R2020-078 2020-04-27 RESOLUTION NO. R2020-78
A Resolution of the City Council of the City of Pearland, Texas, authorizing a
construction materials testing contract with Terracon, in the estimated amount
of$462,860.00, for the Surface Water Plant Project.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS:
Section 1. That certain contract for construction materials testing services associated
with the Surface Water Plant Project, a copy of which is attached hereto as Exhibit"A" and made a
part hereof for all purposes, is hereby authorized and approved.
Section 2. That the City Manager or his designee is hereby authorized to execute and
the City Secretary to attest a contract for construction materials testing services associated with the
Surface Water Plant Project.
PASSED. APPROVED and ADOPTED this the 27th day of April, Ac ., 20.
TOM REID
MAYOR
ATTEST:
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C-Y ' AL ROAN, TRMC, CMC � v
CITY SECRETARY '=r AI"
APPROVED AS TO FORM.
f\
DARRIN M. COKER
CITY ATTORNEY
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Exhibit A
CONTRACT FOR PROFESSIONAL SERVICES
THIS CONTRACT is entered into upon final execution by and between the City of Pearland
("CITY") and Terracon Consultants, Inc. ("CONSULTANT").
The CITY engages the CONSULTANT to perform Construction Materials Testing Services for a
project known and described as Surface Water Plant Phase 1 (10MGD) ('PROJECT"). (Project#
WA 1605)
SECTION I -SERVICES OF THE CONSULTANT
The CONSULTANT shall perform the following professional services to CITY standards and in
accordance with the degree of care and skill that a professional in Texas would exercise under
the same or similar circumstances:
A. The CONSULTANT shall perform Construction Materials Testing Services. See
Exhibit A, attached, for a detailed SCOPE OF WORK. The PROJECT schedule
shall conform to the construction schedule.
B. The CONSULTANT shall prepare and submit a detailed opinion of estimated cost
of the PROJECT.
C. The CONSULTANT acknowledges that the CITY (through its employee
handbook) considers the following to be misconduct that is grounds for
termination of a CITY employee: Any fraud, forgery, misappropriation of funds,
receiving payment for services not performed or for hours not worked,
mishandling or untruthful reporting of money transactions, destruction of assets,
embezzlement, accepting materials of value from vendors, or consultants, and/or
collecting reimbursement of expenses made for the benefit of the CITY. The
CONSULTANT agrees that it will not, directly or indirectly; encourage a CITY
employee to engage in such misconduct.
D. The CONSULTANT recognizes that all drawings, special provisions, field survey
notes, reports, estimates and any and all other documents or work product
generated by the CONSULTANT under the CONTRACT shall be delivered to the
CITY upon request, shall become subject to the Open Records Laws of this State.
E. The CONSULTANT shall procure and maintain for the duration of this
Agreement, insurance against claims for injuries to persons, damages to property,
or any errors and omissions relating to the performance of any work by the
CONSULTANT, its agents, employees or subcontractors under this Agreement,
as follows:
(1) Workers' Compensation as required by law.
(2) Professional Liability Insurance in an amount not less than $1,000,000 in
the aggregate.
Design 1 of 7 D2.Revised 04/2019
(3) Comprehensive General Liability and Property Damage Insurance with
minimum limits of $1,000,000 for injury or death of any one person,
$1,000,000 for each occurrence, and $1,000,000 for each occurrence of
damage to or destruction of property.
(4) Comprehensive Automobile and Truck Liability Insurance covering
owned, hired, and non-owned vehicles, with minimum limits of
$1,000,000 for injury or death of any one person, $1,000,000 for each
occurrence,and $1,000,000 for property damage.
The CONSULTANT shall include the CITY as an additional insured under the
policies, with the exception of the Professional Liability Insurance and Workers'
Compensation. The CONSULTANT shall agree to waive its Right to
Subrogation. Certificates of Insurance and endorsements shall be furnished to the
CITY before work commences. Each insurance policy shall be endorsed to state
that coverage shall not be suspended, voided, canceled, and/or reduced in
coverage or in limits ("Change in Coverage") except with prior written consent of
the CITY and only after the CITY has been provided with written notice of such
Change in Coverage, such notice to be sent to the CITY either by hand delivery to
the City Manager or by certified mail, return receipt requested, and received by
the City no fewer than thirty (30) days prior to the effective date of such Change
in Coverage. Prior to commencing services under this CONTRACT,
CONSULTANT shall furnish CITY with Certificates of Insurance, or formal
endorsements as required by this CONTRACT, issued by CONSULTANT'S
insurer(s), as evidence that policies providing the required coverage, conditions,
and limits required by this CONTRACT are in full force and effect.
F. The CONSULTANT shall indemnify and hold the CITY, its officers, agents, and
employees, harmless from any claim, loss, damage, suit, and liability of every
kind for which CONSULTANT is legally liable, including all expenses of
litigation, court costs, and attorney's fees, for injury to or death of any person, for
damage to any property, or errors in design, any of which are caused by the
negligent act or omission of the CONSULTANT, his officers, employees, agents,
or subcontractors under this CONTRACT.
G. All parties intend that the CONSULTANT, in performing services pursuant to this
CONTRACT, shall act as an independent contractor and shall have control of its
own work and the manner in which it is performed. The CONSULTANT is not to
be considered an agent or employee of the CITY.
SECTION 11 -PERIOD OF SERVICE
This CONTRACT will be binding upon execution and end upon completion of the construction
related work not to exceed 32 (thirty-two) months after execution of this contract.
Design 2 of 7 D2 Revised 04/2019
SECTION III -CONSULTANT'S COMPENSATION
A. The total compensation for the services performed shall not exceed$462,860.00.
B. The CITY shall pay the CONSULTANT in monthly installments based upon Unit
Prices shown in the SCOPE OF WORK attached.
C. The CITY shall make payments to the CONSULTANT within thirty (30) days
after receipt and approval of a detailed invoice. Invoices shall be submitted on a
monthly basis.
D. CONSULTANT shall invoice for work performed during the preceding thirty day
period ("Billing Period"). The Billing Period shall run from the 26th day to the
25th day of each consecutive month. Invoices shall be submitted to CITY not
more frequently than once every 30 days. CONSULTANT shall be responsible
for timely submittal of all invoices and CONSULTANT shall not be entitled to
payment for invoices in arrears. All invoices shall reflect most recent single
Billing Period only and represent the true, correct and accurate account of work
performed during the Billing Period.
E. For an agreed contract amount identified as "Lump Sum", Not to Exceed" and
"Reimbursable" the CONSULTANT shall not exceed the fixed contractual
amount without written authorization in the form of a Contract Amendment.
CONSULTANT shall provide 45 days prior notice to the CITY in the event
contract fees may exceed the fixed contract amount. CONSULTANT shall be
responsible for ensuring that such authorization is complete and executed by all
parties performing any work or submitting any invoices for work that exceeds the
fixed contract amount under any expense category.
F. Allowable Reimbursable Expenses
CONSULTANT shall identify and include in the proposal any anticipated
Reimbursable Expenses, and shall itemize Reimbursable Expenses by work
category. Reimbursable Expenses shall be invoiced AT COST without
subsequent markup by the CONSULTANT. All invoices containing a request for
Reimbursable Expenses shall include copies of the original expense receipts
itemized per the allowable category. Allowable Reimbursable Expenses include:
• Hard copy reproductions, copies and/or binding costs
• Postage
• Mileage, for travel from Consultant's local office (within a 25 mile radius)
to meetings at the City or job-site. Mileage shall be charged at the current
IRS rates.
• Travel expenses, mileage from local office to State or federal regulatory
agency office beyond 100 miles.
Design 3 of 7 D2 Revised 04/2019
• Lodging expenses, for destinations beyond 100 miles from the
Consultant's local office AND when business hours exceed eight hours
within one business day OR requires more than one eight hour day.
F.2. Disallowed Expenses
Disallowed Expenses include travel expenses for professional expertise traveling
into the greater Houston area from Consultant offices outside of the greater
Houston area.
SECTION IV-THE CITY'S RESPONSIBILITIES
A. The CITY shall designate a project manager during the term of this CONTRACT.
The project manager has the authority to administer this CONTRACT and shall
monitor compliance with all terms and conditions stated herein. All requests for
information from or a decision by the CITY on any aspect of the work shall be
directed to the project manager.
B. The CITY shall review submittals by the CONSULTANT and provide prompt
response to questions and rendering of decisions pertaining thereto, to minimize
delay in the progress of the CONSULTANT'S work. The CITY will keep the
CONSULTANT advised concerning the progress of the CITY'S review of the
work. The CONSULTANT agrees that the CITY'S inspection, review,
acceptance or approval of CONSULTANTS work shall not relieve
CONSULTANTS responsibility for errors or omissions of the CONSULTANT or
its sub-consultant(s) or in any way affect the CONSULTANT's status as an
independent contractor of the CITY.
TERMINATION
A. The CITY, at its sole discretion, may terminate this CONTRACT for any reason -
- with or without cause -- by delivering written notice to CONSULTANT
personally or by certified mail at 551 League City Parkway, Suite F, League
City, TX 77573. Immediately after receiving such written notice, the
CONSULTANT shall discontinue providing the services under this CONTRACT.
B. If this CONTRACT is terminated, CONSULTANT shall deliver to the CITY all
drawings, special provisions, field survey notes, reports, estimates and any and all
other documents or work product generated by the CONSULTANT under the
CONTRACT, entirely or partially completed, together with all unused materials
supplied by the CITY on or before the 15th day following termination of the
CONTRACT.
C. In the event of such termination, the CONSULTANT shall be paid for services
performed prior to receipt of the written notice of termination. The CITY shall
make fmal payment within sixty (60) days after the CONSULTANT has delivered
Design 4 of 7 11)2 Revised 04/2019
to the CITY a detailed invoice for services rendered and the documents or work
product generated by the CONSULTANT under the CONTRACT.
D. If the remuneration scheduled under this contract is based upon a fixed fee or
definitely ascertainable sum, the portion of such sum payable shall be
proportionate to the percentage of services completed by the CONSULTANT
based upon the scope of work.
E. In the event this CONTRACT is terminated, the CITY shall have the option of
completing the work, or entering into a CONTRACT with another party for the
completion of the work.
F. If the CITY terminates this CONTRACT for cause and/or if the CONSULTANT
breaches any provision of this CONTRACT, then the CITY shall have all rights
and remedies in law and/or equity against CONSULTANT. Venue for any action
or dispute arising out of or relating to this CONTRACT shall be in Brazoria
County, Texas. The laws of the State of Texas shall govern the terms of this
CONTRACT. The prevailing party in the action shall be entitled to recover its
actual damages with interest, attorney's fees, costs and expenses incurred in
connection with the dispute and/or action. CONSULTANT and CITY desire an
expeditious means to resolve any disputes that may arise between under this
CONTRACT. To accomplish this, the parties agree to mediation as follows: If a
dispute arises out of or relates to this CONTRACT, or the breach thereof, and if
the dispute cannot be settled through negotiation, then the parties agree first to try
in good faith, and before pursuing any legal remedies, to settle the dispute by
mediation of a third party who will be selected by agreement of the parties.
SECTION VI —ENTIRE AGREEMENT
This CONTRACT represents the entire agreement between the CITY and the CONSULTANT
and supersedes all prior negotiations, representations, or contracts, either written or oral This
CONTRACT may be amended only by written instrument signed by both parties.
SECTION VII —COVENANT AGAINST CONTINGENT FEES
The CONSULTANT affirms that he has not employed or retained any company or person, other
than a bona fide employee working for the CONSULTANT to solicit or secure this
CONTRACT, and that he has not paid or agreed to pay any company or person, other than a
bona fide employee, any fee, commission, percentage brokerage fee, gift, or any other
consideration, contingent upon or resulting from the award or making of the CONTRACT. For
breach or violation of this clause, the CITY may terminate this CONTRACT without liability,
and in its discretion, may deduct from the CONTRACT price or consideration, or otherwise
recover, the full amount of such fee, commission, percentage brokerage fee, gift, or contingent
fee that has been paid.
Design 5 of 7 D2 Revised 04/2019
SECTION VIII- SUCCESSORS AND ASSIGNS
This CONTRACT shall not be assignable except upon the written consent of the parties hereto.
CI ' OF ' LAND,TEXAS DATE
4/20/20
'� 4 .20 . 2020
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CONSULTANT r
DATE
Design 6 of 7 D2 Revised 04/2019
House Bill 89 Verification
Noosha Smith, PE (Person name), the undersigned
representative (hereafter referred to as "Representative") of Terracon Consultants, Inc.
(company or
business name, hereafter referred to as "Business Entity"), being an adult over the age
of eighteen (18) years of age, after being duly sworn by the undersigned notary, do
hereby depose and affirm the following:
1. That Representative is authorized to execute this verification on behalf of
Business Entity;
2. That Business Entity does not boycott Israel and will not boycott Israel during the
term of any contract that will be entered into between Business Entity and the City of
Pearland; and
3. That Representative understands that the term "boycott Israel" is defined by
Texas Government Code Section 2270.001 to mean refusing to deal with, terminating
business activities with, or otherwise taking any action that is intended to penalize, inflict
economic harm on, or limit commercial relations specifically with Israel, or with a person
or entity doing business in Israel or in an Israeli-controlled territory, but does not include
an action made for ordinary business purposes. 4/20120
SIGNAT ER SNTATIVE
SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, on
this day of , 20
Notary Public
Design 7 of 7 D2 Revised 04/2019
lierracon
April 7, 2020
City of Pearland
3519 Liberty Drive
Pearland, Texas 77581
Attn: Mr. Skipper Jones
SJones@pearlandtx.gov
Subject: Cost Estimate for Construction Services
City of Pearland Surface Water Treatment Plant
Pearland, Texas
Terracon Proposal Number P91201055 Rev 2
Dear Mr. Jones:
Terracon Consultants, Inc. (Terracon) is pleased to provide this Cost Estimate to the City of
Pearland (City). We understand we have been selected based on our qualifications to provide
materials testing services for the referenced Project. In this letter we have presented our
understanding of the scope of the project, the proposed services, and the budget estimate.
A. PROJECT INFORMATION
The City of Pearland plans to commence the construction of a 10-million gallon /day water plant,
located on Kingsley Road (CR 48), Pearland, Texas. Ninety percent project plans were
available to us, as well as the geotechnical reports prepared by various entities. We also
obtained project information and preliminary construction phasing from conversations with
Ardurra (Construction Manager) and Pepper Lawson Waterworks (PLW), the General
Contractor. The estimated schedule to complete the Project, per Mr. Skipper Jones with the City
of Pearland, is 18 to 20 months.
The information used for preparing the scope of services and the cost estimate in this
document are based on preliminary information, conversations with the team referenced
above, and the City. The final drawings, specifications, and geotechnical reports,
including final foundation designs, were not yet complete as of the date of this
document. Therefore, if any of the information in this document needs to be corrected,
updated, or revised once final design and contractor's schedule are available, Terracon
requests the opportunity to do so.
Using the collection of documents stated above, conversations with Ardurra and PLW, and
specifically, the Draft Geotechnical Report by CDM, dated September 9, 2019. It is our
understanding the construction of the water plant includes, but not limited, to the following:
Phase 1-
• Site work and grading (placement of general fill)
• Excavation of storm water retention basin
Terracon Consultants, Inc. 551 League City Parkway, Suite F League City, TX 77573
P (281] 557 2900 terracon.com
Geotechnical • Environmental • Construction Materials U Facilities
Cost Estimate for Materials Services lierracon
Surface Water Treatment Plant
Pearland, Texas
April 7, 2020 • Terracon Document No. P91201055 Rev 2
Phase 2-
• Commencement of deep foundation
• Gravity thickeners
• Drain/return flow, transfer pump stations
• Lift station
Phase 3- commencement of the construction of facilities including, but not limited to:
• Maintenance and sludge dewatering building
• Pre-treatment process units
• Chemical facility
• Membrane and operations building
• Gas chlorine and Chlorine dioxide Facility
• GAC absorbers
• Fuel storage platforms
• Electrical building with generator and transfer pads
Foundation types for the various structures are proposed to consist of deep foundation, such as
augured cast pile and drilled piers, and shallow foundation such as continuous footings, and mat
foundation systems. The buildings will have selected fill, slab on grade, pre-cast concrete
panels, minimal masonry, with structural steel framing.
