222327MN_Addendum_2_Grant_Funded_Contract_Provisions_1.10.24.pdf

ATTACHMENT A

Grant Funded Contract Provisions

Federal Highway Administration

Florida Department of Transportation

Grant Contract Provisions

For purposes of this Exhibit, the terms “Contract” and “Agreement,” shall be interchangeable, and the terms “Consultant” and “Proposer,” shall be interchangeable.

This project will be funded utilizing Florida Department of Transportation (FDOT) provided through a Local Agency Program Agreement, FM441558-2-58/68-01.

Note: references to Project herein shall be deemed a reference to the services provided under the contract.

2 CFR Part 200 Uniform Guidance Contract Provisions

1. Breach of Contract

a. Contracts for more than the simplified acquisition threshold, which is the inflation adjusted amount determined by the Civilian Agency Acquisition

Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, currently set at $250,000 must address administrative, contractual, or legal remedies in instances where consultants violate or breach contract terms and provide for such sanctions and penalties as appropriate. (Contracts for more than the simplified acquisition threshold, currently set at $250,000)

b. In the event of a dispute or claim arising out of this Agreement, the parties may agree first to try in good faith to settle the dispute by direct discussion. If this is unsuccessful, the parties may enter into mediation in Sarasota County, Florida, with the parties sharing equally in the cost of such mediation.

c. In the event mediation, if attempted, is unsuccessful in resolving a dispute, the parties may proceed to litigation as set forth below.

d. Any dispute, action or proceeding arising out of or related to this Agreement will be exclusively commenced in the state courts of Sarasota County, Florida, or where proper subject matter jurisdiction exists in the United States District

Court for the Middle District of Florida. Each party irrevocably submits and waives any objections to the exclusive personal jurisdiction and venue of such courts, including any objection based on forum non conveniens.

e. The parties agree to waive all rights to trial by jury for any litigation undertaken concerning this Agreement.

f. This Agreement and the rights and obligations of the parties shall be governed by the laws of the State of Florida without regard to its conflict of laws principles.

g. Unless otherwise agreed in writing, the CONSULTANT shall be required to continue its services and all other obligations under this Agreement during the pendency of claim or dispute including, but not limited to, actual period of mediation or judicial proceedings.

h. To the extent Chapter 558, F.S. is applicable, the parties expressly opt out of the requirements of Chapter 558, F.S., within the meaning of §558.005(1), F.S.

Grant Funded Contract Provisions

2. Termination

All contracts in excess of $10,000 must address termination for cause and for convenience by the non-Federal entity including the manner by which it will be effected and the basis for settlement (Contracts in excess of $10,000).

a. The County shall have the right at any time upon thirty (30) calendar days written notice to the Consultant to terminate the services of the Consultant and, in that event, the Consultant shall cease work and shall deliver to the County all documents, (including reports, designs, specifications, and all other data) prepared or obtained by the CONSULTANT in connection with its services.

The County shall, upon receipt of the aforesaid documents, pay to the

Consultant and the Consultant shall accept as full payment for its services, a sum of money equal to (1) the fee for each completed and accepted task as shown in the Scope of Services and Fee Schedule applicable to the then current phase of the Project, plus (2) the fee for the percentage of the work completed in any commenced but uncompleted task shown in the Scope of Services and

Fee Schedule, applicable to the then current phase of the Project, less (3) all previous payments made for the same tasks.

b. In the event that the Consultant has abandoned performance under this

Agreement, then the County may terminate this Agreement upon three (3) calendar days written notice to the Consultant indicating its intention to do so.

