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Item C02County of Monroe <r BOARD OF COUNTY COMMISSIONERS � Mayor David Rice, District 4 IleOI1da Keys ��x t t 0. Mayor Pro Tem Sylvia J. Murphy, District 5 Danny L. Kolhage, District 1 P f,< George Neugent, District 2 a Heather Carruthers, District 3 County Commission Meeting May 16, 2018 Agenda Item Number: C.2 Agenda Item Summary #4043 BULK ITEM: Yes DEPARTMENT: Project Management / Facilities TIME APPROXIMATE: STAFF CONTACT: Johnnie Yongue (305) 292 -4429 None AGENDA ITEM WORDING: Approval to rescind contract awarded on July 20, 2016, to Charley Toppino and Sons, Inc. for the Big Coppitt Boat Ramp Repairs and reject all remaining bids and request approval to re- advertise a Request for Proposals for this project. Shortly after award of the Toppino contract, which was never executed by the Mayor, Monroe County was informed of a grant to match the project costs through the Boater improvement Program with the State of Florida. ITEM BACKGROUND: Big Coppitt Boat ramp was identified by Monroe County Project Management and Marine Resources to be in need of repairs. The project was designed and permitted through the Corps of Engineers. Following approval of the permit, the project was submitted for a Florida Boater Improvement Grant. The project was advertised and awarded to Charley Toppino and Sons, Inc. in July 2016, prior to the notice of award from the state of Florida. The FBIP grant agreement requires pre - approval of construction advertisement and awards, thus requiring this project to now be re -bid again. Due to the aforementioned requirements discovered in the FBIP grant, the contract had never been executed by the Mayor after BOCC approval. We are seeking approval to rescind the July 2016 Toppino Contract, reject all remaining bids, and authorize approval to re- advertise an RFP for the boat ramp repairs. PREVIOUS RELEVANT BOCC ACTION: February 21, 2018 Monroe County Board of County Commissioners approved the agreement between the State of Florida Boater Improvement Program and the County for the award of $75,000 matching funds for the Big Coppitt Boat Ramp Repair project. July 20, 2016 BOCC approved a contract with Charley Toppino and Sons, Inc. for the Big Coppitt Boat Ramp Repairs. January 16, 2014 BOCC approved a contract with Keith and Schnars, Inc. for the design and permitting of three (3) boat ramp repair projects, which included the Big Coppitt Boat Ramp. CONTRACT /AGREEMENT CHANGES: Rescind Contract STAFF RECOMMENDATION: Staff Recommends Approval DOCUMENTATION: Toppi no's contract Big Coppi tt Boat Ramp B OCC 7 202016 (signed) Grant Application Executed by Clerk FINANCIAL IMPACT: Effective Date: 5/16/18 Expiration Date: None Total Dollar Value of Contract: None Total Cost to County: $1,000 Current Year Portion: $1,000 Budgeted: yes Source of Funds: Advertising from Project Mgmt Admin 22004. CPI: no Indirect Costs: no Estimated Ongoing Costs Not Included in above dollar amounts: none Revenue Producing: no Grant: yes County Match: yes Insurance Required: yes Additional Details: If yes, amount: Advertising 05/16/18 304 -22004 - COUNTY ENGINEER CONSTR M $1,000.00 530498 REVIEWED BY: Cary Knight Completed 05/01/2018 9:51 AM Ann Mytnik Completed 05/01/2018 10:07 AM Patricia Eables Completed 05/01/2018 10:50 AM Kevin Wilson Completed 05/01/2018 10:59 AM Budget and Finance Completed 05/01/2018 1:36 PM Maria Slavik Completed 05/01/2018 1:38 PM Kathy Peters Completed 05/01/2018 2:17 PM Board of County Commissioners Pending 05/16/2018 9:00 AM BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS Agreement Between Owner and Contractor Where the basis of payment is a STIPULATED SUM AGREEMENT Made as of the Twentieth Day of July Two Thousand and Sixteen BETWEEN the Owner: Monroe County Board of County Commissioners 500 Whitehead Street Key West, FL 33040 And the Contractor. Charley Toppino and Sons,,. Inc; PO Box 787 Key West Fl 33041 For the following Project. BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS Scope of the Work 1. Project Overview The Scope of Work shall include, all work shown and listed in the Project Drawings. The Contractor is required to provide a complete job as contemplated by the drawings and specifications, which are a part of this bid package. The Contractor shall furnish all labor, supervision, materials, power, tools, equipment, supplies and any other means of construction necessary or proper for performing and completing the Scope of Work, unless otherwise specifically stated. Scope of work is for construction of a 52 foot by 5 foot reinforced concrete cast in place accessory pier along side the existing launch ramp and installation of rip rap surrounding existing ramp along steep drop offs and edges cause by erosion and use. 1. Contractor to provide and install for construction site; a. Job signs including environmental hazard signs required by permit(s). b. Perimeter fencing to restrict access. c, Turbidity barrier in accordance with permit requirments. d. Cofferdam to dewater ramp site. AGREEMENT Page 1 of r Packet Pg. 54 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 2. Contractor is to dewarter site and prepare ramp for construction of new concrete cast in place accessory pier including: e. Clearing and grading to found accessory pier on cap rock below existing mudline, f. Construct reinforced concrete cast in place accessory pier in accordance to drawings along side existing boat ramp, g. Provide material fasceners and protections necessary for marine grade construction in addition to all areas indicated on plans. 3. Install by hand rip rap around ramp as required by construction drawings. The Contractor shall be responsible for complying with regulations, approvals, and permitting by the: Monroe County, Florida Department of Environemtal Protection, Army Corps Of Engineers, and any other permitting or regulatory agencies as applicable. 2. General Project Intent and Scope Provide all labor, supervision, engineering, materials, supplies, equipment, tools, transportation, surveying, layout, and protection for the proper execution and completion of all the work in accordance with the Contract Documents. The Work shall include but not be limited to that shown on the Drawings and detailed in the Technical Specifications if any included in this Contract. 3. General Requirements A. Construction work times shall be limited to: 8:00 am to 5:00 pm Mon. -Fri. B. Contractor needs to be aware of weather and location and plan accordingly. C. Contractor needs to be aware of the facility, its vendors and staff with unusual schedules and plan accordingly. Coordination of each days works shall be done in advance with approval from County. All spaces interior and exterior shall be cleaned and returned to normal work period/ day. D. The Scope of Work shall include, but not be limited to, all work shown and listed in the Project Drawings. The Contractor is required to provide a complete job as contemplated by the drawings and specifications, which are a part of this bid package. The Contractor shall furnish all labor, supervision, materials, power, tools, equipment, supplies and any other means of construction necessary or proper for performing and completing the Scope of Work, unless otherwise specifically stated. The contractor will be responsible to obtain all additional necessary permits and approvals including the: Monroe County, Florida Department of Environmental Protection, Army Corps of Engineers, and any other permitting or regulatory agencies as applicable AGREEMENT Page Packet Pg. 55 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS E. SPECIAL PROVISIONS The following Special Provisions are intended to clarify the scope of work, or highlight features of the work, or modify, change, add to, or delete from the General Scope of this Proposal Package. 1. All licenses required in order to perform the scope of work in the specified location, shall be procured and maintained by the contractor and his subcontractors. Contractor shall submit copies to Project Management prior to notice to proceed. Contractor's license shall accompany proposal. 2. Provide, replace, and maintain any safety rails and barricades as necessary during the process of work, or during deliveries of materials or equipment. 3. Contractor is to review Division 1 General Requirements for additional responsibilities required in order to perform this Work. 4. If in the event of conflicting, or overlapping requirements in any area of the proposal documents, technical specifications, or drawings, the most stringent condition shall be proposed and constructed Notify Project Management in any event, in order to not compromise the Owner's right to make appropriate decisions. 