B. SCOPE OF SERVICES
Terracon proposes to provide the following scope of services, when scheduled by the City of
Pearland (City), Ardurra, or PLW representatives.
1.0 Earthwork:
• Observe proof rolling operations, sample subgrade, select fill, trench backfill and
treated materials. Prepare and test the samples for classification by the Atterberg
Limits and moisture density relationship.
• Obtain subgrade sample for lime determination test.
• Perform gradations on lime treated material.
• Perform field density tests using the nuclear method to determine the moisture
content and percent compaction of the subgrade, fill, and backfill.
• It's Terracon's experience that "blended" select fill soils are commonly used in the
greater Houston area. Therefore, Terracon recommends that random samples of
select fill be obtained to verify that the soil meets the requirements for Atterberg
Limits and if required, percent fines. Samples typically require 2 to 3 working days
for processing and testing in accordance with ASTM Standards, however,
preliminary test results can be obtained as early as the following working day. It will
be at the discretion of the contractor to suspend any additional placement of fill
before test results are known.
Cost Estimate for Materials Services lierracon
Surface Water Treatment Plant
Pearland, Texas
April 7, 2020 ■ Terracon Document No. P91201055 Rev 2
2.0 Foundation System-Augured Cast Piles (ACP):
Production Piles:
• Observe the installation of the auger cast piles. Record the size of the shaft
(including the length and auger diameter). The number, size and length of
reinforcing bars used will be documented.
• The calculated grout volume pumped into each shaft will be documented.
• Sample the grout material used for the pile system. Two sets of 6 grout cubes for
each day's placement. Three samples will be tested at 7 days and three samples
will be tested at 28 days.
2.1 Pile Integrity Testing
Pile Integrity Testing(PIT)
Pile Integrity Testing is a non-destructive test method that provides a
generalized indication of integrity and length of deep foundations.
PIT testing and analysis is conducted by Terracon in general :y „,/
accordance with ASTM D-5882. The PIT test is initiated by striking
the top of the pile or pile wall with a hammer or other source. An
accelerometer, which is attached to the top of the pile, detects P-
wave echoes as they return from the pile bottom or an anomaly within
the pile or wall. Data will likely be collected using a Pile Dynamics,
Inc. (PDI) Pile Integrity Tester (PIT), and the data is analyzed using
PIT-W, version 2003 software. The depth of the pile is then
calculated from the arrival times of the echoes using an average
wave velocity. The client understands the PIT can return false
returns at change in cross-section like large bulges or necking and reading below this depth
might be inconclusive. The manufactures recommended testing length is documented at 30
times the diameter, depths greater than that might also be inconclusive.
Piles for PIT will be designated by the Project Design Team. Services should be
scheduled a minimum of 2 days in advance. The actual cost associated with this service
will depends on the number of piles assigned for PIT.
2.1.1 Site Access
Items to be provided by the client include the right of entry to conduct the PIT testing as well as
direct access to the tops of the shafts. The shafts must be exposed and not covered with a pier
cap or other covering, free of soil and debris, and directly accessible. Excavating the tops of
the shafts or prepping/grinding the top of the shafts are not included in our scope of
services.
2.1.2 Nondestructive Testing Analysis and Report
Based on the results of our evaluation, a report will be prepared which details the results of our
PIT testing and provides a recommendation as to the integrity of the shaft. The report will be
sealed by a licensed Professional Engineer in the State of Texas.
Cost Estimate for Materials Services lrerracon
Surface Water Treatment Plant
Pearland, Texas
April 7, 2020 Terracon Document No. P91201055 Rev 2
3.0 Foundation System — Drilled Footings:
Observe the installation of the drilled and under-reamed footing foundation. For
each pier observed, information regarding shaft depth, auger diameter, and chained
belling tool diameter will be documented.
Record dimensions and the number, size, and length of vertical reinforcing bars used
for footings.
Obtain pocket penetrometer readings on soil cuttings removed during excavation at
or near the bearing stratum to document the approximate shear strength of the soil.
Sample the fresh concrete placed in footings and perform required tests, including
slump, air content, concrete temperature, and cast test specimens during
placements.
4.0 Foundation System — Shallow Footings:
Observe the construction of shallow footings. Record dimensions of the excavation
and the number, size and length of reinforcing bars used in footings.
Obtain pocket penetrometer readings on soil cuttings removed during excavation at
or near the bearing stratum to document the approximate shear strength of the soil.
Sample the fresh concrete placed in footings and perform required tests, including
slump, air content, concrete temperature, and cast test specimens during
placements.
5.0 Cast-In-Place Concrete (mat foundation, slab on grade, etc.):
Sample the fresh concrete for each mix, perform required tests, including slump, air
content, concrete temperature, and cast test specimens during placements.
Perform compressive tests of concrete test cylinders cast in the field.
Please note:
Terracon understands that the contractor will be responsible for maintaining the initial
curing temperature of the concrete test specimens. Terracon will record the initial curing
temperatures only when conditioned curing boxes are provided by the contractor.
Terracon will require the approved concrete mix designs to provide these services.
6.0 Structural Steel Welded & Bolted Connections:
Provide a certified welding inspector (CWI) at the job site to observe field welding
procedures and visually check bolted/welded connections, as well as roof deck
puddle welds, in accordance with applicable AISC and AWS specifications and
Contract Documents.
Cost Estimate for Materials Services lierracon
Surface Water Treatment Plant
Pearland, Texas
April 7, 2020 • Terracon Document No. P91201055 Rev 2
7.0 Coatings Observations and Testing:
A NACE Level II inspector will be utilized to oversee the technician's activities and
conduct random visits to the project site. The daily reports will also be reviewed by the
NACE Level II inspector.
• Obtain copies of the coating submittals and review the coating manufacturers data
sheets (MDS) to determine if the coating system used is the approved coating listed
in the contract documents.
• Observe the prepared substrate surface to determine if the specified blast profile and
cleanliness are acceptable to the requirements of the MDS.
• Conduct testing of the ambient conditions to verify that they are within the acceptable
parameters of the MDS prior to coating application.
• Observe the coating system mixing, if required and note coating batch and lot
numbers.
• Observe the coating application process and note issues or problems.
• Perform dry film thickness testing on the cured coating layers.
• Submit a report of daily activities that will document the observations and tests
conducted during the visit.
8.0 Masonry:
• Mortar: Obtain mortar samples and perform mortar compression tests.
• Grout: Obtain grout samples and perform grout prism compression tests
9.0 Site Concrete:
• Sample the fresh concrete for each mix, perform required tests, including slump, air
content, concrete temperature, and cast test specimens during placements.
• Perform compressive tests of concrete test cylinders cast in the field.
10.0 Terracon Project Manager will provide the following services:
• Attend construction meetings, if requested
• Coordinate field and laboratory testing,
• Communicate with Terracon field technicians, Contractor, and Owner's site
representative,
• Review laboratory and field test reports,
• Control our budget and invoice.
We strongly recommend that Terracon be invited to the preconstruction meeting(s).
Cost Estimate for Materials Services lrerracon
Surface Water Treatment Plant
Pearland, Texas
April 7, 2020 li Terracon Document No. P91201055 Rev 2
Additional Services:
If work beyond the scope listed above is requested by the Client, Terracon will issue a short
Supplement to the Agreement form, or Supplement Cost estimate, that outlines the additional
work to be performed and the associated fees. To authorize us to begin this additional work,
you simply return a signed copy of the Supplement.
Project Schedule:
Field testing services will be provided on a "call-out" basis when scheduled by your
representative. A minimum of 24-hours notice is required to schedule our services (48 hours for
structural steel), although we will attempt to meet requests in a shorter time frame. Terracon will
only provide testing when called by your onsite representative. The extent of our observations
and documentation will be limited to the items observed during the site visits.
Site Access and Safety:
Client shall secure all necessary site related approvals, permits, licenses, and consents
necessary to commence and complete the Services and will execute any necessary site access
agreement. Consultant will be responsible for supervision and site safety measures for its own
employees and shall not be responsible for the supervision or health and safety precautions for
any third parties, including Client's contractors, subcontractors, or other parties present at the
site. In addition, Consultant retains the right to stop work without penalty at any time
Consultant believes it is in the best interests of Consultant's employees or
subcontractors to do so to reduce the risk of exposure to the coronavirus. Client agrees
it will respond quickly to all requests for information made by Consultant related to
Consultant's pre-task planning and risk assessment processes. Client acknowledges its
responsibility for notifying Consultant of any circumstances that present a risk of
exposure to the coronavirus or individuals who have tested positive for COVID-19 or are
self-quarantining due to exhibiting symptoms associated with the coronavirus.
C. COMPENSATION
Our estimated total budget to perform the testing is provide din the attached Budget Table. This
is an estimate based on preliminary data available to Terracon, as described in Section A of this
Document. Please note that this is only a budget estimate and not a not-to-exceed price. Many
factors beyond our control, such as weather and the contractor's schedule, will dictate the final
fee for our services. We will not exceed our estimated budget amount unless authorized by The
City of Pearland.
Fees for services provided will be based on the unit rates shown in the attached Budget
Estimate. Services not included in this cost estimate, which may be requested or provided
throughout the job, will be billed at Terracon rates, attached.
Overtime is defined as all hours more than eight per day, Monday through Friday, and all hours
worked on weekends and holidays. Overtime rates will be 1.5 times the hourly rate quoted. A
4-hour minimum charge will be applied to site visits other than sample or cylinder pickups. You
will be invoiced monthly for services performed.
Cost Estimate for Materials Services lierracon
Surface Water Treatment Plant
Pearland, Texas
April 7, 2020 ■ Terracon Document No. P91201055 Rev 2
D. TESTING AND OBSERVATION
Owner understands that testing and observation are discrete sampling procedures, and that
such procedures indicate conditions only at the depths, locations, and times the procedures
were performed. Terracon will provide test results and opinions based on tests and field
observations only for the work tested. Owner understands that testing and observation are not
continuous or exhaustive, and are conducted to reduce — not eliminate — project risk. Owner
agrees to the level or amount of testing performed and the associated risk. Owner is
responsible (even if delegated to contractor) for notifying and scheduling Terracon so Terracon
can perform these services. Terracon shall not be responsible for the quality and completeness
of Owner's contractor's work or their adherence to the project documents, and Terracon's
performance of testing and observation services shall not relieve contractor in any way from its
responsibility for defects discovered in its work, or create a warranty or guarantee. Terracon will
not supervise or direct the work performed by contractor or its subcontractors and is not
responsible for their means and methods.
AUTHORIZATION
Per Agreement between City of Pearland and Terracon, to be issued by City of Pearland.
We appreciate your continued trust in our services. Please call us at 281-557-2900 if you have
any questions or comments regarding this document.
Sincerely,
Terracon Consultants, Inc.
4/20/20
nps
oosha P. mL'.12;-7)//Lit , P.E. Jason Mills
Sr. Principal For : Principal
Attachment: Budget Tables
Cost Estimate for Materials Services lierracon
Surface Water Treatment Plant
Pearland, Texas
April 7, 2020 Li Terracon Document No. P91201055 Rev 2
Budget Estimate
Surface Water Plant
Packages 1, 2, and 3
Service Quantity Unit Unit Rate Estimate
1.0 Field(Earthwork,Concrete, Foundation, Structures, Site Work)
Based on 80 weeks, average 50 hrs per week
Engineering Technician (includes vehicle, field
equipment, and field testing) 3200 hour $ 58.00 $ 185,600.00
2nd Engineering Technician for MAT Pours 160 hour $ 58.00 $ 9,280.00
Engineering Technician, OT 480 hour $ 87.00 $ 41,760.00
Certified Wedding Inspector 240 hours $ 110.00 $ 26,400.00
$ 263,040.00
2.0 Pile Integrity Testing (PIT)
Based on Assumed 10 8-hr days
PIT-NDT Specialist 80 hour $ 75.00 $ 6,000.00
PIT Equipment 10 day $ 300.00 $ 3,000.00
PIT-Project Manager Review and Reporting 20 hour $ 115.00 $ 2,300.00
PIT-Professional Engineer Report Review and Submit 5 hour $ 195.00 $ 975.00
$ 12,275.00
3.0 Coating Mil Thickess Testing
Based on Assumed 10 8-hr days
Coating-NDT Specialist 80 hour $ 75.00 $ 6,000.00
Mil Thickness Equipment 10 day $ 75.00 $ 750.00
NACE Staff 5 hour $ 115.00 $ 575.00
Coating-Professional Engineer Report Review and Su 2 hour $ 195.00 $ 390.00
$ 7,715.00
4.0 Laboratory
Moisture Density Relationship 20 each $ 175.00 $ 3,500.00
Atterberg Limits for proctors 20 each $ 65.00 $ 1,300.00
Atterberg Limits for select fill verification 80 each $ 65.00 $ 5,200.00
-200 Sieve analysis 20 each $ 65.00 $ 1,300.00
Gradations for base 2 each $ 300.00 $ 600.00
Lime Determination 2 each $ 450.00 $ 900.00
Cylinder Tests (4 cyl/set ) 1120 each $ 18.00 $ 20,160.00
Compressive Strength Test for Grout(ACP) (6
samples per set)x 2 sets day 20 set $ 175.00 S 3,500.00
$ 36,460.00
5.0 Project Management&Administration
Project Manager(meetings, reports, consulting) 320 hour $ 115.00 $ 36,800.00
Administrative/Clerical 160 hour $ 65.00 $ 10,400.00
Project Engineer, P.E. (meetings and consulting) 100 hour $ 195.00 $ 19,500.00
$ 66,700.00
Sub-Total $ 386,190.00
Cost Estimate for Materials Services lierracon
Surface Water Treatment Plant
Pearland, Texas
April 7, 2020 CA Terracon Document No. P91201055 Rev 2
Off-Site Water Transmission Line
Service Quantity Unit Unit Rate Estimate
1.0 Field
Assume 24 weeks at 40 hours /week
Engineering Technician (includes vehicle, field
equipment, and field testing) 720 hour $ 58.00 $ 41,760.00
Engineering Technician, OT 240 hour $ 87.00 $ 20,880.00
$ 62,640.00
2.0 Laboratory
Moisture Density Relationship 10 each $ 175.00 $ 1,750.00
Atterberg Limits for proctors 10 each $ 65.00 $ 650.00
-200 Sieve analysis 10 each $ 65.00 $ 650.00
$ 3,050.00
3.0 Project Management & Administration
Project Manager 48 hour $ 115.00 $ 5,520.00
Administrative/Clerical 48 hour $ 65.00 $ 3,120.00
Project Engineer, P.E. 12 hour $ 195.00 $ 2,340.00
$ 10,980.00
Sub-Total $ 76,670.00
Project Estimated Total $ 462,860.00
TWDB-0550
Rev 09/19
Texas Water
Development Board
Texas Water Development Board
Supplemental Contract Conditions for
Clean Water State Revolving Fund
(Equivalency) and Drinking Water State
Revolving Fund
For Construction Services for Projects Funded
through the CWSRF Equivalency
and DWSRF Programs
TWDB-0550
Rev 09/19
Table of Contents
1. INSTRUCTIONS FOR APPLICANTS 5
1. Applicability 5
2. Use of Conditions 5
3. Modifications to Provisions 5
4. Good Business Practices 5
5. Other Requirements 6
6. Advertisements for Bids 6
7. Bid Proposal 8
8. Bidding Process 8
9. Debarment and Suspension Certification 8
10. Release of Funds 9
II. INSTRUCTIONS TO BIDDERS 1 1
1. Contingent Award of Contract 11
2. Disadvantaged Business Enterprise Goals 11
3. Davis-Bacon Wage Rate Requirements 11
4. American Iron and Steel 12
5. Equal Employment Opportunity and Affirmative Action 12
6. Debarment and Suspension Certification 12
7. Bid Guarantee 12
III. SUPPLEMENTAL CONTRACT CONDITIONS 14
1. Supersession 14
2. Privity of Contract 14
3. Definitions 14
4. Laws to be Observed 14
5. Review by Owner and TWDB 14
6. Performance and Payment Bonds 15
7. Payment Schedule and Cost Breakdown 15
8. Workman's Compensation Insurance Coverage(as applicable, consistent with Texas Labor Code §
406.096) 15
9. American Iron&Steel 16
10. Davis-Bacon Wage Rate Requirements 17
(a) Compliance Procedures 17
Page 2 of 46
TWDB-0550
Rev 09/19
(b) Subcontracts I8
(c) Davis-Bacon General Wage Determinations 18
Option 1 —Applies to Governmental Entities(such as Cities and Districts) 20
Option 2—Applies to Non-Governmental Entities(such as Water Supply Corporations and Private
Companies) 28
11. Payments 35
12. Equal employment opportunity and affirmative action 37
13. Debarment and Suspension 39
14. Disadvantaged Business Enterprises 40
15. Archeological Discoveries and Cultural Resources 42
16. Endangered Species 42
17. Hazardous Materials 42
18. Project Signage 43
19. Changes 43
20. Operation and Maintenance Manuals and Training 44
21. As-Built Dimensions and Drawings 45
22. Close-Out Procedures 45
23. Additional Forms and Information 45
Page 3 of 46
TWDB-0550
Rev 09/19
Forms and Guidance:
The Texas Water Development Board (TWDB)forms and guidance documents noted in this
instruction document may be accessed through the TWDB Financial Assistance website at:
http://www.twdb.texas.gov/financial/instructions/index.asp
Search by either the document number or name.