Payment for work performed prior to the Consultant 's abandonment shall be as stated above. Consultant shall have one hundred and eighty (180) days to submit invoices. Invoices submitted after one hundred and eighty (180) days may not be accepted for payment.

c. The Consultant shall have the right to terminate services only in the event of the County failing to pay the Consultant 's properly documented and submitted invoice within ninety (90) calendar days of the approval by the Administrative

Agent, or if the Project is suspended by the County for a period greater than twelve (12) months.

d. The County reserves the right to terminate and cancel this Agreement in the event the Consultant shall be placed in either voluntary or involuntary bankruptcy or an assignment is made for the benefit of creditors.

e. After written notice is provided to the Consultant providing a reasonable opportunity to cure, and after consultation with the Design Consultant, the

County shall have the right to refuse to make payment, in whole or part, and if necessary, may demand the return of a portion or all of the amount previously paid to the Consultant due to:

1. The quality of a portion, or all, of the Consultant’s work not performed in accordance with the requirements of this Agreement;

2. The quantity of the Consultant’s work not delivered or performed as represented in the Consultant’s Payment Request, or otherwise;

3. The Consultant’s rate of progress being such that in the County’s opinion, substantial or final completion, or both may be inexcusably delayed;

4. The Consultant’s failure to use the Agreement funds, previously paid the Consultant by the County, to pay Consultant’s Agreement-related obligations including, but not limited to, subcontractors, laborers, and material and equipment suppliers;

5. Claims made, or likely to be made, against the County, or its property;

6. Loss caused by the Consultant;

7. The Consultant’s failure or refusal to perform any of the obligations to the County after written notice and a reasonable opportunity to cure as set forth above.

f. In the event the County makes written demand upon the Consultant for amounts previously paid by the County as contemplated in this subsection, the

Consultant shall promptly comply with such demand. The County’s rights hereunder survive the term of this Agreement and are not waived by final payment or acceptance and are in addition to the Consultant’s obligations stated in Exhibit A, Scope of Services.

3. Equal Employment Opportunity Required Language 41 CFR §60-1.4(b)

Compliance with Executive Order 11246 of September 24, 1965, entitled “Equal

Employment Opportunity,” (30 FR 12319, 12935, 3 CFR Part 1964-1965 Comp., p.339) as amended by Executive Order 11375 of October 13, 1967, entitled “Amending Executive

Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 CFR Part 60, entitled “Office of Federal Contract Compliance Programs, Equal

Employment Opportunity, Department of Labor.” Except as otherwise provided under 41

CFR Part 60, all contracts that meet the definition of “federally assisted construction contract” in 41 CFR Part 60.1.3 must include the equal opportunity clause provided under

41 CFR 60-1.4(b).

41 C.F.R. Part 60-1.4(b)

During the performance of this contract, the Consultant agrees as follows:

(1)The Consultant will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Consultant 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 Consultant 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 Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant, state that all qualified applicants will receive considerations for employment without regard to race, color, religion, sex, or national origin.

(3) The Consultant 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 provisions shall not apply to instance 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 the furtherance of an investigation, proceeding, hearing or action, including an investigation conducted by the employer, or is consistent with the

Consultant’s legal duty to furnish information.

(4) The Consultant 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 Consultant's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(5) The Consultant 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 Consultant 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 Consultant'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

Consultant 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 as 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 Consultant 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 Consultant 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 Consultant becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency the Consultant may request the United

States to enter into such litigation to protect the interests of the United States.

4. Clean Air and Water

Contractor must 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 U.S. Treasury and the

Regional Office of the Environmental Protection Agency (EPA) (Contracts, subcontracts, and subgrants of amounts in excess of $150,000)

5. Debarment and Suspension (Executive Orders 12549 and 12689)

A contract award (see 2 CFR 180.220) must not be made to parties listed on the governmentwide Excluded Parties List System in the System for Award Management

(SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive

Orders 12549 (3 CFR Part 1986 Comp., p. 189) and 12689 (3 CFR Part 1989 Comp., p.