5. Contractor shall maintain As -Built Drawin s, (Record Drawings per Section 01720), of his work progression. 6. The Contractor shall not store materials, tools or debris inside the building with out written permission. Contractor shall provide suitable storage container, and be responsible for disposal off -site of all debris and trash. 7. The Contractor shall coordinate with Owner's representative on available hours for Job Site access. Job site will have limited 8:00 AM - 5:OOPM work hours. Contractor will need to schedule work shifts typically from 8:00 AM- 5:OOPM weekly. Any change to agreed upon schedule must be obtained in writing with a minimum of 72 hrs advanced notice. Coordination of each days works shall be done in advance with approval from County. All spaces interior and exterior shall be cleaned and returned to normal each work period. The Contractor shall post two (2) weather resistant job site signs a minimum of 24 inches by 36 inches with 2 inch high black block lettering on white background, clearly stating the name of the project, when the ramp shall be closed to the public, start and finish dates, a minimum of 30 calender days before commencement of work, list the AGREEMENT Page of SO Packet Pg. 56 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS County Commissoners, and a map listing the local alternate ramps. The sign must include the statement that "The project is funded by the One Cent Infrastructure Sales Tax ARTICLE 1 The Contract Documents The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions)„ Drawings, Specifications, Proposal Documents, Addenda issued prior to execution of this Agreement, together with the response to RFP and all required insurance documentation, and Modifications issued after execution of this Agreement. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents, other than Modifications, appears in Article 9. In the event of a discrepancy between the documents„ precedence shall be determined by the order of the documents as just listed. ARTICLE 2 The Work of this Contract The Contractor shall execute the entire Work described in the Contract Documents, except to the extent specifically indicated in the Contract Documents to be the responsibility of others, or as follows: ARTICLE 3 Date of Commencement and Substantial Completion 3.1 The date of commencement is the date to be fixed In a notice to proceed issued by the Owner. The Contractor shall achieve Substantial Completion of the entire Work not later than Ninety - (90) calendar days after the date of commencement or issuance of a Notice to Proceed. The time or times stipulated in the contract for completion of the work of the contract or of specified phases of the contract shall be the calendar date or dates listed in the milestone schedule. Liquidated damages will be based on the Substantial Completion Date for all work, modified by all approved extensions in time as set forth by the Director of Project Management's signature of approval on the Certificate of Substantial Completion. The liquidated damages table below shall be utilized to determine the amount of liquidated damages. AGREEMENT Page of An Packet Pg. 57 FIRST SECOND 31ST DAY & CONTRACT AMOUNT 15 DAYS 15 DAYS THEREAFTER Under $50,000.00 $50.00 /Day $100.00 /Day $250.00 /Day $50,000.00 - 99,999.00 100.00 /Day 200.00/Day 750.00/Day $100,000.00- 499,999.00 200.00/Day 500.00/Day 2,000.00 /Day $500,000.00 and Up 500.00 /Day 1,000.00 /Day 3,500.001Day The Contractor's recovery of damages and sole remedy for any delay caused by the Owner shall be an extension of time on the Contract. AGREEMENT Page of An Packet Pg. 57 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS ARTICLE 4 Contract Sum 4.1 The owner shall pay the Contractor in current funds for the Contractor's performance of the Contract the Contract Sum of One Hundred Eighty Four Thousand and No/100 Dollars ($184,000.00)„ subject to additions and deductions as provided in the Contract Documents. 4.2 The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner: None Alternate # 1: None None 1100 (Cost in words) Dollars ($ END ALTERNATES 4.3 Unit prices, if any, are as follows;. Unit Price #1: None 4.4 The Owner shall pay the Contractor in current funds for the Contractor's performance of the Contract the Contract Sum including no alternates and no unit prices, a grand total of One Hundred Eighty Four Thousand and 001100 ($184,000.00). ARTICLE 5 Progress Payments 5.1 Based upon Applications for Payment submitted by the Contractor to the Director of Project Management, and upon approval for payment issued by the Director of Project Management and Architect, the Owner shall make progress payments on account of the Contract Sum to the contractor as provided below and elsewhere in the Contract Documents. 5.2 The period covered by each Application for payment shall be one calendar month ending on the last day of the month, or as follows: 5.3 Payment will be made by the Owner in accordance with the Florida Local Government Prompt Payment Act, section 218.735, Florida Statutes. 5.4 Each Application for Payment shall be based upon the Schedule of Values submitted by the Contractor in accordance with the Contract Documents, The Schedule of Values shall allocate the entire Contract Sum among the various portions of the Work and be prepared in such form and supported by such data to substantiate its accuracy as the Director of Project Management may require. This schedule, unless objected to by the Director of Project Management, shall be used as a basis for reviewing the Contractor's Applications for Payment. AGREEMENT Page Packet Pg. 58 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 5.5 Applications for Payment shall indicate the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. 5.6 Subject to the provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: 5.6.1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the total Contract Sum allocated to that portion of the Work in the Schedule of Values, less retainage of Ten Percent 10 %. Pending final determination of cost to the owner of changes in the Work, amounts not in dispute may be included in Applications for Payment. The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which results in a net decrease in the Contract Sum shall be the net cost to the Owner, less Overhead, Profit and Documented Costs incurred prior to the change Request, as indicated in the corresponding line item in the Approved Schedule of Values for that line item as confirmed by the Director of Project Management. When both additions and credits covering related Work or substitutions are involved in a change the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. 5.6.2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage; 5.6.3 Subtract the aggregate of previous payments made by the Owner; and 5.6.4 Subtract amounts, if any, for which the Director of Project Management has withheld or nullified a Certificate for Payment as provided in Paragraph 9.5 of the General Conditions. 5.7 Retainage of 10% will be withheld in accordance with section 218.735 (8(b), Florida Statutes. 5.8 Reduction or limitation of retainage, if any, shall be as follows: Monroe County is exempt from and not subject to Florida Statutes 255.078, "Public Construction Retainage". Reduction or limitation of retainage, if any, shall be reduced incrementally at the discretion of and upon the approval of the Director of Project Management. Final Payment ARTICLE 6 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when (1) the Contract has been fully performed by the Contractor except for the Contractor's responsibility to correct nonconforming Work as provided in Subparagraph 12.2.2 of the General Conditions and to satisfy other requirements, if any, which necessarily survive final payment, and (2) a final approval for payment has been issued by the Director of Project Management. Such final payment shall be made by the Owner not more than 20 days after the issuance of the final approval for payment. The following documents ( samples in section 1027 are required for Final Payment: AGREEMENT Page Packet Pg. 59 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS (1) Application and Certificate for Payment (2) Continuation Sheet (3) Certificate of Substantial Completion (4) Contractor's Affidavit of Debts and Claims (5) Contractor's Affidavit of Release of Liens (6) Contractors Consent of Surety to Final Payment (7) Final Release of Lien (8) Contractor shall provide two (2) hard copies in tabulated divided binders and one (1) saved electronically tabbed and indexed in Adobe Acrobat file (.PDF) format delivered on a downloadable CDIDVD of all the following but not limited to: A. Project Record Documents (As Built Documents). B. Operating and maintenance data, instructions to the Owner's personnel. C. Warranties, bond and guarantees. D. Keys and keying schedule. E. Spare parts and maintenance materials. F. Electronic copies of approved submittals G. Evidence of payment and final release of liens and consent of surety to final release (includes final release from all utilities and utility companies). Miscellaneous Provisions ARTICLE 7 7.1 Where reference is made in this Agreement to a provision of the General Conditions or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. 