Page 4 of 46
TWDB-0550
Rev 09/19
I. INSTRUCTIONS FOR APPLICANTS
1. Applicability
These Supplemental Contract Conditions contain provisions that are worded to comply
with certain statutes and regulations which specifically relate to all Drinking Water State
Revolving Fund(DWSRF)projects and Clean Water State Revolving Fund(CWSRF)
Equivalency Program projects. Provisions which are applicable to the project's funding
source or dollar value of the contract are so noted within these provisions.
2. Use of Conditions
The conditions and forms listed under Section II:Instructions to Bidders are to be
included in the instructions to bidders for construction services. The provisions listed
under Section III: Construction Contract Supplemental Conditions shall be included, in
their entirety, with the other general and special conditions that are typically included in the
construction contract documents by the design engineer.
3. Modifications to Provisions
These provisions shall be included as a stand-alone section in the contract documents. The
Applicant may need to modify parts of these provisions to better fit the other provisions
of the construction contract. The Applicant and the consulting engineer should
carefully study these provisions before incorporating them into the construction contract
documents. In particular,Water Districts and other types of Districts should be aware of
statutes relating to their creation and operation which may affect the application of these
conditions. The TWDB Project Engineer/Reviewer should be consulted if the Applicant
thinks there is a need to modify parts of these provisions.
The Applicant is to determine and incorporate the affirmative action goals for the
project into Supplemental Contract Condition No. 12. Supplemental Condition No. 15,
Archeological Discoveries and Cultural Resources, and Condition No. 16, Endangered
Species, may be superseded or modified by project specific conditions established during the
environmental review process.
These documents may confer certain duties and responsibilities on the consulting
engineer that are beyond, or short of, what the Applicant intends to delegate. The
Applicant should ensure that the contractual agreement with the Engineer provides for the
appropriate services. Otherwise the Applicant should revise the wording in these special
conditions to agree with actually delegated functions.
4. Good Business Practices
There are other contract provisions that the Applicant and Engineer need to include as a
matter of good business practice. It is recommended that provisions addressing the
following matters be included in the construction contract.
Page 5 of 46
TWDB-0550
Rev 09/19
(a) Specifying the time frame for accomplishing the construction of the project,and the
consequences of not completing on time,including liquidation damages.
(b) Specifying the type and dollar value of and documentation of insurance the Contractor
is to carry. At a minimum,the Contractor should carry worker's compensation,liability
and builder's risk insurance.
(c) Identifying the responsibility of the Contractor-responsibility and warranty of work.
(d) Price reduction for defective pricing of negotiated costs.
(e) Differing site conditions-notice and claims regarding site conditions differing from
indicated conditions.
(f) Covenants against contingent fees -prohibit contingent fees for securing business.
(g) Gratuities-prohibitions against offering and accepting gratuities.
(h) Audit and access records.
(i) Suspension of work-conditions under which the Applicant may suspend work.
(j) Termination-conditions under which the Applicant may terminate.
(k) Remedies-how disputes will be remedied.
5. Other Requirements
There may be other local government requirements and applicable Federal and State
statutes and regulations which are not included by these conditions. It is the Loan/Principal
Forgiveness Applicant's responsibility to ensure that the project and all contract
provisions are consistent with the relevant statutes and regulations.
6. Advertisements for Bids
State procurement statutes require advertising a contract for bid for at least two(2)
consecutive weeks. By not following this requirement,the project may need to be re-
advertised. The official advertisement for bids that is published in newspapers should include
certain information such as,but not limited to,the following:
(a) A clear description of what is being procured.
(b) How to obtain plans and specifications (P&S),necessary forms and information.
(c) The date and time by which bids are to be submitted(deadline).
(d) The address where bids are to be provided.
(e) This contract is contingent upon release of funds from the Texas Water Development
Board(TWDB).
(f) Any contract or contracts awarded under this Invitation for Bid(IFB),Request for
Proposals(RFP),or Request for Qualifications(RFQ)are expected to be funded in part
by financial assistance from the TWDB. Neither the U.S.Environmental Protection
Agency(EPA)or the State of Texas,nor any of its departments,agencies,or
employees,are or will be a party to this IFB,RFP,RFQ, or any resulting contract.
(g) For CWSRF, include—Any contract(s) awarded under this Invitation for Bids is/are
subject to the American Iron and Steel (AIS) requirements of Section 608 of the
Federal Water Pollution Control Act.
For DWSRF, include—Any contract(s) awarded under this Invitation for Bids is/are
subject to the American Iron and Steel(AIS) requirements of federal law, including
federal appropriation acts.
Page 6 of 46
TWDB-0550
Rev 09/19
(h) This contract is subject to the Environmental Protection Agency's (EPA)
Disadvantaged Business Enterprise(DBE)Program, which includes EPA-approved
fair share goals toward procurement of Minority and Women-owned Business
Enterprise (M/WBE) businesses. EPA rules require that applicants and prime
contractors make a good faith effort to award a fair share of contracts, subcontracts,
and procurements to M/WBEs through demonstration of the six affirmative steps.
For more details of the DBE Program and the current, applicable fair share goals,
please visit
http://www.twdb.texas.gov/dbe.
(i) Equal Opportunity in Employment-All qualified Applicants will receive
consideration for employment without regard to race,color,religion,sex (including
pregnancy), sexual orientation, gender identity,national origin,age(40 or older),
disability, or genetic information. Bidders on this work will be required to comply
with the Department of Labor regulations at 41 CFR Part 60-4,relating to
Construction Contractors--Affirmative Action Requirements,which include the
President's Executive Order No. 11246, as amended by Executive Order No. 11375
and Executive Order No. 13672, in the award and administration of contracts awarded
under TWDB financial assistance agreements. Failure by the Contractor to carry out
these requirements is a material breach, which may result in the termination of the
awarded financial assistance.
(j) Acknowledgement of any special requirements such as mandatory pre-bid conference.
(k) Right to reject any and all bids.
(1) Davis-Bacon prevailing wage requirements apply to the construction, alteration or
repair of treatment works carried out, in whole or in part,with assistance made
available by the Clean Water State Revolving Fund(CWSRF)or a construction
project fmanced,in whole or in part,from the Drinking Water State Revolving Fund
(DWSRF).
(m)The Davis-Bacon prevailing wage requirements apply to Contractors and Subcontractors
performing on federally funded or assisted contracts in excess of $2,000 for the
construction, alteration or repair (including painting)of a treatment works project under
the CWSRF or a construction project under the DWSRF.
(n) For prime contracts in excess of$100,000, Contractors and Subcontractors must also,
under the provisions of the Contract Work Hours and Safety Standards Act, as amended,
pay laborers and mechanics, including guards and watchmen,at least one and one-half
times their regular rate of pay for all hours worked over 40 in a workweek. The Fair
Labor Standards Act may also apply to Davis-Bacon covered contracts.
(o) Any contracts or subcontracts in excess of$2,000 must include the provisions of the
Davis-Bacon Wage Rate Requirements found in TWDB Guidance No. DB-0156.
(p) Wage Determinations -U.S. Department of Labor(DOL)wage determination must be
included in the bidding and contract documents. DOL wage determinations may be
obtained online at http://www.wdol.gov/.
Once it is determined that Davis-Bacon wage rates will apply to a construction contract,
the Applicant must state in the solicitation that Davis-Bacon prevailing wage rates are
applicable and bid packages must include the current Davis-Bacon general wage
determination for the area where construction will occur. While the solicitation remains
open,the Applicant must monitor www.wdol.gov on a weekly basis to ensure that the
wage determination contained in the solicitation remains current.
Page 7 of 46
TW DB-0550
Rev 09/19
The Applicant must amend the solicitation if the DOL issues a modification more than 10
days prior to the closing date (i.e. bid opening) for the solicitation. If DOL modifies or
supersedes the applicable wage determination less than 10 days prior to the closing date,
the Applicant may request a finding from TWDB that there is not reasonable time to
notify interested Contractors of the modification of the wage determination.
(q) For additional information on Davis-Bacon Wage Rate Requirements and its applicability
to this contract,please consult TWDB Guidance No. DB-0156.
7. Bid Proposal
The Bid proposal form should account for the following:
(a) If a lump sum bid, include a list of the materials used and associated costs.
(b) Distinguish Eligible and Ineligible items.
(c) Accommodate Trench Safety requirements with separate per unit pay item for trench
excavation safety protection,Health and Safety Code Chapter 756, Subchapter C.
(d) Include space for the Contractor to acknowledge receipt of each Addendum issued
during the bidding process.
8. Bidding Process
The Plans and Specifications, P&S,should include an explanation of how the bids will
be processed and should include the following components:
(a) Whether a Pre-bid Conference will be held,whether it is optional or mandatory,where
and when it will be held.
(b) Specify the criteria and process for determining responsiveness and responsibility of
the bidder.
(c) Specify the method of determining the successful bidder and award(e.g.,award to the
lowest responsive,responsible bidder,accounting for any multiple parts to bids).
(d) Allow for withdrawal of a bid due to a material mistake.
(e) Identify the time frame that the bids may be held by the Applicant before awarding a
contract(i.e.,typically for 60 or 90 days).
(f) Acknowledge right of the Applicant to reject any and all bids.
9. Debarment and Suspension Certification
Financial assistant recipients must fully comply with the requirements of Subpart C of 2 CFR
Part 180—"Responsibilities of Participants Regarding Transactions Doing Business with
Other Persons"-as implemented and supplemented by 2 CFR Part 1532. The recipient is
responsible for ensuring that any lower tier covered transaction, as described in Subpart B of
2 CFR Part 180— "Covered Transactions"—includes a term or condition requiring
compliance with Subpart C.
The recipient is fully responsible for requiring the inclusion of a similar term or condition in
any subsequent lower tier covered transactions.
Recipient acknowledges that failing to disclose the information required under 2 CFR
180.355 may result in the delay or negation of the financial assistance, or pursuance of legal
remedies including debarment and suspension.
Page 8 of 46
TWDB-0550
Rev 09/19
The recipient must complete and submit certification No.SRF-404:Debarment/
Suspension Certification, certifying that it has checked the federal System for Award
Management website(http://www.sam.gov) and determined that the Contractor is not an
"excluded party"that is debarred, suspended or otherwise excluded from participation in
federal assistance programs under Executive Order 12549, as required by 2 CFR Part 180
and 2 CFR Part 1532.
10. Release of Funds
Prior to the TWDB approval to issue a notice to proceed (NTP), and subsequent release of
funds for construction(according to program specific requirements), the Applicant and its
consultant shall provide the following bid documents:
(a) Submittal of Bid Documents to TWDB Project Engineer/Reviewer to allow
contingent award of contract:
Advertisement and Affidavit of advertisement,
Bid tabulation,
All Addenda submitted and approved for the contract,
Bid proposal of apparent low bidder(or chosen bidder with explanation)with bid bond,
Entity's Disadvantaged Business Enterprise forms TWDB 0216 and TWDB 373,
Contractor's Disadvantaged Business Enterprise forms TWDB 0216, 0217, and 0373
Site Certificate(ED-101),
Consulting engineer's recommendation to award letter,
A description of any bidding irregularities,
Construction inspection proposal,
Bidder's Certifications Form (WRD-255).
(b) Following contingent award of the contract,TWDB Project Engineer/Reviewer
should receive a bound copy of the executed contract documents (including
specifications). This document should include:
Executed agreement,
Contractor's Act of Assurance (TWDB Form ED -103),
Contractor's Act of Assurance Resolution(TWDB Form ED-104),
Payment and Performance Bonds (must be executed on or after the date of the
contract),
Contractor's Certificate of Insurance,
Sufficiency of Funds letter.
Page 9 of 46
TWDB-0550
Rev 09/19
After reviewing and approving the executed bid documents, the TWDB will issue an
authorization for the Applicant to issue a notice to proceed. At this time, TWDB staff can
begin releasing construction funds in accordance with program requirements.
Once construction begins,the Applicant must submit monthly,with each Outlay Request,the
following documents:
- DB-0154—Monthly Davis Bacon Wage Rate Certificate of Compliance.
- TWDB-1106-A—Monthly American Iron and Steel Certificate.
Failure to provide these certificates will result in denial of release of funds.
For any questions or proposed modifications to these conditions, please contact your TWDB
Project Engineer/Reviewer.
Page 10 of 46
TW DB-0550
Rev 09/19
II. INSTRUCTIONS TO BIDDERS
The language and conditions listed in this Section shall be included in the"Instructions to Bidders"
section of the construction contract documents.
1. Contingent Award of Contract
This contract is contingent upon release of funds from the Texas Water Development
Board. Any contract(s) awarded under this Invitation for Bids is/are expected to be funded
in part by a loan or loan with principal forgiveness from the Texas Water Development
Board and a grant from the United States Environmental Protection Agency, U.S. EPA.
Neither the State of Texas, the U.S. EPA, nor any of its departments, agencies, or
employees, are or will be a party to this Invitation for Bids or any resulting contract.
2. Disadvantaged Business Enterprise Goals
The Texas Water Development Board's (TWDB) Clean Water and Drinking
Water State Revolving Fund programs receive federal funds from the U. S.
Environmental Protection Agency(EPA). As a condition of federal grant awards, EPA
regulations require that loan recipients make a "good faith effort" to award a fair share
of work to Disadvantaged Business Enterprises (DBE) who are Minority Business
Enterprises (MBE's), and Women-owned Business Enterprises (WBE's) whenever procuring
construction, supplies, services and equipment. More information on DBE requirements is
available in the Supplemental Contract Conditions section of this guidance No. 14.
Disadvantaged Business Enterprises.
