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10/19/2011 Agreement DANNY L. KOLHAGE CLERK OF THE CIRCUIT COURT DATE: October 31, 2011 TO: Peter Horton, Director of Airports Attn: April Pearson F R O M : Pamela G. Hanc sit I. C. At the October 19, 2011 Board of County Commissioners meeting, the Board granted approval and authorized execution of the following: Item C14 Purchase Service Order #11 -12 -02 with URS for "Title 14 CFR Part 150 Study Update" at the Key West International Airport. Enclosed is a copy for your handling. ✓Item C 18 Financial Consulting Services Agreement with Newton & Associates, Inc. for professional services at Key West International Airport and The Florida Keys Marathon Airport. Enclosed is a duplicate original for your handling. Should you have any questions, please feel free to contact our office. cc: County Attorney, w/o documents Finance File STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSULTANT FOR FINANCIAL CONSULTING SERVICES THIS AGREEMENT is made this 19th day of October, 2011 by and between Monroe County, a political subdivision of the State of Florida, whose address is 1100 Simonton Street, Key West, Florida, 33040, hereafter "OWNER or COUNTY" and Newton & Associates, Inc., a Florida Corporation whose address is 1806 Rocky River Road, Charlotte, North Carolina, 28213, hereafter "CONSULTANT ". The OWNER and CONSULTANT agree as set forth below. ARTICLE 1 Definitions and Identifications For the purposes of this Agreement and the various covenants, conditions, terms and provisions which follow, the definitions and identifications set forth below are assumed to be true and correct and are agreed upon by the parties. 1.1 Agreement means this document, Articles 1 through 12, inclusive. Other terms and conditions are included in the exhibits, Task orders, and supplemental documents that are by this provision expressly incorporated by reference. 1.2 BOCC: The Monroe County Board of County Commissioners. 1.3 Consultant The entity selected to perform the services pursuant to this Agreement. 1.4 Contract Administrator The Director of airports or his designee. In the administration of this Agreement, as contrasted with matters of policy, all parties may rely upon instructions or determinations made by the Contract Administrator; provided, however, that such instructions and determinations do not change the Scope of Services. 1.5 County: Monroe County. 1.6 Notice To Proceed A written notice to proceed with a Task Order issued by the Contract Administrator. 1.7 Task Order: A detailed description of a particular service or services authorized by the County to be performed hereunder by CONSULTANT for a prescribed type and amount of compensation. ARTICLE 2 Consultant Services The following is a summary of CONSULTANT's primary duties: 2.1 To provide on call general financial and strategic planning professional services which may include but not be limited to meetings with the County representatives, the Contract Administrator and Airport staff as necessary to discuss, develop and implement various airport financial objectives. At the County representatives or Contract Administrator's request, these professional services may include but are not limited to the development of Airport tenant lease /contractual strategies (food & beverage, retails and rental car concessionaires, FBO and others) including rental car contract facility charge planning and implementations, capital financial planning including Passenger Facility Charge Application, assistance and planning for a potential debt financings, airline rates and charges development and negotiations, assistance concerning compliance with the existing Revenue Bond Resolution, assistance in the development of short and long term strategic financial plans, airport master plan update development, and other general financial and revenue enhancement related assistance. 2.2 CONSULTANT and COUNTY acknowledge that, if during the course of the performance of the services included in any Task Order authorized pursuant to this Agreement, CONSULTANT determines that work should be performed to complete a particular Task Order which is, in the CONSULTANT's opinion, outside the level of effort originally anticipated, whether or not the Task Order identifies the work items, CONSULTANT shall notify Contract Administrator in writing in a timely manner before proceeding with the work. If CONSULTANT proceeds with said work without notifying the Contract Administrator, said work shall be deemed to be within the original level of effort, whether or not specifically addressed in the Task Order. Notice to Contract Administrator does not constitute authorization or approval by COUNTY to perform the work. Performance of work by CONSULTANT outside the originally anticipated level of effort without prior written COUNTY approval or modification of Task Order is at CONSULTANT's sole risk. 2.3 The specific services to be provided by the CONSULTANT and the compensation for such services will be as mutually agreed to in separate Task Orders to this Agreement. Each Task Order when fully executed shall become a supplement to and a part of this Agreement. Execution of the Task Order does not constitute a notice to proceed. 