235), “Debarment and Suspension.” The Excluded Parties List System in SAM contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive

Order 12549. (Contracts, subcontracts of amounts in excess of $25,000)

Grant Funded Contract Provisions

SEPARATE CERTIFICATION DOCUMENTS INCLUDED FOR SIGNATURE

FDOT Form 375-030-32

6. Byrd Anti-Lobbying Amendment

Compliance with the Byrd Anti-Lobbying Amendment (31 U.S.C. 1352)—Contractors that apply or bid for an award of $100,000 or more must file the required certification. 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 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 must 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 non-Federal award.

SEPARATE CERTIFICATION DOCUMENT INCLUDED FOR SIGNATURE

FDOT Form 375-030-33 and FDOT Form 375-030-034

7. Procurement of Recovered Materials

The Contractor must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section

6002 include procuring only items designated in guidelines of the Environmental

Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

8. Prohibition On Certain Telecommunications And Video Surveillance Services Or

Equipment

2 CFR §200.216; Public Law 115-232, Section 889; 2 CFR §200.471

(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 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

9. Domestic Preference for Procurements

(a) As appropriate and to the extent consistent with law, 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 (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subcontracts including all contracts and purchase orders for work or products under this contract.

(b) For purposes of this section:

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.

2. “Manufactured products” means 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.

10. Contracting with small and minority businesses, women’s business enterprise, and labor surplus area firms (2 CFR §200.321)

The Contractor, if subcontracts are to be let, must take all necessary affirmative steps to assure that minority businesses, women’s business enterprises, and labor surplus area firms are used when possible. Affirmative steps must include:

a. Placing qualified small and minority businesses and women’s business enterprises on solicitation lists;

b. Assuring that small and minority businesses, and women’s business enterprises are solicited whenever they are potential sources;

c. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority business, and women’s business enterprises;

d. Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women’s business enterprises;

e. Using the services and assistance, as appropriate, of such organizations as the

Small Business Administration and the Minority Business Development

Agency of the Department of Commerce; and,

f. Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in (a) — (e) of this paragraph.

11. Allowable Cost

Sarasota County will review and make a determination of allowable costs in accordance with the Federal Cost Principles for services rendered under the resulting contract.

Florida Department of Transportation Grant Contract Provisions

1. Contractor and all sub-contractors shall comply with FDOT Conflict of Interest

Procedure (FDOT Topic No. 375-030-006)

2. Contractor shall comply with FDOT Truth in Negotiation Certification (FDOT 375-

030-30), attached hereto and incorporated into this solicitation.

SEPARATE CERTIFICATION ATTACHED FOR EXECUTION FDOT Form

375-030-30

3. Contractor shall comply with FDOT 375-040-084 Local Agency Program Federal

Terms For Professional Services Contracts attached hereto and incorporated into this solicitation.

4. Contractor and all sub-contractors shall comply with Section 20.055(5), Florida

Statutes, and to incorporate in all subcontracts the obligation to comply with Section

20.055(5), Florida Statutes.

5. Contractor shall utilize the U.S. Department of Homeland Security’s E-Verify in accordance with Section 21.0 of Sarasota County General Terms and Conditions of

Solicitations.

6. Contractor and all sub-contractors who employ unauthorized aliens will resulting in this action being considered a violation of Section 274A(e) of the Immigration and

Nationality Act and such violation will be cause for unilateral cancellation of this contract.

7. Contractor and all sub-contractors who have been placed on the convicted vendor list, discriminatory vendor list, or has had its Certificate of Qualification suspended, revoked, denied or have further been determined by the Florida Department of

Transportation to be a non-responsible contractor may not submit a bid or perform work for work performed under this contract.

8. Contractor and all sub-contractors shall include the following indemnification in all contracts with contractors, subcontractors, consultants, or subconsultants (each referred to as “Entity” for the purposes of the below indemnification who perform work in connection with this contract):

“To the extent provided by law, Contractor shall indemnify, defend, and hold harmless Sarasota County and the State of Florida, Department of Transportation, including the Department’s officers, agents, and employees, against any actions, claims, or damages arising out of relating to, or resulting from negligent or wrongful act(s) of Contractor, or any of its officers, agents, or employees, acting within the scope of their office or employment, in connection with the rights granted to or exercised by Contractor hereunder, to the extent and within the limitations of Section

768.28, Florida Statutes.

