LAP_Federal_Terms.pdf

EXHIBIT

FEDERAL TERMS AND CONDITIONS

FOR LAP CONSTRUCTION

Acceptance of Federal Provisions By submitting an offer/response, the Contractor agrees to: Incorporate the following provisions into any resulting Contract or Agreement and Include these provisions in any additional Contract or Agreement to which this section is physically attached or incorporated by reference when executed.

1. Access to Records 2 C.F.R. § 200.337

Right of Access The following access to records requirements apply to this Contract:

A. The Consultant agrees to provide The City of Fort Myers, Lee County, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Consultant which are directly pertinent to this Contract for the purposes of making audits, examinations, excerpts, and transcriptions.

B. The Consultant agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

C. The Consultant agrees to provide the FEMA Administrator or his or her authorized representatives access to construction or other work sites pertaining to the work being completed under the Contract.

D. In compliance with the Disaster Recovery Act of 2018, the City and the Consultant acknowledge and agree that no provision in this contract is intended to limit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States.

2. Byrd Anti-Lobbying Amendment Provisions, 31 U.S.C. 1352 (as amended)

Contractors who apply or bid for an award of $100,000 or more shall file the required certification found at APPENDIX A, 44 C.F.R. PART 18. 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 shall also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the federal agency.

3. Changes

Any changes to the scope of work, price, or schedule shall be made in writing and signed by an authorized representative of each party.

4. Clean Air & Clean Water Act Compliance

4.1. Clean Air Act

A. The Contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.

B. The Contractor agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency and the appropriate Environmental Protection Agency Regional Office.

C. The Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.

4.2. Federal Water Pollution Control Act

A. The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq.

B. The Contractor agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency and the appropriate Environmental Protection Agency Regional Office.

C. The Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.

5. Contract Work Hours and Safety Standards Act (CWHSSA)

(Required for all contracts in excess of $100,000 that involve the employment of mechanics, laborers, and construction work. The following language, found at 29 C.F.R. § 5.5(b)(1)-(5), is required)

Compliance with the Contract Work Hours and Safety Standards Act.

5.1. Applicability

This provision applies to any contract in excess of $100,000 that may require or involve the employment of laborers or mechanics. This includes construction contracts and certain service contracts subject to the Service Contract Labor Standards.

5.2. Compliance Requirements

Under the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 3701 et. seq.), the following shall apply:

o Overtime Compensation: Contractors and subcontractors shall not require or permit any laborer or mechanic to work more than forty (40) hours in any workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half (1.5) times the basic rate of pay for all hours worked over forty (40).

o Violation and Liability: In the event of a violation, the contractor or subcontractor is liable to each affected employee for unpaid wages and to the federal government for liquidated damages. The amount of liquidated damages shall be computed at the rate specified in the applicable regulation (currently $33 per day per employee).

5.3. Enforcement

The contracting officer shall withhold or cause to be withheld from any monies payable on account of work performed by the contractor or subcontractor, the amount of wages required to be paid and the amount of liquidated damages due.

5.4. Subcontracts

The contractor shall insert the substance of this clause in all subcontracts in excess of $100,000.

The contractor shall be responsible for compliance by any subcontractor or lower-tier subcontractor with the requirements set forth herein.

5.5. Dispute Resolution

Any disputes arising under this provision shall be resolved in accordance with the Disputes clause of this contract.

6. Copyright

The Contractor grants to the City, a paid-up, royalty-free, nonexclusive, irrevocable, worldwide license in data first produced in the performance of this contract to reproduce, publish, or otherwise use, including prepare derivative works, distribute copies to the public, and perform publicly and display publicly such data. For data required by the contract but not first produced in the performance of this contract, the Contractor will identify such data and grant to the City or acquires on its behalf a license of the same scope as for data first produced in the performance of this contract. Data, as used herein, shall include any work subject to copyright under 17 U.S.C. § 102, for example, any written reports or literary works, software and/or source code, music, choreography, pictures or images, graphics, sculptures, videos, motion pictures or other audiovisual works, sound and/or video recordings, and architectural works. Upon or before the completion of this contract, the Contractor will deliver to the City data first produced in the performance of this contract and data required by the contract but not first produced in the performance of this contract in formats acceptable by the City.

