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HomeMy WebLinkAboutExhibitManagement Agreement By and Between The City Of Miami And FCAA, LLC For The NE 2"d Avenue/Design District, B-78513 Department of Capital Improvements 444 SW 2nd Avenue, 8th Floor Miami, Florida 33130 {30163379;1} THIS MANAGEMENT AGREEMENT (hereinafter "the Agreement"), made and entered into this day of March, 2015 by and between the City of Miami, Florida, a Florida municipal corporation (hereinafter, the "City"), and FCAA, LLC, a Delaware limited liability company doing business in the State of Florida, (hereinafter, "Manager" or "FCAA"). WITNESSETH: WHEREAS, the City desires to enter into an Agreement for the enhancements to portions of County -owned public rights -of -way along NE 2nd Avenue, from NE 38t1' to NE 42"d Street that is in a designated Enterprise Zone within the Miami Design District (the "Project"), and WHEREAS, Manager represents that it possesses the requisite expertise and desires to enter into an Agreement to act as the manager to provide the services as set forth herein; and WHEREAS, pursuant to the applicable provisions of Chapter 163, Florida Statutes, Section 3.9 of the Miami 21 Code, and per Ordinance No. 13412, adopted on October 24, 2013, amending Ordinance No. 13335, which was adopted on July 26, 2012, the City Commission approved a Management Agreement in conjunction with the Miami Design District Retail Street Special Area Plan ("SAP") which Management Agreement requires that FCAA's affiliates undertake certain improvements in the public infrastructure and the public right-of-ways; and WHEREAS, this Agreement serves a municipal purpose and primarily effectuates a public purpose furthering the general health, safety and welfare of the City as it enhances, improves and embellishes the public infrastructure and right-of-ways, and thoroughfares in the "Design District" of the City which is with each passing day becoming a more renown District which benefits the City and South Florida with premier design and decoration related establishments, and further offers arts and crafts, fine restaurants, boutique and fine interior design stores, among many other attractions to residents, guests and visitors; and WHEREAS, the 2014 Legislature of the State of Florida, from the funds provided in Specific Appropriation 2242A, allocated a total of $2,000,000.00 as follows: $1,000,000.00 of nonrecurring funds from the State Economic Enhancement and Development Trust Fund and $1,000,000.00 of nonrecurring general revenue funds, to the City of Miami for public infrastructure improvements within the Miami Design District located in the Enterprise Zone ("State Grant"); and WHEREAS, the State Grant is contingent upon the City of Miami and/or Miami Dade County providing a fifty percent match in either the form of a cash contribution or a capital project that benefits the area; and WHEREAS, the City is providing a match in the form of a capital project that benefits the area, in enhancements to portions of County -owned public rights -of -way along NE 2"d Avenue, between NE 42nd Street and NE 51st Street, in the Miami Design District ("City {30163379;1} Match"), in order to secure the State Grant proceeds in the amount of $2,000,000.00 from the State of Florida; and WHEREAS, this Agreement implements the expenditure of a sum not to exceed $2,000,000.00 to be expended solely on work within the public infrastructure and right-of-ways, which money is not a charge against the general funds or accounts of the City, but is limited to the $2,000,000.00 State Grant funds allocated from the funds provided in Specific Appropriation 2242A in the 2014 Legislature of the State of Florida; and WHEREAS, Manager has agreed to retain The Redland Company, Inc. ("Contractor") to perform the work identified in the project scope, as described herein below, within the available funds and cover the costs of any funding shortfalls to complete the desired improvements; and WHEREAS, the City Commission has authorized the City Manager to execute and enter into this Agreement by its adoption of Resolution No. 15- on March 26, 2015; NOW THEREFORE, in consideration of the mutual covenants set forth herein the City and Manager, agree as follows: Section 1 - Terms and Conditions 1. Incorporation by Reference; Overview The foregoing recitals, the Exhibits to this Agreement, and the prior Agreements, ordinances and resolutions referenced in this Agreement are all deemed as being incorporated by reference herein as if set forth in full in this Section of the Agreement. This Agreement covers the services of Manager for the procurement and completion of the construction of the right-of- way improvements, through the Contractor (as defined below) which consists of enhancements to portions of County -owned public rights -of -way along NE 2nd Avenue, from NE 38th to NE 42nd Street that is in a designated Enterprise Zone within the Miami Design District (the "Project"). This work includes the design, permitting, and installation of roadway construction, drainage, underground utilities, pavement markings, pavers and concrete, traffic signal and signage, street lights, landscaping and irrigation (the "Work"). The Work under this Agreement will be solely performed over areas which are owned by a public agency (e.g. City, County or State). No work under this Agreement will be performed on privately owned property. The Work is more fully described in the plans and specifications included in Attachment "A" (the "Project Plans"). 2. Intention of City It is the intent of City to have the Project constructed in accordance with the Project Plans and in accordance with all codes and regulations governing construction of the Project. Any work, materials or equipment that may reasonably be inferred from the Project Plans as being required to produce the intended result shall be supplied by Manager, through its Contractor, whether or not specifically called for. When words, which have a well-known technical or trade meaning, are used to describe work, materials or equipment, such words shall be interpreted in {30163379;1)2 accordance with that meaning. Reference to standard specifications, manuals, or codes of any technical society, organization or association, or to the laws or regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual, code or laws or regulations in effect at the time of contract approval and Manager shall require that Contractor comply therewith. City shall have no duties other than those duties and obligations expressly set forth herein. 3. Definitions Architect/Engineer means the Architectural and/or Engineering firm(s) retained by the Manager for the preparation of the Project Plans in connection with the Project. The Architectural and/or Engineering firms are referred to herein as the A/E. There are no architects participating in the project. The Engineering firm for this project is Ford Engineers, Inc. ii. City Commission means the legislative body of the City of Miami. iii. City Manager means the duly appointed chief administrative officer of the City of Miami. iv. City means the City of Miami, Florida, a Florida municipal corporation. In all respects hereunder, City's performance is pursuant to the City's capacity as owner of the Project. In the event the City exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, codes, laws and ordinances shall be deemed to have occurred pursuant to City's authority as a governmental body and shall not be attributable in any manner to the City as a party to this Agreement. For the purposes of this Agreement, "City" without modification shall mean the City Manager or Director, as applicable. v. Construction Change Directive means a written directive to effect changes to the Work, prepared by the A/E and or Manager and executed by the City vi. Contract Documents means this the documents described in Section 1, Article 7 of this Agreement. vii. Contractor means the entity responsible, pursuant to its Construction Agreement with FCAA or its related companies for performing the work in the Design District and who is licensed, bonded, and insured to perform this Work in accordance with the terms of the Agreement(s) between FCAA or its affiliates and the Contractor. The Contractor under this Agreement is The Redland Company, Inc. The Contractors means and methods of construction are as performed by it under applicable laws, rules, regulations, codes and construction practices. viii. Construction Work means all Work required by this Agreement. {30163379;1)3 ix. Contract Time means the time period defined in this Agreement for the Manager to complete the Project. x. Cure means the action taken by the Manager, through its Contractor, promptly after receipt of written notice from the City of a breach of the Agreement for the Work, which shall be performed at no cost to the City, to repair, replace, correct, or remedy all material, equipment, or other elements of the Work or the Agreement affected by such breach, or to otherwise make good and eliminate such breach, including, without limitation, repairing, replacing or correcting any portion of the Work or the Project site disturbed in performing such cure. xi. Cure Period means the period of time in which the Manager is required to remedy deficiencies in the Work or compliance with the Contract Documents after receipt of written notice to cure from the City identifying the deficiencies and the time to cure. xii. Design Documents means the construction plans and specification prepared by A/E(s) for this Project under separate agreement(s) with the Manager. xiii. Director means the Director of the Department of Capital Improvements and Transportation Program or his/her designee, who has the authority and responsibility for managing the Project under this Agreement. xiv. Drawings means the graphic and pictorial portions of the Work, which serve to show the design, location and dimensions of the Construction Work to be performed, including, without limitation, all notes, schedules and legends on such Drawings as prepared by the A/E(s) in Attachment "A". xv. Field Directive means a written approval for the Manager to proceed with Work requested by the City or the A/E(s), which is minor in nature and should not involve additional cost. xvi. Final Completion means the date subsequent to the date of Substantial Completion at which time the Manager, through its Contractor, has completed all the Work in accordance with the Agreement as certified by the A/E or the City and submitted all documentation required by the Agreement. xvii. Guaranteed Maximum Cost means the sum established in this Agreement and related documents as the maximum cost that the City will reimburse for performance of all work pursuant to the terms of this Agreement. The guaranteed maximum cost of reimbursements for work performed as described in the Agreement, is $2,000,000.00, which consists of the DEO State Grant funds referenced in the Whereas clauses. This guaranteed maximum cost ("GMC") shall be the maximum cost that the City will reimburse for performance of the Work. The City acknowledges that it will cost more to complete the Work. {30163379;1}4 However, any excess cost over the GMC and not included in an approved Change Order or CCD shall be paid for by FCAA or others. xviii. Manager is the entity who provides services for the City as Owner for the Design and Construction Phases of this Project covered by this Agreement. The Manager possesses the requisite training and experience to make decisions on behalf of the Owner and give advice on the time and cost consequences of design and construction decisions, scheduling, cost control, coordination of contract negotiations and awards, timely purchasing of critical materials and long -lead items, and coordination of activities. The Manager under this Agreement is FCAA, LLC. The Manager is responsible for supervising and directing the Contractor for the work funded by this Agreement. Project Manager means the person designated by Manager as its lead representative to the City. The person is an agent of the Manager and his or her actions bind the Manager. The Project Manager shall have the authority to obligate and bind Manager and to act on all matters on behalf of Manager except for revisions to the Contract Documents. The Manager shall mean FCAA, LLC. xix. Notice To Proceed means a written letter or directive issued by the Director or City's Project Manager acknowledging that all conditions precedent have been met and directing that the Manager, through its Contractor, may begin Work on the Project or a specific task of the Project. xx. Project Manager means an employee or representative of the City assigned by the Director to monitor the Work to be performed under this Agreement and the construction of the Project which has not been delegated to the Manager. xxi. Project means the construction of the Work specified in this Agreement as contemplated and budgeted by the City. xxii. Punch List means a compilation of items of Construction Work required to be performed by, or through the Manager prior to or after the Substantial Completion inspection and prior to Final Completion and payment. xxiii. Record Set means the copy of the Drawings, Specifications, and other modifications of the Agreement to be maintained at the Project site by the Contractor, in good order and marked currently to record changes and shall include additions, revisions, modifications, change orders, approved substitutions, shop drawings and accurate dimensioned locations for items recorded, including but not limited to, all underground utilities. xxiv. Request For Information (RFI) means a request from the Contractor seeking an interpretation or clarification by the A/E(s) relative to the Agreement and/or the Drawings. The RFI, which shall be clearly marked RFI, shall clearly and concisely set forth the issue(s) or item(s) requiring clarification or interpretation and why the response is needed. The RFI must set forth the Contractor's {30163379;1}5 interpretation or understanding of the document(s) in question, along with the reason for such understanding, xxv. Risk Administrator means the City's Risk Management Administrator, or designee, or the individual named by the City Manager to administer matters relating to insurance and risk of loss for the City. xxvi. Schedule of Values means a written schedule setting forth the detailed and itemized cost breakdown, inclusive of labor, material, and taxes of all elements of the Project. This schedule (attached) shall be used to bill against monthly based on a percentage of completion. xxvii.Specifications as used herein means that portion of the Contract Documents which are the written requirements for the materials, equipment, systems, standards and workmanship for completion of the Work and performance of related services. xxviii. Sub-Contractor(s) means a person or entity other than a material person or laborer that has a direct contract with the Contractor to perform or supply a portion of the Construction Work. xxix. Submittals mean documents prepared by the Manager, Contractor or those working on their behalf to show how a particular aspect of the Construction Work is to be fabricated and installed. Such submittals include shop drawings, product data, samples, mock-ups, test results, warranties, maintenance agreements, Project photographs, record documents, field measurement data, operating and maintenance manuals, reports, certifications and any other information described in the Agreement. xxx. Substantial Completion means that point at which the Construction Work is at a level of completion in substantial compliance with the Agreement such that the City and members of the general public can use, occupy and/or operate the facility in all respects to its intended purpose. Substantial Compliance shall not be deemed to have occurred until any and all govermnental entities, which regulate or have jurisdiction over the Work, have inspected, and approved the Work. xxxi. Work as used herein refers to all pre -construction, construction and other services required by the Contract Documents, including all labor, materials, equipment, procurement and services needed to complete the Project. 4. Scope of Work Manager, either itself or through its Contractor, shall provide all management, supervision, manpower, equipment, tools, and all other necessary goods and services for the Project as detailed in the attached specifications, drawings and plans as contained in Attachment "A", and in accordance with the Contract Documents. {30163379;1}6 5. Contract Value and Project Cost The Manager shall comply with the terms of this Agreement for no compensation. Payments shall be made for Work actually performed and accepted by the City. Total cost to complete the Project is estimated to cost approximately $2,000,000.00 allocated under this Agreement. The Manager shall cover or ensure that others cover any and all cost overruns necessary to complete the Project. 6. Time is of the Essence; Time for Completion; Term Time is of the essence in the performance of this Agreement. Manager, either itself or through its Contractor, will promptly perform its duties under the Contract Documents and will give the Work as much priority as is necessary to cause the Work to be completed on a timely basis in accordance with the Contract Documents. Time is of the essence of this Agreement. Manager shall ensure that all Work under this Agreement is substantially completed by June 30, 2015. The tern of this Agreement shall be from the date of City Commission on March 26, 2015 through June 30, 2015, unless extended by mutual written agreement of the parties for a period not to exceed thirty (30) days. 7. Contract Documents The Contract Documents shall consist of this Agreement, the Drawings and Specifications, approved written interpretations and clarifications, Field Directives, Construction Change Directives, and any modifications. Any modification to this Agreement shall only be effective if it is reduced to writing, and duly executed by both parties. A Field Directive or Construction Change Directive shall be effective after approval and execution by Director or designee. The general intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Project by the Manager and its Contractor. 8. Priority of Provisions If there is a conflict or inconsistency between any term, statement requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, the specifications and plans prepared by the A/E, or provision of this Agreement the following order of precedence shall apply: In the event of conflicts in the Contract Documents the priorities stated below shall govern: • Revisions to the Contract Documents shall govern over the Contract Documents {30163379;1}7 • No section of the specifications or plans shall govern over the Contract Terms and Conditions • Scope of Work and Specifications shall govern over plans and drawings In the event of conflicts with the plans the priorities stated below shall govern: • Schedules, when identified as such shall govern over all other portions of the plans • Specific notes shall govern over all other notes, and all other portions of the plans, unless specifically stated otherwise • Larger scale drawings shall govern over smaller scale drawings • Figured or numerical dimensions shall govern over dimensions obtained by scaling • Where provisions of codes, manufacturer's specifications or industry standards are in conflict, the more restrictive or higher quality shall govern In the event of omissions in the Contract Documents that are incidental detail(s) of construction or construction system(s) or with regard to the manner of combining or installing equipment, parts, or materials, such detail shall be deemed to be an implied requirement of the Contract Documents. "Minor Detail" shall include the concept of substantially identical components, where the price of each such component is small. The quality and quantity of the equipment, material, or part so furnished shall conform to trade standards and be compatible with the type, composition, strengths, size and profile of the equipment, materials or parts otherwise specified in the Contract Documents. 9. Progress Payments Manager may make Application for Payment for Work completed during the Project at intervals of not more than once a -month. Manager's Application for Payment shall be accompanied by a conditional partial release of liens relative to the Construction Work, which is the subject of the Application for Payment and any other information reasonably required by the City. Each Application for Payment shall be submitted in triplicate to City's Project Manager for approval. City may withhold, in whole or in part, payment to such extent as may be necessary to protect itself from loss on account of: • Defective Construction Work not remedied. • Claims filed by other parties against Manager, Contractor or City because of Manager and/or Contractor's negligent performance of the Work. {30163379;1}8 ■ Failure of Manager to make payments properly to its Contractor or Sub - Contractors or for material or labor arising out of the Work. • Failure of Manager to provide any and all documents required by the Contract Documents. 10. Payment Payment by the City of an approved Application for Payment approved by the A/E shall be made within thirty (30) days after satisfactory receipt of Manager's Application for Payment to the City, which shall be accompanied by reasonably sufficient supporting documentation and contain sufficient detail to secure reimbursement of funds from the State Grant, and to allow a proper audit of expenditures, should the City require one to be performed. All payment applications shall be sufficiently detailed so as to meet the definition of a "payment request for construction services" as that teen is defined in §218.72, Fla. Stat., the Definitions section of the "Local Government Prompt Payment Act". City acknowledges that payment will not be unreasonably withheld or delayed. No interest shall accrue on late payments. 11. Progress Meetings Manager and the City's Project Manager shall hold construction progress meetings as deemed necessary to ensure the timely completion of the Work, but not more often than once a month. 