applies the Davis-Bacon Act). DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 14 4.2 Additional Requirements If applicable, in addition to the requirements mentioned in the beginning of this section, the NFE must do the following:  Place a copy of the Department of Labor’s current prevailing wage determination in each solicitation. Contracts or subcontracts must be awarded on the condition that the prevailing wage determination is accepted. The non-federal entity must report all suspected or reported violations to the federal awarding agency.18  Include a provision for compliance with the Copeland “Anti-Kickback” Act for all contracts subject to the Davis-Bacon Act.19 See Required Contract Provisions, Section 5. Copeland Anti-Kickback Act in this Guide for additional information. According to 29 C.F.R. § 5.5(a)(5), the regulatory requirements for the Copeland “Anti-Kickback” Act are incorporated by reference into the required contract provision, so a separate contract provision is not necessary. However, the NFE may include a separate contract provision specific to the Copeland “Anti-Kickback” Act.  Per Department of Labor’s implementing regulations for the Davis-Bacon Act, the NFEs contractor and any subcontractors are required to insert, or incorporate by reference, the clauses contained at 29 C.F.R. § 5.5(a)(1)-(10)20 into any subcontracts.  Follow the other requirements of the Davis-Bacon Act and implementing regulations.21 4.3 Required Language 22 If applicable per the standard described above, the NFE must include the provisions at 29 C.F.R. § 5.5(a)(1)-(10) in full into all applicable contracts, and all applicable contractors must include these provisions in full in any subcontracts.23 5. Copeland “Anti-Kickback” Act The Copeland "Anti-Kickback" Act prohibits workers on construction contracts from giving up wages that they are owed.24 Additional requirements are listed below, and relevant definitions are at 29 C.F.R. § 3.2. The applicable implementing regulations are intended to assist with enforcement of the 18 2 C.F.R. Part 200, Appendix II, § D. 19 2 C.F.R. Part 200, Appendix II, § D. 20 29 C.F.R. § 5.5(a)(6). 21 40 U.S.C. §§ 3141-3144, 3146-3148; 29 C.F.R. Part 5. 22 29 C.F.R. § 5.5(a). 23 29 C.F.R. § 5.5(a)(1), (6). 24 See id.; 40 U.S.C. § 3145. The Copeland “Anti-Kickback” Act is supplemented by Department of Labor regulations at 29 C.F.R. Part 3 (Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States). DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 15 Davis-Bacon Act’s minimum wage provisions as well as various statutes with similar minimum wage provisions for federally assisted construction.25 5.1 Applicability For all prime construction contracts above $2,000, when the Davis-Bacon Act also applies,26 NFEs must include a provision in contracts and subcontracts for compliance with the Copeland “Anti- Kickback” Act.27 This requirement applies to all prime construction contracts above $2,000 in situations where the Davis-Bacon Act also applies.28 In situations where the Davis-Bacon Act does not apply, neither does the Copeland “Anti-Kickback” Act. As described in section A.4 regarding the Davis-Bacon Act, this provision only applies to certain FEMA grant and cooperative agreement programs. Please reference that list discussed above. Of note, it does not apply to the PA Program. 5.2 Additional Requirements If applicable, the NFE must do the following:  Include a provision for compliance with the Copeland “Anti-Kickback” Act.29 According to the Davis-Bacon Act implementing regulations, the requirements for the Copeland “Anti-Kickback” Act are incorporated into the required contract provision for the Davis-Bacon Act by reference.30 Therefore, a separate contract provision is not necessary. However, the NFE may include a separate contract provision specific to the Copeland “Anti-Kickback” Act with language suggested below.  The Copeland “Anti-Kickback Act” prohibits each contractor or subcontractor from any form of persuading a person employed in construction, completion, or repair of public work to give up any part of their rightful compensation. The NFE must report all suspected or reported violations of the Copeland “Anti-Kickback Act” to FEMA.31  Each contractor and subcontractor must provide weekly reports of the wages paid during the prior week’s payroll period to each employee covered by the “Copeland Anti-Kickback” Act and the Davis-Bacon Act. The reports must be delivered to a representative of a federal or state agency in charge at the building or work site by the contractor or subcontractor within seven days of the payroll period’s payment date.32 25 See 29 C.F.R. § 3.1. 26 See 2 C.F.R. Part 200, Appendix II, § D; 29 C.F.R. §§ 3.1, 3.3(c). 27 2 C.F.R. Part 200, Appendix II, § D. 28 See 2 C.F.R. Part 200, Appendix II, § D; 29 C.F.R. § 3.3(c). 29 See 29 C.F.R. § 3.11. 30 29 C.F.R. § 5.5(a)(5). 31 See 2 C.F.R. Part 200, Appendix II, § D. 32 See 29 C.F.R. § 3.4. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 16  Follow the other requirements of the Copeland “Anti-Kickback” Act and implementing regulations.33 5.3 Suggested Language The following provides a sample contract clause: “Compliance with the Copeland “Anti-Kickback” Act. Contractor. The contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145, and the requirements of 29 C.F.R. Part 3 as may be applicable, which are incorporated by reference into this contract. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clause above and such other clauses as FEMA may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract clauses. Breach. A breach of the contract clauses above may be grounds for termination of the contract, and for debarment as a contractor and subcontractor as provided in 29 C.F.R. § 5.12.” 6. Contract Work Hours and Safety Standards Act Where applicable,34 all contracts awarded by the NFE of more than $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with statutory requirements on work hours and safety standards.35 Under 40 U.S.C. § 3702, each contractor must base wages for every mechanic and laborer on a standard 40-hour work week. Work over 40 hours is allowed, so long as the worker is paid at least one and a half times the base pay rate for all hours worked over 40 hours in the work week. Additionally, for construction work, under 40 U.S.C. § 3704, work surroundings and conditions for laborers and mechanics must not be unsanitary or unsafe. Relevant definitions are at 40 U.S.C. § 3701 and 29 C.F.R. § 5.2. 6.1 Applicability This required contract provision applies to all procurements over $100,000 that involve the employment of mechanics, laborers, and construction work.36 These requirements do not apply to 33 18 U.S.C. § 874; 40 U.S.C. § 3145; 29 C.F.R. Part 3. 34 See 40 U.S.C. §§ 3701-3708. 35 40 U.S.C. §§ 3702, 3704. The Contract Work Hours and Safety Standards Act is supplemented by Department of Labor regulations at 29 C.F.R. Part 5. See 2 C.F.R. Part 200, Appendix II, § E. 36 41 C.F.R. Part 60-1.3. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 17 the purchase of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence.37 6.2 Additional Requirements If applicable per the standard described above, the non-federal entity must include the provisions at 29 C.F.R. § 5.5(b)(1)-(4), verbatim, into all applicable contracts, and all applicable contractors must include these provisions, in full, into any subcontracts.38 In addition to the required language from 29 C.F.R. § 5.5(b)(1)-(4), in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any other statutes cited in 29 C.F.R. § 5.1, the NFE must also insert a clause meeting the requirements of 29 C.F.R. § 5.5(c). Specific language is not required, but FEMA has provided suggested language below. 6.3 Required Language For the required contract provision, the language from 29 C.F.R. § 5.5(b)(1)-(4) is provided here for ease of reference: “Compliance with the Contract Work Hours and Safety Standards Act. (1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (b)(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 (b)(1) of this section, in the sum of $27 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 (b)(1) of this section. (3) Withholding for unpaid wages and liquidated damages. The (insert name of grant recipient or subrecipient) 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 37 2 C.F.R. Part 200, Appendix II, § E. 38 29 C.F.R. § 5.5(b)(1), (4). DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 18 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 (b)(2) of this section. (4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (b)(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 (b)(1) through (4) of this section.” 6.4 Suggested Language For contracts that are only subject to Contract Work Hours and Safety Standards Act and are not subject to the other statutes in 29 C.F.R. § 5.1 where an additional contract provision is required, FEMA suggests including the following language: “Further Compliance with the Contract Work Hours and Safety Standards Act. (1) The contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three years from the completion of the contract for all laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. (2) Records to be maintained under this provision shall be made available by the contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the Department of Homeland Security, the Federal Emergency Management Agency, and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview employees during working hours on the job.” 7. Rights to Inventions Made Under a Contract or Agreement This contract provision outlines the rules governing the ownership of inventions created using federal funds. If the FEMA award meets the definition of funding agreement 39 and the NFE enters into any contract involving substitution of parties, assignment or performance of experimental, developmental, or research work under that funding agreement, then the NFE must comply with the requirements of 37 C.F.R. Part 401 and any implementing regulations issued by FEMA. 39 Funding agreement definition found under 37 C.F.R. § 401.2(a). DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 19 7.1 Applicability This provision does not apply to all FEMA grant and cooperative agreement programs. NFEs should refer to applicable NOFO or other program guidance or contact their applicable FEMA grant representative to determine if this provision is required for the procurement. However, the Rights to Inventions Made Under a Contract or Agreement clause is not required for procurements under FEMA’s PA Program. 