7.2 Payment shall be made according to the Florida Local Government Prompt Payment Act and Monroe County Code. 7.3 Temporary facilities and services: As described in Article 34 of the General Conditions 7.4 Monroe County's performance and obligation to pay under this contract is contingent upon an annual appropriation by the Board of County Commissioners. 7.5 A person or affiliate who has been placed on the convicted vendor list following a conviction for public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a proposal on a contract with a public entity for the construction or repair of a public building or public work, may not submit proposals on leases of real property to public entity, may not be awarded or perform work as contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, AGREEMENT Page 7 of An Packet Pg. 60 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. 7.6 The following items are included in this contract: a) Contractor 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 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. If an auditor employed by the County or Clerk determines that monies paid to Contractor pursuant to this Agreement were spent for purposes not authorized by this Agreement, the Contractor shall repay the monies together with interest calculated pursuant to Sec. 55.03, FS, running from the date the monies were paid to Contractor. b) Governing Law, Venue, Interpretation, Costs, and Fees: 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 County and Contractor agree that venue shall lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. The Parties waive their rights to trial by jury. The County and Contractor 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, pursuant to Section XVI of this agreement. c) Severability. 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 County and Contractor 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. d) Attorney's Fees and Costs. The County and Contractor 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 and court costs as an award against the non - prevailing party, and shall include attorney's fees and courts costs in appellate proceedings. e) Binding Effect. The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the benefit of the County and Contractor and their respective legal representatives, successors, and assigns. f) Authority. 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. Each party agrees that it has had ample opportunity to AGREEMENT Page of SO Packet Pg. 61 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS submit this Contract to legal counsel of its choice and enters into this agreement freely, voluntarily and with advise of counsel. g) Claims for Federal or State Aid. Contractor and County 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. h) Adjudication of Disputes or Disagreements. County and Contractor 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 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. This Agreement is not subject to arbitration. i) Cooperation. In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance, or breach of this Agreement, County and Contractor 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. County and Contractor specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement. j) Nondiscrimination. County and Contractor agree 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. County or Contractor agree 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 LISC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of disability; 10) Any other nondiscrimination provisions in any Federal or state statutes which may apply to the parties to, or the subject matter of, this Agreement. k) Covenant of No interest. County and Contractor 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 only interest of each is to perform and receive benefits as recited in this Agreement. AGREEMENT Page Q of 40 Packet Pg. 62 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 1) Code of Ethics. County agrees that officers and employees of the County 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. m) No Solicitation /Payment. The County and Contractor 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 Contractor agrees that the County shall have the 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. n) Public Records Compliance. Contractor must comply with Florida public records laws, including but not limited to Chapter 119, Florida Statutes and Section 24 of article I of the Constitution of Florida. The County and Contractor shall allow and permit reasonable access to, and inspection of, all documents, records, papers, letters or other "public record" materials in its possession or under its control subject to the provisions of Chapter 119, Florida Statutes, and made or received by the County and Contractor in conjunction with this contract and related to contract performance. The County shall have the right to unilaterally cancel this contract upon violation of this provision by the Contractor. Failure of the Contractor to abide by the terms of this provision shall be deemed a material breach of this contract and the County may enforce the terms of this provision in the form of a court proceeding and shall, as a prevailing party, be entitled to reimbursement of all attorney's fees and costs associated with that proceeding. This provision shall survive any termination or expiration of the contract. The Contractor is encouraged to consult with its advisors about Florida Public Records Law in order to comply with this provision. Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the Contractor is required to: (1) Keep and maintain public records that would be required by the County to perform the service. (2) Upon receipt from the County's custodian of records, provide the County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the contractor does not transfer the records to the County. (4) Upon completion of the contract, transfer, at no cost, to the County all public records in possession of the Contractor or keep and maintain public records that would be required by the County to perform the service. If the Contractor transfers all public records to the County upon AGREEMENT Page IQ nf Sin Packet Pg. 63 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the County, upon request from the County's custodian of records, in a format that is compatible with the information technology systems of the County. (5) A request to inspect or copy public records relating to a County contract must be made directly to the County, but if the County does not possess the requested records, the County shall immediately notify the Contractor of the request, and the Contractor must provide the records to the County or allow the records to be inspected or copied within a reasonable time. If the Contractor does not comply with the County's request for records, the County shall enforce the public records contract provisions in accordance with the contract, notwithstanding the County's option and right to unilaterally cancel this contract upon violation of this provision by the Contractor. A Contractor who fails to provide the public records to the County or pursuant to a valid public records request within a reasonable time may be subject to penalties under section 119.10, Florida Statutes. The Contractor shall not transfer custody, release, alter, destroy or otherwise dispose of any public records unless or otherwise provided in this provision or as otherwise provided by law. IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, BRIAN BRADLEY AT PHONE# 305 -292 -3470 BRADLEY-BRIAN MONROECOUNTY- FL.GOV - MONROE COUNTY ATTORNEY'S OFFICE 1119 12 Street SUITE 408 KEY WEST FL 33040. o) Non - Waiver of Immunity. Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the Contractor and the County 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 County be required to contain any provision for waiver. p) Privileges and Immunities. 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 County, 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. q) Legal Obligations and Responsibilities: Non - Delegation of Constitutional or Statutory Duties. This Agreement is not intended to, nor shall it be construed as, relieving any AGREEMENT Page 11 of 40 Packet Pg. 64 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 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 County, except to the extent permitted by the Florida constitution, state statute, and case law. r) Non - Reliance by Non - Parties. 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 County and the Contractor agree that neither the County nor the Contractor or 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. s) Attestations. Contractor agrees tc reasonably require, to include a Public Entity Drug -Free Workplace Statement. execute such documents as the County may Crime Statement, an Ethics Statement, and a t) No Personal Liability. 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 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. u) Execution in Counterparts. 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. v) Hold Harmless and Indemnification. Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, Contractor shall defend, indemnify and hold the COUNTY and the COUNTY'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 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 Contractor or any of its employees, agents, contractors or other invitees during the term of this Agreement, (B) the negligence or recklessness, intentional wrongful misconduct, errors or other wrongful act or omission of Contractor or any of its employees, agents, sub - contractors or other invitees, or (C) Contractor'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 COUNTY or any of its employees, agents, contractors or invitees (other than Contractor). 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. AGREEMENT Page 7 Packet Pg. 65 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS In the event that the completion of the project (to include the work of others) is delayed or suspended as a result of the Contractor s failure to purchase or maintain the required insurance, the Contractor shall indemnify the County from any and all increased expenses resulting from such delay. Should any claims be asserted against the County by virtue of any deficiency or ambiguity in the plans and specifications provided by the Contractor, the Contractor agrees and warrants that the Contractor shall hold the County harmless and shall indemnify it from all losses occurring thereby and shall further defend any claim or action on the County's behalf. The first ten dollars ($10.00) of remuneration paid to the Contractor is for the indemnification provided for the above. w) Section Headings. 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. x) Disadvantaged Business Enterprise (DBE) Policy and Obligation. It is the policy of the County that DBE's, as defined in C.F.R. Part 26, as amended, shall have the opportunity to participate in the performance of contracts financed in whole or in part with County funds under this agreement. The DBE requirements of applicable federal and state laws and regulations apply to this Agreement. The County and its Contractor agree to ensure that DBE's have the opportunity to participate in the performance of the Agreement. In this regard, all recipients and contractors shall take all necessary and reasonable steps in accordance with applicable federal and state laws and regulations to ensure that DBE's have the opportunity to compete and perform contracts. The County and Contractor and subcontractors shall not discriminate on the basis of race, color, national origin or sex in award and performance of contracts, entered pursuant to this Agreement. y) Agreements with Subcontractors. In the event that the Contractor subcontracts any or all of the work in this project to any third party, the Contractor specifically agrees to identify the COUNTY as an additional insured on all insurance policies required by the County. In addition, the Contractor specifically agrees that all agreements or contracts of any nature with his subcontractors shall include the COUNTY as additional insured. z) Florida Green Building Coalition Standards. Monroe County requires its buildings to conform to Florida Green Building Coalition standards. Special Conditions, if any are detailed in Section 00990 of the Project Manual for this Project. ARTICLE 8 Termination or Suspension 8.1 The Contract may be terminated by the Owner as provided in Article 14 of the General Conditions. ARTICLE 9 Enumeration of Contract Documents 9.1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumerated as follows: (Insert information here). AGREEMENT Page 1 Packet Pg. 66 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS a) Drawings: 131 thru B7 b) ACOE Permit #SAJ2015- 00970(SP -AMK) c) FDEP Permit # 44- 0211354 -002 d) County Building Permit # 16102122 b) Project Manual: Request for Proposals Dated May 2016 9.1.1 The Agreement is this executed Standard Form of Agreement Between Owner and Contractor. 9.1.2 The General Conditions are the General Conditions of the Contract for Construction. 9.1.3 The Supplementary and other Conditions of the Contract are those contained in the Project Manual dated„ 9.1.4 The Addenda, if any„ are as follows: Number 1 Date Page(s) June 6, 2016 2 9.1.5 The Alternates, if any, areas follows; Alternate # 1: None END ALTERNATES This Agreement is entered into as of the day and year first written above and is executed in at least four original copies of which one is to be delivered to the Contractor. 9.1.6 Unit prices,: if any, are as follows:. Unit Price #1:None BALANCE OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGE TO FOLLOW AGREEMENT Page 14 of A Packet Pg. 67 "'IG COPPITT GULF VIEW BOAT RAMP wre IMPROVEMENTS I Execution by the Contractor must be by a person with authority to bind the entity. SIGNATURE OF THE PERSON EXECUTING THE DOCUMENT MUST BE NOTARIZED AND WITNESSED BY ANOTHER OFFICER OF THE ENTITY. (SEAL) BOARD OF COUNTY COMMISSIONERS Attest: Amy Heavilin, Clerk OF MONROE COUNTY, FLORIDA By: Date (SEAL) Deputy Clerk Attest: By: Print Name: Title: Date: An Print Name: t Title: Dare: 07 My commission expires: End of Contract By: Mayor /Chairman CONTRACTOR CHARLEY TOPPINO AND SONS, INC. By: "� a Print Name: 1 Title: Date: MONROE COUNTY ATTORNEY APPROVED AS TO FORM f ,.. CHRIS AMBROSIO ASSISTANT COUNTY ATTORNEY Date: n ARN�SITONG ; Seal AGREEMENT Page 1 c packet Pg. 68 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS GENERAL CONDITIONS OF THE CONTRACT 1.0 GENERAL PROVISIONS 1.1 Basic Definitions 1.1.1 The Contract Documents: The Contract Documents consist of the Agreement between Owner and Contractor, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, addenda issued prior to execution of the Contract, Owners proposal documents, other documents listed in the Agreement and Modifications issued after execution of the Contract, and the Contractor's proposal and supporting documentation. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by Project Management. 1.1.2 The Contract: The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Architect and Contractor, (2) between Project Management and Contractor, (3) between the Architect and Project Management, (4) between the Owner and a Subcontractor or (5) between any persons or entities other than the Owner and Contractor. The Owner shall, however, be entitled to enforce the obligations under the Contract intended to facilitate performance of the duties of Project Management and Architect. 1.1.3 The Work: The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. 1.1.4 The Project: The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by other Contractors and by the Owner's own forces including persons or entities under separate contracts not administered by Project Management. 1.1.5 The Drawings: The Drawings are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. 1.1.6 The Specifications: The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards and workmanship for the Work, and performance of related services. 1.1.7 The Project Manual: The Project Manual is the volume usually assembled for the Work which may include the proposal requirements, sample forms, Conditions of the Contract and Specifications. 