The current fair share goals for the State of Texas are as follows:
CATEGORY MBE WBE
Construction 19.44% 9.17%
Equipment 16.28% 11.45%
Services 20.41% 13.66%
Supplies 25.34% 8.82%
3. Davis-Bacon Wage Rate Requirements
(a) Davis-Bacon prevailing wage requirements apply to the construction, alteration or repair
of treatment works carried out, in whole or in part, with assistance made available by the
Clean Water State Revolving Fund(CWSRF)or a construction project financed, in whole
or in part, from the Drinking Water State Revolving Fund(DWSRF).
(b) The Davis-Bacon prevailing wage requirements apply to Contractors and Subcontractors
performing on federally funded or assisted contracts in excess of $2,000 for the
construction, alteration or repair (including painting)of a treatment works project under the
CWSRF or a construction project under the DWSRF.
(c) For prime contracts in excess of$100,000, Contractors and Subcontractors must also,under
the provisions of the Contract Work Hours and Safety Standards Act, as amended,pay
laborers and mechanics, including guards and watchmen, at least one and one-half times their
regular rate of pay for all hours worked over 40 in a workweek.
The Fair Labor Standards Act may also apply to Davis-Bacon covered contracts.
Page 11 of 46
TWDB-0550
Rev 09/19
(d) Any contracts in excess of$2,000 must include the provisions of the Davis-Bacon Wage
Rate Requirements. If the Owner(sub-recipient) is a governmental entity such as a city or
district, it must insert in full the contract clauses found in TWDB Guidance DB-0156,
Appendix 1: Section 3, Section 4 if the contract exceeds $100,000, and Section 5. If the
Owner(sub-recipient) is a non-governmental entity such as a water supply corporation or a
private company, it must insert in full the contract clauses found in TWDB Guidance DB-
0156, Appendix 2: Section 3, Section 4 if the contract exceeds $100,000, and Section 5.
The Owner(sub-recipient) must ensure all prime contracts require the same full text in any
subcontracts. See TWDB Guidance DB-0156 for the text of the contract language that must
be included.
Additional information on Davis-Bacon Wage Rate Requirements and its applicability to this
contract can be found in TWDB Guidance DB-0156.
4. American Iron and Steel
Any contract(s) awarded under this Invitation for Bids is/are subject to the American Iron and
Steel (AIS) requirements of 33 U.S.0 §1388 for Clean Water State Revolving Fund projects
or Public Law 114-113, Consolidated Appropriations Act,2016, or subsequent appropriations
acts, for Drinking Water State Revolving Fund projects. The Contractor must complete the
statement of understanding regarding this requirement, found in Supplemental Contract
Conditions,Item No. 9.
S. Equal Employment Opportunity and Affirmative Action
All qualified applicants will receive consideration for employment without regard to race,
color,religion, sex (including pregnancy), sexual orientation, gender identity, national
origin, age (40 or older), disability, or genetic information. Bidders on this work will
be required to comply with the Department of Labor regulations at 41 CFR Part 60-4,
relating to Construction Contractors--Affirmative Action Requirements,which include the
President's Executive Order No. 11246, as amended by Executive Order No. 11375 and
Executive Order No. 13672, in the award and administration of contracts awarded under
TWDB financial assistance agreements. Failure by the Contractor to carry out these
requirements is a material breach,which may result in the termination of the awarded
financial assistance.
6. Debarment and Suspension Certification
This contract is subject to the federal requirements of Subpart C of 2 CFR Part 180 and Part
1532 regarding Debarment and Suspension. The Contractor will comply with the assurances
provided with the bid that leads to a contract.
7. Bid Guarantee
Each bidder shall furnish a bid guarantee equivalent to five percent of the bid price(Water
Code 17.183). If a bid bond is provided, the Contractor shall utilize a surety company
which is authorized to do business in Texas in accordance with Surety Bonds and
Related Instruments,Chapter 3503 of the Insurance Code.
Page 12 of 46
TWDB-0550
Rev 09/19
Forms to be submitted with Bid:
• WRD-255, Bidder's Certifications regarding Equal Employment Opportunity and Non-
Segregated Facilities.
• SRF-404, Certification Regarding Debarment,Suspension and Other Responsibility Matters,
(to be completed and submitted by the sub-recipient).
• Disadvantaged Business Enterprise(DBE)Construction Contract Phase Forms
Form Prime Contractor Submit Form To
TWDB-0216 Required TWDB
TWDB-0217 Required TWDB
TWDB-0373 Required TWDB
Page 13 of 46
TWDB-0550
Rev 09/19
III. SUPPLEMENTAL CONTRACT CONDITIONS
1. Supersession
The Owner and the Contractor agree that the TWDB Supplemental Conditions apply to that
work eligible for Texas Water Development Board assistance to be performed under this
contract and these clauses supersede any conflicting provisions of this contract.
2. Privity of Contract
Funding for this project is expected to be provided in part by the Texas Water
Development Board. Neither the State of Texas, nor any of its departments, agencies or
employees is, or will be, a party to this contract or any lower tier contract. This contract is
subject to applicable provisions 31 TAC Chapter 371 (DWSRF)or 375 (CWSRF) in effect
on the date of the assistance award for this project.
3. Definitions
(a) The term"Owner"means the local entity contracting for the construction services.
(b) The term "TWDB" means the Executive Administrator of the Texas Water
Development Board, or other person who may be at the time acting in the capacity
or authorized to perform the functions of such Executive Administrator,or the authorized
representative thereof.
(c) The term"Engineer"means the engineer the Owner has authorized to work on the
project.
4. Laws to be Observed
In the execution of the Contract,the Contractor must comply with all applicable Local,
State and Federal laws, including but not limited to laws concerned with labor, safety,
minimum wages, and the environment. The Contractor shall make himself familiar
with and at all times shall observe and comply with all Federal, State, and Local laws,
ordinances and regulations which in any manner affect the conduct of the work, and shall
indemnify and save harmless the Owner, Texas Water Development Board, and their
representatives against any claim arising from violation of any such law, ordinance or
regulation by the Contractor,their Subcontractor or their employees.
5. Review by Owner and TWDB
(a) The Owner, authorized representatives and agents of the Owner, and TWDB shall, at
all times have access to and be permitted to observe and review all work,
materials, equipment, payrolls, personnel records, employment conditions, material
invoices, and other relevant data and records pertaining to this Contract, provided,
however that all instructions and approval with respect to the work will be given to the
Contractor only by the Owner through authorized representatives or agents.
(b) Any such inspection or review by the TWDB shall not subject the State of Texas,or its
representatives, to any action for damages.
Page 14 of 46
•
TWD B-0550
Rev 09/19
6. Performance and Payment Bonds
Each Contractor awarded a construction contract must furnish performance and
payment bonds:
(a) The performance bond shall include without limitation guarantees that work done
under the contract will be completed and performed according to approved plans and
specifications and in accordance with sound construction principles and practices;
(b) The performance and payment bonds shall be in a penal sum of not less than 100
percent of the contract price and remain in effect for one year beyond the date of
approval by the Engineer of the political subdivision; and
(c) The Contractor shall utilize a surety company which is authorized to do business in
Texas in accordance with Surety Bonds and Related Instruments, Chapter 3503 of the
Insurance Code.
7. Payment Schedule and Cost Breakdown
(a) The Contractor shall submit for approval immediately after execution of the
Agreement,a carefully prepared Progress Schedule, showing the proposed dates of
starting and completing each of the various sections of the work, the anticipated
monthly payments to become due to the Contractor,and the accumulated percent of
progress each month.
(b) The following paragraph applies only to contracts awarded on a lump sum contract
price:
COST BREAKDOWN- The Contractor shall submit to the Owner a detailed breakdown
of the estimated cost of all work to be accomplished under the contract, arranged and
itemized as to meet the approval of the Owner or funding agencies. This breakdown
shall be submitted promptly after execution of the agreement and before any payment
is made to the Contractor for the work performed under the contract. After
approval by the Owner the unit prices established in the breakdown shall be used in
estimating the amount of partial payments to be made to the Contractor.
8. Workman's Compensation Insurance Coverage (as applicable, consistent with
Texas Labor Code § 406.096)
(a) The Contractor shall certify in writing that the Contractor provides workers'
compensation insurance coverage for each employee of the Contractor employed on the
public project.
(b) Each Subcontractor on the public project shall provide such a certificate relating to
coverage of the Subcontractor's employees to the general Contractor, who shall
provide the Subcontractor's certificate to the governmental entity.
(c) A Contractor who has a contract that requires workers' compensation insurance
coverage may provide the coverage through a group plan or other method satisfactory
to the governing body of the governmental entity.
(d) The employment of a maintenance employee by an employer who is not engaging in
building or construction as the employer's primary business does not constitute
engaging in building or construction.
(e) In this section:
Page 15 of 46
TWDB-0550
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i. "Building or construction"includes:
• erecting or preparing to erect a structure, including a building, bridge,
roadway,public utility facility,or related appurtenance;
• remodeling,extending,repairing,or demolishing a structure;or
• otherwise improving real property or an appurtenance to real property
through similar activities.
ii. "Governmental entity" means this state or a political subdivision of this state.
The term includes a municipality.
9. American Iron & Steel
The following statement must be completed by the Contractor and made a part of the
agreement between the Owner and the Contractor:
The Contractor acknowledges to and for the benefit of the Owner("Purchaser") and the
Texas Water Development Board(TWDB) that it understands the goods and services under
this Agreement are being funded with monies made available by the Clean Water State
Revolving Fund and/or Drinking Water State Revolving Fund that have statutory
requirements commonly known as "American Iron and Steel"that requires all of the iron
and steel products used in the project to be produced in the United States ("American Iron
and Steel Requirement') including iron and steel products provided by the Contactor
pursuant to this Agreement. The Contractor hereby represents and warrants to and for the
benefit of the Owner and the TWDB that(a) the Contractor has reviewed and understands
the American Iron and Steel Requirement, (b)all of the iron and steel products used in the
project will be and/or have been produced in the United States in a manner that complies
with the American Iron and Steel Requirement, unless a waiver of the requirement is
approved, and(c) the Contractor will provide any further verified information, certification
or assurance of compliance with this paragraph, or information necessary to support a
waiver of the American Iron and Steel Requirement, as may be requested by the Owner or
the TWDB. Notwithstanding any other provision of this Agreement, any failure to comply
with this paragraph by the Contractor shall permit the Owner to enforce this Agreement and
recover as damages against the Contractor any loss, expense, or cost(including without .
limitation attorney's fees) incurred by the Owner resulting from any such failure (including
without limitation any impairment or loss of funding, whether in whole or in part,from the
TWDB or any damages owed to the TWDB by the Owner). While the Contractor has no
direct contractual privity with the TWDB, as a lender to the Owner for the funding of its
project, the Owner and the Contractor agree that the TWDB is a third party beneficiary and
neither this paragraph (nor any other provision of this Agreement necessary to give this
paragraph force or effect)shall be amended or waived without the prior written consent of
the TWDB.
Additional information on the American Iron and Steel (AIS) and its applicability to
this contract can be found in the TWDB-1106 guidance.
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It is recommended the Owner receive and maintain files documenting the Contractor's
use of AIS. Monthly compliance with AIS will be verified by the Owner through the
submittal of the TWDB form TWDB-1106-A.
10. Davis-Bacon Wage Rate Requirements
(a) Compliance Procedures
In order to be held in compliance and satisfy this federal requirement,the following must be
fulfilled:
i. Wage Determinations -U.S. Department of Labor(DOL) wage determination must be
included in the bidding and contract documents. DOL wage determinations may be obtained
online at http://www.wdol.gov/. Once it is determined that Davis-Bacon wage rates will
apply to a construction contract, the Owner must state in the solicitation that Davis-Bacon
prevailing wage rates are applicable and bid packages must include the current Davis-Bacon
general wage determination for the area where construction will occur. While the solicitation
remains open, the Owner must monitor www.wdol.gov on a weekly basis to ensure that the
wage determination contained in the solicitation remains current. The Owner must amend the
solicitation if the DOL issues a modification more than 10 days prior to the closing date(i.e.
bid opening) for the solicitation. If DOL modifies or supersedes the applicable wage
determination less than 10 days prior to the closing date,the Owner may request a finding
from the TWDB that there is not a reasonable time to notify interested Contractors of the
modification of the wage determination.
ii. Insert wage rate requirements in full for all contracts and subcontracts in excess of
$2,000 -If the Owner is a governmental entity such as a city or district, it must insert in full
the contract clauses shown below as Option 1: Section 3, Section 4 if the contract exceeds
$100,000, and Section 5. If the Owner is a non-governmental entity such as a water supply
corporation or a private company, it must insert in full the contract clauses shown below as
Option 2: Section 3, Section 4 if the contract exceeds $100,000, and Section 5. The Owner
must ensure all prime contracts require the same full text in any subcontracts.
iii. Monthly Certification—The Owner must complete and submit monthly a Davis Bacon
Wage Rate Certificate of Compliance once construction has begun. (Use Monthly Davis
Bacon Wa2e Rate Certificate of Compliance Submittal by Owner(Subrecipient)DB-
0154 .
iv. Contractor Payroll Requirements -The Contractor is required to pay the prevailing wage
rates on a weekly basis to laborers and mechanics in accordance with the requirements of 29
CFR 5.5,which are incorporated into the actual construction contract. Contractors/
Subcontractors must furnish weekly a statement with respect to the wages paid to each
employee during the preceding week. They may use the Department of Labor(DOL)Payroll
Form WH-347 and weekly Statement of Compliance on the reverse,or their own payroll form
with all of the same data elements as the DOL Payroll Form WH-347, and the TWDB's form,
Statement of Compliance Certification by Contractor for SRF, DB-0155. The DOL Payroll
Form WH-347 can be found under the forms section of this document or at the following link:
http://www.dol.gov/whd/programs/dbra/wh347.htm.
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v. Interviews-The Owner must periodically interview a sufficient number of employees
entitled to the Davis-Bacon prevailing wages to verify that Contractors or Subcontractors are
paying the appropriate wage rates. All interviews must be conducted in confidence. The
Owner must use Standard Form 1445 (SF 1445) found in the forms section of TWDB
guidance document TWDB-0156 or equivalent documentation to memorialize the interviews.
The Owner must establish and follow an interview schedule based on its assessment of the
risks of noncompliance with Davis-Bacon posed by Contractors or Subcontractors and the
duration of the contract or subcontract. The Owner must conduct more frequent interviews if
the initial interviews or other information indicated that there is a risk that the Contractor or
Subcontractor is not complying with Davis-Bacon. The Owner must immediately conduct
interviews in response to an alleged violation of the prevailing wage requirements.
vi. Payroll Records -Certified payroll records are required to be retained by the Owner and
Contractor for three years after completion of the construction project. The Owner must
periodically conduct spot checks of a representative sample of weekly payroll data to verify
that Contractors or Subcontractors are paying the appropriate wage rates.
vii. Wage Rate Poster—The Contractor must post the required Poster(WH-1321) and applicable
wage rates at the construction site. The wage rate poster may be found at under the forms
section of TWDB Guidance DB-0156 or at
http://www.dolgov/whd/programs/dbra/wh1321.htm.
viii. Report Violations—The Owner must immediately report violations of the Davis-Bacon
prevailing wage requirements to the EPA Davis-Bacon Coordinator listed in the assistance
agreement and to the appropriate DOL WHD Office listed at
http://www.dol.gov/dol/contact/index.htm.
(b) Subcontracts
The Contractor will insert in full the required wage rate requirement in any
subcontract in excess of$2,000 as specified in(a)(ii) of this section.
(c) Davis-Bacon General Wage Determinations
A "wage determination" is the listing of wage and fringe benefit for each classification
of laborers and mechanics which the Administrator of the Wage and Hour Division of
the U.S. DOL has determined to be prevailing in a given area for a construction. The
Davis-Bacon Wage Determinations are classified by the nature of the construction
projects performed, specifically listed as "schedules": residential,building, highway,
and heavy construction. A brief outline of the definitions for each schedule is listed
below.
