LAP-FDOT_Construction_Supplemental_Conditions.pdf

FDOT Supplemental Conditions for Construction 1

FLORIDA DEPARTMENT OF TRANSPORTATION

SUPPLEMENTAL CONDITIONS FOR CONSTRUCTION

The following conditions apply to all contracts involving the Florida Department of Transportation (FDOT) and must be incorporated into the agreement to ensure compliance with FDOT standards and requirements.

1. Number of Responses: A minimum of three responses are needed for any solicitation funded by the Florida Department of Transportation. If three responses are not received this solicitation will be extended or reissued until such time when at least 3 responses are received.

2. Agreements in Connection with the Project: No member, officer or employee of the City 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."

3. Anti-Lobbying: The City agrees that no federally-appropriated funds have been paid or will be paid by or on behalf of the City to any person for influencing or attempting to influence any 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. If any funds other than federally appropriated funds have been paid by the City 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 Agreement. The undersigned shall complete and submit Standard Form-LLL. “Disclosure Form to Report Lobbying.” In accordance with its instructions. The City shall require that the language of this paragraph 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. No funds received pursuant to this contract may be expended for lobbying the Legislature, the judicial branch or a state agency.

4. Bonding Requirements: Pursuant to Chapter 255, Section 05, Florida Statutes, all Contractor’s performing public work for a local agency are required to execute a payment and performance bond with a local surety insurer prior to commencing work.

A link to the payment and performance bond approved by the Agency Name is found in the "Contract Terms and Conditions" or "Draft Contract."

FDOT Supplemental Conditions for Construction 2

5. Waiver of Breach: In no event shall the making by the Department of any payment to the Agency Name constitute or be construed as a waiver by the Department of any breach of covenant or any default which may then exist on the part of the Agency Name and the making of such payment by the Department while any such breach or default shall exist shall in no way impair or prejudice any right or remedy available to the Department with respect to such breach or default.

6. Certification of Current Capacity: The Contractor must certify they have the financial capacity to complete the project by including the "Certification of Current Capacity" Form found in the Submission Questionnaire.

7. Claims by Contractor:

1. General.

When the Contractor deems that extra compensation or a time extension is due beyond that agreed to by the Engineer, whether due to delay, additional work, altered work, differing site conditions, breach of Contract, or for any other cause, the Contractor shall follow the procedures set forth herein for preservation, presentation and resolution of the claim. Submission of timely notice of intent to file a claim, preliminary time extension request, time extension request, and the certified written claim, together with full and complete claim documentation, are each a condition precedent to the Contractor bringing any circuit court, arbitration, or other formal claims resolution proceeding against the Department for the items and for the sums or time set forth in the Contractor’s certified written claim. The failure to provide such notice of intent, preliminary time extension request, time extension request, certified written claim and full and complete claim documentation within the time required shall constitute a full, complete, absolute and irrevocable waiver by the Contractor of any right to additional compensation or a time extension for such claim.

2. Notice of Claim.

Notice of Extra Work. Where the Contractor deems that additional compensation or a time extension is due for work or materials not expressly provided for in the Contract or which is by written directive expressly ordered by the Engineer, the Contractor shall submit written notification to the Engineer of the intention to make a claim for additional compensation before beginning the work on which the claim is based, and if seeking a time extension, the Contractor shall also submit a preliminary request for time extension within ten calendar days after commencement of a delay and a request for Contract Time extension within thirty

FDOT Supplemental Conditions for Construction 3 calendar days after the elimination of the delay. If such written notification is not submitted and the Engineer is not afforded the opportunity for keeping strict account of actual labor, material, equipment, and time, the Contractor waives the claim for additional compensation or a time extension. Such notice by the Contractor, and the fact that the Engineer has kept account of the labor, materials and equipment, and time, shall not in any way be construed as establishing the validity of the claim or method for computing any compensation or time extension for such claim. On projects with an original Contract amount of $3,000,000 or less within 90-calendar days after final acceptance of the project and on projects with an original Contract amount greater than $3,000,000 within 180 calendar days after final acceptance of the project, the Contractor shall submit full and complete claim documentation and duly certified. However, for any claim or part of a claim that pertains solely to final estimate quantities disputes the Contractor shall submit full and complete claim documentation and duly certified, as to such final estimate claim dispute issues, within 90 or 180 calendar days, respectively, of the Contractor’s receipt of the Department’s final estimate.

If the Contractor fails to submit a certificate of claim, the Department will so notify the Contractor in writing. The Contractor shall have ten calendar days from receipt of the notice to resubmit the claim documentation, without change, with a certificate of, without regard to whether the resubmission is within the applicable 90 or 180 calendar day deadline for submission of full and complete claim documentation. Failure by the Contractor to comply with the ten-calendar day notice shall constitute a waiver of the claim.