1.2 Execution, Correlation and Intent General Conditions of the Contract Page 1 Packet Pg. 69 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 1.2.2 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. 1.2.3 The intent of the Contract Document is to include all items necessary for the proper execution and completion of the Work by the contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. 1.2.4 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. 1.2.5 Unless otherwise stated in the Contract Documents, words which have well -known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. 1.2.6 Where on any of the drawings a portion of the Work is drawn out and the remainder is indicated in outline, the parts drawn out shall also apply to all other like portions of the Work. 1.3 Ownership and Use of Architect's Drawings, Specifications and Other Documents 1.3.1 The Drawing, Specifications and other documents prepared by the Architect are instruments of the Architect's service through which the Work to be executed by the Contractor is described. The Contractor may retain one contract record set. Neither the Contractor nor any Subcontractor, Sub - subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings, Specifications and other documents prepared by the Architect. All copies of them, except the Contractor's record set, shall be returned or suitably accounted for to Project Management, on request, upon completion of the Work. The Drawings, Specifications and other documents prepared by the Architect, and copies thereof furnished to the Contractor, are for use solely with respect to the Project. They are not to be used by the Contractor or any Subcontractor, Sub- subcontractor or material or equipment suppliers unless they are granted a limited license to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Architect appropriate to and for use in the execution of their Work under the Contract Documents. All copies made under this license shall bear the statutory copyright notice, if any, shown on the Drawings, Specifications and other documents prepared by the Architect. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of copyright or other reserved rights 1.3.2 Unless otherwise provided in the Contract Documents, the Contractor will be furnished, two (2) original sealed copies and one (1) electronic copy of Drawings, Specifications and the Project Manual free of charge for the execution of the Work. Additional copies may be obtained from Project Management at a fee of $5.00 per page for full size drawings (.25 per page for written specifications or 11" x 17" drawings). 1.4 Capitalization 1.4.1 Terms capitalized in these General Conditions include those which are (1) specifically defined, (2) the titles of numbered articles and identified references to Paragraphs, General Conditions of the Contract Page 17 of An Packet Pg. 70 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS Subparagraphs and Clauses in the document or (3) the titles of other documents published by the American institute of Architects. 1.5 Interpretation 1.5.1 In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any" and articles such as "the "' and "an,." but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 2.0 OWNER 2.1 Definition 2.1.1 The Owner is Monroe County. The term 4 'Owner" means the Owner or the Owner's authorized representative. 2.2 Information and Services Required of the Owner 2.2.2 The owner shall furnish initial site surveys describing physical characteristics,, legal limitations and utility locations for the site of the Project, and a legal description of the site;. 2.2.3 For existing facilities the Owner shalli secure and pay for necessary approvals, easements, assessments and charges, required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities except for permits and fees which are the responsibility of the Contractor under the Contract Documents. It is the Contractor's responsibility to secure and pay for the building permit(s) for the project. 2.2.4 Information or services under the Owner's control shall be furnished by the Owner with reasonable promptness to avoid delay in orderly progress of the Work. 2.2.5 Unless otherwise provided in the Contract Documents,. the Contractor will be furnished two (2) original sealed copies, and one (1) electronic copy of Drawings, Specifications and the Project Manual free of charge for the execution of the Work as provided in Subparagraph 1.3.2. 2.2.6 The Owner shall forward all communications to the Contractor through Project Management and may contemporaneously provide the same communications to the Architect. 2.2.7 The foregoing are in addition to other duties and responsibilities of the Owner enumerated herein and especially those in respect to Article 6 (Construction by Owner or by Other Contractors), Article 9 (Payments and Completion) and Article 11 (Insurance and Bonds). 2.3 Owner's Right to Stop the Work 2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the contract Documents as required by Paragraph 12.2 or persistently fails to carry out Work in accordance with the Contract Documents, the Owner„ by written order signed personally or by an agent specifically so empowered by the Owner„ may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity. General Conditions of the Contract Page 1 Packet Pg. 71 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 2.4 Owner's Right to Carry Out the Work 2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a three -day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may after such three -day period give the Contractor a second written notice to correct such deficiencies within a three -day period. If the Contractor within such second three -day period after receipt of such second notice fails to commence and continue to correct any deficiencies, the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the cost of correcting such deficiencies, including compensation for another contractor or subcontractor or Project Management's and Architect's and their respective consultants' additional services and expenses made necessary by such default, neglect or failure. If payments then, or thereafter, due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. In the event of clean -up issues, Owner has right to provide a minimum of 24 hours notice. In the event of safety issues determined to be of a serious nature, as determined by Project Management, notice will be given, and contractor is required to rectify deficiency immediately. 3.0 CONTRACTOR 3.1 Definition 3.1 .1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout this Agreement as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized representative. 3.1.2 The plural term "Contractors" refers to persons or entities who perform construction under Conditions of the Contract that are administered by Project Management, and that are identical or substantially similar to these Conditions. 3.2 Review of Contract Documents and Field Conditions by Contractor 3.2.1 The Contractor shall carefully study and compare the Contract Documents with each other and with information furnished by the Owner pursuant to Subparagraph 2.2.2 and shall at once report to Project Management and Architect errors, inconsistencies or omissions discovered. The Contractor shall not be liable to the Owner, Project Management or Architect for damage resulting from errors, inconsistencies or omissions in the Contract Documents unless the Contractor recognized such error, inconsistency or omission and knowingly failed to report it to Project Management and Architect. If the Contractor performs any construction activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to Project Management and Architect, the Contractor shall assume appropriate responsibility for such performance and shall bear an appropriate amount of the attributable costs for correction. 3.2.2 The Contractor shall take field measurements and verify field conditions and shall carefully compare such field measurements and conditions and other information known to the Contractor with the Contract Documents before commencing activities. Errors, inconsistencies or omissions discovered shall be reported to Project Management and Architect at once. General Conditions of the Contract Page 1 of SO Packet Pg. 72 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 3.2.3 The Contractor shall perform the Work in accordance with the Contract Documents and submittals approved pursuant to Paragraph 3.12. 