Exhibit 1 - Federal Terms and Conditions.pdf

EXHIBIT 1

FEDERAL TERMS AND CONDITIONS

Sanctions and Penalties for Breach of Contract:

108.10 Default of Contract. After notice and an opportunity to remedy, the engineer may declare the contractor in default, if the contractor:

(a) Fails to begin the work under the contract within the time specified to begin work.

(b) Fails to perform the work with sufficient resources to assure the timely completion of the work.

(c) Fails to perform the work in accordance with the contract requirements, or neglects or refuses to remove and replace rejected material or unacceptable work.

(d) Discontinues the prosecution of the work.

(e) Fails to resume work that has been discontinued within a reasonable time after notice to do so.

(f) Becomes insolvent, is declared bankrupt or commits any act of bankruptcy or insolvency, allows any final judgment to remain unsatisfied or makes an assignment for the benefit of creditors.

(g) Fails to comply with contract requirements regarding prevailing wage payments, DBE or EEO requirements.

(h) Is a party to fraud.

108.10.1 The engineer will give notice in writing to the contractor and surety of the condition described in Sec 108.10, and advise the contractor and surety of the actions required for remedy. If the contractor does not proceed to remedy the condition within ten days of receipt of this notice, the engineer may declare the contractor in default. The declaration of default will be made in writing to the contractor and the surety.

108.10.2 If within ten days after receipt of the declaration of default, the surety does not proceed to assume the contract for completion under the direction of the engineer, the Commission has full power and authority, without impairing the obligation of the contract or the bond:

(a) To take over the completion of the work.

(b) To appropriate or use any or all project material and equipment that is suitable and acceptable.

(c) To enter into agreements with others.

(d) To use such other methods as in its judgment may be required for the completion of the contract in an acceptable manner.

Termination for Cause and Convenience:

108.11 Termination of Contract for Convenience of the Commission. The Commission may terminate the entire contract, or any portion thereof, if the engineer determines that a termination is in the Commission's best interest. The engineer will deliver to the contractor and surety a notice of termination specifying the extent of termination and the effective date. A termination of the contract for convenience may be directed at any time after the Commission has made a determination to award a contract. The bidding documents may provide for a termination of the contract for convenience under this section upon the occurrence or nonoccurrence of a specified event after bid opening.

108.11.1 Submittals and Procedures. After receipt of a notice of termination, the contractor shall immediately proceed with the following obligations:

(a) Stop work as specified in the notice.

(b) Place no further subcontracts or orders for material, supplies, services or facilities, except as necessary to complete the portion of the contract that has not been terminated.

(c) Terminate all subcontracts to the extent they relate to the work terminated.

(d) Settle with subcontractors and suppliers all outstanding liabilities arising from the termination.

(e) Transfer title and deliver to the Commission, work in progress, completed work, supplies and other material produced or acquired for the work terminated, and completed or partially completed plans, drawings, information and other property that, if the contract had been completed, would be required to be furnished to the Commission. (f) Complete performance of the work not terminated.

(g) Take any action that the engineer directs to protect and preserve contract-related property that is in the possession of the contractor in which the Commission has or may acquire an interest.

108.11.2 Settlement Provisions. When the Commission orders termination of all or a part of the contract effective on a certain date, completed items of work as of that date will be paid for at the contract unit price. Payment for partially completed work will be made either at agreed prices or under the provisions below. When items are eliminated in their entirety by such termination, the contractor will be paid for actual work done and actual costs incurred before notification, including mobilization of equipment or material.

108.11.2.1 Additional Costs. Within 60 days of the effective termination date, the contractor shall submit any request for additional damages or costs not covered in Sec 108.11 or elsewhere in the contract. Such a request may include only such cost items as: mobilization, overhead expenses proven to be attributable to the project or the part terminated and not paid for under work not terminated, subcontractor costs not otherwise paid for, actual idle equipment and idle labor cost only for any time the work is stopped in advance of the termination date, guaranteed payments for private land usage as part of the original contract, and any other actual cost for which the contractor feels reimbursement should be made.