12. Indemnification Manager Indemnity. Manager and Contractor, by rider, addendum or amendment to its construction contract with FCAA, shall jointly and severally indemnify, defend, save and hold harmless City, its officers, agents, directors, and employees, from liabilities, damages, losses, and costs, including, but not limited to reasonable attorney's fees, and costs to the extent caused by the negligence, recklessness or intentional wrongful misconduct of Manager and persons employed or utilized by Manager in the performance of this Agreement and/or from any acts or omissions relative to the permitted work and/or to the services being performed by the Manager and/or the Contractor which are funded in whole or in part by virtue of this Agreement and/or the failure of either the Manager or the Contractor to perform their respective work in accordance with the terms of this Agreement, the design documents, the construction contract between the Contractor and the Manager or the failure of either of them to perform their respective work in accordance with applicable laws, codes, rules and regulations. Manager's obligations hereunder shall apply even if part of the damage or injury is caused by the City. These indemnifications shall survive the term or cancellation of this Agreement. In the event that any action or proceeding is brought against City by reason of any such claim or demand, Manager shall, upon written notice from City, resist and defend such action or proceeding by counsel satisfactory to City. Notwithstanding anything to the contrary herein, Manager and Contractor shall not be required to provide an indemnification obligations beyond what is provided for in Section 725.08, Florida Statutes, if applicable under Florida law. {30163379;1}9 The indemnification provided above shall obligate Manager to defend at its own expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at City Attorney's sole option, through counsel designated by the City Attorney, any and all claims of liability and all suits and actions of every name and description arising by, through or related to this Agreement or related to any work, materials or equipment performed which is funded in whole or in part by this Agreement above which may be brought against City whether performed by Manager, or persons employed or utilized by the Manager. This indemnity will survive the cancellation or expiration of this Agreement. This indemnity will be interpreted under and construed to conform to the laws of the State of Florida, including without limitation and interpretation §725.06 and/or §725.08, Florida Statutes, if applicable. Notwithstanding anything to the contrary herein, Manager shall not be required to provide any indemnification obligations beyond what is provided for in §725.06(2) and (3), Florida Statutes, if applicable under Florida law. Additionally, Manager shall not be required to indemnify the City for the City's own negligence. Manager's indemnity and defense obligations shall be capped at the greater of the insurance proceeds available and actually paid or if no insurance proceeds are paid the amount paid by the City pursuant to this Agreement. Manager shall require all construction agreements it has with the Contractor, including, those with The Redland Company Inc., funded by the terms of this Agreement to include a provision that they will indemnify the City. The Manager agrees and recognizes that the City shall not be held liable or responsible for any claims which may result from any actions or omissions of the Manager in which the City participated either through review or concurrence of the Manager's actions. In reviewing, approving or rejecting any submissions by the Manager or Contractor or other acts of the Contractor, the City in no way assumes or shares any responsibility or liability of the Manager, Contractor or Sub -Contractor under this Agreement. The City agrees and recognizes that the Manager shall not be held liable or responsible for any claims which may result from any actions or omissions of the City in which the Manager participated either through review or concurrence of the City's actions. 13. Insurance/ Bonding The Manager shall not authorize the initiation of any Work under this Agreement until the Manager has obtained, or required its Contractor to obtain, the insurance required and the City's Risk Management Director has approved such insurance. Companies Providing Coverage All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and satisfactory to the Risk Administrator. All companies shall have a Florida resident agent and be {30163379;1}10 rated at least A-, as per A.M. Best Company's Key Rating Guide, latest edition. Verification Of Insurance Coverage The Manager shall furnish certificates of insurance to the Risk Administrator for review and approval prior to the execution of this Agreement and any amendment thereto. The Certificates shall clearly indicate that the Manager or its Contractor has obtained insurance of the type, amount and classification as required by Attachment "F" in excess of any pending claims at the time of contract award to the Manager. Manager shall maintain or require its Contractor to maintain coverage with equal or better rating as identified herein for the term of this Agreement. Manager shall provide written notice to the Risk Management Administrator of any material change, cancellation and/or notice of non - renewal of the insurance within thirty 30 days of the change. Manager shall furnish a copy of the insurance policy or policies within ten (10) days of written request from the City's Risk Management Administrator. Forms Of Coverage Should Manager be authorized to construct the Project, without limiting any of the other obligations or liabilities of Manager, Manager shall provide, pay for and maintain in force until all of its work to be performed under this Contract has been completed and accepted by City (or for such duration as is otherwise specified hereinafter), the insurance coverage set forth in Attachment "F" attached herein. Submittal of Certificates —Manager shall furnish to the City of Miami Risk Management Department Certificates of Insurance or endorsements evidencing the insurance coverage specified above within fifteen (15) calendar days after notification by the City. The required Certificates of Insurance shall name the types of policies provided, refer specifically to this Contract, and state that such insurance is as required by this Contract. The City of Miami shall be a named insured, or co-insured, on all policies of insurance required by this Agreement, excluding only Worker's Compensation. The official title of the Owner is the City of Miami, Florida. This official title shall be used in all insurance documentation. The Manager on or before the commencement of any Work being funded by this Agreement shall require that its Contractor, The Redland Company, Inc. obtain a Payment and Performance Bond in the minimum amount of Two Million ($2,000,000.00) Dollars, in substantially the forn prescribed by § 255.05, Fla. Stat., naming the City of Miami as the oblige {30163379;1)11 of such bond. Such bond will provide that the contractor named in the bond, The Redland Company, Inc., will properly and timely pay all legal debts arising from the construction work and will perform the Work referenced in this Agreement in accordance with the terms of this Agreement, all applicable laws, codes and regulations, and its construction contract with the Manager. The required payment and performance bond will be furnished to the Director prior to the commencement of any Work under this Agreement. The bond will be issued by a surety licensed to do business in the State of Florida and rated A- or better per A.M. Best's Key Rating Guide, latest edition. 14. Modifications to Coverage and Owner's Controlled Insurance Program The City through its Risk Management Director or authorized designee reserves the right to require modifications, increases, or changes in the required insurance requirements, coverage, deductibles or other insurance obligations and shall provide a thirty (30) day written notice to the Manager. In that event Contractor shall comply with such request unless the insurance coverage is not then readily available in the national market, and may request additional consideration from City accompanied by justification. All additional cost will be borne by the Manager or Contractor, as applicable Notwithstanding the insurance requirements required by the City in this Agreement, the City acknowledges that FCAA already has in place an Owner Controlled Insurance Program ("OCIP") for the Project the details of which are attached hereto as Attachment "G". To the extent there is any conflict between the City's insurance requirements of this Agreement and the OCIP, the OCIP requirements shall control. The parties shall reasonably cooperate with each other to coordinate the City's insurance requirements with those of the OCIP. 15. Discretion of Director Any matter not expressly provided for herein dealing with the City or decisions of the City shall be within the exercise of the reasonable professional discretion of the Director or the Director's authorized designee. 16. Authority of the City Project Manager The Project Manager shall have authority to act on behalf of the City to the extent provided by the Agreement, unless otherwise delegated to the Manager or modified in writing by the City. All instructions to the Manager shall be issued in writing. All instructions to the Manager shall be issued through the Director or Project Manager. The Project Manager shall have access to the Project Site. The Manager shall provide safe facilities for such access so the Project Manager may perform their functions under the Agreement. The Project Manager will make periodic visits to the Work Site to become generally familiar with the progress and quality of the Work, and to determine if the Work is proceeding in accordance with the Contract Documents. {30163379;1 } 12 The Project Manager will not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and will not be responsible for the Manager's (through its Contractor) failure to carry out the Construction Work in accordance with the Agreement. The Project Manager will have authority to reasonably reject Construction Work that does not conform to the Contract Documents requirements. Whenever, in his or her opinion, it is considered necessary or advisable to insure the proper implementation of the Contract Documents, the Project Manager will have authority to require special inspections or testing of the Construction Work, whether or not such Construction Work is fabricated, installed or completed. Neither the Project Manager's authority to act under this Article, nor any decision made by him/her in good faith either to exercise or not to exercise such authority, shall give rise to any duty or responsibility of the Project Manager to the Manager, Contractor any Sub - Contractor, supplier or any of their agents, employees, or any other person performing any of the Construction Work. All interpretations and recommendations of the Project Manager shall be consistent with the intent of the Contract Documents. The Project Manager will not be responsible for the acts or omissions of the Manager, its Contractor, or anyone employed or contracted directly or indirectly by the Manager, including any Sub -Contractor, or any of their agents or employees, or any other persons performing any of the Work. 17. Subcontracts A Sub -Contractor is any person or entity that is performing, furnishing, supplying or providing any portion of the Construction Work pursuant to a contract with the Manager or its Contractor. Manager, through its Contractor, shall be solely responsible for and have control over the Sub -Contractors. 18. Ownership and Use of Documents The Drawings, Specifications and other documents prepared by the A/E(s), and copies thereof furnished to the Manager and/or its Contractor, are for use solely with respect to this Agreement. 19. Continuing the Work Manager through its Contractor shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with City, including, without limitation, disputes or disagreements concerning the Contract timeframe for completion of the Work. The Work shall not be delayed or postponed pending resolution of any disputes or disagreements. All disputes shall be resolved in accordance with Article 51, Resolution of Contract Disputes and Article 52 Mediation -Waiver of Jury Trial. {30163379;1}13 20. Public Entity Crimes In accordance with the Public Crimes Act, Section 287.133, Florida Statutes, a person or affiliate who is a contractor, consultant or other provider, who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to the City, may not submit a bid on a contract with the City for the construction or repair of a public building or public work, may not submit bids on leases of real property to the City, may not be awarded or perform work as a contractor, supplier, or subcontractor, under a contract with the City, and may not transact any business with the City in excess of the threshold amount provided in Section 287.017, Florida Statutes, for category two purchases for a period of 36 months from the date of being placed on the convicted vendor list. Violation of this section by Manager shall result in cancellation of the City purchase and may result in Manager's debarment. 21. Nondiscrimination; Equal Employment Opportunity and Americans with Disabilities Act Manager warrants and represents that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Manager or it Contractor's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Manager further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. Manager and its Contractor shall affirrnatively comply with all applicable provisions of the Americans with Disabilities Act (ADA) in the course of providing any services funded by City, including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability), and all applicable regulations, guidelines, and standards. In addition, Manager shall take affirmative steps to ensure nondiscrimination in employment against disabled persons. 22. Audit Rights At any time during normal business hours and after reasonable notice has been provided, there shall be made available to the City and/or representatives of the City to audit, examine, and make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other reasonable data in Manager's possession and relating to this Agreement. It is further understood that all records and supporting documents pertaining to this Agreement shall be maintained for a minimum period of four (4) years. The retention and access period starts from the date of the submission of the annual performance and evaluation report in which the specific activity is reported for the final time. The Contractor must request approval from the City before disposing of any records under this Agreement. Records subject to the provisions of Public Record Law, Florida Statutes Chapter 119, shall be kept in accordance with such statute. Otherwise, for the purpose of such audits, inspections, examinations and evaluations, the City's agent or authorized representative shall {30163379;1}14 have access to said records from the effective date of this Agreement, for the duration of the Work, and until 4 years after the date of final payment by the City to Construction pursuant to this Agreement. The City's agent or its authorized representative shall have access to the Manager's facilities, shall have access to all necessary records, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with this provision. The City or its authorized representative shall give auditees reasonable advance notice of intended audits. If an audit inspection or examination in accordance with this Article discloses overcharges in excess of 2% except negotiated fees by the Manager to the City, 50% of the actual cost of the City's audit shall be paid by the Manager. If the audit discloses contract billing or charges to which Manager is not contractually entitled, Manager shall pay over to the City said sum within 20 days of receipt of a written demand unless otherwise agreed to by both parties in writing. If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the four (4) year period, the records must be retained until completion of the action and resolution of all issues which arise from it or until the end of the four (4) year period, whichever is later. During the course of an audit, if the City determines that any payment made to the Manager does constitute an allowable expenditure, then the City will have the right to deduct or reduce those amounts from the related invoices. The Manager must maintain records necessary to document compliance with the provisions of the Agreement. The Manager acknowledges that additionally the City has the audit and inspection rights set forth in §18-100 to §18-102, City Code, as amended. 23. OSHA Compliance The Manager warrants that it will comply with all safety precautions as required by federal, state or local laws, rules, regulations and ordinances. 24. Safety Precautions Manager, either itself or through its Contractor, shall comply with all applicable laws, ordinances, rules, regulations and orders of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Manager through its Contractor shall notify owners of adjacent property and utilities when prosecution of the Work may affect them. All damage, injury or loss to any property, caused directly or indirectly, in whole or in part, by Manager, Contractor, any Sub -Contractor or anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, shall be remedied by Manager. Manager's duties and responsibilities for the safety and protection of the Work shall continue until such time as all the Work is completed and City has issued to Manager a notice of Final Acceptance, said notice shall not be unreasonably withheld or delayed. {30163379;1}15 Manager must adhere to the applicable envirorunental protection guidelines for the duration of the Project. If hazardous waste materials are used, detected or generated at any time, the City's Project Manager must be immediately notified of each and every occurrence. The Manager shall comply with all codes, ordinances, rules, orders and other legal requirements of public authorities (including, without limitation, OSHA, EPA, DERM, the City, Miami -Dade County, State of Florida, and Florida Building Code) which bear on the performance of the Work. Manager shall require that Contractor ensure that all Work is performed using adequate safeguards, including but not limited to: proper safe rigging, safety nets, fencing, scaffolding, barricades, chain link fencing, railings, barricades, steel plates, safety lights, and ladders that are necessary for the protection of its employees, as well as the public and City employees. All riggings and scaffolding shall be constructed with good sound materials, of adequate dimensions for their intended use, and substantially braced, tied or secured to insure absolute safety for those required to use it, as well as those in the vicinity. All riggings, scaffolding, platforms, equipment guards, trenching, shoring, ladders and similar actions or equipment shall be OSHA approved, as applicable, and in accordance with all federal state and local regulations. If an emergency condition should develop during the Project, the Manager must immediately notify the City's Project Manager of each and every occurrence. The Manager should also recommend any appropriate course(s) of action to the City's Project Manager. 25. Permits and Licenses Except as otherwise provided within the Agreement, all permits and licenses required by federal, state or local laws, rules and regulations necessary for the prosecution of the Work undertaken by Manager pursuant to this Agreement shall be secured and paid for by Manager. It is Contractor's responsibility to have and maintain appropriate Certificate(s) of Competency, valid for the Work to be performed and valid for the jurisdiction in which the Work is to be performed for all persons working on the Project for whom a Certificate of Competency is required. 26. Compliance with Laws Manager and its Contractor shall comply with all applicable laws, codes, ordinances, rules, regulations and resolutions and all applicable guidelines and standards in performing. its duties, responsibilities, and obligations related to this Agreement. 27. Defective Work The City's Project Manager shall have the authority to reject or disapprove Work which it finds to be defective. If required by the City, Manager, through its Contractor, shall promptly either correct all defective work or remove such defective Work and replace it with non- defective Work. Manager shall bear all direct and indirect costs of such removal or corrections including cost of testing laboratories and personnel. {30163379;1}16 Should Manager, through its Contractor, fail or refuse to remove or correct any defective Work or to make any necessary repairs in accordance with the requirements of the Contract Documents within a reasonable time after notice in writing provided by the City, the City shall have the authority to cause the defective work to be removed or corrected, or make such repairs as may be reasonably necessary at Manager's expense. Any reasonable expense incurred by City in making such removals, corrections or repairs, shall be paid for out of any monies due or which may become due Manager. In the event of failure of Manager to make all necessary repairs promptly and fully, which is not cured in the Cure Period, the City may declare Manager in default. If, within one (1) year after the date of Substantial Completion or such longer period of time as may be prescribed by the terms of any applicable special warranty required by the Contract Documents, or by any specific provision of the Contract Documents, any of the Work is found to be defective or not in accordance with the Contract Documents, Manager, after receipt of written notice from City, shall promptly correct such defective or nonconforming Construction Work within the time specified by City without cost to the City. Nothing contained herein shall be construed to establish a period of limitation with respect to any other obligation which Manager might have under the Contract Documents including but not limited to any claim regarding latent defects. 28. Warranty of Materials and Equipment Manager through its Contractor warrants to City that all materials and equipment furnished under this Agreement will be new unless otherwise specified and that all of the Work will be of good quality, free from faults and defects and in conformance with the Contract Documents. All equipment and materials not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by City, Manager shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by any other provisions within the Contract Documents. 29. Warranty of Construction The Manager, through its Contractor shall warrant that the Work conforms to the Agreement and is free of any patent and/or latent defect of the workmanship for a minimum period of one year from the date of Substantial Completion. The Manager's obligation under this warranty shall be at its own cost and expense, to promptly repair or replace (including cost of removal and installation), that item (or part or component thereof) which proves defective or fails to comply with the Agreement within the warranty period such that it complies with the Agreement. 30. Manufacturer's Warranty Manager through the Contractor shall provide to City all manufacturers' warranties. All warranties, expressed and/or implied, shall be given to the City for all material and equipment covered by this Agreement. All material and equipment furnished shall be fully guaranteed by {30163379;1 } 17 the Manager, through the Contractor against factory defects and workmanship at time of installation. At no expense to the City, the Manager shall correct any and all apparent and latent defects that are required by Florida law. The Contract Documents may supersede the manufacturer's standard warranty. 