7.2 Key Definitions Funding Agreements: The regulation at 37 C.F.R. § 401.2(a) defines funding agreement as “any contract, grant, or cooperative agreement entered into between any federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the federal government. This term also includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as defined in the first sentence of this paragraph.” 8. Clean Air Act and Federal Water Pollution Control Act For contracts over $150,000, contracts must contain a provision requiring contractors to comply with the Clean Air Act 40 and the Federal Water Pollution Control Act.41 Violations must be reported to FEMA and the Regional Office of the Environmental Protection Agency (EPA).42 8.1 Applicability This contract provision is required for all procurements over $150,000. 8.2 Suggested Language The following provides a sample contract clause: “Clean Air Act” The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq. The contractor agrees to report each violation to the (insert name of non-federal entity entering into the contract) and understands and agrees that the (insert name of the non- federal entity entering into the contract) will, in turn, report each violation as required to 40 42 U.S.C. §§ 7401-7671q. This also includes all applicable standards, orders, or regulations issued pursuant to the Clean Air Act. 41 33 U.S.C. §§ 1251-1387, as amended. 42 2 C.F.R. Part 200, Appendix II, § G. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 20 assure notification to the Federal Emergency Management Agency (FEMA), and the appropriate Environmental Protection Agency Regional Office. The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA. “Federal Water Pollution Control Act” The contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq. The contractor agrees to report each violation to the (insert name of the non-federal entity entering into the contract) and understands and agrees that the (insert name of the non- federal entity entering into the contract) will, in turn, report each violation as required to assure notification to the (insert name of the pass-through entity, if applicable), Federal Emergency Management Agency (FEMA), and the appropriate Environmental Protection Agency Regional Office. The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.” 9. Debarment and Suspension NFEs contractors and subcontractors are subject to debarment and suspension regulations.43 Applicable contracts and subcontracts must include a provision requiring compliance with debarment and suspension regulations.44 9.1 Applicability The debarment and suspension clause is required for all contracts and subcontracts for $25,000 or more, all contracts that require the consent of an official of a federal agency, and all contracts for federally required audit services.45 NFEs, even for procurements under $25,000, must also comply with the regulation requiring non- state entities to only award contracts to responsible vendors.46 43 2 C.F.R. Part 180 (implementing Executive Order 12549, Debarment and Suspension (1986) and Executive Order 12689, Debarment and Suspension (1989)); 2 C.F.R. Part 3000 (Department of Homeland Security regulations for Nonprocurement Debarment and Suspension, implementing 2 C.F.R. Part 180). 44 2 C.F.R. § 180; 2 C.F.R. Part 200, Appendix II, § H; 2 C.F.R. § 3000.332. 45 2 C.F.R. § 180.220(b); 2 C.F.R. § 3000.220. 46 2 C.F.R. § 200.318(h). For contracts and subcontracts under $25,000, a contract provision is only required if those contracts or subcontracts are for federally required audit services or require the consent of a federal agency. However, even where a contract provision is not required, non-state entities must still ensure they are only awarding contracts to responsible vendors. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 21 9.2 Additional Requirements The debarment and suspension regulations restrict awards, subawards, contracts, and subcontracts with parties that are debarred, suspended, or otherwise excluded, or declared ineligible for participation in federal assistance programs and activities.47 If applicable, a contract or subcontract must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM). SAM Exclusions is the list maintained by the General Services Administration that contains the names of parties that are debarred, suspended, or otherwise excluded, or declared ineligible under statutory or regulatory authority other than Executive Order 12549.48 SAM Exclusions can be accessed at www.sam.gov.49 In general, an “excluded” party cannot receive a federal grant award or a contract considered to be a “covered transaction,” which includes parties that receive federal funding indirectly such as subawards and subcontracts. The key to the exclusion is whether there is a covered transaction. A covered transaction is a nonprocurement transaction at either a primary or secondary tier.50 Specifically, a covered transaction includes the following contracts for goods or services under FEMA grant and cooperative agreement programs:  The contract is at least $25,000.  The contract requires the approval of FEMA, regardless of amount.  The contract is for federally required audit services.  It is a subcontract for $25,000 or more.51 9.3 Suggested Language The following provides a debarment and suspension clause. It also incorporates an optional method of verifying that contractors are not excluded or disqualified 52: 47 See 2 C.F.R. Part 200, Appendix II, § H; 2 C.F.R. § 200.213. See also 2 C.F.R. Parts 180, 3000. 48 See 2 C.F.R. Part 200, Appendix II, § H. 49 2 C.F.R. § 180.530. 50 The regulations at 2 C.F.R. Parts 180 and 3000 are titled “nonprocurement” because they do not apply to procurements by the federal government but rather to federal financial assistance. There are separate debarment and suspension regulations covering procurements by the federal government. However, although the term “covered transactions” under 2 C.F.R. Parts 180 and 3000 does not include contracts awarded by the federal government, it does include some contracts awarded by recipients and subrecipients. 51 See 2 C.F.R. §§ 180.220, 3000.220. 52 Per 2 C.F.R. § 180.300, non-federal entity about to enter into an applicable contract, or a contractor about to entire into an applicable subcontract, must verify that the contractor or subcontractor is not excluded or disqualified by doing one of three things: 1) check SAM Exclusions; 2) collect a certification from the contractor or subcontractor; or 3) add a clause or condition to the contract or subcontract. The additional suggested language in this sample clause is for purposes of this requirement. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 22 “Suspension and Debarment This contract is a covered transaction for purposes of 2 C.F.R. Part 180 and 2 C.F.R. Part 3000. As such, the contractor is required to verify that none of the contractor’s principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935). The contractor must comply with 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into. This certification is a material representation of fact relied upon by (insert name of recipient/subrecipient/applicant). If it is later determined that the contractor did not comply with 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, in addition to remedies available to (insert name of recipient/subrecipient/applicant), the federal government may pursue available remedies, including but not limited to suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. Part 180, subpart C and 2 C.F.R. Part 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.” 10. Byrd Anti-Lobbying Amendment NFEs who intend to award contracts of more than $100,000, and their contractors who intend to award subcontracts of more than $100,000, must include a contract provision prohibiting the use of federal appropriated funds to influence officers or employees of the federal government. Contractors that apply or bid for a contract for more than $100,000 must also file the required certification regarding lobbying.53 Each tier certifies to the tier above that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an employee of a federal agency, a Member of Congress, an employee of Congress, or an employee of a Member of Congress in connection with receiving any federal contract, grant, or other award covered by 31 U.S.C. § 1352. 53 See 2 C.F.R. Part 200, Appendix II, § I (citing 31 U.S.C. § 1352); 44 C.F.R. § 18.110. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 23 The required certification form is found in FEMA regulations.54 Each tier must also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal funding. These disclosures are forwarded from tier to tier, all the way up to the federal awarding agency.55 10.1 Applicability The Byrd Anti-Lobbying Amendment clause and certification are required for contracts of more than $100,000, and for subcontracts of more than $100,000. 10.2 Suggested Language The following provides a sample contract clause: “Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 (as amended) Contractors who apply or bid for an award of more than $100,000 shall file the required certification. Each tier certifies to the tier above that it will not and has not used federally appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the federal awarding agency.” 