108.11.2.1.1 Anticipated profits, including anticipated earnings on usage of owned equipment, and impact, delay or other direct or indirect costs resulting from this termination that are not expressly authorized, will not be compensable as part of any settlement.

108.11.2.1.2 The contractor and the engineer may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a reasonable allowance for profit on work done. The agreed amount may not exceed the total contract price as reduced by the amount of payments previously made and the contract price of work not terminated. The contract will be amended and the contractor paid the agreed amount.

108.11.2.2 Additional Cost Review. If the contractor and the engineer fail to agree on the whole amount to be paid the contractor because of the termination of work, the Commission will pay the amounts determined as follows, but without duplication of any amounts agreed upon in Sec 108.11.2.1:

(a) For contract work performed before the effective date of termination, the total, without duplication of any items of:

(1) The actual cost of work performed.

(2) The cost of settling and paying termination settlements under terminated subcontracts that are properly chargeable to the terminated portion of the contract if not included in Sec 108.11.2.1.

(3) A sum for profit on the actual cost of work performed as determined by the engineer to be fair and reasonable. The engineer will allow no profit under this section if the contractor's costs incurred on work performed exceed the contract prices paid.

(b) The reasonable costs to settle the work terminated, including:

(1) Internal accounting and clerical expenses reasonably necessary for the preparation of termination settlement proposals and support data, including expenses for termination and settlement of subcontracts.

(2) Storage, transportation and other costs incurred, reasonably necessary for the preservation, protection or disposition of the termination inventory.

(c) For normal spoilage and to the extent that the engineer expressly accepts the risk of loss. The engineer will exclude the fair value of property that is destroyed, lost, stolen or damaged so as to become undeliverable to the Commission or to the buyer.

108.11.2.2.1 In arriving at the amount due the contractor under this clause, there will be deducted:

(a) All advanced payments for mobilization, services or facilities, or other payments to the contractor under the terminated portion of the contract.

(b) Any claim that the Commission has against the contractor under the contract.

(c) The agreed price for or the proceeds from the sale of material, supplies or other items acquired and sold by the contractor, and not recovered by or credited to the Commission.

(d) Any costs saved as a result of the termination.

108.11.2.2.2 If the termination is partial, the contractor may file a proposal with the engineer for an equitable adjustment of the price or prices of the continued portion of the contract. The engineer will make any equitable adjustment agreed upon. Any proposal for an equitable adjustment under this clause shall be requested within 60 days from the effective date of termination unless extended in writing by the engineer.

108.11.2.2.3 The contractor shall maintain and make available all project cost records to the engineer for audit to the extent necessary to determine the validity and amount for each item requested. This will include, but is not limited to, all items described in Sec 105.16. These records and documents shall be made available to the engineer at the contractor's office at all reasonable times, without any direct charge. If approved by the engineer, photographs, microphotographs or other authentic reproductions may be maintained instead of original records and documents.

108.11.3 Effect of Termination. Termination of the contract or portion thereof will not relieve the contractor of contractual responsibilities for the work completed, nor will termination relieve the surety of the surety’s obligation for and concerning that part of the contract not terminated or any just claim arising out of the work performed.

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.

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.

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.

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.

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.

APPENDIX A, 49 CFR PART 20--CERTIFICATION REGARDING LOBBYING

Certification for Contracts, Grants, Loans, and Cooperative Agreements

(To be submitted with each bid or offer exceeding $100,000)

The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that:

1. 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 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.

2. If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contacts to 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 [as amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (P.L. 104-65, to be codified at 2 U.S.C. 1601, et seq .)]

3. 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 31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). 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.

[Note: Pursuant to 31 U.S.C. § 1352(c)(1)-(2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.]

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. A 3801, et seq., apply to this certification and disclosure, if any.

__________________________ Signature of Contractor's Authorized Official

__________________________ Name and Title of Contractor's Authorized Official

___________________________ Date