3.3 Supervision and Construction Procedures 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under this Contract, subject to overall coordination of Project Management as provided in Subparagraphs 4.6.3 and 4.6.5. 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons performing portions of the Work under a contract with the Contractor. 3.3.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of Project Management in its administration of the Contract, or by test, inspections or approvals required or performed by persons other than the Contractor. 3.3.4 The Contractor shall inspect portions of the Project related to the Contractor's Work in order to determine that such portions are in proper condition to receive subsequent work. 3.3.5 The Contractor shall verify that the Construction Documents being worked with are the most recent and updated available, including all Addenda information. Also the Contractor will perform the work strictly in accordance with this contract. 3.4 Labor and Materials 3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 3.4.2 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. 3.4.3 The Contractor is responsible for the conduct of his employees at all times. Misconduct, destruction of property, unsafe practices, or violation of any Federal or State regulations including abuse of alcohol or drugs, will be cause for permanent dismissal from the project. If any Contractor's employee is determined to be detrimental to the Project, as deemed by Project Management, the Contractor will remove and/or replace the employee at the request of Project Management. Employees dismissed from the project will be transported from the job site at the Contractor's expense. 3.4.4 The Contractor shall be totally responsible for the security of his work, materials, equipment, supplies, tools, machinery, and construction equipment. 3.4.5 The Contractor shall be responsible for complete, timely and accurate field measurements as necessary for proper coordination, fabrication and installation of his materials and equipment. The Contractor agrees to cooperate with Project Management, if required, to General Conditions of the Contract Page 20 SO Packet Pg. 73 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS accommodate any discovered variations or deviations from the Drawings and Specifications so that the progress of the Work is not adversely affected. 3.5 Warranty 3.5.1 The Contractor warrants to the Owner, Project Management and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform with the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear under normal usage. If required by Project Management, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. 3.6 Taxes 3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work or portions thereof provided by the Contractor which are legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect. 3.7 Permits, Fees and Notices 3.7.1 The Contractor shall secure and pay for all permits, impact fees, governmental fees, licenses, inspections, testing, surveys and utility fees required by Federal, State, Municipal or Utility entities having jurisdiction over the project for the proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required at the time bids are received. The Contractor will be responsible for all building permit costs or impact fees required for this project. The Contractor shall secure and pay for all building and specialty permits including plumbing, electrical, HVAC, etc. 3.7.2 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities bearing on performance of the Work. 3.7.3 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance therewith, the Contractor shall promptly notify Project Management, Architect and Owner in writing, and necessary changes shall be accomplished by appropriate Modification. 3.7.4 if the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to Project Management, Architect and Owner, the Contractor shall assume full responsibility for such Work and shall bear the attributable costs. 3.9 Superintendent 3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. The General Conditions of the Contract Page 21 of SO Packet Pg. 74 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS superintendent shall be satisfactory to Project Management and shall not be changed except with the consent of Project Management, unless the superintendent proves to be unsatisfactory to the Contractor or ceases to be in his employ. 3.10 Contractor's Construction Schedule 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's and Architect's information and Project Management's approval a Contractor's Construction Schedule for the Work. Such schedule shall not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project construction schedule to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. This schedule, to be submitted within fourteen (14) days after Contract Award, shall indicate the dates for the starting and completion of the various stages of construction, shall be revised as required by the conditions of the Work, and shall be subject to Project Management's approval. 3.10.2 The Contractor shall cooperate with Project Management in scheduling and performing the Contractor's Work to avoid conflict, delay in or interference with the Work of other Contractors or the construction or operations of the Owner's own forces. 3.10.4 The Contractor shall conform to the most recent schedules. 3.10.5 Project Management will schedule and conduct a project meeting at a minimum of one meeting per month in each month which the Contractor shall attend. At this meeting, the parties can discuss jointly such matters as progress, scheduling, and problems. 3.11 Documents and Samples at the Site 3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications, addenda, Change Orders and other Modifications, in good order and marked currently to record changes and selections made during construction, and in addition approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to Project Management and Architect and shall be delivered to Project Management for submittal to the Owner upon completion of the Work. 3.12 Shop Drawings, Product Data and Samples 3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub - subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. 3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 3.12.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required the way the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by Project Management is subject to the limitations of Subparagraph 4.6.12. General Conditions of the Contract Page 2 of rin Packet Pg. 75 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 3.12.5 The Contractor shall review, approve and submit to Project Management, in accordance with the schedule and sequence approved by Project Management, Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents. The Contractor shall cooperate with Project Management in the coordination of the Contractor's Shop Drawings, Product Data, Samples and similar submittals with related documents submitted by other Contractors. Submittals made by the Contractor which are not required by the Contract Documents may be returned without action. 3.12.6 The Contractor shall perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by Project Management. Such Work shall be in accordance with approved submittals. 3.12.7 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. 3.12.8 The Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by Project Management approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed Project Management and Architect in writing of such deviation at the time of submittal and Project Management have given written approval to the specific deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by Project Management's approval thereof. 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by Project Management and Architect on previous submittals. 3.12.10 Informational submittals upon which Project Management are not expected to take responsive action may be so identified in the Contract Documents. 3.12.11 When professional certification of performance criteria of materials, systems or equipment is required by the Contract Documents, Project Management and Architect shall be entitled to rely upon the accuracy and completeness of such calculations and certifications. 3.12.12 If materials specified in the Contract Documents are not available on the present market, the Contractor may submit data on substitute materials to Project Management for approval by the Owner. 3.13 Use of Site 3.13.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. 