The foregoing indemnification shall not constitute a waiver of sovereign immunity beyond the limits set forth in Florida Statutes, Section 768.28. Nor shall the same be construed to constitute agreement by Contractor to indemnify Sarasota County for the negligent acts or omissions of Sarasota County, its officers, agents, or employees, or third parties. Nor shall the same be construed to constitute agreement by Contractor to indemnify the Department for the negligent acts or omissions of the Department, its officers, agents, or employees, or third parties. This indemnification shall survive the termination of this contract.”

9. The Contractor and all subcontractors shall ensure they have Workers’ Compensation

Insurance for their employees in accordance with Florida’s Workers’ Compensation law.

10. The Contractor shall carry Commercial General Liability insurance and the Florida

Department of Transportation shall be named as an Additional Insured.

11. The Contractor will make available to the County, U.S. Department of Transportation, Federal Highway Administration, Florida Department of Transportation, Office of

Inspector General and the Government Accountability Office any documents, papers or other records, including electronic records, of the contractor that are pertinent to this contract, in order to make audits, investigations, examinations, excerpts, transcripts, and copies of such documents. This right also includes timely and reasonable access to the contractor’s personnel for the purpose of interview and discussion related to such documents. This right of access shall continue for a period of five years after completion of project and final payment by the County.

The Contractor is required to retain financial records, supporting documents, statistical records, and all other non-Federal entity records pertinent to this contract and must be retained for a period of five years from the completion of the project and final payment by the County. Unless any litigation, claim, or audit is started before the expiration of the 5-year period, the records must be retained until all litigation, claims, or audit findings involving the records have been resolved and final action taken.

The County, U.S. Department of Transportation, Federal Highway Administration, Florida Department of Transportation, Office of Inspector General and the Government

Accountability Office shall have the right during normal business hours to conduct announced and unannounced onsite and offsite physical visits of Contractors corresponding to the duration of their records retention obligation.

12. The Contractor and all subcontractors must comply with all applicable federal law, regulations, executive orders, Federal Highway Administration policies, procedures, and directives.

13. The County and FDOT are committed to diversity in procurement. Please see attached FDOT Form 275-030-11 DBE Bid Package Information and FDOT Form

375-030-83 DBE Bid Opportunity Form

14. Restrictions, Prohibitions, Controls, and Labor Provisions:

During the performance of this Contract, the Contractor agrees as follows, and agrees to require its and subcontractors, to include in each subcontract the following provisions:

a. The Contractor/Subcontractor will comply with all the requirements imposed by

Title VI of the Civil Rights Act of 1964, the regulations of the U.S. Department of

Transportation issued thereunder, and the assurance by the Recipient pursuant thereto.

The Contractor/Subcontractor shall include the attached, Title VI Assurances 525-

011-OC, in all contracts/subcontracts with consultants and contractors performing work on the Project that ensure compliance with Title VI of the Civil Rights Act of

1964, 49 C.F.R. Part 21, and related statutes and regulations.

b. The Contractor/Subcontractor will comply with all the requirements as imposed by the ADA, the regulations of the Federal Government issued thereunder, and assurance by the Contractor pursuant thereto.

c. A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity; may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids on leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor or consultant under a contract with any public entity; and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, Florida Statutes, for

CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list.

d. In accordance with Section 287.134, Florida Statutes, an entity or affiliate who has been placed on the Discriminatory Vendor List, kept by the Florida Department of

Management Services, may not submit a bid on a contract to provide goods or services to a public entity; may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work; may not submit bids on leases of real property to a public entity; may not be awarded or perform work as a contractor, supplier, subcontractor or consultant under a contract with any public entity; and may not transact business with any public entity.