7. Davis-Bacon Act and Copeland Anti-Kickback Act

(Applicable to construction contracts in excess of $2,000. Does not apply to FEMA’s Public Assistance program, but does apply to others, including HUD’s CDBG Program. )

Compliance with the Davis-Bacon Act

§ 5.5 Contract provisions and related matters.

(1) Minimum wages —

(i) Wage rates and fringe benefits. All laborers and mechanics employed or working upon the site of the work (or otherwise working in construction or development of the project under a development statute), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of basic hourly wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. As provided in paragraphs (d) and (e) of this section, the appropriate wage determinations are effective by operation of law even if they have not been attached to the contract. Contributions made or costs reasonably anticipated for bona fide fringe benefits under the Davis-Bacon Act (40 U.S.C. 3141(2)(B)) on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (a)(1)(v) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics must be paid the appropriate wage rate and fringe benefits on the wage determination for the classification(s) of work actually performed, without regard to skill, except as provided in paragraph (a)(4) of this section. Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classifications and wage rates conformed under paragraph (a)(1)(iii) of this section) and the Davis-Bacon poster (WH-1321) must be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers.

(ii) Frequently recurring classifications.

(A) In addition to wage and fringe benefit rates that have been determined to be prevailing under the procedures set forth in 29 CFR part 1, a wage determination may contain, pursuant to § https://www.ecfr.gov/current/title-29/part-3 https://www.ecfr.gov/current/title-29/part-3 https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(d) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(e) https://www.govinfo.gov/link/uscode/40/3141 https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(1)(v) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(1)(v) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(4) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(1)(iii) https://www.ecfr.gov/current/title-29/part-1 https://www.ecfr.gov/current/title-29/section-1.3#p-1.3(f)

1.3(f), wage and fringe benefit rates for classifications of laborers and mechanics for which conformance requests are regularly submitted pursuant to paragraph (a)(1)(iii) of this section, provided that:

(1) The work performed by the classification is not performed by a classification in the wage determination for which a prevailing wage rate has been determined;

(2) The classification is used in the area by the construction industry; and

(3) The wage rate for the classification bears a reasonable relationship to the prevailing wage rates contained in the wage determination.

(B) The Administrator will establish wage rates for such classifications in accordance with paragraph (a)(1)(iii)(A)(3) of this section. Work performed in such a classification must be paid at no less than the wage and fringe benefit rate listed on the wage determination for such classification.

(iii) Conformance.

(A) The contracting officer must require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract be classified in conformance with the wage determination. Conformance of an additional classification and wage rate and fringe benefits is appropriate only when the following criteria have been met:

(1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and

(2) The classification is used in the area by the construction industry; and

(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

(B) The conformance process may not be used to split, subdivide, or otherwise avoid application of classifications listed in the wage determination.

(C) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken will be sent by the contracting officer by email to DBAconformance@dol.gov. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

(D) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and https://www.ecfr.gov/current/title-29/section-1.3#p-1.3(f) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(1)(iii) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(1)(iii)(A)(3) mailto:DBAconformance@dol.gov wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer will, by email to DBAconformance@dol.gov, refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

(E) The contracting officer must promptly notify the contractor of the action taken by the Wage and Hour Division under paragraphs (a)(1)(iii)(C) and (D) of this section. The contractor must furnish a written copy of such determination to each affected worker or it must be posted as a part of the wage determination. The wage rate (including fringe benefits where appropriate) determined pursuant to paragraph (a)(1)(iii)(C) or (D) of this section must be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.

(iv) Fringe benefits not expressed as an hourly rate. Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor may either pay the benefit as stated in the wage determination or may pay another bona fide fringe benefit or an hourly cash equivalent thereof.

(v) Unfunded plans. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, in accordance with the criteria set forth in § 5.28, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

(vi) Interest. In the event of a failure to pay all or part of the wages required by the contract, the contractor will be required to pay interest on any underpayment of wages.