3.13.2 The Contractor shall coordinate the Contractor's operations with, and secure the approval of, Project Management before using any portion of the site. 3.14 Cutting and Patching General Conditions of the Contract Page 2 Packet Pg. 76 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly; He shall also provide protection of existing work as required. 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner's own forces or of other Contractors by cutting, patching, excavating or otherwise altering such construction. The Contractor shall not cut or otherwise alter such construction by other Contractors or by the Owner's own forces except with written consent of Project Management, Owner and such other contractors: such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the other Contractors or the Owner the Contractor's consent to cutting or otherwise altering the Work. When structural members are involved, the written consent of Project Management shall also be required. The Contractor shall not unreasonably withhold from Project Management or any separate contractor his consent to cutting or otherwise altering the Work. 3.14.3 The Contractor shall arrange for any blockouts, cutouts, or openings required for the installation of his materials and equipment and the execution of his work, whether or not shown or indicated on the Drawings. The Contractor shall be further responsible for sealing and/or finishing, in an acceptable fashion and meeting any applicable code requirements, and such block -out, cutout opening, or other hole in any fire - related floor, ceiling, wall, security wall, or any other finished surface. 3.15 Cleaning Up 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work the Contractor shall remove from and about the project waste materials rubbish, the Contractor's tools, construction equipment, machinery and surplus materials. Clean up shall be performed to the satisfaction of the Owner or Project Management. 3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, Project Management may do so with the Owner's approval and the cost thereof shall be charged to the Contractor. 3.16 Access to Work 3.16.1 The Contractor shall provide the Owner, Project Management and Architect access to the Work in preparation and progress wherever located. 3.17 Royalties and Patents 3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of patent rights and shall hold the Owner, Project Management and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect and Project Management. 3.18 Indemnification and Hold Harmless General Conditions of the Contract Page 2 Packet Pg. 77 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 3.18.1 Notwithstanding any minimum insurance requirements prescribed elsewhere in this agreement, Contractor shall defend, indemnify and hold the COUNTY and the COUNTY'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 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 Contractor or any of its employees, agents, contractors or other invitees during the term of this Agreement, (B) the negligence or recklessness, intentional wrongful misconduct, errors or other wrongful act or omission of Contractor or any of its employees, agents, sub- contractors or other invitees, or (C) Contractor'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 COUNTY or any of its employees, agents, contractors or invitees (other than Contractor). 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. In the event that the completion of the project (to include the work of others) is delayed or suspended as a result of the Contractor's failure to purchase or maintain the required insurance, the Consultant shall indemnify the County from any and all increased expenses resulting from such delay. Should any claims be asserted against the County by virtue of any deficiency or ambiguity in the plans and specifications provided by the Contractor, the Contractor agrees and warrants that the Contractor shall hold the County harmless and shall indemnify it from all losses occurring thereby and shall further defend any claim or action on the County's behalf. The first ten dollars ($10.00) of remuneration paid to the Contractor is for the indemnification provided for the above. 4.0 ADMINISTRATION OF THE CONTACT 4.1 Arch itectlEngineer 4.1.1 The Architect and for Engineer is the person lawfully licensed to practice architecturelengineering or any entity lawfully practicing architecture /engineering identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect" means the Architect or the Architect's authorized representative. 4.2 Project Management 4.2.1 Project Management is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Project Management" means Monroe County Project Management Department or Project Management's authorized representative. 4.3 Duties, responsibilities and limitations of authority of Project Management and Architect as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner, Project Management, Architect and Contractor. Consent shall not be unreasonably withheld. General Conditions of the Contract Page 2 Packet Pg. 78 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 4.4 In case of termination of employment of Architect, the Owner shall appoint an Architect whose status under the Contract Documents shall be that of the former Architect. 4.5 Not Used 4.6 Administration of the Contract 4.6.1 Project Management and Engineer will provide administration of the Contract as described in the Contract Documents, and will be the Owner's representatives (1) during construction, (2) until final payment is due and (3) with the Owner's concurrence, from time to time during the correction period described in Paragraph 12.2. Project Management and Engineer will advise and consult with the Owner and will have authority to act on behalf of the Owner only to the extent provided in the Contract Document, unless otherwise modified by written instrument in accordance with other provision of the Contract. 4.6.2 Project Management and Engineer will determine in general that the Work is being performed in accordance with the requirements of the Contract Documents, will keep the Owner informed of the progress of the Work, and will endeavor to guard the Owner against defects and deficiencies in the Work. 4.6.3 Project Management will provide for coordination of the activities of other Contractors and of the Owner's own forces with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other Contractors and Project Management and Owner in reviewing their construction schedules when directed to do so. The Contractor shall make any revisions to the Construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall constitute the schedules to be used by the Contractor, other Contractors, Project Management and the Owner until subsequently revised. 4.6.4 Not used. 4.6.5 Project Management will visit the site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the completed Work and to determine in general if the Work is being performed in a manner indicating that the Work, when completed, will be in accordance with the Contract Documents. However, Project Management will not be required to make exhaustive or continuous onsite inspections to check quality or quantity of the Work. On the basis of on -site observations as an architect, Project Management will keep the Owner informed of progress of the Work, and will endeavor to guard the Owner against defects and deficiencies in the work. 4.6.6 Project Management will not have control over or charge of and will not be responsible for construction means, method, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility as provided in Paragraph 3.3, and neither will be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. Neither Project Management nor the Architect will have control over, or charge of, or be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 4.6.7 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through Project Management, and shall General Conditions of the Contract Page 2 Packet Pg. 79 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS contemporaneously provide the same communications to the Architect. Communications by and with the Architect's consultants shall be through the Architect. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with other Contractors shall be through Project Management and shall be contemporaneously provided to the Architect. 