31. No Damages for Delay In the event of any delays to the Project that are caused by actions or events that are out of the control of the owner or entities hired or control by the owner, the Contractor's sole remedy shall be to seek an extension of time in accordance with the terms of the Agreement. The City shall not be liable for any delay damages or damages attributable to performing Work out of sequence, acceleration claims or other similar type claims, incurred by Contractor arising out of or in any way associated with the performance under this Agreement. No claim for damages or any claim, other than for an extension of time, shall be made or asserted against the City by reason of any delays except as provided herein. Manager shall not be entitled to an increase in the Contract Price or payment or compensation of any kind from City for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference or hindrance from any cause whatsoever, whether such delay, disruption, interference or hindrance be reasonable or unreasonable, foreseeable or unforeseeable, or avoidable or unavoidable. Otherwise, Manager shall be entitled only to extensions of the Contract Time as the sole and exclusive remedy for such resulting delay, in accordance with and to the extent specifically provided above. 32. Excusable Delay Excusable Delay is caused by circumstances beyond the control of Manager, Contractor, its Sub -Contractors, suppliers and vendors. Subject to the approval by the State of Florida, Manager may request a time extension of the Construction Work Time for Completion for each day the Construction Work is delayed due to Excusable Delay. Manager shall document its claim for any time extension as provided in Article 36 hereof. Where Manager detennines that the City is liable for payment of cost due to a delay any request for additional compensation must be submitted in accordance with Article 32. Manager shall furnish to the City's Project Manager all documentation supporting its claim, including, details of the claim, a description of the work affected and the actual costs resulting from the delay. Where the City agrees to submit in writing to the State of Florida, Manager's request for approval of an excusable delay and the Work is being performed by the Manager, if said request is approved by the State of Florida, the Manager shall be reimbursed for actual, direct costs. associated with the delay. {30163379;1 } 18 The Manager agrees that the above constitutes its sole and exclusive remedies for an excusable delay. Failure of Manager to materially comply with Article 32 hereof as to any particular event of delay shall be deemed conclusively to constitute a waiver, abandonment or relinquishment of any and all claims resulting from that particular event of delay. The Guaranteed Maximum Cost can never be exceeded or increased, except by an approved change order or approved Construction Change Directive ("CCD"). 33. Notification and Claim for Change of Construction Work Time Any claim for a change in the Time for Completion, shall be made by written notice by Manager to the Project Manager within thirty (30) calendar days of the commencement of the event giving rise to the claim and stating the general nature and cause of the claim. Thereafter, within twenty (20) calendar days of the termination of the event giving rise to the claim, written notice of the extent of the claim with supporting information and documentation shall be provided unless City allows an additional period of time to ascertain more accurate data in support of the claim and such notice shall be accompanied by Manager's written notarized statement that the adjustment claimed is the entire adjustment to which the Manager has reason to believe it is entitled as a result of the occurrence of said event. The Time for Completion will be extended in an amount equal to time lost on critical Work items due to delays beyond the control of and through no fault or negligence of Manager if a claim is made therefore as herein. Such delays shall include, but not be limited to, acts or neglect by any separate contractor employed by City, fires, floods, epidemics, abnormal weather conditions or acts of God. 34. Changes in the Work or Terms of Contract Documents Without invalidating the Agreement and without notice to any Surety, City reserves and shall have the right, from time to time to make such increases, decreases or other changes in the character or quantity of the Work as may be considered necessary or desirable to complete fully and acceptably the proposed construction in a satisfactory manner. Any extra or additional work within the scope of this Project must be issued in writing in accordance with the requirements of this Agreement. Any changes to the terms of the Contract Documents must be contained in a written document, executed by the parties hereto, with the same formality and of equal dignity prior to the initiation of any Work reflecting such change. This Article shall not prohibit the issuance of Change Orders executed only by City as hereinafter provided. 35. Force Majeure Should any failure to perform on the part of Manager be due to a condition of force maj eure as that term is interpreted under Florida law, the City shall then allow an extension of time reasonably commensurate with the cause of such failure to perform or cure. {30163379;1}19 If the Manager is delayed in performing any obligation under this Agreement due to a force lnajeure condition, the Manager shall request a time extension from the City within seven (7) working days of said force majeure occurrence. Any time extension shall be subject to mutual agreement and subsequent approval by the State of Florida and shall not be cause for any claim by the Manager for extra compensation. Events of Force Majeure include inclement weather except as permitted by Florida law and may not include the acts or omissions of the general contractor or any Sub -Contractors. 36. Field Directives The City's Project Manager may at times issue Field Directives to the Manager based on visits to the Project site. Such Field Directives shall be issued in writing and the Manager shall be required to comply with such reasonable directives. Where the Manager believes that the directive is outside the scope of the Work or unreasonable, the Manager shall, within 48 hours, advise the City's Project Manager that the Field Directive is either unreasonable and/or outside the scope of the Work. At that time the Field Directive may be rescinded or the Manager may be required to submit a request for a Change Order proposal. Where the Manager is notified of the City's position that the Field Directive is within the scope and/or reasonable and the Manager disagrees, the Manager shall notify the City's Project Manager that the Manager reserves the right to make a claim for the time and monies based on the Field Directive. At no time shall the Manager unreasonably refuse to comply with the directive. Failure to reasonably comply with the directive may result in a determination that the Manager is in default of the Agreement. 37. Change Orders Changes in the quantity or character of the Construction Work of the Project which are not properly the subject of Field Directives or Supplemental Instructions, including all changes resulting in changes in the contract price or time shall be authorized only by Change Orders approved in advance by the City Project Manager and Manager and issued in accordance with the terns of this Agreement. All changes to Construction Work must be approved in advance in accordance with the value of the Change Order or the calculated value of the time extension. All Change Orders increasing the City Commission approved value of the Agreement shall be approved in advance by the City Commission. 38. Value of Change Order Work The value of any Work to be covered by a Change Order, or for any claim for an increase or decrease in the Agreement, shall be determined in one of the following ways: • Where the work involved is covered by unit prices contained in the Schedule of Values, by application of unit prices to the quantities of items involved. • By mutual acceptance of a lump sum which Manager and City acknowledge contains a component for overhead and profit. {30163379;1}20 39. Inspection of Work The City shall at all times have access to the Work during normal work hours. Inspectors shall have no authority to permit deviations from, or to relax any of the provisions of the Contract Documents, or to delay the Work by failure to inspect the materials and Work with reasonable promptness without the written permission or instruction of City. The payment of any compensation, whatever may be its character or form, or the giving of any gratuity or the granting of any favor by Manager to any inspector, directly or indirectly, is strictly prohibited, and any such act on the part of Manager will constitute a breach of this Agreement. 40. Submittals All submittals for the Work shall be completed by the Architect/ Engineer ("A/E"). City shall not be liable for any materials, fabrication of products or Work commenced that requires submittals until the City has returned approved submittals to the Contractor. City shall make every effort to review submittals within ten (10) calendar days from the date of receipt by the City. City's review shall only be for conformance with design concepts and the information provided in the Contract Documents. The approval of a separate item shall not constitute approval of an assembly in which the item functions. The City shall return the shop drawings to the Manager for its use and distribution. Approval of any submittal shall not relieve the Manager and Contractor of any responsibility for any deviations from the requirements of the Contract Documents unless the Manager has given written notice to the City of the specific deviations and the City has issued written approval of such deviations. Manager shall be responsible for the distribution of all shop drawings, copies of product data and samples, which bear the A/E and City's stamp of approval. Distribution shall include, but not be limited to; job site file, record documents file, sub -contractors, suppliers, and other affected contractors or entities that require the information. During the progress of the Work, the Manager shall submit copies of all reports, permits and inspections required by governing authorities, or necessary for the Project. 41. Substitutions Manager shall submit all requests for substitutions to the City for review and approval. All such requests shall include sufficient documentation to support such request. City may request additional information as deemed necessary to properly review such requests. {30163379;1}21 42. Shop Drawings Manager, through the Contractor shall submit Shop Drawings as required by the Contract Documents. The purpose of the Shop Drawings is to show, in detail, the suitability, efficiency, technique of manufacture, installation requirements, and details of the item and evidence of its compliance or noncompliance with the Contract Documents. If the Shop Drawings show or indicate departures from the Contract Documents' requirements, Manager, through the Contractor shall make specific mention thereof in its letter of transmittal. Failure to point out such departures shall not relieve Manager from its responsibility to comply with the Contract Documents. City shall review and approve Shop Drawings within ten (10) calendar days from the date received, unless said Shop Drawings are rejected by City for material reasons. City's approval of Shop Drawings will be general and shall not relieve Manager, through the Contractor of responsibility for the accuracy of such Shop Drawings, nor for the proper fitting and construction of the work, nor for the furnishing of materials or work required by the Contract Documents and not indicated on the Shop Drawings. No work called for by Shop Drawings shall be performed until the said Shop Drawings have been approved by City. Approval shall not relieve Manager from responsibility for errors or omissions of any sort on the Shop Drawings. No approval will be given to partial submittals of Shop Drawings for items which interconnect and/or are interdependent where necessary to properly evaluate the design. It is Manager's, through the Contractor's responsibility to assemble the Shop Drawings for all such interconnecting and/or interdependent items, check them and then make one submittal to City along with its comments as to compliance, noncompliance, or features requiring special attention. If catalog sheets or prints of manufacturers' standard drawings are submitted as Shop Drawings, any additional information or changes on such drawings shall be typewritten or lettered in ink. Each shop drawing shall be clear, thoroughly detailed and shall have listed on it all Contract Document references, drawing number(s), specification section number(s) and the shop drawing numbers of related work. Shop drawings must be complete in every detail, including location of the work. Materials, gauges, methods of fastening and spacing of fastenings, connections with other work, cutting, fitting, drilling and any and all other necessary information per standard trade practices or as required for any specific purpose shall be shown. Where professional calculations and/or certification of performance criteria of materials, systems, and or equipment are required, the City is entitled to rely upon the accuracy and completeness of such calculations and certifications submitted by the Manager. Calculations, when required, shall be submitted in a neat clear and easy format to follow. Manager shall keep one set of Shop Drawings marked with A/E and City's approval at the job site at all times. {30163379;1}22 43. Product Data Manager, through the Contractor shall submit a copy of product data. Copies must be marked to identify applicable products, models, options and other data. Manager, through the Contractor shall supplement manufacturer's standard data to provide information unique to the Construction Work. Manager, through the Contractor shall only submit pages that are pertinent. Submittals shall be marked to identify pertinent products, with references to the specifications and the Contract Documents. Identify reference standards, performance characteristics and capacities, wiring and piping diagrams and controls, component parts, finishes, dimensions and required clearances. 44. As -Built Drawings During the Construction Work, Manager, through the Contractor shall maintain records of all deviations from the Drawings and Specifications as approved by the City and prepare As - Built Record Drawings showing correctly and accurately all changes and deviations made during construction to reflect the work as it was actually constructed. It is the responsibility of the Manager, through the Contractor to check the As -Built Drawings for errors and omissions prior to submittal to the City and certify in writing that the As -Built Drawings are correct and accurate, including the actual location of all internal piping, electrical/signal conduits in or below the concrete floor. Indicate the size, depth and voltage in each conduit. Legibly mark to record actual construction: On -site structures and site work as follows: • Depths of various elements of foundation in relation to finish first floor datum. • All underground piping and ductwork with elevations and dimensions and locations of valves, pull boxes, etc. Changes in location. Horizontal and vertical locations of underground utilities and appurtenances, referenced to permanent surface improvements. Actual installed pipe material, class, etc. • Location of internal utilities and appurtenances concealed in the construction, referenced to visible and accessible features of the structure. Air conditioning ducts with locations of dampers, access doors, fans and other items needing periodic maintenance. • Field changes in dimensions and details. • Changes made by City's written instructions or by Change Order. • Details not on original Contract Drawings. • Equipment, conduit, electrical panel locations. • City schedule changes according to Contractor's records and shop drawings. Specifications and Addenda: Legibly mark each section to record: {30163379;1 }23 • Manufacturer, trade name, catalog number and Supplier of each product and item of equipment actually installed. • Approved Shop Drawings: Provide record copies for each process, equipment, piping, electrical system and instrumentation system. 45. Requests for information (RFI) The Manager or its Contractor shall submit in writing a Request for Information (RFI) to the City's Project Manager, where the Manager believes that the specifications or drawings are unclear or conflict. All requests must be submitted in a manner that clearly identifies the drawing and/or specification section where clarification or interpretation is being requested. 46. City's Right to Terminate The City Manager has the right to terminate this Agreement for any reason or no reason, upon thirty (30) days Written Notice. Such Written Notice shall state the date upon which Manager shall cease all Work under this Agreement and vacate the Project site. Upon termination of this Agreement, all charts, sketches, studies, drawings, reports and other documents, including electronic documents, related to Work authorized under this Agreement, whether finished or not, must be turned over to the City. The Manager shall be paid for Work performed and accepted by the City, provided that said documentation is turned over to City within twenty (20) business days of ternination. Failure to timely deliver the documentation shall be cause to withhold any payments due without recourse by Manager until all documentation is delivered to the City. In such event, the City shall pay Manager compensation for Services rendered and approved expenses incurred prior to the effective date of termination. In no event shall the City be liable to Manager for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City be liable for any consequential or incidental damages. 47. Termination by Default If Manager fails to comply with any material term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Manager shall be in default. Upon the occurrence of a default which is not cured within the Cure Period, in addition to all remedies available to it by law, the City may immediately, upon written notice to Manager, terminate this Agreement. The City may also suspend any payment or part thereof or order a Work stoppage until such time as the issues concerning compliance are resolved. Manager understands and agrees that termination of this Agreement under this Article shall not release Manager from any obligation accruing prior to the effective date of tennination. In the event of termination due to default, in addition to the foregoing Manager shall be liable for all costs and expenses incurred by the City in the re -procurement of the Work under this Agreement. In the event of Default, the City may also issue a Notice to Cure and suspend or withhold payments to Manager until such time as the actions giving rise to default have been {30163379;1 }24 cured. In no event shall the Manager be liable to the City for any additional expenses incurred, other than that provided herein, and in no event shall the Manager be liable for any consequential or incidental damages. A finding of default and subsequent termination for cause may include, without limitation, any of the following: • Manager fails to obtain the insurance herein required. • Manager fails to comply with any of its duties under this Agreement, with any terms or conditions set° forth in this Agreement beyond the specified period allowed to cure such default. • Manager fails to commence the Work within the timeframes provided or contemplated herein, or fails to complete the Work in a timely manner as required by this Agreement. The City shall provide Written Notice to Cure to Manager as to a finding of default, and Manager shall take all necessary action to Cure said default within such time as stipulated in the Written Notice. Such Written Notice shall provide a minimum of 30 days to Cure any alleged default. Such time to Cure shall be at the sole discretion of the City, but be no less than 30 days. The City may extend the Cure Period at its sole discretion or terminate the Agreement upon failure of the Manager to cure such default in the specified timeframe. 48. Manager's Right to Terminate The Manager shall have the right to terminate this Agreement, in writing, following breach by the City, if breach of contract has not been corrected within thirty (30) days from the date of the City's receipt of a written notice from Manager specifying the City's breach of its duties under this Agreement. The City shall only be responsible for payment of Manager compensation for Services rendered and approved expenses incurred prior to the effective date of termination. In no event shall the City be liable to Manager for any additional compensation and expenses incurred, other than that provided herein, and in no event shall the City be liable for any consequential or incidental damages. 49. Materiality and Waiver of Breach City and Manager agree that each requirement, duty, and obligation set forth in these Contract Documents is substantial and important to the formation of this Agreement. The parties' failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. {30163379;1 }25 50. Acceptance and Final Payment Upon receipt of written notice from Manager that the Construction Work is ready for final inspection and acceptance, the City shall, within ten (10) calendar days, make an inspection thereof. If City's Project Manager find the Work acceptable, the requisite documents have been submitted and the requirements of the Contract Documents fully satisfied, and all conditions of the permits and regulatory agencies have been met, a Final Certificate for Payment (Attachment E) shall be issued by City's Project Manager, over its signature, stating that the requirements of the Contract Documents have been performed and the Work is ready for acceptance under the terms and conditions thereof. Before issuance of the Final Certificate for Payment, Manager shall deliver to City's Project Manager a conditional release of all liens arising out of this Agreement, or receipts in full in lieu thereof; an affidavit certifying that all suppliers, Sub -Contractors, and Contractor have been or will be (out of the final payment) paid in full and that all other indebtedness connected with the Construction Work has been or will be paid; the final corrected As -Built Drawings; the Record Set; and the final bill of materials, if required, and Application for Payment. Manager shall deliver the written Contractor's and all Manufacturer's warranties prior to issuance of the Final Certificate for Payment. If, after the Construction Work has been substantially completed, full completion thereof is materially delayed through no fault of Manager or its Contractor, and A/E so certifies, City shall, upon certificate of City's Project Manager, and without terminating the Agreement, make payment of the balance due for that portion of the Work fully completed and accepted. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of unknown claims. The making of and acceptance of final payment shall constitute a waiver of all claims by Manager and the City, except those previously made in strict accordance with the provisions of the Agreement and identified by Manager or the City as unsettled at the time of the application for final payment. 