2.3.1 Each Task Order will be supported by appropriate cost and pricing data and such other documentation as required by the COUNTY. 2.3.2 Task Orders shall be numbered consecutively as specified by COUNTY. Each Task Order shall include a description of the scope of services and specified deliverables, time of completion, total estimated costs of services, and method of compensation. Additional information shall be provided to the COUNTY if required. Amended Task Orders shall include substantially the same information and be submitted to the COUNTY for approval. 2.3.3 Task orders shall be invoiced on a lump sum basis. No additional compensation will be paid for the services performed on a task order unless the COUNTY changes the Scope of Services in writing. 2.3.4 In the event CONSULTANT is unable to complete the services because of delays resulting from untimely review by County or other governmental authorities, and such delays are not the fault of CONSULTANT, or because of delays which were caused by factors outside the control of CONSULTANT, COUNTY shall grant a reasonable extension of time for completion of the services and shall provide reasonable compensation, if appropriate. It shall be the responsibility of 2 CONSULTANT to notify COUNTY within 10 days in writing whenever a delay in approval by a governmental agency, including COUNTY, is anticipated or experienced, and to inform the Contract Administrator of all facts and details related to the delay. CONSULTANT's sole remedy for delays attributable to the COUNTY shall be an extension of time to complete the services 2.3.5 The COUNTY may make or approve changes within the general Scope of Services in any Task Order. If such changes affect the CONSULTANT's cost of or time required for performance of the services, an equitable adjustment will be made through an amendment to the Task Order. 2.3.6 A task order may be terminated at any time, with or without cause, by the COUNTY upon thirty (30) days written notice to CONSULTANT. No further work will be performed by CONSULTANT upon receipt of this notice unless specifically authorized by the Contract Administrator in writing. Upon termination the CONSULTANT will be paid for all authorized services performed up to the termination date plus, if terminated at the convenience of the COUNTY, reasonable expenses incurred during the close -out of the task order which have been authorized by the COUNTY. The COUNTY will not pay anticipatory profits. 2.3.7 The CONSULTANT will begin services under any Task Order when authorized by a Notice to Proceed issued by the Contract Administrator or his designee. 2.4 The COUNTY and CONSULTANT may negotiate additional scopes of services, compensation, time of performance and other related matters for each Task Order. If COUNTY and CONSULTANT cannot contractually agree, COUNTY shall have the right to immediately terminate negotiations at no cost to COUNTY and procure services for future Task Orders from another source. 2.5 CONSULTANT shall perform the professional services under this Agreement at the level customary for competent and prudent professionals in CONSULTANT'S field performing such services at the time and place where the services are provided. In the event CONSULTANT does not comply with this standard, and omissions or errors are made by CONSULTANT which requires the expenditure of additional funds for additional work by COUNTY, COUNTY has the option of reducing payment to CONSULTANT or requiring the CONSULTANT to do the additional work. ARTICLE 3 Owner's Responsibilities 3.1 The OWNER shall provide full information regarding requirements for the assigned tasks. The OWNER shall furnish required information as expeditiously as necessary for the orderly progress of the Work, and the CONSULTANT shall be entitled to rely on the accuracy and completeness thereof. 3.2 Where /when required, the OWNER shall designate a representative authorized to act on the OWNER's behalf with respect to an assigned task. The OWNER or such authorized representative shall render decisions in a timely manner pertaining to documents submitted by the CONSULTANT in order to avoid unreasonable delay in the orderly and sequential progress of the CONSULTANT's services. ARTICLE 4 Use of Consultant Documents 4.1 The documents prepared by the CONSULTANT in the performance of services hereunder are instruments of the CONSULTANT's service for use solely with respect to the assigned task and, unless otherwise provided, the CONSULTANT shall be deemed the author of these documents and shall retain all common law, statutory and other reserved rights, including the copyright. The OWNER shall be permitted to retain copies, including reproducible copies and reproducible copies in electronic form, of the CONSULTANT's documents for the OWNER's information, reference and use as the owner sees fit. ARTICLE 5 Dispute Resolution 5.1 OWNER and CONSULTANT agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of each of the parties. If no resolution can be agreed upon within 30 days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. ARTICLE 6 Termination or Suspension 6.1 This Agreement may be terminated by either party upon not less than seven days' written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination. 