e. An entity or affiliate who has had its Certificate of Qualification suspended, revoked, denied or have further been determined by the Department to be a non-responsible contractor may not submit a bid or perform work for the construction or repair of a public building or public work on a contract with the Recipient.

f. Neither the County nor any of its contractors or their subcontractors shall enter into any contract, subcontract or arrangement in connection with the Project or any property included or planned to be included in the Project in which any member, officer or employee of the Recipient or the locality during tenure or for 2 years thereafter has any interest, direct or indirect. If any such present or former member, officer or employee involuntarily acquires or had acquired prior to the beginning of tenure any such interest, and if such interest is immediately disclosed to the County, the County, with prior approval of the Florida Department of Transportation, may waive the prohibition contained in this paragraph provided that any such present member, officer or employee shall not participate in any action by the County or the locality relating to such contract, subcontract or arrangement. The County shall insert in all contracts entered into in connection with the Project or any property included or planned to be included in any Project, and shall require its contractors to insert in each of their subcontracts, the following provision: "No member, officer or employee of the Recipient or of the locality during his tenure or for 2 years thereafter shall have any interest, direct or indirect, in this contract or the proceeds thereof." The provisions of this paragraph shall not be applicable to any agreement between the

County and its fiscal depositories or to any agreement for utility services the rates for which are fixed or controlled by a governmental agency.

g. No member or delegate to the Congress of the United States shall be admitted to any share or part of this Contractor or any benefit arising therefrom.

APPROVED: Effective Date: August 17, 2015 Office: Procurement Topic No.: 375-030-006-c

CONFLICT OF INTEREST PROCEDURE FOR DEPARTMENT

CONTRACTS

PURPOSE:

The goal of the Department of Transportation's (Department) contracting program is to procure contracts in a fair, open, and competitive manner. Additionally, consultant firms representing the Department must be free of conflicting professional or personal interests. Such competing interests could hinder objective decision making, and potentially make it difficult for consultant firms to discharge their contractual obligations impartially. A conflict of interest can create the appearance of impropriety, even where none exists, that can undermine confidence in the Department's contracting program.

In order to prevent potential conflicts, the following procedure shall be adhered to when contracting for professional services. It is the responsibility of the consultant firm to recuse itself from submitting Letters of Interest, Letters of Response, or technical proposals for a project if a conflict of interest exists. Subconsultants are responsible for disclosing potential conflicts of interest to the prime consultant firm, and recusing themselves accordingly where conflicts exist. Where the procedure allows District approval, it is the responsibility of the consultant firm with the potential conflict of interest (whether prime or subconsultant) to request a determination on eligibility prior to submittal of Letters of Interest, Letters of Response, or technical proposals. Approval must be obtained in writing from the District Secretary prior to a consultant firm’s submittal of Letters of Interest, Letters of Response, or technical proposals. An undisclosed, later discovered conflict of interest may cause a Letter of Interest, Letter of Response, or technical proposal to be considered non-responsive.

AUTHORITY:

Sections 20.23(3)(a) and 334.048(3), Florida Statutes

SCOPE:

This procedure applies to all Department offices involved in contracting for professional services and to professional services consultant contracts and design-build contracts.

375-030-006-c

REFERENCES:

Sections 287.055, 337.105, 337.14, and 337.164, Florida Statutes Rule Chapters 14-22 and 14-75, Florida Administrative Code (F.A.C.)

1. DEFINITIONS

1.1 Affiliate

For the purpose of this procedure, the term "affiliate" shall mean a predecessor or successor of a consultant firm or contractor under the same, or substantially the same, control or a group of business entities which are connected or associated so that one entity controls or has the power to control each of the other business entities. The term "affiliate" includes the officers, directors, executives, shareholders active in management, employees, and agents of the affiliate. The ownership by one business entity of a controlling interest in another business entity or a pooling of equipment or income among business entities shall be prima facie evidence that one business entity is an affiliate of another.