• Construction Type: Heavy determination
This determination includes those projects that are not properly classified as either
"building," "highway," or"residential." Unlike these classifications,heavy construction is
not a homogenous classification. Because of this catch-all nature,projects within the heavy
classification may sometimes be distinguished on the basis of their particular project
characteristics, and separate schedules may be issued for dredging projects, water and sewer
line projects, dams,major bridges, and flood control projects.
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• Construction Type: Highway determination
This determination includes construction, alteration or repair of roads, streets, highways,
runways, taxiways, alleys,trails, paths,parking areas, and other similar projects not
incidental to building or heavy construction.
• Construction Type: Building determination
This determination includes construction of sheltered enclosures with walk-in access for the
purpose of housing persons,machinery, equipment or supplies; all construction of such
structures; the installation of utilities and of equipment, both above and below grade levels;
as well as incidental grading,utilities and paving. Such structures need not be "habitable" to
be building construction. Also,the installation of heavy machinery and/or equipment does
not generally change the project's character as a building.
• Construction Type: Residential
This determination includes the construction, alteration or repair of single-family houses,
apartment buildings of no more than four stories in height. This includes all incidental items
such as site work,parking areas,utilities, streets, and sidewalks.
The Owner should review their Contractor's wage decisions and confirm they provide an adequate
classification of the labor required for the specific construction contract. Most CWSRF and
DWSRF projects will fall under the"Heavy"construction type,but Owners should ask their
consulting Engineers if unsure. Some contracts or projects may require more than one general
schedule to be included depending on the nature and extent of the work(i.e. a building is constructed
in a water treatment facility). This is described in more detail in DOL's All Agency Memorandum
130 with Addendum 131. See the DOL's website
http://www.dol.gov/whd/programs/dbra/memorand.htm. In such cases,the TWDB would designate
the work to which each wage determination or part thereof applies per Federal Acquisition
Regulations (FAR) 22.404-2 thru 404-3
https://www.acqui sition.gov/browse/far/22?&searchTerms=Regulations+%28FAR%29+22.404-
2+thru+404-3 Should overlaps occur in the wage classification schedules for the contract(s), the
Owner may consider adopting the higher rate classification.
In all cases,the Owner is responsible to insure an adequate classification is provided to insure
compliance with the law. Where a Contractor alerts the Owner that the classification is inadequate,
the Owner should work with the Contractor and the DOL to address any valid concerns.
All questions regarding Davis-Bacon guidance can be directed to: U.S. Department of Labor Wage
and Hour Divisionl-866-4USWAGE(1-866-487-9243), TTY: 1-877-889-5627,Monday-Friday 8
a.m. to 8 p.m. Eastern Time.
If you require further information about Davis-Bacon and how to apply it to your project,please
contact the Texas Water Development Board Project Team Manager for your region or Clay
Schultz, Director,Regional Water Project Development, (512)463-6277.
The Owner and Contractor may obtain additional information on the Davis-Bacon Wage Rates
requirements in the TWDB's Guidance DB-0156— "Guidance on Davis-Bacon Wage Rate
Requirements".
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Option 1 - Applies to Governmental Entities (such as Cities and Districts)
1. Applicability of the Davis-Bacon(DB) prevailing wage requirements.
DB prevailing wage requirements apply to the construction, alteration, and repair of treatment works carried
out in whole or in part with assistance made available by the Clean Water State Revolving Fund and to any
construction project carried out in whole or in part by assistance made available by the Drinking Water State
Revolving Fund. If an Owner encounters a unique situation at a site that presents uncertainties regarding DB
applicability,the Owner must discuss the situation with the TWDB before authorizing work on that site.
2.Obtaining Wage Determinations.
(a)Owners shall obtain the wage determination for the locality in which a covered activity subject to DB will
take place prior to issuing requests for bids, proposals, quotes or other methods for soliciting contracts
(solicitation) for activities subject to DB. These wage determinations shall be incorporated into solicitations
and any subsequent contracts. Prime contracts must contain a provision requiring that Subcontractors follow
the wage determination incorporated into the prime contract.
(i) While the solicitation remains open,the Owner shall monitor www.wdol.gov weekly to ensure that
the wage determination contained in the solicitation remains current. The recipients shall amend
the solicitation if DOL issues a modification more than 10 days prior to the closing date(i.e. bid
opening) for the solicitation. If DOL modifies or supersedes the applicable wage determination
less than 10 days prior to the closing date,the Owners may request a finding from the TWDB that
there is not a reasonable time to notify interested Contractors of the modification of the wage
determination. The TWDB will provide a report of its findings to the Owner.
(ii) If the Owner does not award the contract within 90 days of the closure of the solicitation, any
modifications or supersedes DOL makes to the wage determination contained in the solicitation
shall be effective unless the TWDB,at the request of the Owner,obtains an extension of the 90 day
period from DOL pursuant to 29 CFR 1.6(c)(3)(iv). The Owner shall monitor www.wdol.gov on
a weekly basis if it does not award the contract within 90 days of closure of the solicitation to
ensure that wage determinations contained in the solicitation remain current.
(b)If the Owner carries out activity subject to DB by issuing a task order,work assignment or similar instrument
to an existing Contractor(ordering instrument)rather than by publishing a solicitation, the Owner shall insert
the appropriate DOL wage determination from www.wdol.gov into the ordering instrument.
(c) Owners shall review all subcontracts subject to DB entered into by prime Contractors to verify that the
prime Contractor has required its Subcontractors to include the applicable wage determinations.
(d) As provided in 29 CFR 1.6(f), DOL may issue a revised wage determination applicable to an Owner's
contract after the award of a contract or the issuance of an ordering instrument if DOL determines that the
Owner has failed to incorporate a wage determination or has used a wage determination that clearly does not
apply to the contract or ordering instrument. If this occurs, the Owner shall either terminate the contract or
ordering instrument and issue a revised solicitation or ordering instrument or incorporate DOL's wage
determination retroactive to the beginning of the contract or ordering instrument by change order. The Owner's
Contractor must be compensated for any increases in wages resulting from the use of DOL's revised wage
determination.
3. Contract and Subcontract provisions.
(a) The Owner(s) shall insert in full in any contract in excess of$2,000 which is entered into for the actual
construction,alteration and/or repair,including painting and decorating,of a treatment work under the CWSRF
or a construction project under the DWSRF financed in whole or in part from Federal funds or in accordance
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with guarantees of a Federal agency or financed from funds obtained by pledge of any contract of a Federal
agency to make a loan,grant or annual contribution(except where a different meaning is expressly indicated),
and which is subject to the labor standards provisions of any of the acts listed in 29 CFR 5.1, the Water
Resources Reform and Development Act of 2014 for a CWSRF-funded project or the Consolidated
Appropriations Act,2016(or subsequent federal law)for a DWSRF-funded project,the following clauses:
(1)Minimum wages.
(i)All laborers and mechanics employed or working upon the site of the work 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 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.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of
the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or
mechanics,subject to the provisions of paragraph(a)(1)(iv)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 shall be paid the appropriate wage rate and fringe
benefits on the wage determination for the classification of work actually performed, without regard to
skill, except as provided in 29 CFR 5.5(a)(4). 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 classification
and wage rates conformed under paragraph (a)(1)(ii) of this section) and the Davis-Bacon poster (WH-
1321) shall 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.
Owners may obtain wage determinations from the U.S.Department of Labor's web site,www.dol.gov.
(ii)(A) The Owner(s), on behalf of EPA, shall 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 shall
be classified in conformance with the wage determination. The TWDB shall approve a request for an
additional classification and wage rate and fringe benefits therefore 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 utilized 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) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or
their representatives, and the Owner(s) agree on the classification and wage rate (including the amount
designated for fringe benefits where appropriate), documentation of the action taken and the request,
including the local wage determination shall be sent by the Owner(s)to the TWDB.
The TWDB will transmit the request, to the Administrator of the Wage and Hour Division, Employment
Standards Administration,U.S.Department of Labor,Washington,DC 20210 and to the EPA DB Regional
Coordinator concurrently. The Administrator, or an authorized representative, will approve, modify, or
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disapprove every additional classification request within 30 days of receipt and so advise the TWDB or
will notify the TWDB within the 30-day period that additional time is necessary.
(C) In the event the Contractor, the laborers or mechanics to be employed in the classification or their
representatives,and the Owner(s)do not agree on the proposed classification and wage rate(including the
amount designated for fringe benefits,where appropriate),the TWDB shall refer the request and the local
wage determination,including the views of all interested parties and the recommendation of the TWDB,to
the Administrator for determination. The request shall be sent to the EPA DB Regional Coordinator
concurrently. The Administrator,or an authorized representative,will issue a determination within 30 days
of receipt of the request and so advise the contracting officer or will notify the contracting officer within
the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs
(a)(1)(ii)(B)or(C)of this section,shall 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.
(iii) 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 shall either pay the benefit
as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent
thereof.
(iv)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,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.
(2) Withholding. The Owner(s) shall, upon written request of the EPA Award Official or an authorized
representative of the Department of Labor,withhold or cause to be withheld from the Contractor under this
contract or any other Federal contract with the same prime Contractor, or any other federally-assisted
contract subject to Davis-Bacon prevailing wage requirements,which is held by the same prime Contractor,
so much of the accrued payments or advances as may be considered necessary to pay laborers and
mechanics, including apprentices,trainees,and helpers, employed by the Contractor or any Subcontractor
the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic,
including any apprentice,trainee,or helper,employed or working on the site of the work,all or part of the
wages required by the contract,the EPA may, after written notice to the Contractor, sponsor,applicant,or
Owner,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.
(3)Payrolls and basic records.
(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the work and
preserved for a period of three years thereafter for all laborers and mechanics working at the site of the
work. Such records shall contain the name, address,and social security number of each such worker,his
or her correct classification,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 section 1(b)(2)(B)of the
Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid.
Whenever the Secretary
of Labor has found under 29 CFR 5.5(a)(1)(iv) 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
section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records which show that the
commitment to provide such benefits is enforceable, that the plan or program is financially responsible,
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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.Contractors
employing apprentices or trainees under approved programs shall maintain written evidence of the
registration of apprenticeship programs and certification of trainee programs, the registration of the
apprentices and trainees,and the ratios and wage rates prescribed in the applicable programs.
(ii)(A)The Contractor shall submit weekly,for each week in which any contract work is performed,a copy
of all payrolls to the Owner,that is,the entity that receives the funds from the TWDB. Such documentation
shall be available on request of the TWDB or EPA. As to each payroll copy received, the Owner shall
provide written confirmation in a form satisfactory to the TWDB indicating whether the project is in
compliance with the requirements of 29 CFR 5.5(a)(1) based on the most recent payroll copies for the
specified week. The payrolls shall set out accurately and completely all of the information required to be
maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall
not be included on the weekly payrolls. Instead the payrolls shall only need to include an individually
identifying number for each employee(e.g., the last four digits of the employee's social security number).
The required weekly payroll information may be submitted in any form desired. Optional Form WH-347
is available for this purpose from the Wage and Hour Division Web site at
http://www.dol.gov/whd/forms/wh347instr.htm or its successor site. The prime Contractor is responsible
for the submission of copies of payrolls by all Subcontractors. Contractors and Subcontractors shall
maintain the full social security number and current address of each covered worker and shall provide them
upon request to the Owner(s) for transmission to the TWDB or EPA if requested by EPA,the TWDB,the
Contractor,or the Wage and Hour Division of the Department of Labor for purposes of an investigation or
audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime
Contractor to require a Subcontractor to provide addresses and social security numbers to the prime
Contractor for its own records,without weekly submission to the Owner(s).
(B)Each payroll submitted shall be accompanied by a"Statement of Compliance,"signed by the Contractor
or Subcontractor or his or her agent who pays or supervises the payment of the persons employed under
the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under § 5.5
(a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under § 5.5
(a)(3)(i)of Regulations,29 CFR part 5, and that such information is correct and complete;
(2)That each laborer or mechanic(including each helper,apprentice,and trainee)employed 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 Regulations, 29 CFR part 3;
(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 of work performed, as specified in the applicable wage
determination incorporated into the contract.
(C) The weekly submission of a properly executed certification set forth on the reverse side of Optional
Form WH-347 shall satisfy the requirement for submission of the"Statement of Compliance"required by
paragraph(a)(3)(ii)(B)of this section.
(D)The falsification of any of the above certifications may subject the Contractor or Subcontractor to civil
or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.
(iii) The Contractor or Subcontractor shall make the records required under paragraph (a)(3)(i) of this
section available for inspection,copying,or transcription by authorized representatives of the TWDB,EPA
or the Department of Labor,and shall permit such representatives to interview employees during working
hours on the job. If the Contractor or Subcontractor fails to submit the required records or to make them
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available,the EPA or TWDB may,after written notice to the Contractor,sponsor,applicant,or Owner,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
may be grounds for debarment action pursuant to 29 CFR 5.12.
(4)Apprentices and trainees
(i)Apprentices.Apprentices will be permitted to work at less than the predetermined rate for the work they
performed 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 Training, Employer and Labor Services, or with a State Apprenticeship Agency
recognized by the Office,or if a person is employed in his or her first 90 days of probationary employment
as an apprentice in such an apprenticeship program,who is not individually registered in the program, but
who has been certified by the Office of Apprenticeship Training,Employer and Labor Services or a State
Apprenticeship Agency(where appropriate)to be eligible for probationary employment as an apprentice.
The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be
greater than the ratio permitted to the Contractor as to the entire work force under the registered program.
Any worker listed on a payroll at an apprentice wage rate,who is not registered or otherwise employed as
stated above, shall 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 the registered program shall be paid not less than the applicable wage
rate on the wage determination for the work actually performed. Where a Contractor is performing
construction on a project in a locality other than that in which its program is registered,the ratios and wage
rates (expressed in percentages of the journeyman's hourly rate) specified in the Contractor's or
Subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the
rate specified in the registered program for the apprentice's level of progress,expressed as a percentage of
the journeymen hourly rate specified in the applicable wage determination.Apprentices shall 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, fringes shall be paid in accordance with that
determination.In the event the Office of Apprenticeship Training,Employer and Labor Services,or a State
Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the
Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate
for the work performed until an acceptable program is approved.
(ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the
predetermined rate for the work performed unless they are employed pursuant to and individually registered
in a program which has received prior approval,evidenced by formal certification by the U.S. Department
of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site
shall not be greater than permitted under the plan approved by the Employment and Training
Administration. Every trainee must be paid at not less than the rate specified in the approved program for
the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the
applicable wage determination.Trainees shall be paid fringe benefits in accordance with the provisions of
the trainee program.
If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe
benefits listed on the wage determination unless the Administrator of the Wage and Hour Division
determines that there is an apprenticeship program associated with the corresponding journeyman wage
rate on the wage determination which provides for less than full fringe benefits for apprentices. Any
employee listed on the payroll as a trainee rate who is not registered and participating in a training plan
approved by the Employment and Training Administration shall be paid not less than the applicable wage
rate on the wage determination for the classification of work actually performed. In addition,any trainee
performing work on the job site in excess of the ratio permitted under the registered program shall be paid
not less than the applicable wage rate on the wage determination for the work actually performed. In the
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event the Employment and Training Administration withdraws approval of a training program, the
Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for
the work performed until an acceptable program is approved.
(iii)Equal employment opportunity.The utilization of apprentices,trainees and journeymen under this part
shall 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 shall insert in any subcontracts the clauses contained in
29 CFR 5.5(a)(1)through(10)and such other clauses as the EPA determines may by appropriate,and also
a clause requiring the Subcontractors to include these clauses in any lower tier subcontracts. The prime
Contractor shall be responsible for the compliance by any Subcontractor or lower tier Subcontractor with
all the contract clauses in 29 CFR 5.5.
(7) Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for
termination of the contract,and for debarment as a Contractor and a Subcontractor as provided in 29 CFR
5.12.