(2) Withholding —

(i) Withholding requirements. The Federal Agency Name may, upon its own action, or must, upon written request of an authorized representative of the Department of Labor, withhold or cause to be withheld from the contractor so much of the accrued payments or advances as may be considered necessary to satisfy the liabilities of the prime contractor or any subcontractor for the full amount of wages and monetary relief, including interest, required by the clauses set forth in paragraph (a) of this section for violations of this contract, or to satisfy any such liabilities required by any other Federal contract, or federally assisted contract subject to Davis-Bacon labor standards, that is held by the same prime contractor (as defined in § 5.2). The necessary funds may be withheld from the contractor under this contract, any other Federal contract with the same prime contractor, or any other federally assisted contract that is subject to Davis-Bacon labor standards requirements and is held by the same prime contractor, regardless of whether the other contract was awarded or assisted by the same agency, and such funds may be used to satisfy the contractor liability for which the funds were withheld. In the event of a contractor's mailto:DBAconformance@dol.gov https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(1)(iii)(C) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(1)(iii)(D) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(1)(iii)(C) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(1)(iii)(D) https://www.ecfr.gov/current/title-29/section-5.28 https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a) https://www.ecfr.gov/current/title-29/section-5.2 failure to pay any laborer or mechanic, including any apprentice or helper working on the site of the work (or otherwise working in construction or development of the project under a development statute) all or part of the wages required by the contract, or upon the contractor's failure to submit the required records as discussed in paragraph (a)(3)(iv) of this section, the Agency Name may on its own initiative and after written notice to the contractor, sponsor, applicant, owner, or other entity, as the case may be, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

(ii) Priority to withheld funds. The Department has priority to funds withheld or to be withheld in accordance with paragraph (a)(2)(i) or (b)(3)(i) of this section, or both, over claims to those funds by:

(A) A contractor's surety(ies), including without limitation performance bond sureties and payment bond sureties;

(B) A contracting agency for its reprocurement costs;

(C) A trustee(s) (either a court-appointed trustee or a U.S. trustee, or both) in bankruptcy of a contractor, or a contractor's bankruptcy estate;

(D) A contractor's assignee(s);

(E) A contractor's successor(s); or

(F) A claim asserted under the Prompt Payment Act, 31 U.S.C. 3901-3907.

(3) Records and certified payrolls —

(i) Basic record requirements —

(A) Length of record retention. All regular payrolls and other basic records must be maintained by the contractor and any subcontractor during the course of the work and preserved for all laborers and mechanics working at the site of the work (or otherwise working in construction or development of the project under a development statute) for a period of at least 3 years after all the work on the prime contract is completed.

(B) Information required. Such records must contain the name; Social Security number; last known address, telephone number, and email address of each such worker; each worker's correct classification(s) of work actually performed; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 40 U.S.C. 3141(2)(B) of the Davis-Bacon Act); daily and weekly number of hours actually worked in total and on each covered contract; deductions made; and actual wages paid.

https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(3)(iv) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(2)(i) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(b)(3)(i) https://www.govinfo.gov/link/uscode/31/3901 https://www.govinfo.gov/link/uscode/40/3141

(C) Additional records relating to fringe benefits. Whenever the Secretary of Labor has found under paragraph (a)(1)(v) of this section that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in 40 U.S.C. 3141(2)(B) of the Davis-Bacon Act, the contractor must maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits.

(D) Additional records relating to apprenticeship. Contractors with apprentices working under approved programs must maintain written evidence of the registration of apprenticeship programs, the registration of the apprentices, and the ratios and wage rates prescribed in the applicable programs.

(ii) Certified payroll requirements —

(A) Frequency and method of submission. The contractor or subcontractor must submit weekly, for each week in which any DBA- or Related Acts-covered work is performed, certified payrolls to the Federal Agency Name if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the certified payrolls to the applicant, sponsor, owner, or other entity, as the case may be, that maintains such records, for transmission to the Agency Name.

The prime contractor is responsible for the submission of all certified payrolls by all subcontractors. A contracting agency or prime contractor may permit or require contractors to submit certified payrolls through an electronic system, as long as the electronic system requires a legally valid electronic signature; the system allows the contractor, the contracting agency, and the Department of Labor to access the certified payrolls upon request for at least 3 years after the work on the prime contract has been completed; and the contracting agency or prime contractor permits other methods of submission in situations where the contractor is unable or limited in its ability to use or access the electronic system.