2. ALL PROFESSIONAL SERVICES CONTRACTS

2.1. Restrictions on Consultant Firms that Develop Project Scopes

Any consultant firm, or its affiliate, that developed the scope of services, the Request for Proposal (RFP) or other solicitation documents for a particular project phase is ineligible to compete for that phase of the project for which they developed the documents.

Any consultant firm, or its affiliate, that developed the RFP or other solicitation documents for a design-build project is ineligible to compete for construction engineering and inspection (CEI) for that design-build project.

A consultant firm, or its affiliate, that developed the scope of services, the RFP, or other solicitation documents for a design project is eligible for CEI services for that same project.

2.2 Restrictions on Preliminary Engineering Activities

A consultant firm, or its affiliate, that performed a value engineering study or cost risk analysis on a project is eligible to perform work on other phases of the project.

A consultant who solely performed Project Development and Environmental (PD&E) services on a project is eligible to compete for work on other phases of the project, if the PD&E services have been completed. For on-going PD&E services, the District Secretary will determine whether to allow the PD&E firm to compete for work on other phases based on the complexity of the project and whether a competitive advantage exists.

A consultant who performed a safety or traffic operations study is eligible to perform design services for the same project.

A consultant who performed a corridor analysis or pre-design analysis is eligible to perform design services for the same project.

3. CONSULTANT CEI CONTRACTS

3.1 Restrictions on Qualifications

A construction contractor, or its affiliate, qualified by the Department under Rule Chapter 14-22, F.A.C., may not also qualify under Rule Chapter 14-75, F.A.C. to provide either CEI services or testing services. This limitation does not apply to any design-build prequalification and does not apply when the Assistant Secretary otherwise determines in writing at least 30 days before advertisement that the limitation is not in the best interests of the public with respect to a particular contract for testing services or CEI services.

3.2 Restrictions on Engineer of Record as Prime Consultant

A consultant firm, or its affiliate, that is the Engineer of Record (EOR) on a project shall be considered ineligible to compete as a prime consultant for CEI services on that same project. However, a consultant firm, or its affiliate, that performed design services is able to compete for CEI contracts where the consultant firm will only provide inspectors, and the contracts will be administered by Department staff (i.e., CEI hybrid contracts).

3.3 Restrictions on Engineer of Record or Subconsultant as CEI

A consultant firm, or its affiliate, that is the EOR on a project may only be considered eligible to compete as a subconsultant for CEI services upon approval of the District Secretary.

A consultant firm, or its affiliate, that was a subconsultant to the EOR on a project may only be considered eligible as a prime for CEI services on the same project, with the approval of the District Secretary.

A consultant firm, or its affiliate, that was a subconsultant to the EOR on a project may only be considered eligible as subconsultant for CEI services with the approval of the District Secretary.

The District Secretary’s approval shall be based on the extent of the firm’s involvement in the design of the project or CEI services, as the case may be, and the potential of hindrance of any objective decision making.

A consultant firm, or its affiliate, that performs geotechnical services for the EOR on the project will not be eligible as the CEI to perform the same types of geotechnical services, or to provide testing of the same types of materials tested or evaluated for the EOR on the same project. A consultant firm, or its affiliate, responsible for performing or evaluating core borings for structures shall be considered ineligible to perform inspection of pile driving or drilled shaft construction on the same project.

Design-Bid-Build

Current relationship/Future relationship (on the same project)

Requires District

Secretary approval

Ineligible for approval

Not a conflict

Prime EOR/Prime CEI X

Prime EOR/Sub CEI X

Prime Geotech/Prime CEI performing different type of services

X

Sub EOR/Prime CEI X

Sub EOR/Sub CEI X

Sub EOR for survey services/Sub CEI for survey services

X

Sub Geotech to EOR/Sub CEI performing the same type of services

X

Sub Geotech to EOR/Sub CEI performing different type of services

X

4. CONSULTANT FIRM / CONTRACTOR RELATIONSHIPS

A consultant firm or its affiliate that is the Designer or EOR, or a subconsultant to the EOR, is ineligible to bid on the same project as the construction contractor or as a subconsultant to the construction contractor. It is a conflict of interest for a consultant firm to receive compensation on a single design-bid-build project from both the Department and the construction contractor, either directly or indirectly, except as noted herein. A consultant firm that has only performed preliminary pavement coring activities as part of the design process is permitted to act as the Quality Control (QC) Manager for a contractor on the same project, or provide geotechnical or other engineering services on the same project.