(8) Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations of the
Davis-Bacon and Related Acts contained in 29 CFR parts 1, 3,and 5 are herein incorporated by reference
in this contract.
(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 Owner(s),TWDB,EPA,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 he or she) 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 section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a
Government contract by virtue of section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(iii)The penalty for making false statements is prescribed in the U.S.Criminal Code, 18 U.S.C. 1001.
4. Contract Provision for Contracts in Excess of$100,000.
(a) Contract Work Hours and Safety Standards Act. The Owner shall insert the following clauses set forth in
paragraphs(a)(1),(2),(3),and(4)of this section in full in any contract in an amount in excess of$100,000 and
subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall
be inserted in addition to the clauses required by Item 3, above or 29 CFR 4.6. As used in this paragraph, the
terms laborers and mechanics include watchmen and guards.
(1) Overtime requirements.No Contractor or Subcontractor contracting for any part of the contract work
which may require or involve the employment of laborers or mechanics shall require or permit any such
laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of
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forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than
one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
(2)Violation;liability for unpaid wages;liquidated damages.In the event of any violation of the clause set
forth in paragraph(a)(1)of this section the Contractor and any Subcontractor responsible therefore shall be
liable for the unpaid wages. In addition, such Contractor and Subcontractor shall be liable to the United
States (in the case of work done under contract for the District of Columbia or a territory, to such District
or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to
each individual laborer or mechanic,including watchmen and guards,employed in violation of the clause
set forth in paragraph(a)(1)of this section,in the sum of$10 for each calendar day on which such individual
was required or permitted to work in excess of the standard workweek of forty hours without payment of
the overtime wages required by the clause set forth in paragraph(a)(1)of this section.
(3) Withholding for unpaid wages and liquidated damages. The Owner, upon written request of the EPA
Award Official or an authorized representative of the Department of Labor, shall withhold or cause to be
withheld, from any moneys payable on account of work performed by the Contractor or Subcontractor
under any such contract or any other Federal contract with the same prime Contractor, or any other
federally-assisted contract subject to the Contract Work Hours and Safety Standards Act,which is held by
the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of
such Contractor or Subcontractor for unpaid wages and liquidated damages as provided in the clause set
forth in paragraph(a)(2)of this section.
(4) Subcontracts. The Contractor or Subcontractor shall insert in any subcontracts the clauses set forth in
paragraph(a)(1)through(4) of this section and also a clause requiring the Subcontractors to include these
clauses in any lower tier subcontracts. The prime Contractor shall be responsible for compliance by any
Subcontractor or lower tier Subcontractor with the clauses set forth in paragraphs(a)(1)through(4)of this
section.
(b)In addition to the clauses contained in Item 3,above,in any contract subject only to the Contract Work
Hours and Safety Standards Act and not to any of the other statutes cited in 29 CFR 5.1, the Owner shall
insert a clause requiring that the Contractor or Subcontractor shall maintain payrolls and basic payroll
records during the course of the work and shall preserve them for a period of three years from the
completion of the contract for all laborers and mechanics, including guards and watchmen,working on the
contract. Such records shall contain the name and address of each such employee,social security number,
correct classifications,hourly rates of wages paid, daily and weekly number of hours worked, deductions
made, and actual wages paid. Further, the Owner shall insert in any such contract a clause providing that
the records to be maintained under this paragraph shall be made available by the Contractor or
Subcontractor for inspection, copying, or transcription by authorized representatives of the EPA,TWDB,
and the Department of Labor, and the Contractor or Subcontractor will permit such representatives to
interview employees during working hours on the job.
5. Compliance Verification
(a) The Owner shall periodically interview a sufficient number of employees entitled to DB prevailing wages
(covered employees) to verify that Contractors or Subcontractors are paying the appropriate wage rates. As
provided in 29 CFR 5.6(a)(6), all interviews must be conducted in confidence. The Owner must use Standard
Form 1445 (SF 1445) found in the forms section of TWDB guidance document TWDB-0156 or
equivalent documentation to memorialize the interviews. Copies of the SF 1445 are also available from EPA
on request.
(b) The Owner shall establish and follow an interview schedule based on its assessment of the risks of
noncompliance with DB posed by Contractors or Subcontractors and the duration of the contract or subcontract.
Owners must conduct more frequent interviews if the initial interviews or other information indicated that there
is a risk that the Contractor or Subcontractor is not complying with DB.
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Owners shall immediately conduct interviews in response to an alleged violation of the prevailing wage
requirements.All interviews shall be conducted in confidence."
(c)The Owner shall periodically conduct spot checks of a representative sample of weekly payroll data to verify
that Contractors or Subcontractors are paying the appropriate wage rates.The Owner shall establish and follow
a spot check schedule based on its assessment of the risks of noncompliance with DB posed by Contractors or
Subcontractors and the duration of the contract or subcontract. At a minimum,if practicable,the Owner should
spot check payroll data within two weeks of each Contractor or Subcontractor's submission of its initial payroll
data and two weeks prior to the completion date the contract or subcontract. Owners must conduct more
frequent spot checks if the initial spot check or other information indicates that there is a risk that the Contractor
or Subcontractor is not complying with DB. In addition, during the examinations the Owner shall verify
evidence of fringe benefit plans and payments there under by Contractors and Subcontractors who claim credit
for fringe benefit contributions.
(d) The Owner shall periodically review Contractors and Subcontractor's use of apprentices and trainees to
verify registration and certification with respect to apprenticeship and training programs approved by either the
U.S Department of Labor or a state, as appropriate, and that Contractors and Subcontractors are not using
disproportionate numbers of, laborers, trainees and apprentices. These reviews shall be conducted in
accordance with the schedules for spot checks and interviews described in Item 5(b)and(c)above.
(e) Owners must immediately report potential violations of the DB prevailing wage requirements to the EPA
Region 6 DB Coordinator, TWDB, and to the appropriate DOL Wage and Hour District Office listed at
http://www.dol.gov/whd/america2.htm.
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Option 2 -Applies to Non-Governmental Entities (such as Water Supply
Corporations and Private Companies)
1. Applicability of the Davis-Bacon(DB)prevailing wage requirements.
DB prevailing wage requirements apply to the construction, alteration, and repair of treatment works carried
out in whole or in part with assistance made available by the CWSRF and to any construction project carried
out in whole or in part by assistance made available by the DWSRF. If an Owner encounters a unique situation
at a site that presents uncertainties regarding DB applicability, the Owner must discuss the situation with the
TWDB before authorizing work on that site.
2. Obtaining Wage Determinations.
(a) Owners must obtain proposed wage determinations for specific localities at www.wdol.gov. After the
Owner obtains its proposed wage determination, it must submit the wage determination to the TWDB for
approval prior to inserting the wage determination into a solicitation, contract or issuing task orders, work
assignments or similar instruments to existing Contractors (ordering instruments unless subsequently directed
otherwise by the TWDB.)
(b) Owners shall obtain the wage determination for the locality in which a covered activity subject to DB will
take place prior to issuing requests for bids, proposals, quotes or other methods for soliciting contracts
(solicitation) for activities subject to DB. These wage determinations shall be incorporated into solicitations
and any subsequent contracts. Prime contracts must contain a provision requiring that Subcontractors follow
the wage determination incorporated into the prime contract.
(i) While the solicitation remains open,the Owner shall monitor www.wdol.gov on a weekly basis to
ensure that the wage determination contained in the solicitation remains current. The recipients
shall amend the solicitation if DOL issues a modification more than 10 days prior to the closing
date (i.e. bid opening) for the solicitation. If DOL modifies or supersedes the applicable wage
determination less than 10 days prior to the closing date,the Owners may request a finding from
the TWDB that there is not a reasonable time to notify interested Contractors of the modification
of the wage determination. The TWDB will provide a report of its findings to the Owner.
(ii) If the Owner does not award the contract within 90 days of the closure of the solicitation, any
modifications or supersedes DOL makes to the wage determination contained in the solicitation
shall be effective unless the TWDB, at the request of the Owner, obtains an extension of the 90-
day period from DOL pursuant to 29 CFR 1.6(c)(3)(iv). The Owner shall monitor www.wdol.gov
on a weekly basis if it does not award the contract within 90 days of closure of the solicitation to
ensure that wage determinations contained in the solicitation remain current.
(c)If the Owner carries out activity subject to DB by issuing a task order,work assignment or similar instrument
to an existing Contractor(ordering instrument)rather than by publishing a solicitation,the Owner shall insert
the appropriate DOL wage determination from www.wdol.gov into the ordering instrument.
(d) Owners shall review all subcontracts subject to DB entered into by prime Contractors to verify that the
prime Contractor has required its Subcontractors to include the applicable wage determinations.
(e) As provided in 29 CFR 1.6(f), DOL may issue a revised wage determination applicable to an Owner's
contract after the award of a contract or the issuance of an ordering instrument if DOL determines that the
Owner has failed to incorporate a wage determination or has used a wage determination that clearly does not
apply to the contract or ordering instrument.
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If this occurs, the Owner shall either terminate the contract or ordering instrument and issue a revised
solicitation or ordering instrument or incorporate DOL's wage determination retroactive to the beginning of the
contract or ordering instrument by change order. The Owner's Contractor must be compensated for any
increases in wages resulting from the use of DOL's revised wage determination.
3. Contract and Subcontract provisions.
(a) The Owner(s) shall insert in full in any contract in excess of$2,000 which is entered into for the actual
construction,alteration and/or repair,including painting and decorating,of a treatment work under the CWSRF
or a construction project under the DWSRF financed in whole or in part from Federal funds or in accordance
with guarantees of a Federal agency or financed from funds obtained by pledge of any contract of a Federal
agency to make a loan,grant or annual contribution(except where a different meaning is expressly indicated),
and which is subject to the labor standards provisions of any of the acts listed in 29 CFR 5.1, the Water
Resources Reform and Development Act of 2014 for a CWSRF-funded project or the Consolidated
Appropriations Act,2016(or subsequent federal law) for a DWSRF-funded project,the following clauses:
(1)Minimum wages.
(i)All laborers and mechanics employed or working upon the site of the work 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 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.
Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of
the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or
mechanics,subject to the provisions of paragraph(a)(1)(iv)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 shall be paid the appropriate wage rate and fringe
benefits on the wage determination for the classification of work actually performed, without regard to
skill, except as provided in 29 CFR 5.5(a)(4). 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 classification
and wage rates conformed under paragraph (a)(1)(ii) of this section) and the Davis-Bacon poster (WH-
1321) shall 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.
Owners may obtain wage determinations from the U.S. Department of Labor's web site,www.dol.gov.
(ii)(A) The Owner(s), on behalf of EPA, shall 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 shall
be classified in conformance with the wage determination. The TWDB shall approve a request for an
additional classification and wage rate and fringe benefits therefore 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 utilized in the area by the construction industry;and
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(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) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or
their representatives, and the Owner(s) agree on the classification and wage rate (including the amount
designated for fringe benefits where appropriate), documentation of the action taken and the request,
including the local wage determination shall be sent by the Owner(s) to the TWDB. The TWDB will
transmit the request, to the Administrator of the Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Washington, DC 20210 and to the EPA DB Regional
Coordinator concurrently. The Administrator, or an authorized representative, will approve, modify, or
disapprove every additional classification request within 30 days of receipt and so advise the TWDB or
will notify the TWDB within the 30-day period that additional time is necessary.
(C) In the event the Contractor, the laborers or mechanics to be employed in the classification or their
representatives,and the Owner(s)do not agree on the proposed classification and wage rate(including the
amount designated for fringe benefits, where appropriate),the TWDB shall refer the request and the local
wage determination,including the views of all interested parties and the recommendation of the TWDB,to
the Administrator for determination. The request shall be sent to the EPA DB Regional Coordinator
concurrently.The Administrator,or an authorized representative,will issue a determination within 30 days
of receipt of the request and so advise the contracting officer or will notify the contracting officer within
the 30-day period that additional time is necessary.
(D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs
(a)(1)(ii)(B)or(C)of this section, shall 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.
•
(iii) 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 shall either pay the benefit
as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent
thereof.
(iv)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,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.
(2) Withholding. The Owner(s) shall, upon written request of the EPA Award Official or an authorized
representative of the Department of Labor,withhold or cause to be withheld from the Contractor under this
contract or any other Federal contract with the same prime Contractor, or any other federally-assisted
contract subject to Davis-Bacon prevailing wage requirements,which is held by the same prime Contractor,
so much of the accrued payments or advances as may be considered necessary to pay laborers and
mechanics,including apprentices, trainees,and helpers, employed by the Contractor or any Subcontractor
the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic,
including any apprentice,trainee,or helper,employed or working on the site of the work,all or part of the
wages required by the contract,the EPA may,after written notice to the Contractor, sponsor,applicant,or
Owner,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.
(3)Payrolls and basic records.
(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of
the work and preserved for a period of three years thereafter for all laborers and mechanics working at the
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site of the work. Such records shall contain the name, address, and social security number of each such
worker,his or her correct classification,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 section
1(b)(2)(B)of the Davis-Bacon Act),daily and weekly number of hours worked,deductions made and actual
wages paid.Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv)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 section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall 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. Contractors employing apprentices or trainees under approved programs shall maintain
written evidence of the registration of apprenticeship programs and certification of trainee programs, the
registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable
programs.
(ii)(A)The Contractor shall submit weekly,for each week in which any contract work is performed,a copy
of all payrolls to the Owner,that is,the entity that receives the funds from the TWDB. Such documentation
shall be available on request of the TWDB or EPA. As to each payroll copy received, the Owner shall
provide written confirmation in a form satisfactory to the TWDB indicating whether or not the project is in
compliance with the requirements of 29 CFR 5.5(a)(1) based on the most recent payroll copies for the
specified week. The payrolls shall set out accurately and completely all of the information required to be
maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall
not be included on the weekly payrolls. Instead the payrolls shall only need to include an individually
identifying number for each employee(e.g., the last four digits of the employee's social security number).
The required weekly payroll information may be submitted in any form desired. Optional Form WH-347
is available for this purpose from the Wage and Hour Division Web site at
http://www.dol.gov/whd/forms/wh347instr.htm or its successor site. The prime Contractor is responsible
for the submission of copies of payrolls by all Subcontractors. Contractors and Subcontractors shall
maintain the full social security number and current address of each covered worker and shall provide them
upon request to the Owner(s) for transmission to the TWDB or EPA if requested by EPA,the TWDB,the
Contractor,or the Wage and Hour Division of the Department of Labor for purposes of an investigation or
audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime
Contractor to require a Subcontractor to provide addresses and social security numbers to the prime
Contractor for its own records,without weekly submission to the Owner(s).
(B)Each payroll submitted shall be accompanied by a"Statement of Compliance,"signed by the Contractor
or Subcontractor or his or her agent who pays or supervises the payment of the persons employed under
the contract and shall certify the following:
(1) That the payroll for the payroll period contains the information required to be provided under § 5.5
(a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under § 5.5
(a)(3)(i)of Regulations,29 CFR part 5,and that such information is correct and complete;
(2)That each laborer or mechanic(including each helper,apprentice,and trainee)employed 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 Regulations,29 CFR part 3;
(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 of work performed, as specified in the applicable wage
determination incorporated into the contract.
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(C) The weekly submission of a properly executed certification set forth on the reverse side of Optional
Form WH-347 shall satisfy the requirement for submission of the"Statement of Compliance"required by
paragraph(a)(3)(ii)(B)of this section.
(D)The falsification of any of the above certifications may subject the Contractor or Subcontractor to civil
or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code.
(iii) The Contractor or Subcontractor shall make the records required under paragraph (a)(3)(i) of this
section available for inspection,copying,or transcription by authorized representatives of the TWDB,EPA
or the Department of Labor,and shall permit such representatives to interview employees during working
hours on the job. If the Contractor or Subcontractor fails to submit the required records or to make them
available,the EPA or TWDB may,after written notice to the Contractor,sponsor,applicant,or Owner,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
may be grounds for debarment action pursuant to 29 CFR 5.12.