(B) Information required. The certified payrolls submitted must set out accurately and completely all of the information required to be maintained under paragraph (a)(3)(i)(B) of this section, except that full Social Security numbers and last known addresses, telephone numbers, and email addresses must not be included on weekly transmittals. Instead, the certified payrolls need only include an individually identifying number for each worker (e.g., the last four digits of the worker's Social Security number). The required weekly certified payroll information may be submitted using Optional Form WH-347 or in any other format desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division website at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh347/.pdf or its successor website. It is not a violation of this section for a prime contractor to require a subcontractor to provide full Social Security numbers and last known addresses, telephone numbers, and email addresses to the prime contractor for its own records, without weekly submission by the subcontractor to the sponsoring government agency (or the applicant, sponsor, owner, or other entity, as the case may be, that maintains such records).

https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(1)(v) https://www.govinfo.gov/link/uscode/40/3141 https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(3)(i)(B) https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/wh347/.pdf

(C) Statement of Compliance. Each certified payroll submitted must be accompanied by a “Statement of Compliance,” signed by the contractor or subcontractor, or the contractor's or subcontractor's agent who pays or supervises the payment of the persons working on the contract, and must certify the following:

(1) That the certified payroll for the payroll period contains the information required to be provided under paragraph (a)(3)(ii) of this section, the appropriate information and basic records are being maintained under paragraph (a)(3)(i) of this section, and such information and records are correct and complete;

(2) That each laborer or mechanic (including each helper and apprentice) working on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in 29 CFR part 3; and

(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification(s) of work actually performed, as specified in the applicable wage determination incorporated into the contract.

(D) Use of Optional Form WH-347. The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 will satisfy the requirement for submission of the “Statement of Compliance” required by paragraph (a)(3)(ii)(C) of this section.

(E) Signature. The signature by the contractor, subcontractor, or the contractor's or subcontractor's agent must be an original handwritten signature or a legally valid electronic signature.

(F) Falsification. The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 3729.

(G) Length of certified payroll retention. The contractor or subcontractor must preserve all certified payrolls during the course of the work and for a period of 3 years after all the work on the prime contract is completed.

(iii) Contracts, subcontracts, and related documents. The contractor or subcontractor must maintain this contract or subcontract and related documents including, without limitation, bids, proposals, amendments, modifications, and extensions. The contractor or subcontractor must preserve these contracts, subcontracts, and related documents during the course of the work and for a period of 3 years after all the work on the prime contract is completed.

(iv) Required disclosures and access —

(A) Required record disclosures and access to workers. The contractor or subcontractor must make the records required under paragraphs (a)(3)(i) through (iii) of this section, and any other documents that the Federal Agency Name or the Department of Labor deems necessary to determine compliance with the labor standards provisions of any of the applicable statutes https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(3)(ii) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(3)(i) https://www.ecfr.gov/current/title-29/part-3 https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(3)(ii)(C) https://www.govinfo.gov/link/uscode/18/1001 https://www.govinfo.gov/link/uscode/31/3729 https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(3)(i) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(3)(iii) referenced by § 5.1, available for inspection, copying, or transcription by authorized representatives of the Federal Agency Nameor the Department of Labor, and must permit such representatives to interview workers during working hours on the job.

(B) Sanctions for non-compliance with records and worker access requirements. If the contractor or subcontractor fails to submit the required records or to make them available, or refuses to permit worker interviews during working hours on the job, the Federal agency may, after written notice to the contractor, sponsor, applicant, owner, or other entity, as the case may be, that maintains such records or that employs such workers, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds.

Furthermore, failure to submit the required records upon request or to make such records available, or to permit worker interviews during working hours on the job, may be grounds for debarment action pursuant to § 5.12. In addition, any contractor or other person that fails to submit the required records or make those records available to WHD within the time WHD requests that the records be produced will be precluded from introducing as evidence in an administrative proceeding under 29 CFR part 6 any of the required records that were not provided or made available to WHD. WHD will take into consideration a reasonable request from the contractor or person for an extension of the time for submission of records. WHD will determine the reasonableness of the request and may consider, among other things, the location of the records and the volume of production.