10.3 Required Certification 10.3.1 REQUIRED CERTIFICATION LANGUAGE If applicable, contractors must sign and submit the following certification to the NFE with each bid or offer exceeding $100,000: “APPENDIX A, 44 C.F.R. PART 18 – CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief, that: No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee 54 See 44 C.F.R. §§ 18.100, 18.110; 44 C.F.R. Part 18, Appendix A. FEMA’s regulations at 44 C.F.R. Part 18 implement the requirements of 31 U.S.C. § 1352 and provides, in Appendix A to Part 18, a copy of the certification that is required to be completed by each entity as described in 31 U.S.C. § 1352. 55 See 44 C.F.R. §§ 18.100, 18.110; 44 C.F.R. Part 18, Appendix B. The specific form for disclosures is referenced in Appendix B to 44 C.F.R. Part 18 and is SF-LLL, also available at https://www.grants.gov/web/grants/forms/sf-424-family.html. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 24 of an 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. 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 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. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. 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 section 1352, Title 31, U.S.C. 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.” 10.3.2 RECOMMENDED SIGNATURE LINE: At the end of the certification language, FEMA recommends including the following signature line. “The Contractor, _______________, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38, Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any. Signature of Contractor’s Authorized Official Name and Title of Contractor’s Authorized Official Date” DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 25 11. Procurement of Recovered Materials An NFE that is a state agency or an agency of a political subdivision of a state, and the NFE’s contractors must comply with Section 6002 of the Solid Waste Disposal Act.56 Applicable NFEs must include a contract provision requiring compliance with this requirement.57 This includes contracts awarded by a state agency or political subdivision of a state and its contractors for certain items, as designated by the EPA, with a purchase price greater than $10,000.58 Indian Tribal Governments and nonprofit organizations are not required to comply with this provision. Additional requirements are listed below. 11.1 Applicability This required contract provision applies to all procurements over $10,000 made by a state agency or an agency of a political subdivision of a state and its contractors. 11.2 Additional Requirements The requirements include:  Procuring only items designated in EPA guidelines 59 that contain the highest practical percentage of recovered materials consistent with maintaining competition, where the purchase price of the item is greater than $10,000, or the value of the amount of items purchased in the preceding fiscal year was greater than $10,000;  Procuring solid waste management services in a way that maximizes energy and resource recovery; and  Establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.60 11.3 Suggested Language The following provides a sample contract clause: “In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired— 56 Pub. L. No. 89-272 (1965) (codified as amended by the Resource Conservation and Recovery Act at 42 U.S.C. § 6962). 2 C.F.R. § 200.323. 57 See 2 C.F.R. Part 200, Appendix II, § J (citing 2 C.F.R. § 200.323). 58 See 2 C.F.R. Part 200, Appendix II, § J; 2 C.F.R. § 200.323; 40 C.F.R. Part 247. 59 40 C.F.R. Part 247. 60 42 U.S.C. § 6962; 2 C.F.R. § 200.323. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 26 Competitively within a timeframe providing for compliance with the contract performance schedule; Meeting contract performance requirements; or At a reasonable price. Information about this requirement, along with the list of EPA-designated items, is available at EPA’s Comprehensive Procurement Guidelines webpage: https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program. The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.” 12. Prohibition on Contracting for Covered Telecommunications Equipment or Services Section 889(b)(1) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (FY2019 NDAA) and 2 C.F.R. § 200.216, as implemented by FEMA Policy 405-143-1, Prohibitions on Expending FEMA Award Funds for Covered Telecommunications Equipment or Services (Interim), prohibit the obligation or expending of federal award funds on certain telecommunication products or from certain entities for national security reasons. Effective August 13, 2020, FEMA recipients and subrecipients, as well as their contractors and subcontractors, may not obligate or expend any FEMA award funds to: a. Procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; b. Enter into, extend, or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; or c. Enter into, extend, or renew contracts with entities that use covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. 12.1 Applicability For purchases in support of FEMA declarations and awards issued on or after November 12, 2020, all FEMA recipients and subrecipients, and their contractors and subcontractors, are required to include this contract provision in all FEMA-funded contracts and subcontracts, including any purchase orders.61 FEMA strongly encourages the use of this contract clause for any contracts where 61 2 C.F.R. Part 200, Appendix II, § K (citing 2 C.F.R. § 200.216). DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 27 FEMA funding will be used regardless of whether the funding is from FEMA declarations or awards issued on or after November 12, 2020. 12.2 Suggested Language The following provides a sample contract clause: “Prohibition on Contracting for Covered Telecommunications Equipment or Services (a) Definitions. As used in this clause, the terms backhaul; covered foreign country; covered telecommunications equipment or services; interconnection arrangements; roaming; substantial or essential component; and telecommunications equipment or services have the meaning as defined in FEMA Policy 405-143-1, Prohibitions on Expending FEMA Award Funds for Covered Telecommunications Equipment or Services (Interim), as used in this clause— (b) Prohibitions. (1) Section 889(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, and 2 C.F.R. § 200.216 prohibit the head of an executive agency on or after Aug.13, 2020, from obligating or expending grant, cooperative agreement, loan, or loan guarantee funds on certain telecommunications products or from certain entities for national security reasons. (2) Unless an exception in paragraph (c) of this clause applies, the contractor and its subcontractors may not use grant, cooperative agreement, loan, or loan guarantee funds from the Federal Emergency Management Agency to: (i) Procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; (ii) Enter into, extend, or renew a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology of any system; (iii) Enter into, extend, or renew contracts with entities that use covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system; or (iv) Provide, as part of its performance of this contract, subcontract, or other contractual instrument, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. (c) Exceptions. (1) This clause does not prohibit contractors from providing— (i) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 28 (ii) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles. (2) By necessary implication and regulation, the prohibitions also do not apply to: (i) Covered telecommunications equipment or services that: i. Are not used as a substantial or essential component of any system; and ii. Are not used as critical technology of any system. (ii) Other telecommunications equipment or services that are not considered covered telecommunications equipment or services. (d) Reporting requirement. (1) In the event the contractor identifies covered telecommunications equipment or services used as a substantial or essential component of any system, or as critical technology as part of any system, during contract performance, or the contractor is notified of such by a subcontractor at any tier or by any other source, the contractor shall report the information in paragraph (d)(2) of this clause to the recipient or subrecipient, unless elsewhere in this contract are established procedures for reporting the information. (2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause: (i) Within one business day from the date of such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended. (ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: Any further available information about mitigation actions undertaken or recommended. In addition, the contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services. (e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e), in all subcontracts and other contractual instruments.” DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 29 13. Domestic Preferences for Procurements As appropriate, and to the extent consistent with law, NFEs should, to the greatest extent practicable under a federal award, provide a preference for the purchase, acquisition, or use of goods, products or materials produced in the United States. This includes, but is not limited to, iron, aluminum, steel, cement, and other manufactured products.62 13.1 Applicability For purchases in support of FEMA declarations and awards issued on or after November 12, 2020, all FEMA recipients and subrecipients are required to include in all contracts and purchase orders for work or products a contract provision encouraging domestic preference for procurements.63 13.2 Suggested Language The following provides a sample contract clause: “Domestic Preference for Procurements As appropriate, and to the extent consistent with law, the contractor should, to the greatest extent practicable, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. This includes, but is not limited to iron, aluminum, steel, cement, and other manufactured products. For purposes of this clause: Produced in the United States means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. Manufactured products mean items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.” 