(4)Apprentices and trainees
(i)Apprentices.Apprentices will be permitted to work at less than the predetermined rate for the work they
performed 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 Training, Employer and Labor Services, or with a State Apprenticeship Agency
recognized by the Office,or if a person is employed in his or her first 90 days of probationary employment
as an apprentice in such an apprenticeship program,who is not individually registered in the program, but
who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State
Apprenticeship Agency(where appropriate)to be eligible for probationary employment as an apprentice.
The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be
greater than the ratio permitted to the Contractor as to the entire work force under the registered program.
Any worker listed on a payroll at an apprentice wage rate,who is not registered or otherwise employed as
stated above, shall 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 the registered program shall be paid not less than the applicable wage
rate on the wage determination for the work actually performed. Where a Contractor is performing
construction on a project in a locality other than that in which its program is registered,the ratios and wage
rates (expressed in percentages of the journeyman's hourly rate) specified in the Contractor's or
Subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the
rate specified in the registered program for the apprentice's level of progress,expressed as a percentage of
the journeymen hourly rate specified in the applicable wage determination.Apprentices shall 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, fringes shall be paid in accordance with that
determination.In the event the Office of Apprenticeship Training,Employer and Labor Services,or a State
Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the
Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate
for the work performed until an acceptable program is approved.
(ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the
predetermined rate for the work performed unless they are employed pursuant to and individually registered
in a program which has received prior approval,evidenced by formal certification by the U.S.Department
of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site
shall not be greater than permitted under the plan approved by the Employment and Training
Administration. Every trainee must be paid at not less than the rate specified in the approved program for
the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the
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applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of
the trainee program. If the trainee program does not mention fringe benefits,trainees shall be paid the full
amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour
Division determines that there is an apprenticeship program associated with the corresponding journeyman
wage rate on the wage determination which provides for less than full fringe benefits for apprentices.Any
employee listed on the payroll at a trainee rate who is not registered and participating in a training plan
approved by the Employment and Training Administration shall be paid not less than the applicable wage
rate on the wage determination for the classification of work actually performed. In addition, any trainee
performing work on the job site in excess of the ratio permitted under the registered program shall be paid
not less than the applicable wage rate on the wage determination for the work actually performed. In the
event the Employment and Training Administration withdraws approval of a training program, the
Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for
the work performed until an acceptable program is approved.
(iii)Equal employment opportunity.The utilization of apprentices,trainees and journeymen under this part
shall 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 shall insert in any subcontracts the clauses contained in
29 CFR 5.5(a)(1)through(10)and such other clauses as the EPA determines may by appropriate,and also
a clause requiring the Subcontractors to include these clauses in any lower tier subcontracts. The prime
Contractor shall be responsible for the compliance by any Subcontractor or lower tier Subcontractor with
all the contract clauses in 29 CFR 5.5.
(7) Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for
termination of the contract,and for debarment as a Contractor and a Subcontractor as provided in 29 CFR
5.12.
(8) Compliance with Davis-Bacon and Related Act requirements. All rulings and interpretations of the
Davis-Bacon and Related Acts contained in 29 CFR parts 1,3,and 5 are herein incorporated by reference
in this contract.
(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 Owner(s),TWDB,EPA,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 he or she) 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 section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a
Government contract by virtue of section 3(a)of the Davis-Bacon Act or 29 CFR 5.12(a)(1).
(iii)The penalty for making false statements is prescribed in the U.S.Criminal Code, 18 U.S.C. 1001.
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4. Contract Provision for Contracts in Excess of$100,000.
(a) Contract Work Hours and Safety Standards Act. The Owner shall insert the following clauses set forth in
paragraphs(a)(1),(2),(3),and(4)of this section in full in any contract in an amount in excess of$100,000 and
subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall
be inserted in addition to the clauses required by Item 3, above or 29 CFR 4.6. As used in this paragraph, the
terms laborers and mechanics include watchmen and guards.
(1) Overtime requirements. No Contractor or Subcontractor contracting for any part of the contract work
which may require or involve the employment of laborers or mechanics shall require or permit any such
laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of
forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than
one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
(2)Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set
forth in paragraph(a)(1)of this section the Contractor and any Subcontractor responsible therefore shall be
liable for the unpaid wages. In addition, such Contractor and Subcontractor shall be liable to the United
States(in the case of work done under contract for the District of Columbia or a territory, to such District
or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to
each individual laborer or mechanic, including watchmen and guards,employed in violation of the clause
set forth in paragraph(a)(1)of this section,in the sum of$10 for each calendar day on which such individual
was required or permitted to work in excess of the standard workweek of forty hours without payment of
the overtime wages required by the clause set forth in paragraph(a)(1)of this section.
(3)Withholding for unpaid wages and liquidated damages. The Owner shall upon the request of the EPA
Award Official or an authorized representative of the Department of Labor, withhold or cause to be
withheld, from any moneys payable on account of work performed by the Contractor or Subcontractor
under any such contract or any other Federal contract with the same prime Contractor, or any other
federally-assisted contract subject to the Contract Work Hours and Safety Standards Act,which is held by
the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of
such Contractor or Subcontractor for unpaid wages and liquidated damages as provided in the clause set
forth in paragraph(a)(2)of this section.
(4) Subcontracts. The Contractor or Subcontractor shall insert in any subcontracts the clauses set forth in
paragraph(a)(1)through(4)of this section and also a clause requiring the Subcontractors to include these
clauses in any lower tier subcontracts. The prime Contractor shall be responsible for compliance by any
Subcontractor or lower tier Subcontractor with the clauses set forth in paragraphs(a)(1)through(4)of this
section.
(b)In addition to the clauses contained in Item 3,above,in any contract subject only to the Contract Work
Hours and Safety Standards Act and not to any of the other statutes cited in 29 CFR 5.1,the Owner shall
insert a clause requiring that the Contractor or Subcontractor shall maintain payrolls and basic payroll
records during the course of the work and shall preserve them for a period of three years from the
completion of the contract for all laborers and mechanics,including guards and watchmen,working on the
contract. Such records shall contain the name and address of each such employee,social security number,
correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions
made, and actual wages paid. Further, the Owner shall insert in any such contract a clause providing that
the records to be maintained under this paragraph shall be made available by the Contractor or
Subcontractor for inspection,copying, or transcription by authorized representatives of the EPA,TWDB,
and the Department of Labor, and the Contractor or Subcontractor will permit such representatives to
interview employees during working hours on the job.
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5. Compliance Verification
(a)The Owner shall periodically interview a sufficient number of employees entitled to DB prevailing
wages (covered employees) to verify that Contractors or Subcontractors are paying the appropriate
wage rates. As provided in 29 CFR 5.6(a)(6), all interviews must be conducted in confidence. The
Owner must use Standard Form 1445 (SF 1445) found in the forms section of TWDB guidance
document TWDB-0156 or equivalent documentation to memorialize the interviews. Copies of the SF
1445 are also available from EPA on request.
The Owner shall establish and follow an interview schedule based on its assessment of the risks
of noncompliance with DB posed by Contractors or Subcontractors and the duration of the contract
or subcontract. Owners must conduct more frequent interviews if the initial interviews or other
information indicated that there is a risk that the Contractor or Subcontractor is not complying with
DB. Owners shall immediately conduct interviews in response to an alleged violation of the prevailing
wage requirements. All interviews shall be conducted in confidence."
(c) The Owner shall periodically conduct spot checks of a representative sample of weekly payroll
data to verify that Contractors or Subcontractors are paying the appropriate wage rates. The Owner
shall establish and follow a spot check schedule based on its assessment of the risks of noncompliance
with DB posed by Contractors or Subcontractors and the duration of the contract or subcontract. At a
minimum, if practicable the Owner should spot check payroll data within two weeks of each
Contractor or Subcontractor's submission of its initial payroll data and two weeks prior to the
completion date the contract or subcontract. Owners must conduct more frequent spot checks if the
initial spot check or other information indicates that there is a risk that the Contractor or Subcontractor
is not complying with DB. In addition, during the examinations the Owner shall verify evidence of
fringe benefit plans and payments there under by Contractors and Subcontractors who claim credit for
fringe benefit contributions.
(d) The Owner shall periodically review Contractors and Subcontractor's use of apprentices and
trainees to verify registration and certification with respect to apprenticeship and training programs
approved by either the U.S Department of Labor or a state, as appropriate, and that Contractors and
Subcontractors are not using disproportionate numbers of, laborers, trainees and apprentices. These
reviews shall be conducted in accordance with the schedules for spot checks and interviews described
in Item 5(b) and(c) above.
(e) Owners must immediately report potential violations of the DB prevailing wage requirements to
the EPA Region 6 DB Coordinator, TWDB, and to the appropriate DOL Wage and Hour District
Office listed at http://www.dol.gov/whd/america2.htm.
11. Payments
(a) Progress Payments:
i. The Contractor shall prepare their requisition for progress payment as of the last day
of the payment month and submit it,with the required number of copies,to the
Engineer for review. Except as provided in paragraph(iii)of this subsection, the
amount of the payment due to the Contractor shall be determined by adding to the
total value of work completed to date,the value of materials properly stored on the
site and deducting(1) five percent(5%)minimum of the total amount, as a retainage
and(2)the amount of all previous payments. The total value of work completed to
date shall be based on the actual or estimated quantities of work completed and on the
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unit prices contained in the agreement(or cost breakdown approved pursuant to
section 7.b relating to lump sum bids) and adjusted by approved change orders. The
value of materials properly stored on the site shall be based upon the estimated
quantities of such materials and the invoices prices.
Copies of all invoices shall be available for inspection by the Engineer.
ii. The Contractor shall be responsible for the care and protection of all materials and
work upon which payments have been made until final acceptance of such work and
materials by the Owner. Such payments shall not constitute a waiver of the right of
the Owner to require the fulfillment of all terms of the contract and the delivery of all
improvements embraced in the contract complete and satisfactory to the Owner in all
details.
iii. This clause applies to contracts when the Owner is a District or Authority. The
retainage shall be ten(10%)percent minimum of the amount otherwise due until at
least fifty(50%) of the work has been completed. After the project is fifty(50%)
percent completed, and if the District or Authority's Board finds that satisfactory
progress is being made, then the District may authorize any of the remaining progress
payments to be made in full. The District is not obligated to pay interest earned on
the first 50% of work completed(Texas Water Code Sec. 49.276(d)).
iv. The five(5%)percent retainage of the progress payments due to the Contractor may
not be reduced until the building of the project is substantially complete and a
reduction in the retainage has been authorized by the TWDB.
(b) Withholding Payments. The Owner may withhold from any payment otherwise due to
the Contractor so much as may be necessary to protect the Owner and if so elects may
also withhold any amounts due from the Contractor to any Subcontractors or material
dealers for work performed or material furnished by them. The foregoing provisions
shall be construed solely for the benefit of the Owner and will not require the Owner to
determine or adjust any claims or disputes between the Contractor and his Subcontractors
or material dealers, or to withhold any monies for their protection unless the Owner
elects to do so.
The failure or refusal of the Owner to withhold any monies from the Contractor shall in
no way impair the obligations of any surety or sureties under any bond or bonds
furnished under this contract.
(c) Payments Subject to Submission of Certificates. Each payment to the Contractor by the
Owner shall be made subject to submission bythe Contractor of all written certifications
J
required of him and his Subcontractors by general and special conditions pertaining to
this contract.
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(d) Final Payment.
i. Upon satisfactory completion of the work performed under this contract,
as a condition before final payment under this contract or as a termination settlement
under this contract the Contractor shall execute and deliver to the Owner a release of
all claims against the Owner arising under, or by virtue of, this contract, except
claims which are specifically exempted by the Contractor to be set forth therein.
Unless otherwise provided in this contract,by State law or otherwise expressly
agreed to by the parties to this contract, final payment under this contract or
settlement upon termination of this contract shall not constitute a waiver of the
Owner's claims against the Contractor or his sureties under this contract or applicable
performance and payment bonds.
ii. After final inspection and acceptance by the Owner of all work under the contract,the
Contractor shall prepare their requisition for final payment which shall be based upon
the carefully measured or computed quantity of each item of work at the applicable
unit prices stipulated in the Agreement or cost breakdown(if lump sum), as adjusted
by approved change orders. The total amount of the final payment due the Contractor
under this contract shall be the amount computed as described above less all previous
payments.
iii. The retainage and its interest earnings, if any, shall not be paid to the Contractor until
the TWDB has authorized a reduction in,or release of,retainage on the contract
work.
iv. Withholding of any amount due to the Owner,under general and/or special
conditions regarding"Liquidated Damages," shall be deducted from the final
payment due the Contractor.
12.Equal employment opportunity and affirmative action
This provision applies to Clean Water State Revolving Fund Program and
Drinking Water State Revolving Fund projects where the contract agreement is
for more than$10,000.
During the performance of this contract,the Contractor agrees as follows:
(1)The Contractor will not discriminate against any employee or applicant for
employment because of race, color, religion, sex (including pregnancy), sexual
orientation, gender identity, national origin, age(40 or older), disability, or genetic
information. The Contractor will take affirmative action to ensure that applicants
are employed, and that employees are treated during employment,without regard
to their race, color,religion, sex, sexual orientation, gender identity, or national
origin. Such action shall include,but not be limited to the following: employment,
upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for
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training, including apprenticeship.
The Contractor agrees to post in conspicuous places, available to employees and
applicants for employment,notices to be provided by the contracting officer
setting forth the provisions of this nondiscrimination clause.
(2) The Contractor will, in all solicitations or advancements for employees placed by
or on behalf of the Contractor, state that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex, sexual
orientation, gender identity, or national origin.
(3) The Contractor will not discharge or in any other manner discriminate against any
employee or applicant for employment because such employee or applicant has
inquired about, discussed, or disclosed the compensation of the employee or
applicant or another employee or applicant. This provision shall not apply to
instances in which an employee who has access to the compensation information
of other employees or applicants as a part of such employee's essential job
functions discloses the compensation of such other employees or applicants to
individuals who do not otherwise have access to such information,unless such
disclosure is in response to a formal complaint or charge, in furtherance of an
investigation, proceeding, hearing, or action, including an investigation conducted
by the employer, or is consistent with the Contractor's legal duty to furnish
information.
(4) The Contractor will send to each labor union or representative of workers with which
the Contractor has a collective bargaining agreement or other contract or understanding,
a notice,to be provided by the agency contracting officer, advising the labor union or
workers'representative of the Contractor's commitments under Section 202 of
Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice
in conspicuous places available to employees and applicants for employment.
(5) The Contractor will comply with all provisions of Executive Order No. 11246 of Sept.
24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
(6) The Contractor will furnish all information and reports required by Executive Order No.
11246 of September 24, 1965, and by the rules,regulations, and orders of the Secretary
of Labor, or pursuant thereto, and will permit access to his books,records, and accounts
by the contracting agency and the Secretary of Labor for purposes of investigation to
ascertain compliance with such rules,regulations, and orders.
(7) In the event of the Contractor's noncompliance with the nondiscrimination clauses
of this contract or with any of such rules, regulations, or orders,this contract may
be cancelled, terminated, or suspended in whole or in part and the Contractor may
be declared ineligible for further Government contracts in accordance with
procedures authorized in Executive Order No. 11246 of Sept. 24, 1965, and such
other sanctions may be imposed and remedies invoked as provided in Executive
Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the
Secretary of Labor, or as otherwise provided by law.
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(8) The Contractor will include the provisions of paragraphs (1) through (8) in every
subcontract or purchase order unless exempted by rules, regulations, or orders of
the Secretary of Labor issued pursuant to Section 204 of Executive Order No.