3. Claims for Delay.

Where the Contractor deems that additional compensation or a time extension is due on account of delay, differing site conditions, breach of Contract, or any other cause other than for work or materials not expressly provided for in the Contract (Extra Work) or which is by written directive of the Engineer expressly ordered by the Engineer, the Contractor shall submit a written notice of intent to the Engineer within ten days after commencement of a delay to a controlling work item expressly notifying the Engineer that the Contractor intends to seek additional compensation, and if seeking a time extension, the Contractor shall also submit a preliminary request for time extension within ten calendar days after commencement of a delay to a controlling work item, as to such delay and providing a reasonably complete description as to the cause and nature of the delay and the possible impacts to the Contractor’s work by such delay, and a

FDOT Supplemental Conditions for Construction 4 request for Contract Time extension within thirty calendar days after the elimination of the delay. On projects with an original Contract amount of $3,000,000 or less within 90 calendar days after final acceptance of the project, and on projects with an original Contract amount greater than $3,000,000 within 180 calendar days after final acceptance of the project, the Contractor shall submit full and complete documentation and duly.

If the Contractor fails to submit a certificate of claim, the Department will so notify the Contractor in writing. The Contractor shall have ten calendar days from receipt of the notice to resubmit the claim documentation, without change, with a certificate of claim, without regard to whether the resubmission is within the applicable 90 or 180 calendar day deadline for submission of full and complete claim documentation. Failure by the Contractor to comply with the ten-calendar day notice shall constitute a waiver of the claim.

There shall be no Contractor entitlement to any monetary compensation or time extension for any delays or delay impacts, whatsoever, that are not to a controlling work item, and then as to any such delay to a controlling work item entitlement to any monetary compensation or time extension shall only be to the extent such is otherwise provided for expressly, except that in the instance of delay to a non-controlling item of work the Contractor may be compensated for the direct costs of idle labor or equipment only, at the rates set forth, and then only to the extent the Contractor could not reasonably mitigate such idleness.

If the Contractor provides the written notice of intent, the preliminary request for time extension, and the request for Contract Time extension in compliance with the aforementioned time and content requirements, the Contractor's claim for delay to a controlling work item will be evaluated as of the date of the elimination of the delay even if the Contractor's performance subsequently overcomes the delay.

4. Content of Written Claim.

As a condition precedent to the Contractor being entitled to additional compensation or a time extension under the Contract, for any claim, the Contractor shall submit a certified written claim to the Department which will include for each individual claim, at a minimum, the following information:

4.1. A detailed factual statement of the claim providing all necessary dates, locations, and items of work affected and included in each claim;

4.2. The date or dates on which actions resulting in the claim occurred or conditions

FDOT Supplemental Conditions for Construction 5 resulting in the claim became evident;

4.3. Identification of all pertinent documents and the substance of any material oral communications relating to such claim and the name of the persons making such material oral communications;

4.4. Identification of the provisions of the Contract which support the claim and a statement of the reasons why such provisions support the claim, or alternatively, the provisions of the Contract which allegedly have been breached and the actions constituting such breach;

4.5. A detailed compilation of the amount of additional compensation sought and a breakdown of the amount sought as follows:

4.5.1. documented additional job site labor expenses;

4.5.2. documented additional cost of materials and supplies;

4.5.3. a list of additional equipment costs claimed, including each piece of equipment and the rental rate claimed for each;

4.5.4. any other additional direct costs or damages and the documents in support thereof;

4.5.5. any additional indirect costs or damages and all documentation in support thereof.

4.6. A detailed compilation of the specific dates and the exact number of calendar days sought for a time extension, the basis for entitlement to time for each day, all documentation of the delay, and a breakout of the number of days claimed for each identified event, circumstance or occurrence.

Further, the Contractor shall be prohibited from amending either the bases of entitlement or the amount of any compensation or time stated for any and all issues claimed in the Contractor’s written claim submitted hereunder, and any circuit court, arbitration, or other formal claims resolution proceeding shall be limited solely to the bases of entitlement and the amount of any compensation or time stated for any and all issues claimed in the Contractor’s written claim submitted hereunder. This shall not, however, preclude a Contractor from withdrawing or reducing any of the bases of entitlement and the amount of any compensation or time stated for any and all issues claimed in the Contractor’s written claim submitted hereunder at any time.