62 See 2 C.F.R. § 200.322. 63 2 C.F.R. Part 200, Appendix II, § L (citing 2 C.F.R. § 200.322). The requirements of 2 C.F.R. § 200.322 must also be included in all subawards. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 30 FEMA Recommended Contract Provisions Appendix II to Part 200 authorizes FEMA to require or recommend additional provisions for NFE contracts. Therefore, FEMA recommends the following: 1. Access to Records NFEs and their contractors and subcontractors must give the Department of Homeland Security (DHS) and FEMA access to records associated with their awards during the federally required record retention period and as long as the records are retained.64 All parties agree to comply with DHS provisions about accessing people, places, and things related to the federal financial award as necessary or as required by DHS regulations or other applicable laws and policies.65 Additionally, for contracts entered into after August 1, 2017, under a major disaster or emergency declaration under Titles IV or V of the Robert T. Stafford Disaster Relief Act, FEMA is prohibited from funding any contracts that prevent audits or internal reviews by the FEMA Administrator or Comptroller General.66 1.1 Suggested Language for All Procurements The following provides a sample contract clause: “The Contractor agrees to provide (insert non-federal entity), (insert name of pass-through entity, if applicable), the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. The Contractor agrees to provide the FEMA Administrator or his authorized representatives access to construction or other work sites pertaining to the work being completed under the contract. 64 2 C.F.R. §§ 200.334, 200.337. 65 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standard- terms-and-conditions. 66 See Sections 1202 and 1225 of the Disaster Recovery Reform Act of 2018, Pub. L. No. 115-254. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 31 1.2 Additional Suggested Language Applicable to Contracts Entered into After August 1, 2017 Under a Major Disaster or Emergency Declaration The following provides a sample contract clause: In compliance with section 1225 of the Disaster Recovery Reform Act of 2018, the (insert name of the non-federal entity) and the Contractor acknowledge and agree that no language in this contract is intended to prohibit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States.” 2. Changes To be allowable under a FEMA grant or cooperative agreement award, the cost of any contract change, modification, amendment, addendum, change order, or constructive change must be necessary, allocable, within the scope of the grant or cooperative agreement, reasonable for the scope of work, and otherwise allowable.67 2.1 Applicability FEMA recommends that all contracts include a changes clause that describes how, if at all, changes can be made by either party to alter the method, price, or schedule of the work without breaching the contract. The language of the clause may depend on the nature of the contract and the procured item(s) or service(s). The NFE should also consult their servicing legal counsel to determine whether and how contract changes are permissible under applicable state, local, or tribal laws or regulations. 3. DHS Seal, Logo, and Flags Recipients must obtain permission before using the DHS seal(s), logos, crests, reproductions of flags, or likenesses of DHS agency officials.68 3.1 Applicability FEMA recommends that all NFEs include in their contracts a statement that a contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without FEMA’s pre-approval. 3.2 Suggested Language The following provides a sample contract clause: 67 See 2 C.F.R. § 200.403. 68 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standard- terms-and-conditions. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 32 “The contractor shall not use the DHS seal(s), logos, crests, or reproductions of flags or likenesses of DHS agency officials without specific FEMA pre-approval. The contractor shall include this provision in any subcontracts.” 4. Compliance with Federal Law, Regulations, And Executive Orders and Acknowledgement of Federal Funding The NFEs and its contractors are required to comply with all federal laws, regulations, and executive orders. Additionally, recipients must acknowledge their use of federal funding when issuing statements, press releases, requests for proposal, bid invitations, and other documents describing projects or programs funded in whole or in part with federal funds.69 4.1 Applicability FEMA recommends that all NFEs include in their contracts a statement acknowledging that FEMA funding will be used in the contract, as well as a requirement that contractors will comply with all applicable federal law, regulations, executive orders, and FEMA policies, procedures, and directives. 4.2 Suggested Language The following provides a sample contract clause: “This is an acknowledgement that FEMA financial assistance will be used to fund all or a portion of the contract. The contractor will comply with all applicable federal law, regulations, executive orders, FEMA policies, procedures, and directives.” 5. No Obligation by Federal Government FEMA is not a party to any transaction between a NFE and its contractor. Therefore, FEMA is not subject to any obligations or liable to any party for any matter relating to the contract between an NFE and its contractor.70 5.1 Applicability FEMA recommends that the NFE include a statement in its contract that the federal government is not a party to the contract and, thus, is not subject to any obligations or liabilities to any party resulting from the contract. 69 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standard- terms-and-conditions. 70 See, e.g., 2 C.F.R. § 200.318(k) (stating that the NFE alone is responsible for the settlement of all contractual and administrative issues arising out of procurements). DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 33 5.2 Suggested Language The following provides a sample contract clause: “The federal government is not a party to this contract and is not subject to any obligations or liabilities to the non-federal entity, contractor, or any other party pertaining to any matter resulting from the contract.” 6. Program Fraud and False or Fraudulent Statements or Related Acts NFEs must comply with the requirements of the False Claims Act which prohibits submitting false or fraudulent claims for payment to the federal government.71 As a part of the contract with a NFE, contractors must acknowledge that 31 U.S.C. Chap. 38, regarding administrative remedies for false claims and statements,72 applies to their actions under their contract.73 6.1 Applicability FEMA recommends that contracts include a provision prohibiting making false or fraudulent claims to the federal government. 6.2 Suggested Language The following provides a sample contract clause: “The contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the contractor’s actions pertaining to this contract.” 7. Affirmative Socioeconomic Steps For procurements under FEMA declarations and awards issued on or after November 12, 2020, all NFEs are required to take the six affirmative steps to ensure use of small and minority businesses, women’s business enterprises, and labor surplus area firms when possible. One of the six steps is to require the prime contractor, if subcontracts are to be let, to take the five other affirmative steps,74 For procurements under FEMA declarations and awards issued between December 26, 2014, and November 12, 2020, this requirement only applies to non-state entities. 7131 U.S.C. §§ 3729-3733. 72 31 U.S.C. §§ 3801-3812 (detailing the administrative remedies for false claims and statements made). 73 See DHS Standard Terms and Conditions, available at https://www.dhs.gov/publication/fy15-dhs-standard- terms-and-conditions. 74 See 2 C.F.R. § 200.321; compare 2 C.F.R. § 200.317 (2019), with 2 C.F.R. § 200.317 in Office of Management and Budget, Guidance for Grants and Agreements, 85 Fed. Reg. 49,506, 49,552 (Aug. 13, 2020). DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 34 7.1 Applicability FEMA recommends that applicable NFEs include in their contracts a statement requiring prime contractors, if subcontracts are to be let, to take the required affirmative socioeconomic steps. 7.2 Suggested Language The following provides a sample contract clause: “If subcontracts are to be let, the prime contractor is required to take all necessary steps identified in 2 C.F.R. § 200.321(b)(1)-(5) to ensure that small and minority businesses, women’s business enterprises, and labor surplus area firms are used when possible.” 8. Copyright and Data Rights An NFE is required by 2 C.F.R. § 200.315 to provide certain licenses with respect to copyright and data to the federal awarding agency. 