51. Resolution of Contract Disputes Manager understands and agrees that all disputes between it and the City based upon an alleged violation of the terms of this Agreement by the City shall be initially submitted to the Director for resolution. Upon receipt of the submittal from the Manager, the Director shall render a decision within fourteen (14) calendar days. Where a mutually satisfactory resolution cannot be reached the Manager may submit the dispute to the City Manager or his/her designee for resolution. Where a mutual resolution cannot be reached between the Manager and the City Manager or designee, the Manager, prior to being entitled to seek judicial relief shall comply with Article 51 of this Agreement, in connection therewith. Manager shall not be entitled to seek judicial relief unless: • It has first received City Manager's written decision, approved by the City Commission if applicable, or {30163379;1 }26 • A period of sixty (60) days has expired after submitting to the City Manager a detailed statement of the dispute, accompanied by all supporting documentation, or a period of seventy-five (75) days has expired where City Manager's decision is subject to City Commission approval; and • Mediation of the dispute, as stipulated in Article 52, has not resulted in a mutual resolution; or • City has waived compliance with the procedure set forth in this Article by written instrument(s) signed by the City Manager. If Manager is required to file a lawsuit in order to meet a statute of limitations before it has complied with any of the above requirements, it shall be entitled to file the action and then the City may move to stay the action to allow the Manager to comply with the conditions precedent to litigation as set forth in this Agreement. 52. Mediation Waiver of Jury Trial In an effort to engage in a cooperative effort to resolve conflict which may arise during the course of the design and/or construction of the Project, and/or following thecompletionof the Project, the parties to this Agreement agree all unresolved disputes between them shall be submitted to non -binding mediation prior to the initiation of litigation, unless otherwise agreed in writing by the parties. A certified Mediator, who the parties find mutually acceptable, will conduct any Mediation Proceedings in Miami -Dade County, State of Florida. The parties will share the costs of a certified Mediator on a 50/50 basis. In an effort to expedite the conclusion of any litigation, the parties voluntarily waive their right to jury trial in any action arising under this Agreement. 53. Substantial Completion, Punch List and Final -Completion The Construction Work shall be substantially complete when the City's Project Manager, in the reasonable exercise of his/her discretion determines that the Construction Work is complete and there are no material and/or substantial variations from the Agreement and the Construction Work is fit for its intended purpose. City's Project Manager shall not unreasonably withhold or delay its approval. Upon Substantial Completion, City's Project Manager and the Manager shall sign the Substantial Completion Inspection Form. The signing of this form shall not relieve the Manager from its obligation to complete the Project. When the Manager believes that the Construction Work is substantially complete, the Manager shall request in writing that the City inspect the Construction Work to determine if Substantial Completion has been achieved. No request for Substantial Completion inspection is to be submitted until the Manager has obtained a Certificate(s) of Occupancy, Certificate of Completion or Completion or a Temporary Certificate of Occupancy, or other equivalent. The City shall schedule the date and time for any inspection and notify the Manager and any other {30163379;1 } 27 parties deemed necessary. During this inspection, the Project Substantial Completion Inspection Form, (Attachment B), will be completed as necessary. Any remaining Construction Work shall be identified on this form and shall be known as Punch List work. The Punch List, (Attachment C), shall be signed by the City's Project Manager and the Manager confirming that the Punch List contains the item(s) necessary to complete the Construction Work. The failure or refusal of the Manager to sign the Project Substantial Completion Inspection Form or Punch List shall not relieve the Manager from complying with the reasonable findings of the Project Substantial Completion Inspection and completing the Project to the satisfaction of the City. Where the Punch List is limited to minor omissions and defects, the City shall indicate that the Construction Work is substantially complete subject to completion of the Punch List. Where the City determines, on the appropriate form that the Work is not substantially complete, the City shall provide a list of all open items necessary to achieve Substantial Completion. Upon completion of such Construction Work, the Manager shall request another Substantial Completion inspection. The City's Project Manager and the Manager shall agree on the time reasonably required to complete all remaining Work included in the Punch List. Upon the receipt of all documentation, resolution of any outstanding issues and issuance of final payment, the City shall notify the Manager in writing of the closeout of the Project. The City will prepare a Certificate of Substantial Completion in the form attached hereto as Attachment D which shall establish the Date of Substantial Completion. Once substantial completion is achieved the City shall be responsible for security, maintenance, heat, utilities, damage to the Project site, and insurance; and shall list all Construction Work yet to be completed to satisfy the requirements of the Contract Documents for Final Completion. The failure to include any items of corrective work on such list does not alter the responsibility of Manager to complete all of the Work in accordance with the Contract Documents, Warranties required by the Contract Documents shall commence on the date of Substantial completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. 54. Applicable Law and Venue of Litigation This Agreement shall be interpreted and construed in accordance with and governed by the laws of the State of Florida. Any suit or action brought by any party, concerning this Agreement, or arising out of this Agreement, shall be brought in Miami -Dade County, Florida. Each party shall bear its own attorney's fees except in actions arising out of Manager's duties to indemnify the City under this Agreement where Manager shall pay the City's reasonable attorney's fees. 55. Independent Contractor Manager is an independent contractor under this Agreement. Services provided by the Contractor pursuant to this Agreement shall be subject to the supervision of the Manager. In {30163379;1 }28 providing such services, neither Manager nor its agents shall act as officers, employees, or agents of the City. Manager further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Manager, and agrees to provide workers' compensation insurance for any employee, or entity working for the Manager rendering services to the City under this Agreement. This Agreement shall not constitute or make the parties a partnership or joint venture. 56. Successors and Assigns The performance of this Agreement shall not be transferred, pledged, sold, delegated or assigned, in whole or in part, by the Manager without the written consent of the City. It is understood that a sale of the majority of the stock or partnership shares of the Manager, a merger or bulk sale, an assignment for the benefit of creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring prior City approval. The Construction Manger's services are unique in nature and any transference without City Commission approval shall be cause for the City to nullify this Agreement. Any assignment without the City's consent shall be null and void. The Manager shall have no recourse from such cancellation. The City may require bonding, other security, certified financial statements and tax returns from any proposed assignee and the execution of an assignment/assumption agreement in a foiiu satisfactory to the City Attorney as a condition precedent to considering approval of an assignment. 57. Third Party Beneficiaries Neither Manager nor the City intends to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Agreement. 58. Joint Preparation- Interpretation The language of this Agreement has been agreed to by both parties to express their mutual intent and no rule of strict construction shall be applied against either party hereto. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in this Agreement shall include the other gender, and the singular shall include the plural, and vice versa, unless the context otherwise requires. Terms such as "herein," "hereof," "hereunder," and "hereinafter" refer to this Agreement as a whole and not to any particular sentence, article, paragraph, or section where they appear, unless the context otherwise requires, Whenever reference is made to a Section or Article of this Agreement, such reference is to the Section or Article as a whole, including all of the subsections of such Section or Article, unless the reference is made to a particular subsection. {30163379;1}29 59. Amendments No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the City Manager and Manager. 60. Severability In the event that any provision of this Agreement is determined by a Court of competent jurisdiction to be illegal or unenforceable, then such unenforceable or unlawful provision shall be excised from this Agreement, and the remainder of this Agreement shall continue in full force and effect. Notwithstanding the foregoing, if the result of the deletion of such provision will materially and adversely affect the rights of either party, such party may elect, at its option, to terminate this Agreement in its entirety. An election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final. 61. Entire Agreement This Agreement, as it may be amended from time to time, represents the entire and integrated agreement between the City and the Manager and supersedes all prior negotiations, representations or agreements, written or oral. This Agreement may not be amended, changed, modified, or otherwise altered in any respect, at any time after the execution hereof, except by a written document executed with the same formality and equal dignity herewith. Waiver by either party of a breach of any provision of this Agreement shall not be deemed to be a waiver of any other breach 62. Conflict of Interest Manager covenants that no person under its employ who presently exercises any functions or responsibilities on behalf of the City in connection with this Agreement has any personal financial interests, direct or indirect, with the Contractor. Manager further covenants that, in the performance of the Agreement, no person having such conflicting interest shall be employed. Any such interest on the part of the Contractor or its employees must be disclosed in writing to the City. Manager is aware of the conflict of interest laws of the City, Miami City Code §2-611, Miami -Dade County, Florida, Miami -Dade County Code §2-11.1; and the State of Florida, Chapter 112, Part III, Florida Statutes, as amended, and agrees that it shall fully comply in all respects with the terms of said laws. 63. Independent Contractor Manager, its employees, agents or representatives, shall be deemed to be independent contractors and not agents or employees of the City and shall not attain any rights or benefits under the civil service or pension ordinances of the City, or any rights generally afforded {30163379;1 }30 classified or unclassified employees. Manager, its employees, agents or representatives, shall not be entitled to Florida Workers' Compensation benefits as an employee of the City. 64. Public Records Manager shall comply with Chapter 119, Florida Statutes, as may be applicable, shall additionally comply with Section 119.0701, Florida Statutes, including without limitation: (1) keep and maintain public records that ordinarily and necessarily would be required by the City to perform this service; (2) provide the public with access to public records on the same terms and conditions as the City would at the cost provided by Chapter 119, Florida Statutes, or as otherwise provided by law; (3) ensure that public records that are exempt or confidential and exempt from disclosure are not disclosed except as authorized by law; (4) meet all requirements for retaining public records and transfer, at no cost, to the City all public records in its possession upon termination of this Agreement and destroy any duplicate public records that are exempt or confidential and exempt from disclosure requirements; (5) all electronically stored public records must be provided to the City in a format compatible with the City's information technology systems. 65. Notices All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. For The City of Miami: City Manager 444 S.W. 2nd Avenue, 10th Floor Miami, FL 33130-1910 With a copy to: Director of the Department for Capital Improvements and Transportation Program 444 S.W. 2nd Avenue, 8t11 Floor Miami, FL 33130-1910 {30163379;1 }31 For Manager: FCAA, LLC Attn: Eric Wilson 3841 N.E. 2nd Avenue, Suite 400 Miami, FL 33137 Telephone (305) 722-7100 Facsimile (305) 722-7263 [ SIGNATURE PAGE(S) TO FOLLOW ] {30163379;1}32 IN WITNESS WHEREOF, the parties have set their hands and seals on the day and year first above written "City" City of Miami, a municipal corporation ATTEST: By: By: Todd B. Hannon, City Clerk Daniel J. Alfonso, City Manager "Manager" ATTEST: FCAA LLC, a Delaware limited liability company By: Name: Name: Title: Title: APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Victoria Mendez, City Attorney Ann -Marie Sharpe, Risk Management Director {30163379;1 }33 ATTACHMENT A Those drawing, plans, and specifications on the list attached but only to the extent such drawings, plans and specifications relate to the Scope of Work attached hereto. {30163379;1) CITY OF MIAMI Date of Inspection: Project information Project No.: Project Location: Representation City of Miami ser Agency: Contractor: ATTACHMENT B DEPARTMENT OF CAPITAL IMPROVEMENTS AND TRANSPORTATION PROGRAM 444 S.W. 2ND AVENUE, 8t'' Floor MIAMI, FLORIDA 33130 SUBSTANTIAL COMPLETION INSPECTION Re -Inspection No.: Project Name: Contractor's Name: Inspection Based on the request of the Contractor a substantial completion inspection was conducted, which resulted in the following: ❑ No punch list created. By signing below the City acknowledges that the work has been performed in accordance with the contract and specification requirements. This form shall serve as the Notice of Final Completion. Project Close Out and final payment is subject to the submittal of all required documentation. ❑ The punch list items as stated on the punch list form are of a nature that will allow beneficial occupancy on the premises and the punch list is issued as a final punch list, subject to re -inspection by the City. By signing below the City acknowledges that the work has been performed in accordance with the contract and specification requirements. This form shall serve as a partial acceptance and notification of substantial completion. Final Acceptance shall be issued subsequent to completion and re -inspection of the punch list items. Project Close Out and final payment is subject to the punch list re - inspection and the submittal of all required documentation. ❑ The punch list items listed are of a nature that precludes beneficial occupancy of the premises. Substantial completion is denied at this time. Items on the punch list must be completed and the Contractor must request another Substantial Completion Inspection. The failure or refusal of the Contractor to sign the Project Substantial Completion Inspection Form or Punch List shall not relieve the Contractor from complying with the findings of the {30163379;1 }35 Project Substantial Completion Inspection and completing the Project to the satisfaction of the City. All punch Fist items must be completed on or before the mutually agreed upon date of Contractor City of Miami Accepted By: Approved By: Name Name Signature Signature {30163379;1 }36 ATTACHMENT C PUNCH LIST {30163379;1 }37 CITY OF MIAMI DEPARTMENT OF CAPITAL IMPROVEMENTS 444 NW 2ND AVENUE MIAMI, FLORIDA 33130 PUNCH LIST Date of Substantial Completion Inspection: Project No: Project Location: Date of Punch List Inspection: Project Name: Contractor's Name: City of. Miami Representative: Contractor's Representative: Consultant's Representative: The following is a list of items, within the scope of work, that require correction prior to; ❑ a new substantial completion inspection or, ❑ final completion. A detailed description for each item is provided below. Upon completion the City's Project Manager and the Consultant shall inspect the work performed and initial that each item has been completed and accepted. (Use additional pages as necessary.) Description of Item Project Manager's Acceptance Date of Acceptance {30163379;1} 38 Simpson Park Page Punch List developed and agreed to by: Project Manager: Contractor; Consultant: {30163379;1} 39 Page ATTACHMENT D CERTIFICATE OF SUBSTANTIAL COMPLETION: PROJECT: (name, address) AGREEMENT NUMBER: MANAGER: AGREEMENT FOR: NOTICE TO PROCEED DATE: TO (City): DATE OF ISSUANCE: PROJECT OR DESIGNATED PORTION SHALL INCLUDE: The Work performed under this Agreement has been reviewed and found to be substantially complete and all documents required to be submitted by Manager under the Contract Documents have been received and accepted. The Date of Substantial Completion of the Project or portion thereof designated above is hereby established as DEFINITION OF DATE OF SUBSTANTIAL COMPLETION The Date of Substantial Completion of the Construction Work or portion thereof designated by City is the date certified by Consultant and/or Director when all conditions and requirements of permits and regulatory agencies have been satisfied and the work is sufficiently complete in accordance with the Contract Documents, so the Project is available for beneficial occupancy by City. A Certificate of Occupancy/Completion must be issued for Substantial Completion to be achieved. {30163379;1} A list of items to be completed or corrected, prepared by Consultant and approved by City is attached hereto. The failure to include any items on such list does not alter the responsibility of Manager to complete all work in accordance with the Contract Documents. The date of commencement of warranties for items on the attached list will be the date of Substantial Completion unless otherwise agreed in writing. City By Date In accordance with the Agreement, Manager will complete or correct the work on the list of items attached hereto within from the above Date of Substantial Completion. City By Date City, through the Director, accepts the Work or portion thereof designated by City as substantially complete and will assume full possession thereof at (time) on (date). City of Miami, Florida By Director Date The responsibilities of City and Manager for security, maintenance, heat, utilities, damage to the work and insurance shall be as follows: {30163379;1} ATTACHMENT E FINAL CERTIFICATE OF PAYMENT: PROJECT: (name, address) BID/CONTRACT NUMBER: TO (City): MANAGER: AGREEMENT FOR: NOTICE TO PROCEED DATE: DATE OF ISSUANCE: All conditions or requirements of any permits or regulatory agencies have been satisfied. The documents required by the Agreement, and the final bill of materials, if required, have been received and accepted. The Work required by the Contract Documents has been reviewed and the undersigned certifies that the Work, including minor corrective work, has been completed in accordance with the provision of the Contract Documents and is accepted under the terms and conditions thereof. Consultant By Date City, through the Director, accepts the work as fully complete and will assume full possession thereof at (Time) (Date) City of Miami, Florida By Director Date {30163379;1} Page 42 ATTACHMENT F INSURANCE REQUIREMENTS DESIGN BUILD CONSTRUCTION AGREEMENT DESIGN DISTRICT ROAD IMPROVEMENTS I. Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury B. Endorsements Required $1,000,000.00 $ 2,000,000.00 $ 1,000,000.00 $1,000,000.00 City of Miami listed as an additional insured Contingent & Contractual Liability Premises & Operations Liability Explosion, Collapse and Underground Hazard Primary Insurance Clause Endorsement Additional Insured Endorsement Required II. Business Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000.00 B. Endorsements Required City of Miami listed as an additional insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation {30163379;1} Employer's Liability A. Limits of Liability $1,000,000.00 for bodily injury caused by an accident, each accident. $1,000,000.00 for bodily injury caused by disease, each employee $1,000,000.00 for bodily injury caused by disease, policy limit IV. Umbrella Policy/Excess Liability (Excess Follow Form) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $25,000,000.00 Aggregate $25,000,000.00 B. Endorsements Required City of Miami listed as an additional insured The Umbrella/Excess Policies should respond over all applicable primary layer liability policies. V. Owners & Contractor's Protective Each Occurrence General Aggregate City of Miami listed as named insured $1,000,000.00 $1,000,000.00 VI. Payment and Performance Bond $TBD City of Miami listed as Obligee VII. INSTALLATION FLOATER/Builder's Risk -if applicable Causes of Loss. All Risk/Special Form Valuation: Replacement Cost Deductible: $10,000.00-$25,000.00 AOP, 5% W/H & Flood, if applicable VIII. Contractor's Professional Liability Each Claim Policy Aggregate Retro Date Included $3,000,000.00 $3,000,000.00 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. {30163379,1} Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and/or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. The City will contemplate an Owner's Insurance Controlled Program (OCIP) if selected in connection with this project. The City must be listed as an additional insured on all primary layers of liability coverage, as well as all excess and umbrella policies in connection with this insurance program,. Automobile liability shall be included with limits of at least $10,000,000.00 per accident. Property shall also be included subject to "all risk of direct physical loss, or similar language, with replacement cost valuation, and deductibles acceptable to the City covering all other perils, along with windstorm, hail, and flood. {30163379;1 } ATTACHMENT G GRANT AGREEMENT #HL 025: STATE OF FLORIDA, DEPARTMENT OF ECONOMIC OPPORTUNITY {30163379;1 } Agreement # HL 025 GRANT AGREEMENT STATE OF FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY THIS GRANT AGREEMENT ("Agreement") is made and entered into by and between the State of Florida, Department of Economic Opportunity ("DEO"), and the City of Miami ("Grantee"). DEO and Grantee are sometimes referred to herein individually as a "Party" and collectively as "the Parties." I. GRANTEE AGREES: A. Attachment 1, Scope of Work: Grantee agrees to provide the goods and/or services in accordance with the conditions and criteria specified herein, and in Attachment 1, Scope of Work. B. Type of Agreement: This Agreement is a cost reimbursement agreement. C. Agreement Period: This Agreement shall take effect upon the date on which the last Party signs. The term of this Agreement begins on July 1, 2014 and ends on June 30, 2015. DEO shall not be obligated to pay for costs incurred by Grantee related to this Agreement prior to its beginning date or after its ending date. Grantee acknowledges that while no extension of this Agreement is contemplated, if an extension is necessary due to events beyond the control of Grantee, any consideration of an extension will be subject to the availability of funds and further conditioned upon Grantee's satisfactory performance of all duties and obligations hereunder, as determined by DEO. D. Agreement Payment: This Agreement shall not exceed two million ($2,000,000.00) which shall be paid by DEO in consideration for Grantee's provision of services as forth by the terms and conditions of this Agreement, The State of Florida and DEO's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Legislature. DEO shall be the final authority as to the availability of funds for this Agreement, and as to what constitutes an "annual appropriation" of funds to complete this Agreement. If such funds are not appropriated or available for the Agreement purpose, such event will not constitute a default on DEO or the State. DEO agrees to notify Grantee in writing at the earliest possible time if funds are not appropriated or available. The cost for services rendered under any other Agreement or to be paid from any other source is not eligible for reimbursement under this Agreement. E. Requirements of paragraphs (a) -- (I) of subsection 287.058(1), Florida Statutes (F.S.): 1. Grantee shall submit bills for fees or other compensation for services or expenses in sufficient detail for a proper pre -audit and post -audit thereof. Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) 2. If travel expenses are authorized, Grantee shall submit bills for such travel expenses and shall be reimbursed only in accordance with section 112.061, F.S. 3. Grantee shall allow public access to all documents, papers, letters or other materials made or received by Grantee in conjunction with this Agreement, unless the records are exempt from section 24(a) of Article 1 of the State Constitution and section 119.07(1), F.S. It is expressly understood that DEO may unilaterally cancel this Agreement for Grantee's refusal to comply with this provision. 4. Grantee shall perform all tasks contained in Attachment 1, Scope of Work. 5. Receipt by Grantee of DEO's written acceptance of the units of deliverables specified herein is a condition precedent to payment under this Agreement and is contingent upon Grantee's compliance with the specified performance measure (i.e., each deliverable must satisfy at least the minimum acceptable level of service specified in the Scope of Work and DEO shall apply the applicable criteria stated in the Scope of Work to determine satisfactory completion of each deliverable). 6. Grantee shall comply with the criteria and final date by which such criteria must be met for completion of this Agreement. 7. Renewal: This Agreement may not be renewed. 8. If Grantee fails to perform in accordance with the Agreement, DEO shall apply the financial consequences specified herein. 9. Unless otherwise agreed in writing, intellectual property rights to preexisting property will remain with Grantee; whereas,intellectual property rights to all property created or otherwise developed by Grantee specifically for DEO will be owned by the State of Florida through DEO. Proceeds derived from the sale, licensing, marketing or other authorization related to any such DEO-controlled intellectual property right shall be handled in the manner specified by applicable state statute. F. Governing Laws of the State of Florida: 1. Grantee agrees that this Agreement is executed and entered into in the State of Florida, and shall be construed, performed, and enforced in all respects in accordance with the laws, rules, and regulations of the State of Florida. Each Party shall perform its obligations herein in accordance with the terms and conditions of the Agreement. Without 'limiting the provisions of Section ILO., Dispute Resolution, the exclusive venue of any legal or equitable action that arises out of or relates to the Agreement shall be the appropriate state court in Leon County, Florida; in any such action, the Parties waive any right to jury trial. 2. Grantee agrees that it is in compliance with the rules for e-procurement as directed by Rule 60A-1.030, F.A.C. and that If applicable, will maintain eligibility for this Agreement through the MyFloridaMarketplace.com system. 3. DEO shall ensure compliance with section 11.062, F.S., and section 216.347, F.S. Grantee shall not, in connection with this or any other agreement with the State, directly or 2 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) indirectly: (1) offer, confer, or agree to confer any pecuniary benefit on anyone as consideration for any State officer or employee's decision, opinion, recommendation, vote, other exercise of discretion, or violation of a known legal duty; or (2) offer, give, or agree to give to anyone any gratuity for the benefit of, or at the direction or request of, any State officer or employee. For purposes of clause (2), "gratuity" means any payment of more than nominal monetary value in the form of cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind. Upon request of DEO's inspector General, or other authorized State official, Grantee shall provide any type of information the Inspector General deems relevant to Grantee's integrity or responsibility. Such information may include, but shall not be limited to, Grantee's business or financial records, documents, or files of any type or form that refer to or relate to this Agreement. Grantee shall retain such records in accordance with the record retention requirements of Part V of Attachment 2, Audit Requirements. 4. Grantee agrees to reimburse the State for the reasonable costs of investigation incurred by the Inspector General or other authorized State official for investigations of Grantee's compliance with the terms of this or any other agreement between Grantee and the State which results in the suspension or debarment of Grantee. Such costs shall include, but shall not be limited to: salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. Grantee shall not be responsible for any costs of investigations that do not result in Grantee's suspension or debarment. Public Entity Crime: Pursuant to section 287.133(2)(a), F.S., a person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid, proposal, or reply on an agreement to provide any goods or services to a public entity; may not submit a bid, proposal, or reply on an agreement with a public entity for the construction or repair of a public building or public work; may not submit bids, proposals, or replies on leases of real property to a public entity; may not be awarded or perform work as a Grantee, supplier, subcontractor or consultant under an agreement with any public entity and may not transact business with any public entity in excess of the threshold amount provided in section 287.017, F.S., for Category Two for a period of thirty- six (36) months from the date of being placed on the convicted vendor list. 6. Advertising: Subject to chapter 119, F.S., Grantee shall not publicly disseminate any information concerning this Agreement without prior written approval from DEO, including, but not limited to mentioning this Agreement in a press release or other promotional material, identifying DEO or the State as a reference, or otherwise linking Grantee's name and either a description of the Agreement or the name of DEO or the State in any material published, either in print or electronically, to any entity that is not a Party to this Agreement, except potential or actual authorized distributors, dealers, resellers, or service representatives. 7. Sponsorship: As required by section 286.25, F.S., if Grantee is a nongovernmental organization which sponsors a program financed wholly or in part by state funds, including any funds obtained through this Agreement, it shall, in publicizing, advertising, or describing the sponsorship of the program, state: "Sponsored by (Grantee's name) and the State of Florida, Department of Economic Opportunity:' If the sponsorship reference is in written material, the words "State of Florida, Department of Economic Opportunity" shall appear in thesame size letters or type as the name of the organization. 3 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) 8. Mandatory Disclosure Requirements: a. Conflict of Interest: This Agreement is subject to chapter 112, F.S. Grantee shall disclose thename of any officer, director, employee, or other agent who is also an employee of the, State. Grantee shall also disclose the name of any State employee, who owns, directly or indirectly, more than a five percent (5%) interest in Grantee or its affiliates. b. Convicted Vendors: Grantee shall disclose to DEO if they are on the convicted vendor list. A person or affiliate placed on the convicted vendor list following a conviction for a public entity crime is prohibited from doing any of the activities listed in Section 1.F.1.e. above for a period of thirty—six (36) months from the date of being placed on the convicted vendor list. c. Vendors on Scrutinized Companies Lists: if this Agreement is in the amount of $1 million or more, in executing this Agreement, Grantee certifies that it is not listed on either the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, created pursuant to section 215.473, F.S. 1) Pursuant to section 287.135(5), F.S., DEO may immediately terminate this Agreement for cause if Grantee is found to have submitted a false certification or if Grantee is placed on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List during the term of the Agreement. 2) If DEO determines that Grantee has submitted a false certification, DEO will provide written notice to Grantee. Unless Grantee demonstrates in writing, within ninety (90) days of receipt of the notice, that DEO's determination of false certification was made in error, DEO shall bring a civil action against Grantee. if DEO's determination is upheld, a civil penalty equal to the greater of $2 million or twice the amount of this Agreement shall be imposed on Grantee, and Grantee will be ineligible to bid on any Agreement with an agency or local governmental entity for three (3) years after the date of DEO's determination of false certification by the Grantee. 3) In the event that federal law ceases to authorize the states to adopt and enforce the contracting prohibition identified herein, this provision shall be null and void. d. Discriminatory Vendors: Grantee shall disclose to DEO if they appear on the discriminatory vendor list. An entity or affiliate placed on the discriminatory vendor list pursuant to section 287.134, F.S. may not: 1) Submit a bid on an agreement to provide any goods or services to a public entity; 2) Submit a bid on an agreement with a public entity for the construction or repair of a public building or public work; 3) Submit bids on leases of real property to a public entity; or 4 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) ) Be awarded or perform work as a Grantee, supplier, sub -Grantee, or consultant under an agreement with any public entity; or transact business with any public entity. 9. Abuse, Neglect, and Exploitation Incident Reporting: In compliance with sections 39.201 and 415.1034, F.S., an employee of Grantee who knows or has reasonable cause to suspect that a child, aged person, or disabled adult is or has been abused, neglected, or exploited shall immediately report such knowledge or suspicion to the Florida Abuse Hotline by calling 1-800-96ABUSE, or via the web reporting option at http://www:dcf.state.fl.us/abuse/report/, or via fax at 1-800-914-0004. 10. Information Release: a. DEO does not endorse any Grantee, commodity, or service. No public disclosure or news release pertaining to this Agreement shall be made without the prior written approval of DEO. Grantee is prohibited from using Agreement information, sales values/volumes and/or DEO customers in sales brochures or other promotions, including press releases, unless prior written approval is obtained from DEO. Grantee acknowledges that DEO is subject to the provisions of chapter 119, F.S., relating to public records and that reports, invoices, and other documents Grantee submits to DEO under this Agreement may constitute public records under Florida Statutes; Grantee shall cooperate with DEO regarding DEO's efforts to comply with the requirements of chapter 119, F.S. c. If Grantee submits records to DEO that are confidential and exempt from public disclosure as trade secrets or proprietary confidential business information, such records should be identified as such by Grantee prior to submittal to DEO. Failure to identify the legal basis for each exemption from the requirements of chapter 119, F.S., prior to submittal of the record to DEO serves as Grantee's waiver of a claim of exemption. d. Grantee shall allow public access to all records made or received by Grantee in conjunction with this Agreement, unless the records are exempt from section 24(a) of Article I of the State Constitution and section 119.07(1), F.S. In accordance with chapter 119 F.S., Grantee shall be responsible for responding to all public records requests per the cost structure provided for records made or received by, Grantee in conjunction with this Agreement. e. Grantee must notify DEO, both by e-mail and first class mail, within one (1) business day from receipt of all request(s) for public records, as a public record is defined in section 119.011, F.S. Notice of public records requests received by the Grantee shall be e- mailed to PRRequest@deo.mvflorida.com and mailed to: Public Records Coordinator Department of Economic Opportunity 107 East Madison Street 5 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) Tallahassee, Florida 32399 Office: (850) 245-7140 f. Grantee shall notify DEO verbally within twenty-four (24) chronological hours and in writing within seventy-two (72) chronological hours if any data in Grantee's possession related to this Agreement is subpoenaed or improperly used, copied, or removed (except in the ordinary course of business) by anyone except an authorized representative of DEOa Grantee shall cooperate with DEO in taking all steps as DEO deems advisable to prevent misuse, regain possession, and/or otherwise, protect the State's rights and the data subject's privacy. 11. Funding Requirements of Section 215.971(1), F.S. a. Grantee and its subcontractors may only expend funding under this Agreement for allowable costs resulting from obligations incurred during the Agreement period. b. Grantee shall refund to DEO any balance of unobligated funds which has been advanced or paid to Grantee. c. Grantee shall refund to DEO all funds paid in excess of the amount to which Grantee or its subcontractors are entitled under the terms and conditions of the Agreement. G. Grantee Payments: 1. Grantee will provide DEO's Agreement Manager invoices in accordance with the requirements of the State of Florida Guide for State Expenditures (http://www.myfloridacfo.com/aadir/reference guide/) with detail sufficient for a proper pre -audit and post -audit thereof. Invoices must also comply with the following: a. invoices must be legible and must clearly reflect the goods/services that were provided In accordance with the terms of the Agreement for the invoice period. Payment does not become due under the Agreement until the invoiced deliverable(s) and any required report(s) are approved and accepted by DEO. b. Invoices must contain the Grantee's name, address, federal employer identification number or other applicable Grantee identification number, the Agreement number, the invoice number, and the invoice period. DEO or the State may require any additional information from Grantee that DEO or the State deems necessary to process an invoice. c. Invoices must be submitted in accordance with the time requirements specified in the Scope of Work. 2. At DEO's or the State's option, Grantee may be required to invoice electronically pursuant to guidelines of the Department of Management Services. Current guidelines require that Grantee supply electronic invoices in lieu of paper -based invoices for those transactions processed through the system. Electronic invoices shall be submitted to DEO's Agreement Manager through the Ariba Supplier Network (ASN) in one of the following mechanisms — EDI 810, cXML, or web -based invoice entry within the ASN. 6 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) 3. Payment shall be made in accordance with sections 215.422 and 287.0585, F.S., which govern time limits for payment of invoices. Section 215.422, F.S., provides that agencies have five (5) working days to inspect and approve goods and services unless the solicitation documents or the Agreement Scope of Work specify otherwise. DEO has twenty (20) days to deliver a request for payment (voucher) to the Department of Financial Services. The twenty (20) days are measured from the latter of the date the invoice is received or the goods or services are received, inspected and approved. The Scope of Work may specify conditions for retainage. Invoices returned to a Grantee due to preparation errors will result in a delay of payment. Invoice payment requirements do not start until a properly completed invoice is provided to DEO. DEO is responsible for all payments under the Agreement. 4. Section 55.03(1), F.S., identifies the process applicable to the determination of the rate of interest payable on judgments and decrees, and pursuant to section 215.422(3)(b), F.S., this same process applies to the determination of the rate of interest applicable to late payments to vendors for goods and services purchased by the State and for contracts which do not specify a rate of interest. The applicable rate of interest is published at: hItgdh_uviw.mvfloridacfo.comiaadir/interest.htm H. Final lnvoice: Grantee shall submit the final invoice for payment to DEO no later than 60 days after the Agreement ends or is terminated. If Grantee fails to do so, all rights to payment are forfeited and DEO will not honor any requests submitted after this time period. I. Return or Recoupment of Funds: 1. Grantee shall return to DEO any overpayments due to unearned funds or funds disallowed pursuant to the terms of this Agreement that were disbursed to Grantee by DEO. In the event that Grantee or its independent auditor discovers that overpayment has been made, Grantee shall repay said overpayment within forty (40) calendar days without prior notification from DEO. In the event that DEO first discovers an overpayment has been made, DEO will notify Grantee by letter. Should repayment not be made in a timely manner, DEO shall be entitled to charge interest at the lawful rate of interest on the outstanding balance beginning forty (40) calendar days after the date of notification or discovery. Refunds should be sent to DEO's Agreement Manager, and made payable to the "Department of Economic Opportunity." If authorized and approved, Grantee may be provided an advance as part of this Agreement. 3. Notwithstanding the damages limitations of Section II.F., if Grantee's non-compliance with any provision of the Agreement results in additional cost or monetary loss to DEO or the State of Florida, DEO can recoup that cost or loss from monies owed to Grantee under this Agreement or any other Agreement between Grantee and any State entity. In the event that the discovery of this cost or Toss arises when no monies are available under this Agreement or any other Agreement between Grantee and any State entity, Grantee will repay such cost or loss in full to DEO within thirty (30) days of the date of notice of the amount owed, unless the Department agrees, in writing, to an alternative timeframe. 7 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) J. Vendor Ombudsman: A Vendor Ombudsman has been established within the Department of Financial Services. The duties of this individual include acting as an advocate for vendors who may be experiencing problems in obtaining timely payment(s) from a state agency. The Vendor Ombudsman may be contacted at (850) 413-5516 or by calling the Chief Financial Officer's Hotline, (800) 342-2762. K. Audits and Records: 1. Representatives of DEO, the Chief Financial Officer of the State of Florida, the Auditor General of the State of Florida, the Florida Office of Program Policy Analysis and Government Accountability or representatives of the federal government and their duly authorized representatives shall have access to any of Grantee's books, documents, papers, and records, including electronic storage media, as they may relate to this Agreement, for the purposes of conducting audits or examinations or making excerpts or transcriptions. 2. Grantee shall maintain books, records, and documents in accordance with generally accepted accounting procedures and practices which sufficiently and properly reflect all expenditures of funds provided by DEO under this Agreement. 3. Grantee shall comply with all applicable requirements of section 215.97, F.S., and Attachment 2, Audit Requirements; and, if an audit is required thereunder, Grantee shall disclose all related party transactions to the auditor. 4. Grantee shall retain all Grantee records, financial records, supporting documents, statistical records, and any other documents (including electronic storage media) pertinent to this Agreement in accordance with the record retention requirements of Part V of Attachment 2, Audit Requirements. Grantee shall cooperate with DEO to facilitate the duplication and transfer of such records or documents upon request of DEO. 5: Grantee shall transfer, at no cost to DEO, all public records upon completion or termination of this Agreement, and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All electronic records shall be provided to DEO in a DEO-compatible format. 6. Grantee shall include the aforementioned audit and record keeping requirements in all approved subrecipient subcontracts and assignments. 7. Within sixty (60) days of the close of Grantee's fiscal year, on an annual basis, Grantee shall electronically submit a completed' Audit Compliance Certification (a version of this certification is attached hereto as Attachment 3) to audit@deo.mvflorida.com. Grantee's timely submittal of one completed Audit Compliance Certification for each applicable fiscal year will fulfill this requirement within all agreements (e.g., contracts, grants, memorandums of understanding, memorandums of agreement, economic incentive award agreements, etc.) between DEO and Grantee. 8 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) L. Employment Eligibility Verification 1. Executive Order 11-116, signed May 27, 2011, by the Governor of Florida, requires DEO contracts in excess of nominal value to expressly require Grantee to: a. Utilize the U.S. Department of Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired by Grantee during the Agreement term; and, b. Include in all subcontracts under this Agreement, the requirement that subcontractors performing work or providing services pursuant to this Agreement utilize the E-Verify system to verify the employment eligibility of all new employees hired by the. subcontractor during the term of the subcontract. 