11246 of September 24, 1965, so that such provisions will be binding upon each
Subcontractor or vendor. The Contractor will take such action with respect to any
subcontract or purchase order as may be directed by the Secretary of Labor as a
means of enforcing such provisions including sanctions for noncompliance:
Provided, however,that in the event the Contractor becomes involved in, or is
threatened with, litigation with a Subcontractor or vendor as a result of such
direction,the Contractor may request the United States to enter into such litigation
to protect the interests of the United States.
Whenever the Contractor, or any Subcontractor at any tier, subcontracts a portion of
the work involving any construction trade, it shall physically include in each
subcontract in excess of$10,000 the provisions of these specifications and the notice
which contains the applicable goals set for minority and female participation and
which is set forth in the solicitations from which this contract resulted.
13.Debarment and Suspension
This provision applies only to Clean Water State Revolving Fund Equivalency Program
projects and Drinking Water State Revolving Fund projects. This contract is subject to
the Title 40 Code of Federal Regulations Part 32 concerning Debarment and Suspension.
The Contractor will comply with the assurances provided with the bid that led to this
contract.
Instructions for Certification
(a) By signing and submitting this proposal, the prospective lower tier participant is
providing the certification set out below.
(b) The certification in this clause is a material representation of fact upon which
reliance was placed when this transaction was entered into. If it is later
determined that the prospective lower tier participant knowingly rendered an
erroneous certification, in addition to other remedies available to the Federal
Government the department or agency with which this transaction originated may
pursue available remedies, including suspension and/or debarment.
(c) The prospective lower tier participant shall provide immediate written notice to the
person to whom this proposal is submitted if at any time the prospective lower tier
participant learns that its certification was erroneous when submitted or had become
erroneous by reason of changed circumstances.
(d) The terms covered transaction, debarred, suspended, ineligible, lower tier covered
transaction, participant,person, primary covered transaction, principal, proposal, and
voluntarily excluded, as used in this clause, have the meaning set out in the
Definitions and Coverage sections of rules implementing Executive Order 12549.
You may contact the person to which this proposal is submitted for assistance in
obtaining a copy of those regulations.
(e) The prospective lower tier participant agrees by submitting this proposal that, should
the proposed covered transaction be entered into, it shall not knowingly enter into any
lower tier covered transaction with a person who is proposed for debarment under 48
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CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily
excluded from participation in this covered transaction,
unless authorized by the department or agency with which this transaction originated.
(f) The prospective lower tier participant further agrees by submitting this proposal
that it will include this clause titled"Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,"without
modification, in all lower tier covered transactions and in all solicitations for lower
tier covered transactions.
(g) A participant in a covered transaction may rely upon a certification of a
prospective participant in a lower tier covered transaction that it is not proposed for
debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or
voluntarily excluded from covered transactions, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it
determines the eligibility of its principals. Each participant may, but is not required
to, check the List of Parties Excluded from Federal Procurement and Non-
procurement Programs.
(h) Nothing contained in the foregoing shall be construed to require establishment of a
system of records in order to render in good faith the certification required by this
clause. The knowledge and information of a participant is not required to exceed
that which is normally possessed by a prudent person in the ordinary course of business
dealings.
(i) Except for transactions authorized under paragraph (e) of these instructions, if a
participant in a covered transaction knowingly enters into a lower tier covered
transaction with a person who is proposed for debarment under 48 CFR part 9, subpart
9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal Government, the
department or agency with which this transaction originated may pursue available
remedies, including suspension and/or debarment.
Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower
Tier Covered Transactions.
(1) The prospective lower tier participant certifies, by submission of this proposal, that
neither it nor its principals are presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from participation in this
transaction by any Federal department or agency.
(2)Where the prospective lower tier participant is unable to certify to any of the
statements in this certification, such prospective participant shall attach an
explanation to this proposal.
14. Disadvantaged Business Enterprises
The Texas Water Development Board's (TWDB) Clean Water and Drinking Water
State Revolving Fund programs receive federal funds from the U. S. Environmental
Protection Agency(EPA). As a condition of federal grant awards,EPA regulations
require that loan recipients make a"good faith effort" to award a fair share of work to
DBE's who are Minority Business Enterprises (MBE's), and Women-owned Business
Enterprises (WBE's)whenever procuring construction, supplies, services and
equipment.
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The current fair share goals for the State of Texas are as follows:
Category MBE WBE
Construction 19.44% 9.17%
Equipment 16.28% 11.45%
Services 20.41% 13.66%
Supplies 25.34% 8.82%
After loan commitment,but prior to closing, Owners(Applicants)must provide forms
TWDB-0216 and TWDB-0373. The project's Prime Engineer, Financial Advisor, and
Bond Counsel must complete a TWDB-0217 form and indicate if any subcontracting
opportunities will be available or if the Contractor will be self-performing the contract.
Regardless of the procurement's outcome, all entities must submit a TWDB-0373 and list
the Contractors selected by the Owner for the project. Failure to include a Contractor and
contract amount will result in denial of payment until the proper documentation has been
reviewed and approved.
For each construction contract, Owners are required to submit a TWDB-0216 and TWDB-
0373 for the procurement of the project's Prime Contractor. If the Prime Contractor is
utilizing Subcontractors for the project,then additional TWDB-0216 and TWDB-0373
forms will be required for submittal prior to request for payment.
The following forms are required for each contract:
Form Prime Contractor Submit Form To
TWDB-0216 Required TWDB
TWDB-0217 Required TWDB
TWDB-0373 Required TWDB
(a) The Contractor shall, if awarding sub-agreements, to the extent appropriate for the
goals listed in the instructions to bidders make a good faith effort to award a fair share
of work to DBE's who are Minority Business Enterprises (MBE's) and Women-owned
Business Enterprises (WBE's) as sources of supplies, construction, equipment and
services by taking the following steps:
i. Ensure DBEs are made aware of contracting opportunities by including qualified
small, minority, and women's businesses on solicitation lists;
ii. Assuring that small, minority, and women's businesses are solicited whenever they
are potential sources;
iii. Dividing total requirements, when economically feasible, into small tasks or
quantities to permit maximum participation of small,minority, and women's
businesses;
iv. Establishing delivery schedules,where the requirements of the work permit,which
will encourage participation by small,minority, and women's businesses; and
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v. Using the services and assistance of the Small Business Administration,Minority
Business Development Agency of the U.S. Department of Commerce, and Texas
Marketplace, as appropriate.
15. Archeological Discoveries and Cultural Resources
No activity which may affect properties listed or properties eligible for listing in the
National Register of Historic Places or eligible for designation as a State Archeological
Landmark is authorized until the Owner has complied with the provisions of the National
Historic Preservation Act and the Antiquities Code of Texas.
The Owner has previously coordinated with the appropriate agencies and impacts to
known cultural or archeological deposits have been avoided or mitigated. However, the
Contractor may encounter unanticipated cultural or archeological deposits during
construction.
If archeological sites or historic structures which may qualify for designation as a State
Archeological Landmark according to the criteria in 13 TAC Chapter 26, or that may be
eligible for listing on the National Register of Historic Places in accordance with 36 CFR
Part 800, are discovered after construction operations are begun, the Contractor shall
immediately cease operations in that particular area and notify the Owner, the TWDB,
and the Texas Historical Commission, 1511 N. Colorado St., P.O. Box 12276, Capitol
Station,Austin, Texas 78711-2276. The Contractor shall take reasonable steps to protect
and preserve the discoveries until they have been inspected by the Owner's representative
and the TWDB. The Owner will promptly coordinate with the State Historic
Preservation Officer and any other appropriate agencies to obtain any necessary
approvals or permits to enable the work to continue. The Contractor shall not resume
work in the discovery until authorized to do so by the Owner.
16. Endangered Species
No activity is authorized that is likely to jeopardize the continued existence of a
threatened or endangered species as listed or proposed for listing under the Federal
Endangered Species Act(ESA), and/or the State of Texas Parks and Wildlife Code on
Endangered Species, or to destroy or adversely modify the habitat of such species.
If a threatened or endangered species is encountered during construction, the Contractor
shall immediately cease work in the area of the encounter and notify the Owner, who will
immediately implement actions in accordance with the ESA and applicable State statutes.
These actions shall include reporting the encounter to the TWDB, the U. S. Fish and
Wildlife Service, and the Texas Parks and Wildlife Department, obtaining any necessary
approvals or permits to enable the work to continue, or implement other mitigation
actions. The Contractor shall not resume construction in the area of the encounter until
authorized to do so by the Owner.
17. Hazardous Materials
Materials utilized in the project shall be free of any hazardous materials, except as may
be specifically provided for in the specifications.
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If the Contractor encounters existing material on sites owned or controlled by the Owner
or in material sources that are suspected by visual observation or smell to contain
hazardous materials,the Contractor shall immediately notify the Engineer and the
Owner.
The Owner will be responsible for the testing and removal or disposal of hazardous
materials on sites owned or controlled by the Owner. The Owner may suspend the
work, wholly or in part during the testing, removal or disposal of hazardous materials
on sites owned or controlled by the Owner.
18. Project Signage
The Owner must implement one of the signage options below as described in TWDB
Guidance TWDB-1109:
• Online signage placed on community website or social media outlet;
• Press release;
• Posters or wall signage in a public building or location;
• Newspaper or periodical advertisement for project construction, groundbreaking
ceremony, or operation of the new or improved facility; or
• Standard on-site signage erected in a prominent location at the construction project
site or along a major thoroughfare within the community as directed by the Owner.
If a recipient decides on a public or media event to publicize the accomplishment of
significant events related to construction of the project, the U.S Environmental Protection
Administration, Region 6, must be provided with at least a ten working day notice of the
event and provided the opportunity to attend and participate. Please contact Associate
Director Claudia Hosch, who can be reached at(214) 665-6464 or
Hosch.Claudia@epa.gov.
19. Changes
*Provisions identified with an asterisk below are consistent with Local Government Code
271.060. Counties and Municipalities may modify the identified provisions,when
applicable, to conform to Local Government Code 262.031 (Counties) or 252.048
(Municipalities).
(a) The Owner may at any time, without notice to any surety,by written order designated or
indicated to be a change order,make changes in the work within the general scope of the
contract, including but not limited to changes:
i. In the specifications (including drawings and designs);
ii. In the time,method or manner of performance of the work;
iii. To decrease or increase the quantity of work to be performed or materials,
equipment or supplies to be furnished;
(b) *The total price of a contract may not be increased by a change order unless provision
has been made for the payment of the added cost by the appropriation of current funds or
bond funds for that purpose, by the authorization of the issuance of certificates, or by a
combination of those procedures.
(c) *A contract with an original contract price of$1 million or more may not be increased by
more than 25 percent. If a change order for a contract with an original contract price of
less than $1 million increases the contract amount to $1 million or more, subsequent
change orders may not increase the revised contract amount by more than 25 percent.
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(d) *A governing body may grant authority to an official or employee responsible for
purchasing or for administering a contract to approve a change order that involves an
increase or decrease of$50,000 or less.
(e) Changes that involve an increase in price will be supported by documentation of the cost
components. For projects funded through the EDAP program, or with grant proceeds,
TWDB staff may request this information to be provided in a format equivalent to the
Cost and Pricing Information form(No. WRD-277).
(f) Any change orders involving a change in the project requiring a relocation of project
components, sizing, or process may require additional environmental approval. A map
and description of the proposed changes should be sent to the TWDB Environmental
Reviewer for coordination and approval as soon as possible to avoid any delay.
20.Operation and Maintenance Manuals and Training
(a) The Contractor shall obtain installation, operation, and maintenance manuals from
manufacturers and suppliers for equipment furnished under the contract. The
Contractor shall submit three copies of each complete manual to the Engineer within 90
days after approval of shop drawings,product data, and samples, and not later than the
date of shipment of each item of equipment to the project site or storage location.
(b) The Owner shall require the Engineer to promptly review each manual submitted,
noting necessary corrections and revisions. If the Engineer rejects the manual, the
Contractor shall correct and resubmit the manual until it is acceptable to the Engineer as
being in conformance with the design concept of the project and for compliance
with information given in the Contract Documents. Owner may assess the Contractor
a charge for reviews of the same items in excess of three (3) times. Such procedure
shall not be considered cause for delay.
(c) Acceptance of manuals by Engineer does not relieve the Contractor of any requirements
of terms of Contract.
(d) The Contractor shall provide the services of trained, qualified technicians to check
final equipment installation, to assist as required in placing same in operation, and to
instruct operating personnel in the proper manner of performing routine operation and
maintenance of the equipment.
(e) Operations and maintenance manuals specified hereinafter are in addition to any
operation, maintenance, or installation instructions required by the Contractor to install,
test, and start-up the equipment. Each manual is to be bound in a folder and labeled to
identify the contents and project to which it applies. The manual shall contain the
following applicable items:
i. A listing of the manufacturer's identification, including order number,
model, serial number,and location of parts and service centers.
ii. A list of recommended stock of parts,including part number and quantity.
iii. Complete replacement parts list.
iv. Performance data and rating tables.
v. Specific instructions for installation,operation,adjustment,and maintenance.
vi. Exploded view drawings for major equipment items.
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vii. Lubrication requirements.
viii. Complete equipment wiring diagrams and control schematics with terminal
identification.
21.As-Built Dimensions and Drawings
(a) Contractor shall make appropriate daily measurements of facilities constructed and
keep accurate records of location(horizontal and vertical)of all facilities.
(b) Upon completion of each facility, the Contractor shall furnish the Owner with one set of
direct prints, marked with red pencil, to show as-built dimensions and locations of all
work constructed. As a minimum,the final drawings shall include the following:
i. Horizontal and vertical locations of work.
ii. Changes in equipment and dimensions due to substitutions.
iii. "Nameplate"data on all installed equipment.
iv. Deletions,additions,and changes to scope of work.
v. Any other changes made.
22. Close-Out Procedures
To close-out the contract and release final retainage,the following steps must be
completed:
(a) TWDB Staff must conduct a construction contract final inspection (CCFI);
(b) The following submittals must be received, reviewed, and accepted by the TWDB:
i. The final change order, adjustment of quantities, or a statement that all change
orders have previously been submitted and there will be no more change orders;
ii. The final pay request from the Contractor;
iii. An affidavit by the Contractor that all bills have been paid;
iv. Certification by the consulting Engineer that the work has been completed and
was constructed in accordance with the approved plans and specifications and
sound engineering principals and construction practices;
v. Acceptance of the project by the Owner in the form of a written resolution or
other formal action;
vi. Notification of the beginning date of the warranty period for the contract; and
vii. Confirmation that the Owner has received the as-built drawings from the
Contractor.
(c) TWDB will issue a Certificate of Approval allowing the release of retainage.
23. Additional Forms and Information
The following forms and guidance documents, mentioned throughout this Guidance, are
available on the TWDB site at: http://www.twdb.texas.gov/financial/instructions/index.asp
Forms:
Contractor's Act of Assurance (ED-103)
Contractor's Resolution on Authorized Representative(ED-104)
Debarment/Suspension Certification (SRF-404)
Bidder's Certifications-EEO (WRD—255)
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TWDB-0550
Rev 09/19
DBE Affirmative Steps solicitation Report(TWDB 0216)
DBE Prime Contractor Affirmative Steps Certification& Goals (TWDB 0217)
DBE Loan/Grant Participation Summary(TWDB 0373)
Monthly American Iron and Steel Certificate(TWDB-1106-A)
American Iron and Steel (AIS)De Minimis Log (TWDB-1106-B)
Monthly Davis Bacon Wage Rate Certificate of Compliance Submittal by Owner(Sub-
Recipient) (DB-0154)
Guidance Documents:
TWDB-0210 Disadvantaged Business Enterprise Guidance
Requirements for American Iron and Steel (AIS) Guidance(TWDB-1106)
Guidance on Davis-Bacon Wage Rate Requirements for State Revolving Fund Projects
(DB-0156)
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