2 C.F.R. § 200.315(b) provides to the federal awarding agency “a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use [any work that is subject to copyright] for federal purposes, and to authorize others to do so.” 2 C.F.R. § 200.315(d) provides to the federal government the rights to “obtain, reproduce, publish, or otherwise use” data produced under a federal award and to authorize others to do the same. 8.1 Applicability When an NFE enters into a contract requiring a contractor or subcontractor to produce copyrightable subject matter and/or data for the NFE under the award, the NFE should include appropriate copyright and data licenses to meet its obligations under 2 C.F.R. § 200.315(b) and (d), respectively. Work that is subject to copyright, or copyrightable subject matter, includes any written reports or literary works, software and/or source code, music, choreography, pictures or images, graphics, sculptures, videos, motion pictures or other audiovisual works, sound and/or video recordings, and architectural works.75 8.2 Suggested Language The following provides a sample contract clause: “License and Delivery of Works Subject to Copyright and Data Rights” The Contractor grants to the (insert name of the non-federal entity), a paid-up, royalty-free, nonexclusive, irrevocable, worldwide license in data first produced in the performance of this contract to reproduce, publish, or otherwise use, including prepare derivative works, distribute copies to the public, and perform publicly and display publicly such data. For data required by the contract but not first produced in the performance of this contract, the Contractor will identify 75 See 17 U.S.C. § 102. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 35 such data and grant to the (insert name of the non-federal entity) or acquires on its behalf a license of the same scope as for data first produced in the performance of this contract. Data, as used herein, shall include any work subject to copyright under 17 U.S.C. § 102, for example, any written reports or literary works, software and/or source code, music, choreography, pictures or images, graphics, sculptures, videos, motion pictures or other audiovisual works, sound and/or video recordings, and architectural works. Upon or before the completion of this contract, the Contractor will deliver to the (insert name of the non-federal entity) data first produced in the performance of this contract and data required by the contract but not first produced in the performance of this contract in formats acceptable by the (insert name of the non-federal entity).” DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 36 Appendix Acronyms AFG: Assistance to Firefighter Grants CAGE: Commercial and Government Entity CFR: Code of Federal Regulations DHS: U.S. Department of Homeland Security DRRA: Disaster Recovery and Reform Act of 2018 EPA: U.S. Environmental Protection Agency FEMA: Federal Emergency Management Agency GPD: Grant Programs Directorate HQ: FEMA Headquarters NDAA: National Defense Authorization Act NFE: Non-Federal Entity NOFO: Notice of Funding Opportunity OMB: Office of Management and Budget PA: Public Assistance Program PNP: Private Non-Profit PDAT: Procurement Disaster Assistance Team SAM: System for Award Management SAT: Simplified Acquisition Threshold USC: United States Code DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 37 Definitions  Contract: A legal instrument by which a FEMA award recipient or subrecipient purchases property or services needed to carry out the project or program under a federal award.76 A contract, for the purposes of this Guide, does not mean a federal award or subaward.  Contractor: Contractor means an entity that receives a contract.77  Cooperative agreement: A legal instrument of financial assistance between a federal awarding agency or pass-through entity and a non-Federal entity, that is consistent with 31 U.S.C. 6302- 6305.78  Federal awarding agency: The federal agency that provides a federal award directly to a non- Federal entity (NFE). The federal awarding agency discussed in this Guide is FEMA.  Federal Emergency Management Agency (FEMA): FEMA’s statutory mission is to reduce the loss of life and property and protect the Nation from all hazards, including natural disasters, acts of terrorism, and other man-made disasters, by leading and supporting the Nation in a risk-based, comprehensive emergency management system of preparedness, protection, response, recovery, and mitigation.79 Among other things: o FEMA administers its programs and carries out its activities through its headquarters offices in Washington, D.C.; ten Regional Offices; Area Offices for the Pacific, Caribbean, and Alaska; various Recovery Offices; and temporary Joint Field Offices (JFO). o FEMA administers numerous assistance programs annually for on a regular basis to increase the Nation’s preparedness, readiness and resilience to all hazards. These assistance programs are typically available to NFEs including, but not limited to, states, local governments, Indian Tribes, universities, hospitals, and certain private nonprofit organizations. o Each program is governed by the applicable federal law, regulations, executive orders and FEMA program-specific policies. As the Federal awarding agency for these programs, FEMA is responsible for the proper management and administration of these programs as otherwise required by law and enforcing the terms of the agreements it enters with NFEs that receive FEMA financial assistance, consistent with the requirements at 2 C.F.R. Part 200. 76 2 C.F.R. § 200.1 Contracts. 77 2 C.F.R. § 200.1 Contractor. 78 2 C.F.R. § 200.1 Cooperative agreement. 79 See Homeland Security Act of 2002, Pub. L. No. 107-296, § 503 (2002) (codified as amended at 6 U.S.C. § 313). DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 38  Federal award: The financial assistance that an NFE receives either directly from a Federal awarding agency or indirectly from a pass-through entity.80 In this Guide, the term is used interchangeably with “FEMA Award,” “grant,” and “financial assistance.”  Grant agreement: A legal instrument of financial assistance between a Federal awarding agency or pass-through entity and an NFE that, consistent with 31 U.S.C. §§ 6302, 6304: Is used to transfer anything of value from the Federal awarding agency or pass-through entity to the NFE to carry out a public purpose authorized by a law of the United States (see 31 U.S.C. § 6101(3)); and does not include an agreement that provides only: o Direct United States government cash assistance to an individual; o A subsidy; o A loan; o A loan guarantee; or o Insurance.  Indian tribe (or “federally recognized Indian tribe”): Indian tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. Chapter 33), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians (25 U.S.C. 450b(e)).81 See annually published Bureau of Indian Affairs list of Indian Entities Recognized and Eligible to Receive Services. For the purposes of this Guide, used interchangeably with “Indian Tribal government”.  Local government: Local government 82 means any unit of government within a state, including a: o County o Borough o Municipality o City o Town o Township o Parish o Special district o School District o Intrastate district o Council of governments, whether incorporated or not as a nonprofit corporation under state law o Local public authority, including any public housing agency under the United States Housing Act of 1937 o Any other agency or instrumentality of a multi- regional, or intra-state or local government 80 2 C.F.R. § 200.1 Federal award. 81 2 C.F.R. § 200.1 Indian tribe. 82 2 C.F.R. § 200.1 Local government. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 39  Non-Federal Entity (NFE): A state, local government, Indian tribe, Institution of Higher Education, or eligible private nonprofit organization that carries out a federal award as a recipient or subrecipient.83 In this Guide, NFEs include state and non-state entities.  Non-State Entity: A non-state entity is an eligible FEMA award recipient or subrecipient that does not meet the definition of a “state under 2 CFR 200.1.  Nonprofit organization (in this Guide, it is used interchangeably with “Private Nonprofit Organization or PNP”): Nonprofit organization 84 means any corporation, trust, association, cooperative, or other organization, not including Institutions of Higher Education, that:  Recipient: An NFE that receives a federal award directly from a Federal awarding agency to carry out an activity under a federal program. The term recipient does not include subrecipients.85 A recipient is responsible for administering the federal award in accordance with applicable federal laws. Examples of recipients include state, Indian tribe, or territorial governments.  Pass-through entity: A recipient that provides a subaward to a subrecipient to carry out part of a federal program is known as the pass-through entity.86 Pass-through entities are responsible for processing subawards to subrecipients and ensuring subrecipient compliance with the terms and conditions of the FEMA award agreement.  Political Subdivision: A political subdivision means the unit of government that the State determines to have met the State’s legislative definition of a political subdivision.87  Simplified Acquisition Threshold (SAT): Simplified acquisition threshold means the dollar amount below which an NFE may purchase property or services using small purchase methods. NFEs adopt small purchase procedures to expedite the purchase of items costing less than the simplified acquisition threshold. The federal SAT is set by the FAR at 48 C.F.R. Subpart 2.1 (Definitions) and in accordance with 41 U.S.C. 1908.88 As of June 2018, the federal SAT is $250,000,89 but is periodically adjusted for inflation.  State: State means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any agency or instrumentality thereof exclusive of local governments.90 In this Guide, state is used interchangeably with “state entity”. 83 2 C.F.R. § 200.1 Non-Federal entity. 84 2 C.F.R. § 200.1 Nonprofit organization. 85 2 C.F.R. § 200.1 Recipient. 86 2 C.F.R. § 200.1 Pass-through entity. 87 40 C.F.R. § 35.6015(a) Political subdivision 88 2 C.F.R. § 200.1 Simplified acquisition threshold. 