2. &Verify is an Internet -based system that allows an employer, using information reported on an employee's Form 1-9, Employment Eligibility Verification, to determine the eligibility of all new employees hired to work in the United States after the effective date of the required Memorandum of Understanding (MOU); the responsibilities and elections of federal contractors, however, may vary, as stated in Article II.D.1ec. of the MOU. There is no charge to employers to use E-Verify. The Department of Homeland Security's E-Verify system can be found at: http://www.dhs.gov/files/programs/gc 1185221678150.shtm 3. If Grantee does not have an E-Verify MOU in effect, Grantee must enroll in the E-Verify system prior to hiring any new employee after the effective date of this Agreement; M. Duty of Continuing Disclosure of Legal Proceedings: 1. Prior to execution of this Agreement, Grantee must disclose all prior or on -going civil or criminal litigation, investigations, arbitration or administrative proceedings (Proceedings) involving Grantee (and each subcontractor) in a written statement to DEO's Agreement Manager. Thereafter, Grantee has a continuing duty to promptly disclose all Proceedings upon occurrence. 2. This duty of disclosure applies to Grantee's or subcontractor's officers and directors when any Proceeding relates to the officer or director's business or financial activities. Details of settlements that are prevented from disclosure by the terms of the settlement may be annotated as such. 3. Grantee shall promptly notify DEO's Agreement Manager of any Proceeding relating to or affecting the Grantee's or subcontractor's business. If the existence of such Proceeding causes the State concern that the Grantee's ability or willingness to perform the Agreement is jeopardized, Grantee shall be required to provide DEO's Agreement Manager all reasonable assurances requested by DEO to demonstrate that: a. Grantee will be able to perform the Agreement in accordance with, its terms and conditions; and, 9 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) b. Grantee and/or its employees, agents, or subcontractor(s) have not and will not.engage in conduct in performing services for DEO which is similar in nature to the conduct alleged in such Proceeding. N. Assignments and Subcontracts: 1. Grantee agrees to neither assign the responsibility for this Agreement to another party nor Subcontract for any of the work contemplated under this Agreement without prior written approval of DEO. Any sublicense, assignment, or transfer occurring without the prior approval of DEO, shall be null and void. 2. Grantee agrees to be responsible for all work performed and all expenses incurred in fulfilling the obligations of this Agreement. If DEO permits Grantee to subcontract all or part of the work contemplated under this Agreement, including entering into subcontracts with vendors for services and commodities, it is understood by Grantee that all such subcontract arrangements shall be evidenced by a written document subject to prior review and comment by DEO. Such review of the written subcontract document by DEO will be limited to a determination of whether or not subcontracting is permissible and the inclusion of applicable terms and conditions of this Agreement. Grantee further agrees that DEO shall notbe liable to the subcontractor for any expenses or liabilities incurred under the subcontract and Grantee shall be solely liable to the subcontractor for all expenses and liabilities incurred under the subcontract. Grantee, at its expense, will defend DEO against such claims. 3. Grantee agrees that all Grantee employees, subcontractors, or agents performing work under the Agreement shall be properly trained technicians who meet or exceed any specified training qualifications. Upon request, Grantee shall furnish a copy of technical certification or other proof of qualification. All employees, subcontractors, or agents performing work under the Agreement must comply with all security and administrative requirements of DEO. DEO may conduct, and Grantee shall cooperate in, a security background check or otherwise assess any employee, subcontractor, or agent furnished by Grantee. DEO may refuse access to, or require replacement of, any personnel for cause, including, but not limited to, technical or training qualifications, quality of work, change in security status, or non-compliance with DEO's security or other requirements. Such refusal shall not relieve Grantee of its obligation to perform all work in compliance with the Agreement. DEO may reject and bar from any facility for cause any of Grantee's employees, subcontractors, or agents. 4. Grantee agrees that the State of Florida shall at all times be entitled to assign or transfer its rights, duties, or obligations under this Agreement to another governmental agency in the State of Florida, upon giving prior written notice to Grantee. In the event the State of Florida approves transfer of Grantee's obligations, Grantee remains responsible for all work performed and all expenses incurred in connection with the Agreement. In addition, this Agreement shall bind the successors, assigns, and legal representatives of Grantee and of any legal entity that succeeds to the obligations of the State of Florida. 5. Grantee agrees to make payments to the subcontractor within seven (7) working days after receipt of full or partial payments from DEO in accordance with section 287.0585, .F.S., unless otherwise stated in the Agreement between Grantee and subcontractor. Grantee's 10 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) failure to pay its subcontractors within seven (7) working days will result in a penalty charged against Grantee and paid to the subcontractor in the amount of one-half of one (1) percent of the amount due per day from the expiration of the period allowed herein for payment. Such penalty shall be, in addition to actual payments owed and shall not exceed fifteen (15) percent of the outstanding balance due. 6. Grantee shall provide a monthly Minority and Service -Disabled Veteran Business Enterprise Report summarizing the participation of certified and non -certified minority and service - disabled veteran subcontractors/material suppliers for the current month, and project to date. The report shall include the names, addresses and dollar amount of each certified and non -certified Minority Business Enterprise and Service -Disabled Veteran Enterprise. participant and a copy must be forwarded to DEO's Agreement Manager. The Office of Supplier Diversity at (850) 487-0915 will assist in furnishing names of qualified minorities. DEO's Minority Coordinator at (850) 245-7260 will assist with questions and answers. 7. DEO shall retain the right to reject any of Grantee's or subcontractor's employees whose qualifications or performance, in DEO's judgment, are insufficient. O. Purchasing: 1. Prison Rehabilitative industries and Diversified Enterprises, Inc. (PRIDE): In accordance with section 946.515(6), F. S., if a product or service required for the performance of this Agreement is certified by or Is available from PRIDE and has been approved in accordance with section 946.515(2), F. S., the following statement applies: It is expressly understood and agreed that any articles which are the subject of, or required to carry out, this Agreement shall be purchased from the corporation identified under chapter 946, F. S., in the same manner and under the same procedures set forth in section 946.515(2) and (4), F. S.; and for purposes of this Agreement the person, firm or other business entity carrying out the provisions of this Agreement shall be deemed to be substituted for this agency insofar as dealings with such corporation are concerned. The above clause is not applicable to subcontractors unless otherwise required by law. Additional information about PRIDE and the products it offers is available at htto://www.pride-enterprises.org. 2. Products Available from the Blind or Other Handicapped (RESPECT): In accordance with section 413.036(3), F.S., if a product or service required for the performance of this Agreement is on the procurement list established pursuant to section 413.035(2), F.S., the following statement applies: It is expressly understood and agreed that any articles that are the subject of, or required to carry out, this Agreement shall be purchased from a nonprofit agency for the blind or for the severely handicapped that is qualified pursuant to chapter 413, F.S., in the same manner and under the same procedures set forth in section 413.036(1) and (2), F. S.; and for purposes of this Agreement, the person, firm or other business entity carrying out the provisions of this 11 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) Agreement shall be deemed to be substituted for the state agency insofar as dealings with such qualified nonprofit agency are concerned. Additional information about the designated nonprofit agency and the products it offers is available at http://www.respectofflorida.org. 3. Grantee agrees .to procure any recycled products or materials which are the subject of or are required to carry out this Agreement in accordance with section 403.7065, F.S. P. MyFloridaMarketPlace Transaction Fee: disbursements of State financial assistance to a recipient are exempt from this Transaction Fee pursuant to Rule 60A-1.032(1)(I), F,A.C. Nonexpendable Property: 1. For the requirements of this Section of the Agreement, "nonexpendable property" is the same as "property" as defined in section 273.02, F.S,, (equipment, fixtures, and other tangible personal property of a non -consumable and nonexpendable nature, with a value or cost of $1,000 or more, anda normal, expected life of one year or more; hardback -covered bound books that are circulated to students or the general public, with a value or cost of $25 or more; and hardback -covered bound books, with a value or cost of $250 or more). Q. 2. All nonexpendable property, purchased under this Agreement, shall be listed on the property records of Grantee, Grantee shall inventory annually and maintain accounting records for all nonexpendable property purchased and submit an inventory report to DEO with the final expenditure report. The records shall include, at a minimum, the following information: property tag identification number, description of the item(s), physical location, name, make or manufacturer, year, and/or model, manufacturer's serial nurnber(s), date of acquisition, and the current condition of the item. 3. At no time shall Grantee dispose of nonexpendable property purchased under this Agreement for these services without the written permission of and in accordance with instructions from DEO. 4. Immediately upon discovery, Grantee shall notify DEO, in writing, of any property loss with the date and reason(s) for the loss. 5. Grantee shall be responsible for the correct use of all nonexpendable property furnished under this Agreement. 6. A formal Agreement amendment is required prior to the purchase of any item of nonexpendable property not specifically listed in the approved Agreement budget. 7. Title (ownership) to all nonexpendable property acquired with funds from this Agreement shall be vested in DEO and said property shall be transferred to DEO upon completion or termination of the Agreement unless otherwise authorized in writing by DEO. R. Information Resource Acquisition: Grantee shall obtain prior written approval from the appropriate DEO approving authority before purchasing any Information Technology Resource (ITR) or conducting any activity that 12 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) will impact DEO's electronic information technology equipment or software, as both terms are defined in DEO Policy Number 5.01, in any way. ITR includes computer hardware, software, networks, devices, connections, applications, and data. S. Insurance: During the Agreement, lncluding the initial Agreement term, renewal(s), and extensions, Grantee, at its sole expense, shall maintain insurance coverage of such types and with such terms and limits as may be reasonably associated with the Agreement Providing and maintaining adequate insurance coverage is a material obligation of Grantee, and failure to maintain such coverage may void the Agreement. The limits of coverage under each policy maintained by Grantee shall not be interpreted as limiting Grantee's liability and obligations under the Agreement. All insurance policies shall be through insurers licensed and authorized to write policies in Florida. Upon execution of this Agreement, Grantee shall provide DEO written verification of the existence and amount for each type of applicable insurance coverage. Within thirty (30) days of the effective date of the Agreement, Grantee shall furnish DEO proof of applicable insurance coverage by standard ACORD form certificates of insurance. In the event that any applicable coverage is cancelled by the insurer for any reason, Grantee shall immediately notify DEO of such cancellation and shall obtain adequate replacement coverage conforming to the requirements herein and provide proof of such replacement coverage within fifteen (15) business days after the cancellation of coverage. DEO shall be exempt from, and in no way liable for, any sums of money representing a deductible in any insurance policy. The payment of such deductible shall be the sole responsibility of Grantee providing such insurance. The following types of insurance are required. 1. Grantee's Commercial General Liability Insurance: By execution of this Agreement, unless Grantee is astate agency or subdivision as defined by section 768.28(2), F.S., Grantee shall provide adequate commercial general liability insurance coverage and hold such liability insurance at all times during this Agreement. A self-insurance program established and operating under the laws of the State of Florida may provide such coverage. 2. Workers' Compensation and Employer's Liability Insurance: Grantee, at all times during the Agreement, at its sole expense, shall provide commercial insurance of such a type and with such terms and limits as may be reasonably associated with the Agreement, which, as a minimum, shall be: workers' compensation and employer's liability insurance in accordance with chapter 440, F.S., with minimum employer's liability limits of $100,000 per accident, $100,000 per person, and $500,000 policy aggregate. Such policy shall cover all employees engaged in any Agreement work. 13 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) 3. Other Insurance: During the Agreement term, Grantee shall maintain any other insurance as required in Attachment 1, Scope of Work. T. Confidentiality and Safeguarding Information: 1. Each Party may have access to confidential information made avaiiable by the other. The provisions of the Florida Public Records Act, Chapter 119, F.S., and other applicable state and federal laws will govern disclosure of any confidential information received by the State of Florida. 2. Grantee must implement procedures to ensure the protection and confidentiality of all data, files, and records involved with this Agreement. 3. Except as necessary to fulfill the terms of this Agreement and with the permission of DEO, Grantee shall not divulge to third parties any confidential information obtained by Grantee or its agents, distributors, resellers, subcontractors, officers, or employees in the course of performing Agreement work, including, but not limited to, security procedures, business operations information, or commercial proprietary information in the possession of the State or DEO. 4. Grantee agrees not to use or disclose any information concerning a recipient of services under this Agreement for any purpose not in conformity with state and federal law or regulations except upon written consent of the recipient, or his responsible parent or guardian when authorized by law, if applicable. 5. If Grantee has access to either OEO's network or any DEO applications, or both, in order to fulfill Grantee's obligations under this Agreement, Grantee agrees to abide by all applicable DEO Information Technology Security procedures and policies, Grantee (including its employees, sub -contractors, agents, or any other individuals to whom Grantee exposes confidential information obtained under this Agreement), shall not store, or allow to be stored, any confidential information on any portable storage media (e.g., laptops, thumb drives, hard drives, etc.) or peripheral device with the capacity to hold information. Failure to strictly comply with this provision shall constitute a breach of Agreement. 6. Grantee shall notify DEO in writing of any disclosure of unsecured confidential information of DEO by Grantee, its employees, agents, or representatives which is not in compliance with the terms of this Agreement (of which it becomes aware). Grantee also shall report to DEO any Security Incidents of which it becomes aware, including those incidents reported to Grantee by its sub -contractors or agents. For purposes of this Agreement, "Security Incident" means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of DEO information in Grantee's possession or electronic interference with DEO operations; however, random attempts at access shall not be considered a security incident. Grantee shall make a report to DEO not more than seven (7) business days after Grantee learns of such use or disclosure. Grantee's report shall identify, to the extent known: (i) the nature of the unauthorized use or disclosure, (1i) the confidential information used or disclosed, (iii) who made the unauthorized use or received the unauthorized disclosure, (iv) what Grantee has done or ,shall do to mitigate any 14 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) deleterious effect of the unauthorized use or disclosure, and iv) what corrective action Grantee has taken or shall take to prevent future similar unauthorized use or disclosure. Grantee shall provide such other information, including a written report, as reasonably requested by DEO's information Security Manager. 7. In the event of a breach of security concerning confidential personal information involved with this Agreement, Grantee shall comply with section 501.171, F.S., as applicable. When notification to affected persons is required under this section of the statute, Grantee shall provide that notification, but only after receipt of DEO's approval of the contents of the notice. Defined statutorily, and for purposes of this Agreement, "breach of security" or "breach" means the unauthorized access of data in electronic form containing personal data. Good faith acquisition of personal information by an employee or agent of the Grantee is not a breach, provided the information is not used for a purpose unrelated to the Grantee's obligations under this Agreement or is not subject to further unauthorized use. U. Warranty of Ability to Perform: Grantee warrants that, to the best of its knowledge, there is no pending or threatened action, proceeding, or investigation, or any other legal or financial condition, that would in any way prohibit, restrain, or diminish Grantee's ability to satisfy its Agreement obligations. Grantee warrants that neither it nor any affiliate is currently on the convicted vendor list maintained pursuant to section 287.133, F.S., or an any similar list maintained by any other state or the federal government. Grantee shall immediately notify DEO in writing if its ability to perform is compromised in any manner during the term of the Agreement, V. Patents, Copyrights, and Royalties: 1. Pursuant to section 286.021, F.S., if any discovery or invention arises or is developed in the course or as a result of work or services performed with funds from this Agreement, Grantee shall refer the discovery or invention to DEO who will refer it to the Department of State to determine whether patent protection will be sought in the name of the State of Florida. Any and all patent rights accruing under or in connection with the performance of the Agreement are hereby reserved to the State of Florida. The rights to any invention resulting from this Agreement that is for the performance of experimental, developmental, or research work are governed by 37 CFR Part 401 and any, of its implementing regulations as applicable. All data, both electronic and hard copies, created or received by Grantee during the Agreement are the property of DEO and must be surrendered to DEO upon expiration, termination, or cancellation of this Agreement at no cost to DEO. 2. Where activities supported by this Agreement produce original writings, sound recordings, pictorial reproductions, drawings or other graphic representations and works of any similar nature, DEO has the right to use, duplicate, and disclose such materials in whole or in part, in any manner, for any purpose whatsoever and to allow others acting on behalf of DEO to do so. In the event that any books, manuals, films, websites, web elements, electronic information, or other copyrightable materials are produced Grantee shall notify DEO. Any and all copyrights accruing under or in connection with the performance funded by this Agreement are hereby reserved to the State of Florida. 15 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) 3. In accordance with the provisions of section 1004.23, F.S., a State University is authorized in its own name to perform all things necessary to secure letters of patent, copyrights, and trademarks on any works It produces. Any action taken by the university in securing or exploiting such trademarks, copyrights, or patents shall, within thirty (30) days, be reported in writing by the president of the university to the Department of State in accordance with section 1004.23(6), F.S. W. Independent Contractor Status: In Grantee's performance of its duties and responsibilities under this Agreement, it is mutually understood and agreed that Grantee is at all times acting and performing as an independent Contractor. DEO shall neither have nor exercise any control or direction over the methods by which Grantee shall perform its work and functions other than as provided herein. Nothing in this Agreement is intended to or shalt be deemed .to constitute a partnership or joint venture between the Parties. 1. Except where Grantee is a state agency, Grantee, its officers, agents, employees, subcontractors, or assignees, in performance of this Agreement shall act in the capacity of an independent Contractor and not as an officer, employee, or agent of the State of Florida, Nor shall Grantee represent to others that, as Grantee, it has the authority to bind DEO unless specifically authorized to do so. 2. Except where Grantee is a state agency, neither Grantee, nor its officers, agents, employees, subcontractors, or assignees are entitled to state retirement or state leave benefits, or to any other compensation of state employment as a result of performing the duties and obligations of this Agreement. 3. Grantee agrees to take such actions as may be necessary to ensure that each subcontractor will be deemed to be an independent contractor and will not be considered or permitted to be an agent, servant, joint venturer, or partner of the State of 'Florida. 