5. Action on Claim.

FDOT Supplemental Conditions for Construction 6

The Engineer will respond in writing on projects with an original Contract amount of $3,000,000 or less within 90 calendar days of receipt of a complete claim submitted by a Contractor in compliance with 5-12.3, and on projects with an original Contract amount greater than $3,000,000 within 120 calendar days of receipt of a complete claim submitted by a Contractor in compliance with 5-12.3. Failure by the Engineer to respond to a claim in writing within 90 or 120 days, respectively, after receipt of a complete claim submitted by the Contractor in compliance with 2.5 constitutes a denial of the claim by the Engineer. If the Engineer finds the claim or any part thereof to be valid, such partial or whole claim will be allowed and paid for to the extent deemed valid and any time extension granted, if applicable, as provided in the Contract. No circuit court or arbitration proceedings on any claim, or a part thereof, may be filed until after final acceptance per 5-11 of all Contract work by the Department or denial hereunder, whichever occurs last.

6. Pre-Settlement and Pre-Judgment Interest.

Entitlement to any pre-settlement or prejudgment interest on any claim amount determined to be valid subsequent to the Department’s receipt of a certified written claim in full compliance with 5-12.3, whether determined by a settlement or a final ruling in formal proceedings, the Department shall pay to the Contractor simple interest calculated at the Prime Rate (as reported by the Wall Street Journal as the base rate on corporate loans posted by at least 75% of the nation’s 30 largest banks) as of the 60th calendar day following the Department’s receipt of a certified written claim in full compliance with 5-12.3, such interest to accrue beginning 60 calendar days following the Department’s receipt of a certified written claim in full compliance with 5-12.3 and ending on the date of final settlement or formal ruling.

Compensation for Extra Work or Delay (5-12.6)

Compensation for Extra Work: Notwithstanding anything to the contrary contained in the Contract Documents, the Contractor shall not be entitled to any compensation beyond that provided.

Compensation for Delay: Notwithstanding anything to the contrary contained in the Contract Documents, the additional compensation shall be the Contractor’s sole monetary remedy any delay other than to perform extra work caused by the Department unless the delay shall have been caused by acts constituting willful or intentional interference by the Department with the Contractor’s performance of the work and then only where such acts continue after Contractor's written notice to the Department of such interference. The parties anticipate that delays may be caused

FDOT Supplemental Conditions for Construction 7 by or arise from any number of events during the term of the Contract, including, but not limited to, work performed, work deleted, supplemental Contracts, work orders, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right-of-way issues, permitting issues, actions of suppliers, subcontractors or other contractors, actions by third parties, suspensions of work by the Engineer, shop drawing approval process delays, expansion of the physical limits of the project to make it functional, weather, weekends, holidays, special events, suspension of Contract Time, or other events, forces or factors sometimes experienced in construction work. Such delays or events and their potential impacts on the performance by the Contractor are specifically contemplated and acknowledged by the parties in entering into this Contract, and shall not be deemed to constitute willful or intentional interference with the Contractor’s performance of the work without clear and convincing proof that they were the result of a deliberate act, without reasonable and good-faith basis, and specifically intended to disrupt the Contractor’s performance.

Compensation for Direct Costs, Indirect Costs, Expenses, and Profit thereon, of or from Delay: For any delay claim, the Contractor shall be entitled to monetary compensation for the actual idle labor (including supervisory personnel) and equipment, and indirect costs, expenses, and profit thereon, as provided for in 4- 3.2.1(4) and solely for costs incurred beyond what reasonable mitigation thereof the Contractor could have undertaken.

7. Mandatory Claim Records.

After submitting to the Engineer a notice of intent to file a claim for extra work or delay, the Contractor must keep daily records of all labor, material and equipment costs incurred for operations affected by the extra work or delay. These daily records must identify each operation affected by the extra work or delay and the specific locations where work is affected by the extra work or delay, as nearly as possible.

The Engineer may also keep records of all labor, material and equipment used on the operations affected by the extra work or delay. The Contractor shall, once a notice of intent to claim has been timely filed, and not less than weekly thereafter as long as appropriate, submit the Contractor’s daily records to the Engineer and be likewise entitled to receive the Department’s daily records. The daily records to be submitted hereunder shall be done at no cost to the recipient.

8. Claims for Acceleration.

FDOT Supplemental Conditions for Construction 8

The Department shall have no liability for any constructive acceleration of the work, nor shall the Contractor have any right to make any claim for constructive acceleration nor include the same as an element of any claim the Contractor may otherwise submit under this Contract. If the Engineer gives express written direction for the Contractor to accelerate its efforts, such written direction will set forth the prices and other pertinent information and will be reduced to a written Contract Document promptly. No payment will be made on a Supplemental Contract for acceleration prior to the Department’s approval of the documents.