6.2 If the OWNER fails to make payment in accordance with Article 8.1 the CONSULTANT for services and expenses, the CONSULTANT may, upon seven days' written notice to the OWNER, suspend performance of services under this Agreement. Unless payment in full is received by the CONSULTANT within seven days of the date of the notice, the suspension shall take effect without further notice. In the event of a suspension of services, the CONSULTANT shall have no liability to the OWNER for delay or damage caused the OWNER because of such suspension of services. 6.3 In the event of termination not the fault of the CONSULTANT, the CONSULTANT shall be compensated for services performed prior to termination. ARTICLE 7 Miscellaneous Provisions 7.1 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statute of limitations shall commence to run not later than the date payment is due the Consultant pursuant to Article 8. 4 7.2 The OWNER and CONSULTANT, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither OWNER nor CONSULTANT shall assign this Agreement without the written consent of the other. 7.3 This Agreement represents the entire and integrated Agreement between the OWNER and the CONSULTANT and supercedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both OWNER and CONSULTANT. 7.4 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against the OWNER or CONSULTANT. 7.5 It is mutually covenanted and agreed between the parties hereto that no waiver of a breach of any of the covenants of this Agreement shall be construed to be a waiver of any succeeding breach of the same covenant. 7.6 CONSULTANT hereby agrees to be bound by, and at its own cost, comply with all Federal, State or local laws, codes, ordinances and regulations applicable to this Agreement and the performance of the work hereunder. CONSULTANT shall be duly licensed to operate under the law of the applicable jurisdiction. CONSULTANT shall be liable to OWNER for all loss, cost and expense attributable to any acts of commission or omission by CONSULTANT, its employees, and agents resulting from failure to comply including but not limited to any fines, penalties or corrective actions. 7.7 Notwithstanding any minimum insurance requirements prescribed elsewhere in this Agreement, CONSULTANT shall defend, indemnify and hold OWNER and OWNER's elected and appointed officers and employees harmless from and against (i) any claims, actions or causes of action, (ii) any litigation, administrative proceedings, appellate proceedings, or other proceedings relating to any type of injury (including death), loss, damage, fine, penalty or business interruption, and (iii) any costs or expenses (including, without limitation, costs of remediation in connection with a violation of any federal, state, or local law or regulation, attorneys' fees and costs, court costs, fines and penalties) that may be asserted against, initiated with respect to, or sustained by, any indemnified party by reason of, or in connection with, (A) any activity of CONSULTANT or any of its employees, agents, contractors or other invitees during the term of this Agreement, (B) the negligence or willful misconduct of CONSULTANT or any of its employees, agents, contractors or other invitees, or (C) CONSULTANT's default in respect of any of the obligations that it undertakes under the terms of this Agreement, except to the extent the claims, actions, causes of action, litigation, proceedings, costs or expenses arise from the intentional or sole negligent acts or omissions of the OWNER or any of its employees, agents, contractors or invitees (other than CONSULTANT). Insofar as the claims, actions, causes of action, litigation, proceedings, costs or expenses relate to events or circumstances that occur during the term of this Agreement, this section will survive the expiration of the term of this Agreement or any earlier termination of this Agreement. 7.8 CONSULTANT shall maintain all books, records, and documents directly pertinent to performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party to this Agreement or their authorized 5 representatives shall have reasonable and timely access to such records of each other party to this Agreement for public records purposes during the term of the Agreement and for four years following the termination of this Agreement. 