4. Unless justified by Grantee, and agreed to by DEO in Attachment 1, Scope of Work, DEO will not furnish services of support (e.g., office space, office supplies, telephone service, secretarial, or clerical support) to Grantee or its subcontractor or assignee. S. DEO shall not be responsible for withholding taxes with respect to Grantee's compensation hereunder. Grantee shall have no claim against DEO for vacation pay, sick leave, retirement benefits, social security, workers° compensation, health or disability benefits, reemployment assistance benefits, or employee benefits of any kind. Grantee shall ensure that its employees, subcontractors, and other agents, receive benefits and necessary insurance (health, workers' compensation, reemployment assistance benefits) from an employer other than the State of Florida. 6. Grantee, at all times during the Agreement, must comply with the reporting and Reemployment Assistance contribution payment requirements of chapter 443, F.S. 16 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Tern plate) X. Electronic Funds Transfer: Grantee agrees to enroll in Electronic Funds Transfer (EFT), offered by the State's Chief Financial Officer within thirty (30) days of the date the last Party has signed this Agreement. Copies of the Authorization form and a sample blank enrollment letter can be found on the vendor instruction page at: http://www.fldfs.com/aadir/direct deposit web/Vendors.htm Questions should be directed to the EFT Section at (850) 413-5517. Once enrolled, invoice payments will be made by EFT. IL GRANTEE AND DEO AGREE: A. Renegotiation or Modification: The Parties agree to renegotiate this Agreement if federal and/or state revisions of any applicable laws or regulations make changes to this Agreement necessary. In addition to changes necessitated by law, DEO may at any time, with written notice to Grantee, make changes within the general scope of this Agreement. Such changes may include modification of the requirements, changes to processing procedures, or other changes as decided by DEO. Any investigation necessary to determine the impact of the change shall be the responsibility of Grantee. Modifications of provisions of this Agreement shall only be valid when they have been reduced to writing and duly signed and dated by all Parties. B. Time is of the Essence: Time is of the essence regarding the performance obligations set forth in this Agreement, Any additional deadlines for performance for Grantee's obligation to timely provide deliverables under this Agreement including but not limited to timely submittal of reports, are contained in Attachment 1, Scope of Work. C. 'Termination: 10 Termination Due to the Lack of Funds: In the event funds to finance this Agreement become unavailable or if federal or state funds upon which this Agreement is dependent are withdrawn or redirected, DEO may terminate this Agreement upon no less than twenty-four (24) hour notice in writing to Grantee. Said notice shall be delivered by certified mail, return receipt requested or in person with proof of delivery. DEO shall be the final authority as to the availability of funds and will not reallocate funds earmarked for this Agreement to another program thus causing "lack of funds." In the event of termination of this Agreement under this provision, Grantee will be compensated for any work satisfactorily completed prior to notification of termination. 2. Termination for Cause: DEO may terminate the Agreement if Grantee fails to: (1) deliver the services within the time specified in the Agreement or any extension; (2) maintain adequate progress, thus endangering performance of the Agreement; (3) honor any term of the Agreement; or (4) 17 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) abide by any statutory, regulatory, or licensing requirement. Rule 60A-1.006(3), F.A.C., governs the procedure and consequences of default. Grantee shall continue to perform any work not terminated. The rights and remedies of DEO in this clause are in addition to any other rights and remedies provided by law or under the Agreement. Grantee shall not be entitled to recover any cancellation charges or lost profits. 3. Termination for Convenience: DEO, by written notice to Grantee, may terminate this Agreement in whole or in part when DEO determines in its sole discretion that it is in the State's interest to do so. Grantee shall not furnish any product after it receives the notice of termination, except as necessary to complete the continued portion of the Agreement, if any. Grantee shall not be entitled to recover any cancellation charges or lost profits. D. Dispute Resolution: Unless otherwise stated in Attachment 1, Scope of Work, disputes concerning the performance of the Agreement shall be decided by DEO, who shall reduce the decision to writing and serve a copy on Grantee. The decision shall be final and conclusive unless within twenty-one (21) days from the date of receipt, Grantee files with DEO a petition for administrative hearing. DEO's decision on the petition shall be final, subject to Grantee's right to review pursuant to chapter 120, F.S. Exhaustion of administrative remedies is an absolute condition precedent to Grantee's ability to pursue any other form of dispute resolution; provided however, that the Parties may employ the alternative dispute resolution procedures outlined in chapter 120, F.S. E. Indemnification (NOTE: If Grantee is a state agency or subdivision, as defined in section 768.28(2), F.S., pursuant to section 768.28(19), F.S., neither Party indemnifies nor insures the other Party for the other Party's negligence): 1. Grantee shall be fully liable for the actions of its agents, employees, partners, or subcontractors and shall fully indemnify, defend, and hold harmless the State and DEO, and their officers, agents, and employees, from suits, actions, damages, and costs of every name and description, including attorneys' fees, arising from or relating to personal injury and damage to real or personal tangible property alleged to be caused in whole or in part by Grantee, its agents, employees, partners, or subcontractors, provided, however, that Grantee shall not indemnify for that portion of any Toss or damages proximately caused by the negligent act or omission of the State or DEO. 2. Further, Grantee shall fully indemnify, defend, and hold harmless the State and DEO from any suits, actions, damages, and costs of every name and description, including attorneys' fees, arising from or relating to violation or infringement of a trademark, copyright, patent, trade secret or intellectual property right, provided, however, that the foregoing obligation shall not apply to DEO's misuse or modification of Grantee's products or DEO's operation or use of Grantee's products in a manner not contemplated by the Agreement or the purchase order. If any product is the subject of an infringement suit, or in Grantee's opinion is likely to become the subject of such a suit, Grantee may at its sole expense procure for DEO the right to continue using the product or to modify it to become non -infringing. If Grantee is not reasonably able to modify or otherwise secure DEO the right to continue using the 18 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) product, Grantee shall remove the product and refund DEO the amounts paid in excess of a reasonable rental for past use. DEO shall not be liable for any royalties. Grantee's obligations under the preceding two paragraphs with respect to any legal action are contingent upon the State or DEO giving Grantee (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at Grantee's sole expense, and (3) assistance In defending the action at Grantee's sole expense. Grantee shall not be liable for any cost, expense, or compromise incurred or made by the State or DEO in any legal action without Grantee's prior written consent, which shall not be unreasonably withheld. F. limitation of Liability: For all claims against Grantee under this Agreement, and regardless of the basis on which the claim is made, Grantee's liability under this Agreement for direct damages shall be limited to the greater of $100,000 or the dollar amount of this Agreement. This limitation shall not apply to claims arising under the Indemnity paragraphs contained in this Agreement. Unless otherwise specifically enumerated in the Agreement or in the purchase order, no Party shall be liable to another for special, indirect, punitive, or consequential damages, including lost data or records (unless the Agreement or purchase order requires Grantee to back-up data or records), even if the Party has been advised that such damages are possible. No Party shall be liable for lost profits, lost revenue, or lost institutional operating savings. The State and DEO may, in addition to other remedies available to them at law or equity and upon notice to Grantee, retain such monies from amounts due Grantee as may be necessary to satisfy any claim for damages, penalties, costs and the like asserted by or against them. The State may set off any liability or other obligation of Grantee or its affiliates to the State against any payments due Grantee under any Agreement with the State. G. Force Majeure and Notice of Delay from Force Majeure: Neither Party shall be liable to the other for any delay or failure to perform under this Agreement if such delay or failure is neither the fault nor the negligence of the Party or its employees or agents and the delay is due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, or other similar cause wholly beyond the Party's control, or for any of the foregoing that affects subcontractors or suppliers if no alternate source of supply is available. However, in the event of delay from the foregoing causes, the Party shall take all reasonable measures to mitigate any, and all resulting delay or disruption in the Party's performance obligation under this Agreement. If the delay is excusable under this paragraph, the delay will not result in any additional charge or cost under the Agreement to either Party. In the case of any delay Grantee believes is excusable under this paragraph, Grantee shall notify DEO in writing of the delay or potential delay and describe the cause of the delay either: (1) within ten (10) calendar days after the cause that creates or will create the delay first arose, if Grantee could reasonably foresee that a delay could occur as a result; or (2) within five (5) calendar days after the date Grantee first had reason to believe that a delay could result, if the delay is not reasonably foreseeable. THE FOREGOING SHALL CONSTITUTE GRANTEE'S SOLE REMEDY OR EXCUSE WITH RESPECT TO DELAY. Providing notice in strict accordance with this paragraph is a condition precedent to such remedy. DEO, in its sole discretion, will determine if the delay is excusable under this paragraph and will notify Grantee of its decision in writing. No claim for 19 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) damages, other than for an extension of time, shall be asserted against DEO. Grantee shall not be entitled to an increase in the Agreement price or payment of any kind from DEO for direct, indirect, consequential, impact, or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency arising because of delay, disruption, interference, or hindrance from any cause whatsoever. If performance is suspended or delayed, in whole or in part, due to any of the causes described in this paragraph, after the causes have ceased to exist, Grantee shall perform at no increased cost, unless DEO determines, in its sole discretion, that the delay will significantly impair the value of the Agreement to DEO or the State, in which case, DEO may do any or all of the following: (1) accept allocated performance or deliveries from Grantee, provided that Grantee grants preferential treatment to DEO with respect to products or services subjected to allocation; (2) purchase from other sources (without recourse to and by Grantee for the related costs and expenses) to replace all or part of the products or services that are the subject of the delay, which purchases may be deducted from the Agreement quantity; or (3) terminate the Agreement in whole or in part. H. Severability: If any provision, in whole or in part, of this Agreement is held' to be void or unenforceable by a court of competent jurisdiction, that provision shall be enforced only to the extent that It is not in violation of law or is not otherwise unenforceable, and all other provisions remain in full force and effect. I. Authority of Grantee's Signatory: Upon execution, Grantee shall return the executed copies of this Agreement in accordance with the instructions provided by DEO along with documentation ensuring that the below signatory has authority to bind Grantee to this Agreement as of the date of execution. Documentation may be in the form of a legal opinion from the Grantee's :attorney, or other reliable documentation demonstrating such authority, and is hereby incorporated by reference. DEO may, at its discretion, request additional documentation related to the below signatory's authority to bind Grantee to this Agreement. J. Execution in Counterparts: This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same Instrument. K. Contact Information for Grantee and DEO Contacts: Grantee's Payee: Grantee's Agreement Manager: City of Miami MarkSpanioll, P.E. 444 SW 2"li Avenue, 8 h Floor 444 SW 2nd Avenue, gth Floor Miami, FL 33130 Miami, FL 33130 (305) 205-5300 (305) 416-1224 mspan@miamigov.com 20 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) DEO's Agreement Manager: Demetris Thomas 107 East Madision Street Tallahassee, FL 32399 (850) 717-8496 demetris.thomas@deo.myflorida.com In the event that any Party designates a different Agreement i"vtanager after the execution of this Agreement, the Party will provide written notice of the name, address, zip code, telephone and fax numbers, and email address of the newest Agreement Manager to all other Parties. A designation of a new Agreement Manager shall not require a formal amendment to the Agreement. Remainder of Page Intentionally Left Blank - 21 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) L. Execution: I have read the above Agreement and the attachments and exhibits thereto and understand each section and paragraph. IN WITNESS THEREOF, and in consideration of the mutual covenants set forth above and in the attachments hereto, the Parties have caused to be executed this 64-page Agreement by their undersigned officials duly authorized. CITY OF MIAMI DEPARTMENT OF ECONOMIC OPPORTUNITY By By Title Signature Daniel Alfonso City Manager Signature Theresa. B. "Cissy" Proctor Title Chief of Staff Date Date Attest: By: , City Clerk [Type/Print Name] Approved as to Legal Form and Correctness: By: , City Attorney [Type/Print Name] Approved as to Insurance Requirements: By:, [Type/Print Name] Director, Risk Management Department Approved as to form and legal sufficiency, subject only to full and proper execution by the Parties OFFICE OF GENERAL COUNSEL DEPARTMENT OF ECONOMIC OPPORTUNITY By: Approved Datec 22 Version date: 07/01/2014 (State Subreciplent General Appropriations Act Directives Template) Attachment 1 SCOPE OF WORK 1. Project Description: Line item 2242A appropriated, from the State Economic Enhancement and Development Trust Fund (SEED), two million dollars ($2,000,000) to the City of Miami (Grantee) for public infrastructure improvements along NE'2nd Avenue from NE 38th Street to NE 42nd Street within the Miami Design District located in the Enterprise Zone. Project Area The "Project Area" is defined as the area along NE 2nd Avenue from NE 38th Street to NE 42"d Street that is in a designated Enterprise Zone within the Miami Design District. The proposed public infrastructure improvements to the Project Area identified by the City consist of roadway construction, drainage, underground utilities, pavement markings, pavers and concrete, traffic signal and signage, street lights,landscaping and irrigation. DEO shall reimburse all allowable and verifiable expenditures for Tasks identified in Section 4, Deliverables, for up to $2,000,000 for public infrastructure improvements within the Project Area so long as Grantee satisfies the match requirements stated herein. Budget: Exhibit A, Project Budget, is an estimate only and does not limit DEO's ability to reimburse allowable expenditures up to $2,000,000.00 under this Agreement. Match: The state contribution is contingent upon Grantee and/or Miami -Dade County providing a fifty percent (50%®) match of one million dollars ($1,000,000) in either the form of a cash contribution or a capital project that benefits the area. DEO shall have no duty to reimburse Pro1ect costs, unless Grantee has satisfied the match requirements stated in the General Appropriations Act, in DEO's reasonable discretion. Schedule: The period for the infrastructure improvements is from July 1, 2014 to June 30, 2015. 2. Grantee Responsibilities: Grantee shall: A. Perform the Tasks as defined in this Agreement and Scope of Work. B. Provide documentation for all work associated with the Project as outlined in Exhibit A, Project Budget. C. Comply with its competitive procurement requirements when subcontracting for services under this Agreement. D. Provide proof of match pursuant to FY 14/15 Specific Appropriation 2242A, prior to requesting reimbursement' from DEO for Project costs.. E. Within fifteen (15) calendar days after the end of each quarter ("Reporting Quarter"), beginning with the quarter ending March 31, 2015, Grantee shall provide to DEO a written status report ("Quarterly Report") outlining progress in completion of the Project during the Reporting Quarter. Such Quarterly Report shall include: 23 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) 1. A summary of work performed during the reporting period; 2. Project expenditures incurred since the effective date; 3. The percentage of work completed for activities indicated in Exhibit A, Project Budget; 4. An updated budget spreadsheet, as described in Section 5 below, showing associated budget items documented as complete; 5. An updated Project timeline; 6. A summary and explanation of any changes In the Project Budget; 7. A summary and explanation of any other material changes that may affect the outcome of the Project and 3. A report on the use of Minority and Service -Disabled Veteran Business Enterprises as described in Section N.6. F. Submit invoices in accordance with the requirements stated in Section 5 of this Agreement. G. Provide no more than one reimbursement request during the Agreement period, unless specifically authorized by DEO"s Agreement Manager. 3. DEO Responsibilities: DEO shall: A. Monitor the ongoing activities and progress of Grantee, as DEO deems necessary, to verify that all activities are being performed in accordance with the Agreement; B. Perform contract management responsibilities pursuant to the Agreement; C. Review Grantee's invoices described herein, and process them on a timely basis; D. Maintain paper or electronic copies of all documents submitted pursuant to Sections 4 and 5; and E. Reply to reasonable inquiries and requests from Grantee. 4. Deliverables: Grantee agrees to have the following work performed, and completed by June 30, 2015, at the Project Area: Deliverable 1: Infrastructure improvements for Miami Design District along. NE 2"d Avenue from NE 38th Street to NE 42nd Street (Project Area). *Proposed Infrastructure Improvements to the Project Area as outlined in Exhibit A, Project Budget, are allowable up to $2,000,000.00 Due Date: Agreement deliverables are to be completed by June 30, 2015 Tasks Performance Measures Financial Consequences Grantee shall complete construction/installation of the following Infrastructure Improvement Sitework: 1. Demolition and d Earthwork; Minimum performance levels will consist of 100% completion of the infrastructure improvements Tasks for the Project Area. Demonstrated completion of each task as evidence by inspections and certifications' by a qualified third -party engineer, architect or contractor and photographs of the DEO shall not reimburse any costs incurred unless all Tasks are 100% complete and certification by the appropriate local entity is received. 24 Version date: 07/01/2014 (State Subreciplent General Appropriations Act Directives Template) 2. Site Utilities; work complete with the submittal of an invoice package as defined in Section 5. 3. Drainage Wells; 4. Landscaping; 5. Pavers; 6. Site Concrete; 7. Bituminous Pavers and striping; 8. Site Signage; 9. Site Lighting; and 10. Site Electrical. Deliverable 1. total not to exceed $2,000, 0.00 S. Invoice Submittal and Payment Schedule: Grantee shall request reimbursement only upon completion of Deliverable 1. identified in Section 4. Grantee shall provide no more than one reimbursement requests during the Agreement period. As Grantee will be competitively procuring the services of a subcontractor(s) to complete this Project, the exact price of each Task is not yet known therefore the Project Budget attached as Exhibit A, Project Budget, is an estimate only intended to provide a guide to what is a reasonable cost and estimated quantity for Tasks, and does not establish the value of the Task. In accordance with Section I.F.11, Funding Requirements of section 215.971, F.S., of this Agreement, Grantee's entitlement to retain funds paid by DEO is dependent upon the amount of allowable costs incurred and expended by Grantee in carrying out the Project. a) Grantee's invoice package shall include a cover letter on Grantee's letterhead signed by Grantee's Agreement Manager certifying that all costs: i. Are specifically for the Project represented to the state in the budget appropriation. ii. Were incurred after July 1, 2014 and before June 30, 2015, iii. Are for one or more of the construction components as outlined in the Exhibit' A, Project Budget, Documentation of payment shall include: a. Proof of payment for related Project costs in the form of a copy of the cancelled check, electronic transfer or, a copy of a check and the bank statement highlighting the cancelled check; b. Provide proof of match, which shows in DEO's reasonable discretion $1,000,000.00 in either the form of cash contribution or a capital project that benefits the Project Area; c. Invoices for all work associated with the Deliverable as outlined in the Exhibit A, Project Budget, paid by Grantee (see Section 5.b) for contractor invoice requirements); d. Grantee invoice shall include the date, period in which work was performed, amount of reimbursement, and percent of work completed to date; and, e Before and after photographs of the work site. 25 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) b) AU documentation necessary to support payment requests must be submitted with Grantee's invoke, as described in Section I.G., for DEC's review. All supporting documents must: I. be on company letterhead with contractors name and address; II. include a date; ill. invoice number; iv. include period of performance; v. description of work performed; vl. include unit cost and quantity; and vii. when applicable; include a statement from•a-licensed professional certifying that the work for which reimbursement is sought is complete. c) DEO may require any other information from Grantee that DEO deems necessary to verify that the services have been rendered under the Agreement. 6. Financial Consequences for Failure to Timely and Satisfactorily Perform: Failure to complete each deliverable in accordance with the requirements of this Agreement, and in particular, as specified above in Section 4, Deliverables, will result in assessment by DEO of the specified financial consequences. If the Parties agree to a corrective action plan, the plan shall specify the applicable financial consequences to be applied after the effective date of the corrective action plan. This provision for financial consequences shall in no manner affect DEO's right to terminate the Agreement as provided elsewhere in DEO's Core Agreement. 