9. Certificate of Claim.

When submitting any claim, the Contractor shall certify under oath and in writing, in accordance with the formalities required by Florida law, that the claim is made in good faith, that the supportive data are accurate and complete to the Contractor’s best knowledge and belief, and that the amount of the claim accurately reflects what the Contractor in good faith believes to be the Department’s liability. Such certification must be made by an officer or director of the Contractor with the authority to bind the Contractor.

10. Non-Recoverable Items.

The parties agree that for any claim the Department will not have liability for the following items of damages or expense:

10.1. Loss of profit, incentives or bonuses;

10.2. Any claim for other than extra work or delay;

10.3. Consequential damages, including, but not limited to, loss of bonding capacity, loss of submitting opportunities, loss of credit standing, cost of financing, interest paid, loss of other work or insolvency;

10.4. Acceleration costs and expenses, except where the Department has expressly and specifically directed the Contractor in writing “to accelerate at the Department’s expense”; nor;

10.5. Attorney fees, claims preparation expenses and costs of litigation

11. Exclusive Remedies.

Notwithstanding any other provision of this Contract, the parties agree that the Department shall have no liability to the Contractor for expenses, costs, or items of damages other than those which are specifically identified as payable. In the event any legal action for additional compensation, whether on account of delay, acceleration, breach of contract, or otherwise, the Contractor agrees that the

FDOT Supplemental Conditions for Construction 9

Department’s liability will be limited to those items which are specifically identified as payable.

12. Settlement Discussions.

The content of any discussions or meetings held between the Department and the Contractor to settle or resolve any claims submitted by the Contractor against the Department shall be inadmissible in any legal, equitable, arbitration or administrative proceedings brought by the Contractor against the Department for payment of such claim. Dispute Resolution Board, State Arbitration Board and Claim Review Committee proceedings are not settlement discussions, for purposes of this provision.

13. Personal Liability of Public Officials.

In carrying out any of the provisions of the Contract or in exercising any power or authority granted to the Secretary of Transportation, Engineer or any of their respective employees or agents, there shall be no liability on behalf of any employee, officer or official of the Department for which such individual is responsible, either personally or as officials or representatives of the Department. It is understood that in all such matters such individuals act solely as agents and representatives of the Department.

14. Auditing of Claims.

All claims filed against the Department shall be subject to audit at any time following the filing of the claim, whether or not such claim is part of a suit pending in the Courts of this State. The audit may be performed, at the Department’s sole discretion, by employees of the Department or by any independent auditor appointed by the Department, or both. The audit may begin after ten days written notice to the Contractor, subcontractor, or supplier. The Contractor, subcontractor, or supplier shall make a good faith effort to cooperate with the auditors. As a condition precedent to recovery on any claim, the Contractor, subcontractor, or supplier must retain sufficient records, and provide full and reasonable access to such records, to allow the Department’s auditors to verify the claim and failure to retain sufficient records of the claim or failure to provide full and reasonable access to such records shall constitute a waiver of that portion of such claim that cannot be verified and shall bar recovery thereunder. Further, and in addition to such audit access, upon the Contractor submitting a written claim, the Department shall have the right to

FDOT Supplemental Conditions for Construction 10 request and receive, and the Contractor shall have the affirmative obligation to submit to the Department any and all documents in the possession of the Contractor or its subcontractors, materialmen or suppliers as may be deemed relevant by the Department in its review of the basis, validity or value of the Contractor’s claim.

Without limiting the generality of the foregoing, the Contractor shall upon written request of the Department make available to the Department’s auditors, or upon the Department’s written request, submit at the Department’s expense, any or all of the following documents:

14.1. Daily time sheets and foreman’s daily reports and diaries;

14.2. Insurance, welfare and benefits records;

14.3. Payroll register;

14.4. Earnings records;

14.5. Payroll tax return;

14.6. Material invoices, purchase orders, and all material and supply acquisition contracts;

14.7. Material cost distribution worksheet;

14.8. Equipment records (list of company owned, rented or other equipment used);

14.9. Contractor rental Contracts and subcontractor invoices;

14.10. Subcontractor payment certificates;

14.11. Canceled checks for the project, including, payroll and Contractors;

14.12. Job cost report;

14.13. Job payroll ledger;

14.14. General ledger, general journal, (if used) and all subsidiary ledgers and journals together with all supporting documentation pertinent to entries made in these ledgers and journals;

14.15. Cash disbursements journal;

14.16. Financial statements for all years reflecting the operations on this project;

14.17. Income tax returns for all years reflecting the operations on this project;

14.18. All documents which reflect the Contractor’s actual profit and overhead during the years this Contract was being performed and for each of the five years prior to the commencement of this Contract;

14.19. All documents related to the preparation of the Contractor’s Submittal including the final calculations on which the Solicitation was based;

14.20. All documents which relate to each and every claim together with all documents which support the amount of damages as to each claim;

14.21. Worksheets used to prepare the claim establishing the cost components for

FDOT Supplemental Conditions for Construction 11 items of the claim including, but not limited to, labor, benefits and insurance, materials, equipment, subcontractors, and all documents that establish which time periods and individuals were involved, and the hours and rates for such individuals.