(C) Required information disclosures. Contractors and subcontractors must maintain the full Social Security number and last known address, telephone number, and email address of each covered worker, and must provide them upon request to the Federal Agency Name if the agency is a party to the contract, or to the Wage and Hour Division of the Department of Labor. If the Federal agency is not such a party to the contract, the contractor, subcontractor, or both, must, upon request, provide the full Social Security number and last known address, telephone number, and email address of each covered worker to the applicant, sponsor, owner, or other entity, as the case may be, that maintains such records, for transmission to the Agency Name, the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or other compliance action.

(4) Apprentices and equal employment opportunity —

(i) Apprentices —

(A) Rate of pay. Apprentices will be permitted to work at less than the predetermined rate for the work they perform when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship (OA), or with a State Apprenticeship Agency recognized by the OA. A person who is not individually registered in the program, but who has been certified by the OA or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice, will be permitted to work at less than the predetermined rate for the work they perform in the first 90 days of probationary employment as an apprentice in such a program. In the event the OA or a State Apprenticeship Agency recognized by the OA withdraws approval of an apprenticeship program, the contractor will no https://www.ecfr.gov/current/title-29/section-5.1 https://www.ecfr.gov/current/title-29/section-5.12 https://www.ecfr.gov/current/title-29/part-6 longer be permitted to use apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved.

(B) Fringe benefits. Apprentices must be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringe benefits must be paid in accordance with that determination.

(C) Apprenticeship ratio. The allowable ratio of apprentices to journeyworkers on the job site in any craft classification must not be greater than the ratio permitted to the contractor as to the entire work force under the registered program or the ratio applicable to the locality of the project pursuant to paragraph (a)(4)(i)(D) of this section. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated in paragraph (a)(4)(i)(A) of this section, must be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under this section must be paid not less than the applicable wage rate on the wage determination for the work actually performed.

(D) Reciprocity of ratios and wage rates. Where a contractor is performing construction on a project in a locality other than the locality in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyworker's hourly rate) applicable within the locality in which the construction is being performed must be observed. If there is no applicable ratio or wage rate for the locality of the project, the ratio and wage rate specified in the contractor's registered program must be observed.

(ii) Equal employment opportunity. The use of apprentices and journeyworkers under this part must be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30.

(5) Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract.

(6) Subcontracts. The contractor or subcontractor must insert in any subcontracts the clauses contained in paragraphs (a)(1) through (11) of this section, along with the applicable wage determination(s) and such other clauses or contract modifications as the Federal Agency Name may by appropriate instructions require, and a clause requiring the subcontractors to include these clauses and wage determination(s) in any lower tier subcontracts. The prime contractor is responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in this section. In the event of any violations of these clauses, the prime contractor and any subcontractor(s) responsible will be liable for any unpaid wages and monetary relief, including interest from the date of the underpayment or loss, due to any workers of lower-tier subcontractors, and may be subject to debarment, as appropriate.

https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(4)(i)(D) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(4)(i)(A) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(4)(i)(A) https://www.federalregister.gov/executive-order/11246 https://www.federalregister.gov/executive-order/11246 https://www.ecfr.gov/current/title-29/part-30 https://www.ecfr.gov/current/title-29/part-3 https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(1) https://www.ecfr.gov/current/title-29/section-5.5#p-5.5(a)(11)

(7) Contract termination: debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.

(8) Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations of the Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract.

(9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives.

(10) Certification of eligibility.

(i) By entering into this contract, the contractor certifies that neither it nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of 40 U.S.C. 3144(b) or § 5.12(a).

(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of 40 U.S.C. 3144(b) or § 5.12(a).

(iii) The penalty for making false statements is prescribed in the U.S. Code, Title 18 Crimes and Criminal Procedure, 18 U.S.C. 1001.

(11) Anti-retaliation. It is unlawful for any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, or to cause any person to discharge, demote, intimidate, threaten, restrain, coerce, blacklist, harass, or in any other manner discriminate against, any worker or job applicant for:

(i) Notifying any contractor of any conduct which the worker reasonably believes constitutes a violation of the DBA, Related Acts, this part, or 29 CFR part 1 or 3;

(ii) Filing any complaint, initiating or causing to be initiated any proceeding, or otherwise asserting or seeking to assert on behalf of themselves or others any right or protection under the DBA, Related Acts, this part, or 29 CFR part 1 or 3;

(iii) Cooperating in any investigation or other compliance action, or testifying in any proceeding under the DBA, Related Acts, this part, or 29 CFR part 1 or 3; or

(iv) Informing any other person about their rights under the DBA, Related Acts, this part, or 29 CFR part 1 or 3.