89 Section 805 codified at 41 U.S.C. § 134; OMB Memo (M-18-18), available at https://www.whitehouse.gov/wp-content/uploads/2018/06/M-18-18.pdf. 90 2 C.F.R. § 200.1 State. Some hospitals and IHEs as defined by 2 C.F.R. § 200.1 Hospitals and 2 C.F.R. § 200.1 Institutions of Higher Education respectively, may meet the definition of a State. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract Provisions Guide 40  Subaward: An award provided by a pass-through entity to a subrecipient for the subrecipient to carry out part of a federal award received by the pass-through entity. It does not include payments to a contractor or payments to an individual that is a beneficiary of a federal program. A subaward may be provided through any form of legal agreement, including an agreement that the pass-through entity considers a contract.91 In this Guide, the term is used interchangeably with “subgrant.”  Subrecipient: An NFE that receives a subaward from a pass-through entity to carry out part of a federal program but does not include an individual that is a beneficiary of such program.92  Uniform Rules: The series of regulations found at 2 C.F.R. Part 200 that establishes Uniform Administrative Requirements, Cost Principles, and Audit Requirements for federal awards to NFEs. The Uniform Rules are referred to by several names throughout the remaining portions of this Guide. Some of the names include standards, requirements, rules, and regulations. 91 2 C.F.R. § 200.1 Subaward. 92 2 C.F.R. § 200.1 Subrecipient. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D Contract No. XX-XX Exhibit D: FHWA-1273 EXHIBIT D FHWA-1273 REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS [THIS PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 1 FHWA-1273 – Revised October 23, 2023 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 CFR 633.102(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). 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. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 2 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. 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 DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 3 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. Assurances Required: a. The requirements of 49 CFR Part 26 and the State DOT’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: DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 4 (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. 1. Minimum wages (29 CFR 5.5) a. Wage rates and fringe benefits. All laborers and mechanics employed or working upon the site of the work (or otherwise working in construction or development of the project under a development statute), 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 basic hourly 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. As provided in paragraphs (d) and (e) of 29 CFR 5.5, the appropriate wage determinations are effective by operation of law even if they have not been attached to the contract. Contributions made or costs reasonably anticipated for bona fide fringe benefits under the Davis-Bacon Act (40 U.S.C. 3141(2)(B)) on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph 1.e. 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 must be paid the appropriate wage rate and fringe benefits on the wage determination for the classification(s) of work actually performed, without regard to skill, except as provided in paragraph 4. of this section. 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 classifications and wage rates conformed under paragraph 1.c. of this section) and the Davis-Bacon poster (WH–1321) must 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. Frequently recurring classifications. (1) In addition to wage and fringe benefit rates that have been determined to be prevailing under the procedures set forth in 29 CFR part 1, a wage determination may contain, pursuant to § 1.3(f), wage and fringe benefit rates for classifications of laborers and mechanics for which conformance requests are regularly submitted pursuant to paragraph 1.c. of this section, provided that: (i) The work performed by the classification is not performed by a classification in the wage determination for which a prevailing wage rate has been determined; DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 5 (ii) The classification is used in the area by the construction industry; and (iii) The wage rate for the classification bears a reasonable relationship to the prevailing wage rates contained in the wage determination. (2) The Administrator will establish wage rates for such classifications in accordance with paragraph 1.c.(1)(iii) of this section. Work performed in such a classification must be paid at no less than the wage and fringe benefit rate listed on the wage determination for such classification. c. Conformance. (1) The contracting officer must 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 be classified in conformance with the wage determination. Conformance of an additional classification and wage rate and fringe benefits is appropriate 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 used 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) The conformance process may not be used to split, subdivide, or otherwise avoid application of classifications listed in the wage determination. (3) 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 will be sent by the contracting officer by email to DBAconformance@dol.gov. 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. (4) 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 will, by email to DBAconformance@dol.gov, 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. (5) The contracting officer must promptly notify the contractor of the action taken by the Wage and Hour Division under paragraphs 1.c.(3) and (4) of this section. The contractor must furnish a written copy of such determination to each affected worker or it must be posted as a part of the wage determination. The wage rate (including fringe benefits where appropriate) determined pursuant to paragraph 1.c.(3) or (4) of this section must 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. d. Fringe benefits not expressed as an hourly rate. 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 may either pay the benefit as stated in the wage determination or may pay another bona fide fringe benefit or an hourly cash equivalent thereof. e. Unfunded plans. 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, in accordance with the criteria set forth in § 5.28, 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. f. Interest. In the event of a failure to pay all or part of the wages required by the contract, the contractor will be required to pay interest on any underpayment of wages. 2. Withholding (29 CFR 5.5) a. Withholding requirements. The contracting agency may, upon its own action, or must, upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor so much of the accrued payments or advances as may be considered necessary to satisfy the liabilities of the prime contractor or any subcontractor for the full amount of wages and monetary relief, including interest, required by the clauses set forth in this section for violations of this contract, or to satisfy any such liabilities required by any other Federal contract, or federally assisted contract subject to Davis-Bacon labor standards, that is held by the same prime contractor (as defined in § 5.2). The necessary funds may be withheld from the contractor under this contract, any other Federal contract with the same prime contractor, or any other federally assisted contract that is subject to Davis-Bacon labor standards requirements and is held by the same prime contractor, regardless of whether the other contract was awarded or assisted by the same agency, and such funds may be used to satisfy the contractor liability for which the funds were withheld. In the event of a contractor's failure to pay any laborer or mechanic, including any apprentice or helper working on the site of the work all or part of the wages required by the contract, or upon the contractor's failure to submit the required records as discussed in paragraph 3.d. of this section, the contracting agency may on its own initiative and 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. b. Priority to withheld funds. The Department has priority to funds withheld or to be withheld in accordance with paragraph DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 6 2.a. of this section or Section V, paragraph 3.a., or both, over claims to those funds by: (1) A contractor's surety(ies), including without limitation performance bond sureties and payment bond sureties; (2) A contracting agency for its reprocurement costs; (3) A trustee(s) (either a court-appointed trustee or a U.S. trustee, or both) in bankruptcy of a contractor, or a contractor's bankruptcy estate; (4) A contractor's assignee(s); (5) A contractor's successor(s); or (6) A claim asserted under the Prompt Payment Act, 31 U.S.C. 3901–3907. 