8. Contractor Purchased Equipment for State or Local Ownership is prohibited.

9. A determination of allowable costs in accordance with the federal cost principals will be performed for services rendered under this Contract.

10. Disadvantaged Business Enterprise (DBE) terms and conditions are found under form 275-030-11, if applicable.

11. The City may not permit the Engineer of Record to perform Construction, Engineering and Inspection Services on the Project.

12. The City will be solely responsible for compliance with all applicable environmental regulations for any liability arising from non-compliance with these regulations and will reimburse the Department for any loss incurred in connection therewith. The City will be responsible for securing any applicable permits. The recipient shall include in all contracts and subcontracts for amounts in excess of $150,000.00 a provision requiring compliance with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act as amended (33 U.S.C.

1251 et seq.).

13. Equipment Rental Rates: The limitations set forth in 8-1 of the specification package, concerning the amount of work that may be sublet, do not apply to work performed by equipment-rental agreement. However, for any work proposed to be performed by equipment-rental agreement, notify the Engineer in writing of such intention before using the rented equipment, and indicate whether the equipment will be rented on an operated or non-operated basis. Include with the written notice a listing and description of the equipment and a description of the particular work to be performed with such equipment.

As an exception to the above requirements, the Department will not require written notice for equipment to be rented (without operators) from an equipment dealer or from a firm whose principal business is the renting or leasing of equipment. The operators of all rented equipment, whether rented on an operated or a non-operated basis are operators are subject to all wage rate requirements applicable to the project. When renting equipment without operators, the Contractor shall carry the operators on his own payroll. For equipment that is rented on an operated basis, and when required by the Contract or requested by the Engineer, furnish payrolls from the lessor with the names of the operators shown thereon. When a lessor provides rentals of equipment on an operated basis that

FDOT Supplemental Conditions for Construction 12 exceed $10,000. such lessor is subject to any Equal Employment Opportunity requirements that are applicable to the project.

14. The City shall comply with all applicable federal guidelines, procedures, and regulations. If at any time a review conducted by Department and or FHWA reveals that the applicable federal guidelines procedures and regulations were not followed by the Recipient and FHWA requires reimbursement of the funds, the Recipient will be responsible for repayment to the Department of all funds awarded under the terms of this Agreement.

15. FHWA-1273 is found under the "additional solicitation documents / attachment" section. These provisions are incorporated into the contract.

16. Incentive/Disincentive Clauses are not applicable to this contract.

17. Indian Preference on Federal-Aid Projects: Projects eligible for Indian employment preference consideration are projects located on roads within or providing access to an Indian reservation or other Indian lands as defined under the term “Indian Reservation Roads” in 23 U.S.C. 101 and regulations issued thereunder. The terminus of a road “providing access to” is that point at which it intersects with a road functionally classified as a collector or higher classification (outside the reservation boundary) in both urban and rural areas. In the case of an Interstate highway, the terminus is the first interchange outside the reservation.

18. Inspector General. The Contractor agrees to comply with Section 20.055(5), Florida Statutes, and to incorporate this obligation into all subcontracts. This statutory requirement mandates cooperation with the Inspector General during any investigation, audit, inspection, review, or hearing.

Statement of Compliance. In accordance with Section 20.055(5), Florida Statutes: "It is the duty of every state officer, employee, agency, special district, board, commission, Supplier title, and subcontractors to cooperate with the Inspector General in any investigation, audit, inspection, review, or hearing pursuant to this section. Beginning July 1, 2015, each contract, bid, proposal, and application or solicitation for a contract shall contain a statement that the corporation, partnership, or person understands and will comply with this subsection."

By submitting or entering into this contract, the Contractor certifies understanding of and agreement to comply with this statutory obligation.

19. Lobbying Certification Forms 375-030-33 and 375-030-34, included in the submission questionnaire.

https://www.govinfo.gov/link/uscode/23/101

FDOT Supplemental Conditions for Construction 13

20. Local/State Hiring Preference is strictly prohibited. Should any language remain in this document they would not be applicable to this project.

21. Award will be made to the lowest responsive responsible Bidder.

22. Non-Collusion Provision. Contractor must read and sign the certification “Non- Collusion Declaration and Compliance with 49 CFR § 29” form 575-060-13 found in the submission questionnaire.