7. Notification of Instances of Fraud: Instances of Grantee operational fraud or criminal activities shall be reported to DEO's Agreement Manager within twenty-four (24) chronological hours. 8. Grantee's Responsibilities upon Termination: If DEO issues a Notice of Termination to Grantee, except as otherwise specified by DEO in that notice, the Grantee shall: A. Stop work under this Agreement on the date and to the extent specified in the notice. B. Complete performance of such part of the work as shall not have been terminated by DEO. C. Take such action as may be necessary, or as DEO may specify, to protect and preserve any property which is In the possession of Grantee and in which DEO has or may acquire an interest. D. Upon the effective date of termination of this Agreement, Grantee shall transfer, assign, and make available to the DEO all property and materials belonging to DEO. No extra compensation will be paid to Grantee for its services in connection with such transfer or assignment. 9. Non -Discrimination: Grantee shall not discriminate unlawfully against any individual employed in the performance of this Agreement because of race, religion, color, sex, physical handicap unrelated to such persons ability to engage in this work, national origin, ancestry, or age. Grantee shall provide a harassment- free workplace, with any allegation of harassment to be given priority attention and action, 26 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) 10. Disposition of Project Property: A. Pursuant to Section I.Q.7 of this Agreement, upon termination of the Agreement period, Grantee is authorized to retain ownership of any nonexpendable property purchased under this Agreement; however, Grantee hereby grants to DEO a right of first refusal in all such property prior to disposition of any such property during its depreciable life, in accordance with the depreciation schedule in use by Grantee, Grantee shall provide written notice of any such planned disposition and await DEO's response prior to disposing of the property. "Disposition" as used herein, shall include, but is not limited to, Grantee no longer using the nonexpendable property for the uses authorized herein; the sale, exchange, transfer, trade-in, or disposal of any such nonexpendable property. DEO, in its sole discretion, may require Grantee to refund to DEO the fair market value of the nonexpendable property at the time of disposition rather than taking possession of the nonexpendable property. B. Grantee shall provide advance written notification to DEO, if during the five (5) year period following the termination of the Agreement period, Grantee proposes to take any action that will impact its ownership of the Project property or modify the use of the Project property from the purposes authorized herein. If either of these situations arise, DEO shall have the right, with its sole discretion, to demand reimbursement of part or all of the funding provided to Grantee under this Agreement. End of Attachment 1 (Scope of Work) - 27 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) Exhibit A Project Budget Exhibit A, Project Budget, is an estimate only of project costs and quantities and shall not limit DEO's ability to reimburse allowable project expenditures up to $2,000,000.00 under this Agreement. SITEVVORK DematitiOn Site Title L fld i 'Pavers: ipt°It of l e Ce coocrete ituminot 12;avjng & tripe l Arne llti ELEPTRIOAL :'E(actfica1 28 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) 06,41 468-.85 27.42 .28 8.1 T: Cacre ii 2nd, Ave Ste e LOCATION: Miami, Florida' UtiIT UNIT +tS'T TOTAL D 2nd Avo: Ign Fees en!tft CO 1 ea $ fternoye existing sidewAfk 2d750 a1 6 61,6 6 M1s&.$Its ttolrtiolt _..__ 1 Is ; 15,©0D t5,Dk11t Site Utilit FPI./ Bolls eaukFo tasdar round FPL: Feas=.Y�Eth s�t4k casts. ATlT urideegrs�tarid AT&T' Rees -r�Ath cart costs ct under round Cornetist Fees SOR:cos Remove Poles Tot al D r lition $ 70,875 2 5 tf $ 11311 $ 28,5Q0 1 ea $ 6- 4 allow Tiat it UtiIdties. 17�, ps tmen trees flnckudesirrkg ion, nation#, 42 Tree grates 42 ,Stiruct sail 42 Totadace 745 S9dvatk :6 2036t) of i0,6Tt .. 2d3,5E0 Paw cr5 cross lks .. 0 sr 10.00' r rtok i?averr _ -- 203SD sP S .._. -.- 1.30 30,525 Paver iitt Qf Wa:4;c2. 29 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) GT: acre Retail - N ve (teWerk LOCATION: Mienli, Florfda 44st) Mft el to. 1.)!1PretG 0.10:4 0000r (Rpfl c0t Sal UNIT • 00TO 00 $ 1,00 400 t4101v $ I . 10,000 _ 1,t 140 1 4,' 30 Version date: 07/01/2014 (State Subreciplent General Appropriations Act Directives Template) ara Rtll N� 11�. Ave LOCATION: Miami, Florida QTY UNIT UNiTTOTAL dws + sIe no0 & pavement mark Tsgn Ca�s�l r t n 01 II Z 1Crts ._.._.__$...__._._.1d,ttl30 $ 4 0( 00 $ 264.16 II and wearkrp, surface Trash re aptaeles,.et ke Tclrs (assurno 20 spaces at 1,000) Pacraroableli ber. .trees.( Novo paversovar,gratas) I fet pale b rino llat arlthnp elgns WreihaSd,al®ctr1C signs making dirscttdnal el its deratltbc directaa"y. Total It ndr ous Pavin 20,0© ,000 20,000 Total Site title ,600 :!) 23 1,v0o 3p, 7,50b $ 30, 0., I Intl pte 1.lightc 42 aa. A iSU 105,S00 3,700 31 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) • it mast arm dsti aes, *to 3.*ea ;ie aai 32 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) Exhibit B Construction Plans 33 Version date:07/01/2014 (State Subrecipient General Appropriations Act Directives Template) Mit:302i 311314; C C T AV 2Nii AVENUE CONCRETE PAVERSIDEWMXCROSSSECTXO$ m 0 0 c c c state suarecipient uenerai Appropriations Act uirectives iempiate, ,. nr iein uleis.r rn 5, dtEhifr . . hg-r . : • .04v.,..,..,:,:i:,:...,...,N::.::: :t.k....,,1•-•,,,c......—,....,. 1 . •• • 1 • i • •.:',• -V-..:NO...,-.,., - • 1 • . L.!" ].': 1: '7', - -r- '',--ai.:....,..i.4...• ••i-'. .. ., -.. . •• •MrT-Orl,Z-.. • :•:,,,,., f.4 .—,,s, S-7,..,%: 1 Pit . . :.; p.,,,,tt“4.'.i.e. fr. • 1.1: • :: • .... :•,,,,..... ::.-4.4.:4-,:44k.,,,,,,t4:::•,:: --).44.4... ,. j .4..?,.:.i....:, •4.--:.*.4., wr.,,,,,..:,:,,,,,,,4•:: , .,...45' , .....• 1 . . • • . . :1- ..t....., t• . . .. .. ... ,,,,,. 1:4 - , .e.:.- ,::. -• . t :...*.ft'--. , . . 4 —.44..—......,,7,..:-., 7. —......., . . . , , . " ';,-"--E-Z7A - --,'"-v- Y. ' ...-4.: ,.. :..1 :,-,:..;,,....5.j.1.41:1'64., ... - • r-kA• w.....,..4,-,40, , *- ...O.,'. ...1 . .,•.,:,.::,:.;.:,,......,.:.,..:.:.:.:,..,,,,,,::,.::,,,,;::,;,:::,.......„,..4..,,A,,.„.,„,„,,„„4„:„..,,,,,,...,,,,,,,,,,..:.:,- ,...-.--, .:.'....,,I.: ,, -...): •••••••:". -.: • •••• .. •:.:.•••••]:::•'.....,..,-.....• 4..—,,,:-..;,.:;,:>;,,.:4:-' ',>- •;-'>:7- .•'-'41,-.•:.:.-?.--,:‘, 4.:.•. - -- I- - A,',.- ..1.410,44,,,,,,:i,,,,, 7,4-m.- . .•• • • • ''. 'A•,.:: h . f . ... -41,7.1-f ,.a-"&-*--.,,,,,;,., ....,..:-.1.....; ..t ..ei, . ''. .. : .... . . . ............. !.L-. ..F.:.:" • -. - '''• • -• -• -.:` C • - • • ed A 1.4 swom,-4,1, VENUE IIIPRASTRUCTURE P arALEt f. .20 N(Th _047 T le Version date: 07/01/2014 (a;eiduaaj. sanipaJio Y1'!@^'.'-']s,' rg Vl a.rr�w Attachment 2 AUDIT REQUIREMENTS The administration of resources awarded by DEO to the recipient may be subject to audits and/or monitoring by DEO as described in this section. MONITORING In addition to reviews of audits conducted in accordance with OMB Circular A-133 and Section 215.97, F.S., as revised (see "AUDITS" below), monitoring procedures may include, but not be limited to, on -site visits by DEO staff, limited scope audits as defined by OMB Circular A-133, as revised, and/or other procedures. By entering into this agreement, the recipient agrees to comply and cooperate with any monitoring procedures/processes deemed appropriate by DEO. In the event DEO determines that a limited scope audit of the recipient is appropriate, the recipient agrees to comply with any additional instructions provided by DEO staff to the recipient regarding such audit. The recipient further agrees to comply and cooperate with any inspections, reviews, investigations, or audits deemed necessary by the Chief financial Officer (CFO) or Auditor General. AUDITS PART I: FEDERALLY FUNDED This part is applicable if the recipient is a State or local government or a non-profit organization as defined in OMB Circular A-133, as revised. 1. In the event that the recipient expends $300,000 ($500,000 for fiscal years ending after December 31, 2003) or more in Federal awards in its fiscal year, the recipient must have a single or program -specific audit conducted in accordance with the provisions of OMB Circular A-133, as revised. EXHIBIT 1 to this agreement indicates Federal resources awarded through DEO by this agreement. In determining the Federal awards expended in its fiscal year, the recipient shall consider all sources of Federal awards, including Federal resources received from DEO. The determination of amounts of Federal awards expended should be in accordance with the guidelines established by OMB Circular A-133, as revised. An audit of, the recipient conducted by the Auditor General in accordance with the provisions of OMB Circular A-133, as revised, will meet the requirements of this part. 2. In connection with the audit requirements addressed in Part I, paragraph 1, the recipient shall fulfill the requirements relative to auditee responsibilities as provided in Subpart C of OMB Circular A-133, as revised. 3. If the recipient expends less than $300,000 ($500,000 for fiscal years ending after December 31, 2003) in Federal awards in its fiscal year, an audit conducted in accordance with the provisions of OMB Circular A-133, as revised, is not required. in the event that the recipient expends Tess than $300,000 ($500,000 for fiscal years ending after December 31, 2003) In Federal awards in its fiscal year and elects to have an audit conducted in accordance with the provisions of OMB Circular A-133, as revised, the cost of the audit must be paid from non -Federal resources (i.e., 57 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) the cost of such an audit must be paid from the recipient resources obtained from other than Federal entities). 4. Although the audit provisions of OMB Circular A-133 ordinarily do not apply to for -profit sub recipients, in the case of Federal funding provided by the U.S. Department of Health and Human Services, Circular A-133 does apply. See 45 C.F.R. 74.26 for further details. 5. A web site that provides links to several Federal Single Audit Act resources can be found at: http://ha rvester.census.gov/sac/sainfo.html PART II: STATE FUNDED This part is applicable if the recipient is a non -state entity as defined by Section 215.97(2), Florida Statutes. 1. in the event that the recipient expends a total amount of state financial assistance equal to or in excess of $500,000 in any fiscal year of such recipient (for fiscal years ending September 30, 2004 or thereafter), the recipient must have a State single or project -specific audit for such fiscal year in accordance with Section 215.97, Florida; Statutes; applicable rules of the Department of Financial Services; and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for -profit organizations), Rules of the Auditor General. EXHIBIT 1 to this agreement indicates state 'financial assistance awarded through DEO by this agreement. In determining the state financial assistance expended In its fiscal year, the recipient shall consider all sources of state financial assistance, including state financial assistance received from DEO, other state agencies, and other non -state entities. State financial assistance does not include Federal direct or pass - through awards and resources received by a nonstate entity for Federal program matching requirements. 2. In connection with the audit requirements addressed in Part II, paragraph 1, the recipient shall ensure that the audit complies with the requirements of Section 215.97(8), Florida Statutes. This includes submission of a financial reporting package as defined by Section 215.97(2), Florida Statutes, and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for -profit organizations), Rules of the Auditor General. 3. If the recipient expends less than $500,000 in state financial assistance in its fiscal year (for fiscal years ending September 30, 2004 or thereafter), an audit conducted in accordance with the provisions of Section 215.97, Florida Statutes, is not required. In the event that the recipient expends less than $500,000 in state financial assistance in its fiscal year and elects to have an audit conducted in accordance with the provisions of Section 215.97, Florida Statues, the cost of the audit must be paid from the nonstate entity's resources (i.e., the cost of such an audit must be paid from the recipient's resources obtained from other than State entities). 4. Additional information regarding the Florida Single Audit Act can be found at: htto://www.myfiorida.com/fsaastatutes.html. PART IIi: OTHER AUDIT REQUIREMENTS (NOTE: This part would be used to specify any additional audit requirements imposed by the State awarding entity that are solely a matter of that State awarding entity's policy (i.e., the 58 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) audit is not required by Federal or State laws and Is not in conflict with other Federal or State audit requirements). Pursuant to Section 215.97(8), Florida Statutes, State agencies may conduct or arrange for audits of state financial assistance that are In addition to audits conducted In accordance with Section 215.97, Florida Statutes. In such an event, the State awarding agency must arrange for funding the full cost of such additional audits.) N/A PART IV: REPORT SUBMISSION 1. Copies of reporting packages for audits conducted in accordance with OMB Circular A-133, as revised, and required by Part I of this agreement shall be submitted, when required by Section .320 (d), OMB Circular A-133, as revised, by or on.behaif of the recipient directly to each of the following A. DEO at each of the following addresses: Electronic copies (preferred): Audit@deo.myflorida.com or Paper (hard copy): Department Economic Opportunity MSC # 130, Caldwell Building 107 East Madison Street Tallahassee, FI.32399.•4126 B. The Federal Audit Clearinghouse designated in OMB Circular A-133, as revised (the number of copies required by Sections .320 (d)(1) and (2), OMB Circular A-133, as revised, should be submitted to the Federal Audit Clearinghouse), at the following address: http://harvester.census.gov/fac/collect/ddelndex.html C. Other Federal, agencies and pass -through entities in accordance with Sections .320 (e) and (f), OMB Circular A-133, as revised. 2. Pursuant to Section .320 (f), OMB Circular A-133,'as revised, the recipient shall submit a copy of the reporting package described in Section .320 (c), OMB Circular A-133,'as revised, and any management letter issued by the auditor, to DEO at each of the foilowing addresses: Electronic copies (preferred): Audit@deo.mvflorida.com or Paper (hard copy): Department Economic Opportunity MSC # 130, Caldwell Building 107 East Madison Street 59 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) Tallahassee, FI.32399-4126 3. Copies of financial reporting packages required by PART ll of this agreement shall be submitted by or on behalf of the recipient directly to each of the following. A. DEO at each of the following addresses: Electronic copies (preferred): Audit@deo.mvf(orida.com or Paper (hard copy): Department Economic Opportunity MSC # 130, Caldwell Building 107 East Madison Street Tallahassee, Fi. 32399-4126 B. The Auditor General's Office at the following address: Auditor General Local Government Aud(ts/342 Claude Pepper Building, Room 401 111 West Madison Street Tallahassee, FL 32399-1450 Email Address: flaudgen locahovt@aud.state.fLus 4. Copies of reports or the management letter required by Part 111 of this agreement shall be submitted by or on behalf of the recipient directly to: A. DEO at each of the following addresses: N/A 5. Any reports, management letter, or other information required to be submitted to DEO pursuant to this agreement shall be submitted timely in accordance with OMB Circular A-133, Florida Statutes, and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for - profit organizations), Rules of the Auditor General, as applicable. 6. Recipients, when submitting financial reporting packages to DEO for audits done in accordance with OMB Circular A-133 or Chapters 10.550 (local governmental entitles) or 10.650 (non-profit and for -profit organizations), Rules of the Auditor General, should indicate the date that the reporting package was delivered to the recipient in correspondence accompanying the reporting package. 60 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) PART V: RECORD RETENTION 1. The recipient shall retain sufficient records demonstrating its compliance with the terms of this agreement for a period of five (5) years from the date the audit report is issued, or five (5) state fiscal years after all reporting requirements are satisfied and final payments have been received, whichever period is longer, and shall allow DEO, or its designee, CFO, or Auditor General access to such records upon request. In addition, if any litigation, claim, negotiation, audit, or other action involving the records has been started prior to the expiration of the controlling period as identified above, the records shall be retained until completion of the action and resolution of all issues which arise from it, or until the end of the controlling period as identified above, whichever is longer. The recipient shall ensure that audit working papers are made available to DEO, or its designee, CFO, or Auditor General upon request for a period of five (5) years from the date the audit report is issued, unless extended in writing by DEO. - End of Attachment 2 61 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template) EXHIBIT-1 to Attachment 2 FEDERAL RESOURCES AWARDED TO THE RECIPIENT PURSUANT TO THIS AGREEMENT CONSIST OF THE FOLLOWING: NOTE: If the resources awarded to the recipient represent more than one Federal program, provide the same information shown below for each Federal program and show total Federal resources. awarded. Federal Program N/A $ N/A COMPLIANCE REQUIREMENTS APPLICABLE TO THE FEDERAL RESOURCES AWARDED PURSUANT TO THIS AGREEMENT ARE AS FOLLOWS: NOTE: if the resources awarded to the recipient represent more than one Federal program, list applicable compliance requirements for each Federal program in the same manner as shown below. Federal Program: List applicable compliance requirements as follows: 1. N/A. 2. 3. NOTE: Instead of listing the specific compliance requirements as shown above, the State awarding agency may elect to use language that requires the recipient to comply with the requirements of applicable provisions of specific laws, rules, regulations, etc. For example, for Federal Program 1, the language may state that the recipient must comply with a specific law(s), rule(s), or regulation(s) that pertains to how the awarded resources must be used or how eligibility determinations are to be made. The State awarding agency, if practical, may want to attach a copy of the specific law, rule, or regulation referred to. STATE RESOURCES AWARDED TO THE RECIPJENT PURSUANT TO THIS AGREEMENT CONSIST OF THE FOLLOWING: MATCHING RESOURCES FOR FEDERAL PROGRAMS: NOTE: If the resources awarded to the recipient for matching represent more than one federal program, provide the same information shown below for each Federal program and show total State resources awarded for matching. Federal Program "N/A" $ N/A SUBJECT TO SECTION 215.97, FLORIDA STATUTES: NOTE: If the resources awarded to the recipient represent more than one State prolect,_provide the same information shown below for each State project and show total state financial assistance awarded that is subject to Section 215.97, Florida Statutes. 62 Version date:07/01/2014 (State Subrecipient General Appropriations Act Directives Template) State Project DEPARTMENT OF ECONOMIC OPPORTUNITY DIVISION OF COMMUNITY DEVELOPMENT CSFA 40.038 - $ $2,000,000.00 COMPLIANCE REQUIREMENTS APPLICABLE TO STATE RESOURCES AWARDED PURSUANT TO THIS AGREEMENT ARE AS FOLLOWS: 1. FOR EACH PROGRAM IDENTIFIED ABOVE, THE GRANTEE SHALL COMPLY WiTH THE PROGRAM REQUIREMENTS DESCRIBED IN THE FLORIDA CATALOG OF STATE FINANCIAL ASSISTANCE (CSFA) (HTTP //FLDFS.COM/FSAAJCATALOG.ASPX). THE PURPOSE FOR WHICH THE FUNDS ARE TO BE USED ARE LIMITED TO THOSE CONSISTENT WITH THE GRANTEE'S COMMITMENTS SPECIFIED IN THIS AGREEMENT. 3. NOTE: List applicable compliance requirements in the same manner as illustrated above for Federal resources. For matching resources provided by DEO for Federal programs, the requirements might be similar to the requirements for the applicable Federal programs. Also, to the extent that different requirements pertain to different amounts of the non -Federal resources, there may be more than one grouping (i.e., .1, 2, 3, etc.) listed under this category. NOTE: Section .400(d) of OMB Circular A-133, as revised, and Section 215.97(5), Florida Statutes, require that the information about Federal Programs and State Projects included in Exhibit 1 be provided to the recipient. 63 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Ternplate) ATTACHMENT 3 Audit Compliance Certification Grantee Name: FEIN: Grantee's Fiscal Year: Contact Person Name and Phone Number: Contact Person Email Address: Did Grantee expend state financial assistance, during its fiscal year, that it received under any agreement (e.g., agreement, grant, memorandum of agreement, memorandum of understanding, economic incentive award agreement, etc.) between Grantee and the Department of Economic Opportunity (DEO)? Yes No If the above answer is yes, also answer the following before proceeding to item 2: Did Grantee expend $500,000 or more of state financial assistance (from DEO and alI other sources of state financial assistance combined) during its fiscal year? Yes No if yes, Grantee certifies that it will timely comply with all applicable state single or project -specific audit requirements of section 25.97, Florida Statutes, and the applicable rules of the Department of Financial Services and the Auditor General. 2. Did Grantee expend federal awards, during its fiscal year that it received under any agreement (e.g., agreement, grant, memorandum of agreement, memorandum of understanding, economic incentive award agreement, etc.) between Grantee and DEO? Yes No If the above answer is yes, also answer the following before proceeding to execution of this certification: Did Grantee expend $500,000 or more in federal awards (from DEO and all other sources of federal awards combined) during its fiscal year? Yes No If yes, Grantee certifies that it will timely comply with all applicable single or program -specific audit requirements of OMB Circular A-133, as revised. By signing below, i certify, on behalf of Grantee, that the above representations for items 1 and 2 are true and correct. Signature of Authorized Representative Date Printed Name of Authorized Representative Title of Authorized. Representative 64 Version date: 07/01/2014 (State Subrecipient General Appropriations Act Directives Template)