7.9 This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed entirely in the State. In the event that any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the CONSULTANT and OWNER agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. The CONSULTANT and OWNER agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between any of them the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. 7.10 If any term, covenant, condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement, shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The CONSULTANT and OWNER agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 7.11 The OWNER and CONSULTANT agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative, and out -of- pocket expenses, as an award against the non - prevailing party, and shall include attorney's fees, courts costs, investigative, and out -of- pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil Procedure and usual and customary procedures required by the circuit court of Monroe County. 7.12 Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and corporate action, as required by law. 7.13 OWNER and CONSULTANT agree that each shall be, and is, empowered to apply for, seek, and obtain federal and state funds to further the purpose of this Agreement; provided that all applications, requests, grant proposals, and funding solicitations shall be approved by each party prior to submission. 7.14 In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, OWNER and CONSULTANT agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings, and other activities related to the substance of this Agreement or provision of the services under this Agreement. OWNER and CONSULTANT specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to thisAgreement. 7.15 CONSULTANT agrees that there will be no discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, this Agreement automatically terminates without any further action on the part of any party, effective the date of the court order. CONSULTANT agrees to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88 -352) which prohibits discrimination on the basis of race, color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC ss. 1681 -1683, and 1685- 1686), which prohibits discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC ss. 6101- 6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL 92 -255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (PL 91 -616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd -3 and 290ee -3), as amended, relating to confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of 1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; 9) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on the basis of disability; 10) Sections 13 -101, et seq., Monroe County Code, relating to discrimination based on race, color, sex, religion, disability, national origin, ancestry, sexual orientation, gender identity or expression, familial status or age; 11) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. 7.16 OWNER and CONSULTANT covenant that neither presently has any interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance under this Agreement, and that the only interest of each is to perform and receive benefits as recited in this Agreement. 7.17 OWNER agrees that officers and employees of the OWNER recognize and will be required to comply with the standards of conduct for public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing business with one's agency; unauthorized compensation; misuse of public position, conflicting employment or contractual relationship; and disclosure or use of certain information. 7.18 OWNER and CONSULTANT warrant that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of the provision, the CONSULTANT agrees that the OWNER shall have the 7 right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 7.19 OWNER and CONSULTANT shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the OWNER and CONSULTANT in conjunction with this Agreement; and the OWNER shall have the right to unilaterally cancel this Agreement upon violation of this provision by CONSULTANT. 7.20 Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the OWNER and CONSULTANT in this Agreement and the acquisition of any commercial liability insurance coverage, self - insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the OWNER be required to contain any provision for waiver. 7.21 All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules and pensions and relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of any public agents or employees of the OWNER, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers, or employees outside the territorial limits of the County. 