23. The Department shall not be obligated or liable hereunder to any individual or entity not a party to this Agreement.

24. Off-site Storage and Staging Areas. 7-1.4 Compliance with Federal Endangered Species Act and other Wildlife Regulations can be found in the attached Specification package and at https://fdotwww.blob.core.windows.net/sitefinity/docs/defaultsource/programmanageme nt/implemented/urlinspecs/files/endangeredwildlifeguidelines.pdf?sfvrsn=e27baf3f2

25. On the Job Training. FDOT Specification 7-25 is founded in the specification package if the project is scheduled to be 275 days or more and exceed $2 million dollars.

26. Owner force account contracting is not allowed for this project.

27. Patented/Proprietary Materials and Sole Source products are not applicable to this project.

28. Prequalification for Contractors. An FDOT prequalified contractor is not required for projects under $250,000, or LAP Class D work. If this project is LAP Class A, B, or C the prequalified work classes will be mentioned in the advertisement.

29. Prevailing Minimum Wage. The latest Davis-Bacon minimum wage tables, if applicable, are found in the specification package, as an attachment, or at https://www.fdot.gov/construction/wage.shtm.

30. Progress Payments Terms and conditions are found in the specification package, Spec 9-5.

31. Prohibition Against Convict Produced Materials. Do not use materials that were produced after July 1, 1991, by convict labor for Federal-aid highway construction projects unless the prison facility has been producing convict-made materials for Federal-aid highway construction projects before July 1, 1987.

Use materials that were produced prior to July 2, 1991, by convicts on Federal-aid highway construction projects free from the restrictions placed on the use of these materials by 23 https://fdotwww.blob.core.windows.net/sitefinity/docs/defaultsource/programmanagement/implemented/urlinspecs/files/endangeredwildlifeguidelines.pdf?sfvrsn=e27baf3f2 https://fdotwww.blob.core.windows.net/sitefinity/docs/defaultsource/programmanagement/implemented/urlinspecs/files/endangeredwildlifeguidelines.pdf?sfvrsn=e27baf3f2 https://www.fdot.gov/construction/wage.shtm

FDOT Supplemental Conditions for Construction 14

U.S.C. 114. The Department will limit the use of materials produced by convict labor for use in Federal-aid highway construction projects to:

1. Materials produced by convicts on parole, supervised release, or probation from a prison or,

2. Materials produced in a qualified prison facility.

The amount of such materials produced for Federal-aid highway construction during any 12-month period shall not exceed the amount produced in such facility for use in such construction during the 12-month period ending July 1, 1987.

32. Public Agencies in Competition With the Private Sector. Except in the case of a concession agreement, as defined in CFR 23 section 710.703, no public agency shall be permitted to bid in competition or to enter into subcontracts with private contractors.

33. Publicly Owned Equipment (23 CFR 635.106) is not allowed as part of this contract.

34. § 23 CFR 635.109 Standardized changed condition clauses.

(a) Except as provided in paragraph (b) of this section, the following changed conditions contract clauses shall be made part of, and incorporated in, each highway construction project approved under 23 U.S.C. 106:

(1) Differing site conditions.

(i) During the progress of the work, if subsurface or latent physical conditions are encountered at the site differing materially from those indicated in the contract or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract, are encountered at the site, the party discovering such conditions shall promptly notify the other party in writing of the specific differing conditions before the site is disturbed and before the affected work is performed.

(ii) Upon written notification, the engineer will investigate the conditions, and if it is determined that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the contract, an adjustment, excluding anticipated profits, will be made and the contract modified in writing accordingly.

The engineer will notify the Contractor of the determination whether or not an adjustment of the contract is warranted.

(iii) No contract adjustment which results in a benefit to the Contractor will be allowed unless the contractor has provided the required written notice.

(iv) No contract adjustment will be allowed under this clause for any effects caused on unchanged work. (This provision may be omitted by the STD's at their option.)

https://www.ecfr.gov/current/title-23/section-710.703

FDOT Supplemental Conditions for Construction 15

(2) Suspensions of work ordered by the engineer.

(i) If the performance of all or any portion of the work is suspended or delayed by the engineer in writing for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the Contractor believes that additional compensation and/or contract time is due as a result of such suspension or delay, the Contractor shall submit to the engineer in writing a request for adjustment within 7 calendar days of receipt of the notice to resume work. The request shall set forth the reasons and support for such adjustment.

(ii) Upon receipt, the engineer will evaluate the Contractor's request. If the engineer agrees that the cost and/or time required for the performance of the contract has increased as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the Contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the engineer will make an adjustment (excluding profit) and modify the contract in writing accordingly. The Contractor will be notified of the engineer's determination whether or not an adjustment of the contract is warranted.