28. DHS Seal, Logo and Flags https://www.ecfr.gov/current/title-29/section-5.5 https://www.ecfr.gov/current/title-29/section-5.12 https://www.ecfr.gov/current/title-29/part-1 https://www.ecfr.gov/current/title-29/part-3 https://www.ecfr.gov/current/title-29/part-5 https://www.ecfr.gov/current/title-29/part-5 https://www.ecfr.gov/current/title-29/part-5 https://www.ecfr.gov/current/title-29/part-6 https://www.ecfr.gov/current/title-29/part-7 https://www.govinfo.gov/link/uscode/40/3144 https://www.ecfr.gov/current/title-29/section-5.12#p-5.12(a) https://www.govinfo.gov/link/uscode/40/3144 https://www.ecfr.gov/current/title-29/section-5.12#p-5.12(a) https://www.govinfo.gov/link/uscode/18/1001 https://www.ecfr.gov/current/title-29/part-1 https://www.ecfr.gov/current/title-29/part-3 https://www.ecfr.gov/current/title-29/part-1 https://www.ecfr.gov/current/title-29/part-3 https://www.ecfr.gov/current/title-29/part-1 https://www.ecfr.gov/current/title-29/part-3 https://www.ecfr.gov/current/title-29/part-1 https://www.ecfr.gov/current/title-29/part-1 https://www.ecfr.gov/current/title-29/part-3

Contractor must obtain written permission from the City and the U.S. Department of Homeland Security (DHS) prior to using the DHS seals, logos, crests, or reproductions of flags, or likenesses of DHS agency officials. This includes use of DHS component (e.g., FEMA, CISA, etc.) seals, logos, crests, or reproductions of flags, or likenesses of component officials.

29. Equal Employment Opportunity

Federally assisted construction contract means any agreement or modification thereof between any applicant and a person for construction work which is paid for in whole or in part with funds obtained from the Government or borrowed on the credit of the Government pursuant to any Federal program involving a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, or any application or modification thereof approved by the Government for a grant, contract, loan, insurance, or guarantee under which the applicant itself participates in the construction work.

The regulation also defines “construction work” as follows:

Construction work means the construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.

The regulation requires the language provided in 41 C.F.R. § 60-1.4(b) to be included in federally funded contracts. However, the regulation is largely based on Executive Order 11246, which has been revoked by Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025). Accordingly, the language below has been modified from the version at 41 C.F.R. § 60-1.4(b) to remove the requirements of Executive Order 11246.

During the performance of this Contract, the Consultant agrees to the following:

A. 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 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.

B. The Consultant agrees to post in conspicuous places, available to employees and applicants for employment, notices of its nondiscrimination policy.

C. The Consultant will, in all solicitations or advertisements for employees placed by or on behalf of the Consultant to perform work under the Contract, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

D. 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 provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Consultant’s legal duty to furnish information.

8. Program Fraud and False or Fraudulent Statements or Related Acts

The Consultant acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the Consultant’s actions pertaining to this Contract.

9. SAM.gov

All Consultants and their Subcontractor/Subconsultants must be registered on SAM.gov to ensure eligibility and compliance. Registration on SAM.gov will be verified as part of the evaluation process.

10. No Obligation by Federal Government

The Federal Government is not a party to this Contract and is not subject to any obligations or liabilities to the City, the Consultant, or any other party pertaining to any matter resulting from the Contract.

11. Recovered Materials

(if applicable)

A. In the performance of this Contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired:

(1) Competitively within a timeframe providing for compliance with the Contract performance schedule;

(2) Meeting Contract performance requirements; or

(3) At a reasonable price.