A contractor that performs a constructability review on a design contract is prohibited from pursuing the construction contract. A contractor who participates in a value engineering study workshop or cost risk analysis workshop is prohibited from pursuing the construction contract.

A construction contractor qualified with the Department may only provide testing services or CEI services if the Department determines it is in the best interest of the public. The construction contractor must request approval to provide testing services or CEI services at least 60 days in advance of a contract advertisement. The request must be submitted in writing to the Assistant Secretary who will provide a response in writing at least 30 days prior to advertisement.

Under no circumstances shall a contractor be authorized to provide testing services or provide CEI services to the Department in connection with a construction contract under which the contractor is performing any work.

5. GENERAL ENGINEERING CONSULTANTS

Professional services of a General Engineering Consultant (GEC) include the administration, support and management of engineering; architectural; surveying;

planning; or right of way appraisal, acquisition and property management activities.

These activities may involve a number of different projects in the work program.

Neither the GEC nor its affiliate is eligible to pursue any project for which the GEC developed the solicitation documents, scope of services, or RFP.

This eligibility restriction also applies to all consultant support contracts.

6. DESIGN-BUILD

The lead or prime contractor and lead or prime design consultant with a design-build firm are restricted from submitting as lead or prime on more than one proposal for a given project. The lead or prime design consultant may serve in a non-lead role as a subconsultant/subcontractor on one or more design-build teams, but must inform all affected teams of the additional participation. The lead member (i.e., design consultant or contractor) with the design-build firm cannot change teams after award, without the written approval of the Chief Engineer.

A consultant firm is ineligible for CEI services, either as a prime or a subconsultant, for a design-build contract on which the same firm, or its affiliate, is the EOR or is sub to the

EOR.

A consultant firm, its affiliate, or subconsultant that developed the RFP for a design-build contract cannot be part of a design-build team proposing on that contract as a prime or a subconsultant. A consultant firm that hires the engineer who developed the RFP cannot be a part of a design-build team proposing on that contract as a prime or as a subconsultant. A consultant firm, its affiliate, or subconsultant that is under contract with the Department to provide CEI services on the design-build contract cannot be part of a design-build team proposing on that contract as a prime or subconsultant.

Any consultant firm, or its affiliate, that developed the RFP for a design-build contract will not be eligible to compete as a prime for CEI services on that project. A consultant firm, or its affiliate, that developed the RFP may be considered eligible as a subconsultant for CEI services only with the approval of the District Secretary. A consultant firm or its affiliate that performed PD&E services would be eligible to participate on the design-build contract unless the consultant firm participated in developing the RFP or scope of services for the design-build contract.

A consultant, or its affiliate, that is the prime EOR on a design-bid-build project, where the project is switched to design-build, may participate on the design-build team with the approval of the District Secretary. The District Secretary shall consider level of design (% completed) by the EOR, the number of component design plans by different EOR’s, etc.

The prime EOR is eligible to compete for CEI services on Design-Bid-Build project switched to design-build, if the prime EOR was not involved in the design-build RFP development.

A consultant firm performing PD&E studies for the Department is eligible to be a member of the design-build team on the same project, if the consultant firm had no direct role in development of the design-build RFP document.