(iii) No contract adjustment will be allowed unless the Contractor has submitted the request for adjustment within the time prescribed.

(iv) No contract adjustment will be allowed under this clause to the extent that performance would have been suspended or delayed by any other cause, or for which an adjustment is provided or excluded under any other term or condition of this contract.

(3) Significant changes in the character of work.

(i) The engineer reserves the right to make, in writing, at any time during the work, such changes in quantities and such alterations in the work as are necessary to satisfactorily complete the project. Such changes in quantities and alterations shall not invalidate the contract nor release the surety, and the Contractor agrees to perform the work as altered.

(ii) If the alterations or changes in quantities significantly change the character of the work under the contract, whether such alterations or changes are in themselves significant changes to the character of the work or by affecting other work cause such other work to become significantly different in character, an adjustment, excluding anticipated profit, will be made to the contract. The basis for the adjustment shall be agreed upon prior to the performance of the work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the Contractor in such amount as the engineer may determine to be fair and equitable.

(iii) If the alterations or changes in quantities do not significantly change the character of the work to be performed under the contract, the altered work will be paid for as provided elsewhere in the contract.

FDOT Supplemental Conditions for Construction 16

(iv) The term “significant change” shall be construed to apply only to the following circumstances:

(A) When the character of the work as altered differs materially in kind or nature from that involved or included in the original proposed construction; or

(B) When a major item of work, as defined elsewhere in the contract, is increased in excess of 125 percent or decreased below 75 percent of the original contract quantity. Any allowance for an increase in quantity shall apply only to that portion in excess of 125 percent of original contract item quantity, or in case of a decrease below 75 percent, to the actual amount of work performed.

(b) The provisions of this section shall be governed by the following:

(1) Where State statute does not permit one or more of the contract clauses included in paragraph (a) of this section, the State statute shall prevail, and such clause or clauses need not be made applicable to Federal-aid highway contracts.

(2) Where the State transportation department has developed and implemented one or more of the contract clauses included in paragraph (a) of this section, such clause or clauses, as developed by the State transportation department may be included in Federal-aid highway contracts in lieu of the corresponding clause or clauses in paragraph (a) of this section. The State's action must be pursuant to a specific State statute requiring differing contract conditions clauses. Such State developed clause or clauses, however, must be in conformance with 23 U.S.C., 23 CFR and other applicable Federal statutes and regulations as appropriate and shall be subject to the Division Administrator's approval as part of the

PS&E.

(c) In the case of a design-build project, STDs are strongly encouraged to use “suspensions of work ordered by the engineer” clauses and may consider “differing site condition” clauses and “significant changes in the character of work” clauses which are appropriate for the risk and responsibilities that are shared with the design-builder.

35. State Produced Materials (23 CFR 635.409). No requirement shall be imposed, and no procedure shall be enforced by any State transportation department in connection with a project which may operate:

35.1. To require the use of or provide a price differential in favor of articles or materials produced within the State, or otherwise to prohibit, restrict or discriminate against the use of articles or materials shipped from or prepared, made or produced in any State, territory or possession of the United States; or

FDOT Supplemental Conditions for Construction 17

35.2. To prohibit, restrict or otherwise discriminate against the use of articles or materials of foreign origin to any greater extent than is permissible under policies of the Department of Transportation as evidenced by requirements and procedures prescribed by the FHWA Administrator to carry out such policies.

36. State/Local Owned/Furnished/Designated Materials (23 CFR 635.407).

Agency furnished materials is not allowed for this project.

36.1. Contracts for highway projects shall require the contractor to furnish all materials to be incorporated in the work and shall permit the contractor to select the sources from which the materials are to be obtained. Exception to this requirement may be made when there is a definite finding by the State transportation department and concurred in by the FHWA Division Administrator, that it is in the public interest to require the contractor to use material furnished by the State transportation department or from sources designated by the State transportation department. In cases such as this, the FHWA does not expect mutual sharing of costs unless the State transportation department receives a related credit from another agency or political subdivision of the State. Where such a credit does accrue to the State transportation department, it shall be applied to the Federal-aid project involved. The designation of a mandatory material source may be permitted based on environmental considerations, provided the environment would be substantially enhanced without excessive cost. Otherwise, if a State transportation department proposal to designate a material source for mandatory use would result in higher project costs, Federal-aid funds shall not participate in the increase even if the designation would conserve other public funds.

36.2. The provisions of paragraph (1) of this section will not preclude the designation in the plans and specifications of sources of local natural materials, such as borrow aggregates, that have been investigated by the State transportation department and found to contain materials meeting specification requirements. The use of materials from such designated sources shall not be mandatory unless there is a finding of public interest as stated in paragraph (1) of this section.