B. Information about this requirement, along with the list of EPA designated items, is available at EPA’s Comprehensive Procurement Guidelines web site, https://www.epa.gov/smm/ comprehensiveprocurement-guideline-cpg-program. The Contractor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.

https://sam.gov/ https://www.epa.gov/smm/comprehensiveprocurement-guideline-cpg-program https://www.epa.gov/smm/comprehensiveprocurement-guideline-cpg-program

C. The Contactor should, to the greatest extent practicable and consistent with the law, purchase, acquire, or use products and services that can be reused, refurbished, or recycled; contain recycled content, are biobased, or are energy and water efficient; and are sustainable.

12. Remedies

(Required for all contracts in excess of $250,000)

If any work performed by the Supplier title fails to meet the requirements of the Contract, any other applicable standards, codes or laws, or otherwise breaches the Contract, the Agency Namemay in its sole discretion:

A. Select to have the Contractor re-perform or cause to be re-performed at Contractor’s sole expense, any of the work which failed to meet the requirements of the Contract;

B. hire another contractor to perform the work and deduct any additional costs incurred by Agency Name as a result of substituting contractors from any amounts due to Contractor; or

C. pursue and obtain any and all other available legal or equitable remedies.

This Section shall in no way be interpreted to limit Agency Name’s right to pursue and obtain any and all other available legal or equitable remedies against Contractor.

13. Assistance with Developing Specifications

A. Purpose

The Consultant acknowledges that federal regulations and procurement best practices prohibit conflicts of interest and unfair competitive advantages in the development of specifications, statements of work, or requests for proposals (RFPs). This clause ensures compliance with such requirements.

B. Prohibition on Participation

The Consultant certifies that: 1) It did not assist in the development of the specifications, scope of work, or solicitation documents for this contract, unless authorized in advance and in writing by the City. 2) If the Consultant provided such assistance, it is disqualified from participating in the competitive process or being awarded the contract, unless a written waiver is granted by the City in accordance with applicable federal and local procurement rules.

C. Compliance with Federal and Local Requirements

The Consultant agrees to comply with: 1) Federal Procurement Standards: As set forth in 2 C.F.R. § 200.319 and 2 C.F.R. § 200.318(c)(1), which prohibit organizational conflicts of interest and unfair competitive practices. 2) Local Procurement Ordinances and Policies: As applicable to the Agency Name of Fort Myers.

D. Exceptions

In rare circumstances, the City may engage a Consultant to develop specifications or assist in drafting solicitation documents if: 1) The Consultant is not allowed to bid or participate in the subsequent competitive process, and 2) Such engagement is documented and approved by the Agency Name in writing.

E. Disclosure Requirements

The Consultant must: 1) Disclose any prior involvement in developing specifications or solicitation documents for this project. 2) Submit a signed certification of compliance, stating that no conflicts of interest exist.

F. Remedies for Noncompliance

Failure to comply with this clause may result in 1) Rejection of the Supplier title’s proposal or bid. 2) Termination of the contract for cause. 3) Legal or administrative remedies, as applicable under federal or local law.

14. Suspension and Debarment

(Required for all contracts and subcontracts for $25,000 or more)

Federal regulations restrict the City from contracting with parties that are debarred, suspended, or otherwise excluded from or ineligible for participation in Federal assistance programs and activities, where the contract is funded in whole or in part with federal funds. Accordingly, a contract or subcontract must not be made with any parties listed on the SAM Exclusions list. SAM Exclusions is the list maintained by the General Services Administration that contains the name of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under certain statutory or regulatory authority. The Consultant can verify its status and the status of its principals, affiliates, and subcontractors at www.SAM.gov.

1. This Contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt.

3000. As such the Contractor is required to verify that none of the Contractor, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).

2. The Contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters.

3. This certification is a material representation of fact relied upon by the City. If it is later determined that the Consultant did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt.

3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.

https://www.sam.gov/

15. Termination

(Required for all contracts and purchase orders)

A. For Convenience

This Contract may be terminated for convenience, in whole or in part, without cause, by either party upon 30 calendar days’ prior written notice to the other party. Upon such termination, the Contractor waives any claims for damages from the termination without cause including, without limitation, any and all consequential claims, and as the sole right and remedy of the Contractor, the Agency Nameshall compensate the Contractor for all authorized work satisfactorily and responsibly completed through the termination date. In the event of termination by the Contractor without cause, the following shall apply:

(1) all bonds shall remain fully in force to ensure the…