Design-Build Projects

Current relationship/Future relationship (on the same project)

Requires District Secretary approval

Ineligible for approval

Not a conflict

Prime PD&E/DB prime X

Prime PD&E/DB sub X

Prime EOR/Prime CEI X

Prime EOR/Sub CEI X

Sub EOR/Prime CEI X

Sub EOR/Sub CEI X

Sub EOR for movable bridge project/Prime CEI

X

Sub EOR for movable bridge project where electrical/mechanical work is minor/Sub CEI

X

Develop RFP for DB contract/DB prime

X

Current relationship/Future relationship (on the same project)

Requires District Secretary approval

Ineligible for approval

Not a conflict

Develop RFP for DB contract/DB sub

X

Perform Value Engineering Review of RFP/DB prime

X

Perform Value Engineering Review of RFP/DB sub

X

Perform soil borings for DB project/DB Geotech sub

X

Develop Design-Criteria package/CEI prime

X

Develop Design-Criteria package/CEI sub

X

Develop RFP for DB contract/CEI prime

X

Develop RFP for DB contract/CEI sub

X

Perform hydraulic reports and scour evaluations/Prime DB

X

Perform hydraulic reports and scour evaluations/Sub

DB

X

Minor involvement in concept plans/Prime DB

X

Minor involvement in concept plans/Sub DB

X

Prime DB firm/Prime CEI X

Prime DB firm/Sub CEI X

Sub DB firm/Prime CEI X

Sub DB firm/Sub CEI X

Sub DB firm performing preliminary estimating services/Prime CEI

X

Prime EOR on Design-Bid- Build switched to DB contract/Prime DB

X

Prime EOR on Design-Bid- Build switched to DB contract/Sub DB

X

7. FORMS

None required.

LOCAL AGENCY PROGRAM FEDERAL-AID TERMS

For PROFESSIONAL SERVICES CONTRACTS

375-040-84

PROGRAM MANAGEMENT

1/24

TERMS FOR FEDERAL AID CONTRACTS (APPENDIX I):

The following terms apply to all contracts in which it is indicated that the services involve the expenditure of federal funds:

A. It is understood and agreed that all rights of the Local Agency relating to inspection, review, approval, patents, copyrights, and audit of the work, tracing, plans, specifications, maps, data, and cost records relating to this Agreement shall also be reserved and held by authorized representatives of the United States of America.

B. All tracings, plans, specifications, maps, computer files and/or reports prepared or obtained under this Agreement, as well as all data collected, together with summaries and charts derived therefrom, will be considered works made for hire and will become the property of the Agency upon completion or termination without restriction or limitation on their use and will be made available, upon request, to the Agency at any time during the performance of such services and/or completion or termination of this Agreement. Upon delivery to the Agency of said document(s), the Agency will become the custodian thereof in accordance with Chapter 119, Florida Statutes. The Consultant will not copyright any material and products or patent any invention developed under this agreement. The Agency will have the right to visit the site for inspection of the work and the products of the Consultant at any time.

C. It is understood and agreed that, in order to permit federal participation, no supplemental agreement of any nature may be entered into by the parties hereto with regard to the work to be performed hereunder without the approval of the U.S. Department of Transportation, anything to the contrary in this Agreement not withstanding.

D. The Consultant shall provide access by the Florida Department of Transportation (recipient), the Agency (subrecipient), the Federal Highway Administration, the U.S. Department of Transportation’s Inspector General, the Comptroller General of the United States, or any of their duly authorized representatives to any books, documents, papers, and records of the Consultant which are directly pertinent to that specific contract for the purpose of making audit, examination, excerpts, and transcriptions.

E. Compliance with Regulations: The Consultant shall comply with the Regulations: relative to nondiscrimination in Federally-assisted programs of the U.S. Department of Transportation Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this Agreement.

F. Nondiscrimination: The Consultant, with regard to the work performed during the contract, shall not discriminate on the basis of race, color, national origin, sex, age, disability, religion or family status in the selection and retention of subcontractors, including procurements of material and leases of equipment. The Consultant shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations.

G. Solicitations for Subcontracts, Including Procurements of Materials and Equipment: In all solicitations made by the Consultant, either by competitive bidding or negotiation…