36.3. Federal funds may participate in the cost of specifications materials made available by a public agency when they have been actually incorporated in accepted items of work, or in the cost of such materials meeting the criteria and stockpiled at the locations specified in § 635.114 of this chapter.

36.4. To be eligible for Federal participation in its cost, any material, other than local natural materials, to be purchased by the State transportation department and furnished to the contractor for mandatory use in the project, must have been acquired on the basis of https://www.ecfr.gov/current/title-23/section-635.407#p-635.407(a) https://www.ecfr.gov/current/title-23/section-635.407#p-635.407(a) https://www.ecfr.gov/current/title-23/section-635.114

FDOT Supplemental Conditions for Construction 18 competitive bidding, except when there is a finding of public interest justifying the use of another method of acquisition. The location and unit price at which such material will be available to the contractor must be stated in the special provisions for the benefit of all prospective bidders. The unit cost eligible for Federation participation will be limited to the unit cost of such material to the State transportation department.

36.5. When the State transportation department or another public agency owns or has control over the source of a local natural material the unit price at which such material will be made available to the contractor must be stated in the plans or special provisions.

Federal participation will be limited to:

• the cost of the material to the State transportation department or other public agency; or

• the fair and reasonable value of the material, whichever is less. Special cases may arise that will justify Federal participation on a basis other than that set forth above.

Such cases should be fully documented and receive advance approval by the FHWA Division Administrator.

36.6. Costs incurred by the State transportation department or other public agency for acquiring a designated source or the right to take materials from it will not be eligible for Federal participation if the source is not used by the contractor.

36.7. The contract provisions for one or a combination of Federal-aid projects shall not specify a mandatory site for the disposal of surplus excavated materials unless there is a finding by the State transportation department with the concurrence of the FHWA Division Administrator that such placement is the most economical except that the designation of a mandatory site may be permitted based on environmental considerations, provided the environment would be substantially enhanced without excessive cost.

37. State Laws. Nothing in the Agreement shall require the City to observe or enforce compliance with any provision or perform any act or do any other thing in contravention of any applicable state law. If any of the provisions of the Agreement violate any applicable state law, the Recipient will at once notify the Department in writing in order that appropriate changes and modifications may be made by the Department and the City to the end that the Recipient may proceed as soon as possible with the Project.

38. Subcontracting with the Engineer’s acceptance of the request, the Contractor may sublet a portion of the work but shall perform with its own organization work amounting to not less than 40% of the total Contract amount.

FDOT Supplemental Conditions for Construction 19

39. Suspension and Debarment. The Contractor shall provide FDOT Form # 375-030-32, found in the submission questionnaire.

40. Time Extensions are described in (FDOT Std Spec 8-7.3.2) of the Specification package.

41. Warranty Clauses (23 CFR 635.413).

40.1. Warranty provisions shall be for a specific construction product or feature.

Items of maintenance not eligible for Federal participation shall not be covered.

40.2. All warranty requirements and subsequent revisions shall be submitted to the Division Administrator for advance approval.

40.3. No warranty requirement shall be approved which, in the judgment of the Division Administrator, may place an undue obligation on the contractor for items over which the contractor has no control.

40.4. A State DOT may follow its own procedures regarding the inclusion of warranty provisions in non-NHS Federal-aid contracts.

40.5. In the case of a design-build project, the following requirements will apply instead of paragraphs (a) through (d) of this section.

40.6. General project warranties may be used on NHS projects, provided:

• The term of the warranty is short (generally one to two years); however, projects developed under a public-private agreement may include warranties that are appropriate for the term of the contract or agreement.

• The warranty is not the sole means of acceptance.

• The warranty must not include items of routine maintenance which are not eligible for Federal participation; and,

• The warranty may include the quality of workmanship, materials and other specific tasks identified in the contract.

40.7. Performance warranties for specific products on NHS projects may be used at the State DOT's discretion. If performance warranties are used, detailed performance criteria must be provided in the Request for Proposal document.

40.8. The State DOT may follow its own procedures regarding the inclusion of warranty provisions on non-NHS Federal-aid design-build contracts.

https://www.ecfr.gov/current/title-23/section-635.413#p-635.413(a) https://www.ecfr.gov/current/title-23/section-635.413#p-635.413(d)

FDOT Supplemental Conditions for Construction 20

40.9. For best value selections, the State DOT may allow proposers to submit alternate warranty proposals that improve upon the warranty terms in the RFP document. Such alternate warranty proposals must be in addition to the base proposal that responds to the RFP requirements