7.22 Non - Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the OWNER, except to the extent permitted by the Florida constitution, state statute, and case law. 7.23 No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or program contemplated hereunder, and the OWNER and CONSULTANT agree that neither the OWNER nor the CONSULTANT nor any agent, officer, or employee of either shall have the authority to inform, counsel, or otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to the community in general or for the purposes contemplated in this Agreement. 7.24 CONSULTANT agrees to execute such documents as the OWNER may reasonably require, to include a Public Entity Crime Statement, an Ethics Statement, and a Drug -Free Workplace Statement. 7.25 No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her 8 individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 7.26 This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. 7.27 Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. 7.28 This Agreement has been carefully reviewed by OWNER and CONSULTANT, therefore this Agreement is not to be construed against either party on the basis of authorship. ARTICLE 8 Basis of Compensation The OWNER shall compensate the CONSULTANT as follows: 8.1 The type of compensation method which shall be used to pay for the CONSULTANT's services is limited to the following: 8.1.1 Lump sum payment which includes compensation for all the CONSULTANT'S salaries, general overhead costs, expenses (direct and indirect), and profit. 8.1.2 The fee shall be based on an hourly time charge basis. Compensation will be calculated based on providing the above described services for a three (3) year period at the following hourly rates: Senior Vice President $175.00 /Hr Vice President $160.00/Hr Senior consultant $150.00/Hr Consultant $125.00/Hr Support $ 65.00/Hr Provided, however, that CONSULTANT may increase each of the above stated hourly rates by an amount equal to three percent (3 %) for the fourth and fifth year of this Agreement should the COUNTY exercise its renewal option. 8.2 COUNTY shall pay in accordance with the Florida Local Government Prompt Payment Act upon submission of invoice by CONSULTANT. 8.3 CONSULTANT shall submit to COUNTY invoices with supporting documentation acceptable to the Clerk, on a monthly schedule in arrears. Monthly invoicing will be based on an estimate of the percent complete at the end of the preceding month. Acceptability to the Clerk is based on generally accepted accounting principles and such laws, rules and regulations as may govern the Clerk's disbursal of funds. E 8.4 If the scope of the Consultant's services is changed materially, the amounts of compensation shall be equitably adjusted. ARTICLE 9 Term of Agreement 9.1 The initial term of this agreement is 3 years commencing on October 19, 2011 and terminating on October 18, 2014. 9.2 The County shall have the option to renew this Agreement for two (2) additional one (1) year periods. ARTICLE 10 DBE Requirements 10.1 It is the policy of the COUNTY and the FAA on all federally funded contracts for services that disadvantaged business enterprises, as defined in the Airport's Disadvantage Business Enterprises (DBE) Program and as defined in 49 CFR Part 26 shall have the maximum opportunity to participate in the performance of contracts awarded by the COUNTY, including but not limited to, contracts financed in whole or in part with Federal funds under this Agreement. Consequently, the requirements of the Airport's DBE Program Policy apply to this Agreement. As such, the CONSULTANT must demonstrate good -faith efforts to provide DBEs an opportunity to participate in projects funded under this agreement in accordance with the DBE Program. 10.2 The CONSULTANT and all subconsultants, subcontractors, and vendors shall take all necessary and reasonable steps in accordance with the Owner's DBE Program Policy to ensure that DBE firms have the maximum opportunity to compete for and perform contracts. 10.3 The CONSULTANT shall not breach any of its obligations with the DBEs. The CONSULTANT agrees that it cannot terminate a DBE subcontractor for convenience and then perform the work with its own forces or its affiliate. In the event the CONSULTANT desires to terminate or replace a DBE, the CONSULTANT shall promptly notify the Contract Administrator of the impending termination, the reason for the termination and obtain the Contract Administrator's approval prior to proceeding with the termination. Following the termination, the CONSULTANT shall endeavor and document a good faith effort to replace the terminated DBE with another similar certified DBE. If the CONSULTANT is unable to utilize another DBE for the performance of that portion of the Agreement, the CONSULTANT shall provide the Contract Administrator with documentation, in a form satisfactory to the Contract Administrator, showing that it is not possible to replace the terminated DBE with another DBE. 10.4 The CONSULTANT shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT - assisted contracts. Failure by the CONSULTANT to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the COUNTY deems appropriate. 