3. Records and certified payrolls (29 CFR 5.5) a. Basic record requirements (1) Length of record retention. All regular payrolls and other basic records must be maintained by the contractor and any subcontractor during the course of the work and preserved for all laborers and mechanics working at the site of the work (or otherwise working in construction or development of the project under a development statute) for a period of at least 3 years after all the work on the prime contract is completed. (2) Information required. Such records must contain the name; Social Security number; last known address, telephone number, and email address of each such worker; each worker's correct classification(s) of work actually performed; 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 40 U.S.C. 3141(2)(B) of the Davis-Bacon Act); daily and weekly number of hours actually worked in total and on each covered contract; deductions made; and actual wages paid. (3) Additional records relating to fringe benefits. Whenever the Secretary of Labor has found under paragraph 1.e. of this section 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 40 U.S.C. 3141(2)(B) of the Davis-Bacon Act, the contractor must 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. (4) Additional records relating to apprenticeship. Contractors with apprentices working under approved programs must maintain written evidence of the registration of apprenticeship programs, the registration of the apprentices, and the ratios and wage rates prescribed in the applicable programs. b. Certified payroll requirements (1) Frequency and method of submission. The contractor or subcontractor must submit weekly, for each week in which any DBA- or Related Acts- covered work is performed, certified payrolls to the contracting agency. The prime contractor is responsible for the submission of all certified payrolls by all subcontractors. A contracting agency or prime contractor may permit or require contractors to submit certified payrolls through an electronic system, as long as the electronic system requires a legally valid electronic signature; the system allows the contractor, the contracting agency, and the Department of Labor to access the certified payrolls upon request for at least 3 years after the work on the prime contract has been completed; and the contracting agency or prime contractor permits other methods of submission in situations where the contractor is unable or limited in its ability to use or access the electronic system. (2) Information required. The certified payrolls submitted must set out accurately and completely all of the information required to be maintained under paragraph 3.a.(2) of this section, except that full Social Security numbers and last known addresses, telephone numbers, and email addresses must not be included on weekly transmittals. Instead, the certified payrolls need only include an individually identifying number for each worker ( e.g., the last four digits of the worker's Social Security number). The required weekly certified payroll information may be submitted using Optional Form WH–347 or in any other format desired. Optional Form WH–347 is available for this purpose from the Wage and Hour Division website at https://www.dol.gov/sites/dolgov/files/WHD/ legacy/files/wh347/.pdf or its successor website. It is not a violation of this section for a prime contractor to require a subcontractor to provide full Social Security numbers and last known addresses, telephone numbers, and email addresses to the prime contractor for its own records, without weekly submission by the subcontractor to the contracting agency. (3) Statement of Compliance. Each certified payroll submitted must be accompanied by a “Statement of Compliance,” signed by the contractor or subcontractor, or the contractor's or subcontractor's agent who pays or supervises the payment of the persons working on the contract, and must certify the following: (i) That the certified payroll for the payroll period contains the information required to be provided under paragraph 3.b. of this section, the appropriate information and basic records are being maintained under paragraph 3.a. of this section, and such information and records are correct and complete; (ii) That each laborer or mechanic (including each helper and apprentice) working 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; and (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(s) of work actually performed, as specified in the applicable wage determination incorporated into the contract. (4) Use of Optional Form WH–347. The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH–347 will satisfy the requirement for submission of the “Statement of Compliance” required by paragraph 3.b.(3) of this section. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 7 (5) Signature. The signature by the contractor, subcontractor, or the contractor's or subcontractor's agent must be an original handwritten signature or a legally valid electronic signature. (6) Falsification. 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. 3729. (7) Length of certified payroll retention. The contractor or subcontractor must preserve all certified payrolls during the course of the work and for a period of 3 years after all the work on the prime contract is completed. c. Contracts, subcontracts, and related documents. The contractor or subcontractor must maintain this contract or subcontract and related documents including, without limitation, bids, proposals, amendments, modifications, and extensions. The contractor or subcontractor must preserve these contracts, subcontracts, and related documents during the course of the work and for a period of 3 years after all the work on the prime contract is completed. d. Required disclosures and access (1) Required record disclosures and access to workers. The contractor or subcontractor must make the records required under paragraphs 3.a. through 3.c. of this section, and any other documents that the contracting agency, the State DOT, the FHWA, or the Department of Labor deems necessary to determine compliance with the labor standards provisions of any of the applicable statutes referenced by § 5.1, available for inspection, copying, or transcription by authorized representatives of the contracting agency, the State DOT, the FHWA, or the Department of Labor, and must permit such representatives to interview workers during working hours on the job. (2) Sanctions for non-compliance with records and worker access requirements. If the contractor or subcontractor fails to submit the required records or to make them available, or refuses to permit worker interviews during working hours on the job, the Federal agency may, after written notice to the contractor, sponsor, applicant, owner, or other entity, as the case may be, that maintains such records or that employs such workers, 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, or to permit worker interviews during working hours on the job, may be grounds for debarment action pursuant to § 5.12. In addition, any contractor or other person that fails to submit the required records or make those records available to WHD within the time WHD requests that the records be produced will be precluded from introducing as evidence in an administrative proceeding under 29 CFR part 6 any of the required records that were not provided or made available to WHD. WHD will take into consideration a reasonable request from the contractor or person for an extension of the time for submission of records. WHD will determine the reasonableness of the request and may consider, among other things, the location of the records and the volume of production. (3) Required information disclosures. Contractors and subcontractors must maintain the full Social Security number and last known address, telephone number, and email address of each covered worker, and must provide them upon request to the contracting agency, the State DOT, the FHWA, the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or other compliance action. 4. Apprentices and equal employment opportunity (29 CFR 5.5) a. Apprentices (1) Rate of pay. Apprentices will be permitted to work at less than the predetermined rate for the work they perform 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 (OA), or with a State Apprenticeship Agency recognized by the OA. A person who is not individually registered in the program, but who has been certified by the OA or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice, will be permitted to work at less than the predetermined rate for the work they perform in the first 90 days of probationary employment as an apprentice in such a program. In the event the OA or a State Apprenticeship Agency recognized by the OA withdraws approval of an apprenticeship program, the contractor will no longer be permitted to use apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (2) Fringe benefits. Apprentices must 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, fringe benefits must be paid in accordance with that determination. (3) Apprenticeship ratio. The allowable ratio of apprentices to journeyworkers on the job site in any craft classification must not be greater than the ratio permitted to the contractor as to the entire work force under the registered program or the ratio applicable to the locality of the project pursuant to paragraph 4.a.(4) of this section. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated in paragraph 4.a.(1) of this section, must 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 this section must be paid not less than the applicable wage rate on the wage determination for the work actually performed. (4) Reciprocity of ratios and wage rates. Where a contractor is performing construction on a project in a locality other than the locality in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyworker's hourly rate) applicable within the locality in which the construction is being performed must be observed. If there is no applicable ratio or wage rate for the locality of the project, the ratio and wage rate specified in the contractor's registered program must be observed. b. Equal employment opportunity. The use of apprentices and journeyworkers under this part must be in conformity with DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 8 the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. c. 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 journeyworkers 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 must insert FHWA-1273 in any subcontracts, along with the applicable wage determination(s) and such other clauses or contract modifications as the contracting agency may by appropriate instructions require, and a clause requiring the subcontractors to include these clauses and wage determination(s) in any lower tier subcontracts. The prime contractor is responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in this section. In the event of any violations of these clauses, the prime contractor and any subcontractor(s) responsible will be liable for any unpaid wages and monetary relief, including interest from the date of the underpayment or loss, due to any workers of lower-tier subcontractors, and may be subject to debarment, as appropriate. 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. a. By entering into this contract, the contractor certifies that neither it 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 40 U.S.C. 3144(b) or § 5.12(a). b. No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of 40 U.S.C. 3144(b) or § 5.12(a). c. The penalty for making false statements is prescribed in the U.S. Code, Title 18 Crimes and Criminal Procedure, 18 U.S.C. 1001. 11. Anti-retaliation. It is unlawful for any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, or to cause any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, any worker or job applicant for: a. Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation of the DBA, Related Acts, this part, or 29 CFR part 1 or 3; b. Filing any complaint, initiating or causing to be initiated any proceeding, or otherwise asserting or seeking to assert on behalf of themselves or others any right or protection under the DBA, Related Acts, this part, or 29 CFR part 1 or 3; c. Cooperating in any investigation or other compliance action, or testifying in any proceeding under the DBA, Related Acts, this part, or 29 CFR part 1 or 3; or d. Informing any other person about their rights under the DBA, Related Acts, this part, or 29 CFR part 1 or 3. 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 watchpersons 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 and interest from the date of the underpayment. 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 DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 9 mechanic, including watchpersons 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. * $31 as of January 15, 2023 (See 88 FR 88 FR 2210) 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 a. Withholding process. The FHWA or the contracting agency may, upon its own action, or must, upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor so much of the accrued payments or advances as may be considered necessary to satisfy the liabilities of the prime contractor or any subcontractor for any unpaid wages; monetary relief, including interest; and liquidated damages required by the clauses set forth in this section on this contract, 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 that is held by the same prime contractor (as defined in § 5.2). The necessary funds may be withheld from the contractor under this contract, any other Federal contract with the same prime contractor, or any other federally assisted contract that is subject to the Contract Work Hours and Safety Standards Act and is held by the same prime contractor, regardless of whether the other contract was awarded or assisted by the same agency, and such funds may be used to satisfy the contractor liability for which the funds were withheld. b. Priority to withheld funds. The Department has priority to funds withheld or to be withheld in accordance with Section IV paragraph 2.a. or paragraph 3.a. of this section, or both, over claims to those funds by: (1) A contractor's surety(ies), including without limitation performance bond sureties and payment bond sureties; (2) A contracting agency for its reprocurement costs; (3) A trustee(s) (either a court-appointed trustee or a U.S. trustee, or both) in bankruptcy of a contractor, or a contractor's bankruptcy estate; (4) A contractor's assignee(s); (5) A contractor's successor(s); or (6) A claim asserted under the Prompt Payment Act, 31 U.S.C. 3901–3907. 4. Subcontracts. The contractor or subcontractor must insert in any subcontracts the clauses set forth in paragraphs 1. through 5. of this section and a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor is responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs 1. through 5. In the event of any violations of these clauses, the prime contractor and any subcontractor(s) responsible will be liable for any unpaid wages and monetary relief, including interest from the date of the underpayment or loss, due to any workers of lower- tier subcontractors, and associated liquidated damages and may be subject to debarment, as appropriate. 5. Anti-retaliation. It is unlawful for any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, or to cause any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, any worker or job applicant for: a. Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation of the Contract Work Hours and Safety Standards Act (CWHSSA) or its implementing regulations in this part; b. Filing any complaint, initiating or causing to be initiated any proceeding, or otherwise asserting or seeking to assert on behalf of themselves or others any right or protection under CWHSSA or this part; c. Cooperating in any investigation or other compliance action, or testifying in any proceeding under CWHSSA or this part; or d. Informing any other person about their rights under CWHSSA or this part. 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; DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 10 (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 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." DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 11 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 200.327. 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 200.327. 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. 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. * * * * * DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 12 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. 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 DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 13 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. * * * * * 4. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Participants: a. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals: (1) 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; (2) 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 (3) 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) b. 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. 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. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D 14 ATTACHMENT A - EMPLOYMENT AND MATERIALS PREFERENCE FOR APPALACHIAN DEVELOPMENT HIGHWAY SYSTEM OR APPALACHIAN LOCAL ACCESS ROAD CONTRACTS (23 CFR 633, Subpart B, Appendix B) This provision is applicable to all Federal-aid projects funded under the Appalachian Regional Development Act of 1965. 1. During the performance of this contract, the contractor undertaking to do work which is, or reasonably may be, done as on-site work, shall give preference to qualified persons who regularly reside in the labor area as designated by the DOL wherein the contract work is situated, or the subregion, or the Appalachian counties of the State wherein the contract work is situated, except: a. To the extent that qualified persons regularly residing in the area are not available. b. For the reasonable needs of the contractor to employ supervisory or specially experienced personnel necessary to assure an efficient execution of the contract work. c. For the obligation of the contractor to offer employment to present or former employees as the result of a lawful collective bargaining contract, provided that the number of nonresident persons employed under this subparagraph (1c) shall not exceed 20 percent of the total number of employees employed by the contractor on the contract work, except as provided in subparagraph (4) below. 2. The contractor shall place a job order with the State Employment Service indicating (a) the classifications of the laborers, mechanics and other employees required to perform the contract work, (b) the number of employees required in each classification, (c) the date on which the participant estimates such employees will be required, and (d) any other pertinent information required by the State Employment Service to complete the job order form. The job order may be placed with the State Employment Service in writing or by telephone. If during the course of the contract work, the information submitted by the contractor in the original job order is substantially modified, the participant shall promptly notify the State Employment Service. 3. The contractor shall give full consideration to all qualified job applicants referred to him by the State Employment Service. The contractor is not required to grant employment to any job applicants who, in his opinion, are not qualified to perform the classification of work required. 4. If, within one week following the placing of a job order by the contractor with the State Employment Service, the State Employment Service is unable to refer any qualified job applicants to the contractor, or less than the number requested, the State Employment Service will forward a certificate to the contractor indicating the unavailability of applicants. Such certificate shall be made a part of the contractor's permanent project records. Upon receipt of this certificate, the contractor may employ persons who do not normally reside in the labor area to fill positions covered by the certificate, notwithstanding the provisions of subparagraph (1c) above. 5. The provisions of 23 CFR 633.207(e) allow the contracting agency to provide a contractual preference for the use of mineral resource materials native to the Appalachian region. 6. The contractor shall include the provisions of Sections 1 through 4 of this Attachment A in every subcontract for work which is, or reasonably may be, done as on-site work. DocuSign Envelope ID: 5C78593B-C6B2-4EFA-B72D-205A40B8930D