10 10.5 A business certified as a Disadvantaged Business Enterprise (DBE) under the Florida Unified Certification Program (FUCP) will be eligible to participate as a DBE on this contract. Firms certified by the FUCP are noted as "UCP Cert. DBE" within the respective firm profile available on Florida Department of Transportation's BizNet Site at: https: / /www3. dot. state. fl. us/ EqualOpportunityOffice /biznet/mainmenu.asp 10.6 The CONSULTANT shall also require similar language in the above clauses 11.1 — 11.5 in its contracts with any subconsultants or subcontractors. 10.7 Key West International Airport and Florida Keys Marathon Airport have each established a Disadvantage Business Enterprise (DBE) Program for the purpose of increasing contracting and procurement opportunities for DBEs. The Airport DBE Programs are currently transitioning from annual DBE goals to multi -year DBE goals per current FAA guidance. Both airports are firmly committed to effectively implementing their respective DBE Programs. Over the past five (5) years, historical DBE goals have ranged between ten percent (10 %) to twenty -five percent (25 %). The DBE goals for services will be established on a project by project basis based on the type of project, funding, availability of workforce, specialization of required services, and other factors in order to meet each airport's multi -year goal. 10.8 The CONSULTANT shall pay its subconsultants, subcontractors and suppliers within fifteen (15) calendar days following receipt of payment from the COUNTY for such subcontracted work or supplies. The CONSULTANT agrees that if it withholds an amount as retainage from its subconsultants, subcontractors or suppliers, that it will release such retainage and pay same within fifteen (15) calendar days following receipt of payment of retained amounts from COUNTY, or within fifteen (15) calendar days after the subconsultant or subcontractor has satisfactorily completed its work, whichever shall first occur. 10.9 The CONSULTANT agrees that nonpayment of a subconsultant, subcontractor or supplier as required by subparagraph 11.8 shall be a material breach of this Agreement and that COUNTY may, at its option, increase allowable retainage or withhold progress payments unless and until the CONSULTANT demonstrates timely payments of sums due to such subconsultants, subcontractors or suppliers. The CONSULTANT agrees that the presence of a "pay when paid" provision in a subcontract shall not preclude COUNTY's inquiry into allegations of nonpayment. The foregoing remedies shall not be employed when CONSULTANT demonstrates that failure to pay results from a bona fide dispute with its subconsultant, subcontractor or supplier. 10.10 Compliance monitoring is conducted to determine if CONSULTANT and /or subconsultants, subcontractors are complying with the requirements of the DBE Program. The CONSULTANT agrees to furnish and provide the Contract Administrator with DBE compliance and payment forms to provide information on interim DBE Utilization; Certification of Payments to subconsultants and suppliers; and Final DBE Utilization Forms using the form as may be provided by the Contract Administrator. Failure of the CONSULTANT to comply with this provision may result in the COUNTY imposing penalties or sanctions pursuant to the provisions of the DBE regulation, 49 CFR Part 26. 10.11 COUNTY shall have access, without limitation, to CONSULTANT's books and records, including payroll records, tax returns and records, and books of account, on five (5) 11 calendar days notice, to allow COUNTY to determine CONSULTANT's compliance with its commitment to DBE participation goal and the status of any DBE performing any portion of this Agreement. ARTICLE 11 E- Verify 11.1 CONSULTANT agrees to utilize the E- Verify system to establish employment eligibility of CONSULTANT's employees on all FDOT assisted projects. ARTICLE 12 Approval by Federal and State Agencies 12.1 entered into as of the day and year first written above. w L. KOLHAGE CLERK By: w� ` `� D.c- . Clerk Attest: By: W S Title: ,off �Tt :e L The COUNTY agrees to use its best efforts to obtain approval of this Agreement and any Addenda hereto from Federal and State agencies to the extent required by law or regulation. If the Owner determines that modifications to this Agreement or any Addenda hereto are required to qualify for State or Federal funding for the CONSULTANT's Services, and if the CONSULTANT shall fail to consent to such modifications, or if the CONSULTANT is unable to comply within a reasonable time with applicable Federal or State laws and regulations governing the grant of such funds for Services, the COUNTY shall have the right to terminate this Agreement or any such Addenda hereto. —s WITNESS Title: 12 BOARD OF COUNTY COMMISSIONEM OF MONROE CO TY LORIDA By: PayotC/airman CONSULTANT By: L Title: flr�2r -�'