4.6.8 Project Management will review and certify all Applications for Payment by the Contractor, including final payment. Project Management will assemble each of the Contractor's Applications for Payment with similar Applications from other Contractor into a Project Application for Payment. After reviewing and certifying the amounts due the Contractors, the Project Application for Payment, along with the applicable Contractors' Applications for Payment, will be processed by Project Management. 4.6.9 Based on Project Management's observations and evaluations of Contractors' Applications for Payment, Project Management will certify the amounts due the Contractors and will issue a Project Approval for Payment. 4.6.10 Project Management will have authority to reject Work which does not conform to the Contract Documents, and to require additional inspection or testing, in accordance with Subparagraphs 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed, but will take such action only after notifying Project Management. Subject to review, Project Management will have the authority to reject Work which does not conform to the Contract Documents. Whenever Project Management considers it necessary or advisable for implementation of the intent of the Contract Documents, Project Management will have authority to require additional inspection or testing of the work in accordance with Subparagraphs 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed. The foregoing authority of Project Management will be subject to the provisions of Subparagraphs 4.6.18 through 4.6.24 inclusive, with respect to interpretations and decisions of the Architect. However, neither the Architect's nor Project Management's authority to act under this Subparagraph 4.6.10 nor a decision made by either of them in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect or Project Management to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons performing any of the Work. 4.6.11 Project Management will receive from the Contractor and review and approve all Shop Drawings, Product Data and Samples, coordinate them with information received from other Contractors, and review those recommended for approval. Project Management actions will be taken with such reasonable promptness as to cause no delay in the Work of the Contractor or in the activities of other Contractors or the Owner. 4.6.12 Project Management will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. Project Management action will be taken with such promptness consistent with the constraints of the project schedule so as to cause no delay in the Work of the Contractor or in the activities of the other Contractors, the Owner, or Project Management, while allowing sufficient time to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as Contractor as required by the Contract Documents. Project Management review of the General Conditions of the Contract Page 27 Packet Pg. 80 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS Contractor's submittals shall not relieve the Contractor of the obligations under Paragraphs 3.3, 3.5 and 3.12. Project Management's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by Project Management, of any construction means, methods, techniques, sequences or procedures. Project Management's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 4.6.13 Project Management will prepare Change Orders and Construction Change Directives. 4.6.14 Fallowing consultation with the Owner, Project Management will take appropriate action on Change Orders or Construction Change Directives in accordance with Article 7 and will have authority to order minor changes in the Work as provided in Paragraph 7.4. 4.6.16 The Contractor will assist Project Management in conducting inspections to determine the dates of Substantial completion and final completion, and will receive and forward to Project Management written warranties and related documents required by the Contract and assembled by the Contractor. Project Management will review and approve a final Project Application for Payment upon compliance with the requirements of the Contract Documents. 4.6.17 Project Management will provide one or more project representatives to assist in carrying out his responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. 4.6.18 Project Management will interpret and decide matters concerning performance under and requirements of the Contract Documents on written request of the Owner or Contractor. Project Management's response to such requests will be made with reasonable promptness and within any time limits agreed upon. If no agreement is made concerning the time within which interpretations required of Project Management shall be furnished in compliance with this Paragraph 4.6, then delay shall not be recognized on account of failure by Project Management to furnish such interpretations until 15 days after written request is made for them. 4.6.19 Interpretations and decisions of Project Management will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and decisions, Project Management will endeavor to secure faithful performance by both Owner and Contractor, will not show partiality to either and will not be liable for results of interpretations or decisions so rendered in good faith. 4.6.20 Project Management's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents. 4.7 Claims and Disputes 4.7.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. Claims must be made by written notice. The responsibility to substantiate Claims shall rest with the party making the claim. 4.7.2 Meet and Confer. The Contractor and Project Management shall try to resolve the claim or dispute with meet and confer sessions to be commenced within 15 days of the dispute or claim. Any claim or dispute that the parties cannot resolve shall be decided by the Circuit Court, 16"' Judicial Circuit, Monroe County, Florida. General Conditions of the Contract Page 2 Packet Pg. 81 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 4.7.3 Time Limits on Claims. Claims by either party must be made within 21 days after occurrence of the event giving rise to such Claim or within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must be made by written notice submitted to the designated representative. An additional Claim made after the initial Claim has been implemented by Change Order will not be considered unless submitted in writing to the Owner's representative in a timely manner. 4.7.3.1 Any claim not filed with the Owner within such time and in compliance with the preceding provisions shall be deemed conclusively to have been waived and shall be dismissed at the option of the Owner. The claim shall set forth in detail all known facts and circumstances supporting the claim; final costs associated with any claim upon which notice has been filed must be submitted in writing to the Owner with thirty (30) calendar days after notice has been received. In the event the Contractor seeks to make a claim for an increase in the contract price, as a condition precedent to any liability of the Owner therefore, unless emergency conditions exist, the Contractor shall strictly comply with the requirements of this Section and such claim shall be made by the Contractor before proceeding to execute any work for which a claim is made. Failure to comply with this condition precendent shall constitute a waiver by the Contractor of any claim for additional compensation. 4.7.4 Continuing Contract Performance. Pending final resolution of a Claim unless otherwise agreed in writing the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. 4.7.5 Waiver of Claims: Final Payment. The making of final payment shall constitute a waiver of Claim by the Owner except those arising from: .1 liens, Claims, security interests or encumbrances arising out of the Contract and unsettled; .2 failure of the Work to comply with the requirements of the Contract Documents; or 3 terms of special warranties required by the Contract Documents. 4.7.6 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than 10 days after first observance of the conditions. Project Management will promptly investigate such conditions, and the parties will follow the procedure in paragraph 4.7.2. 4.7.6.1 As a condition precedent to the Owner having any liability to the Contractor due to concealed and unknown conditions, the Contractor must give the Owner and Owner Engineer written notice of, and an opportunity to observe, such condition prior to disturbing it. The failure by the Contractor to give the written notice and make the claim as provided by the provisions herein shall constitute a waiver by the Contractor of any rights arising out of or relating to such concealed and unknown condition. General Conditions of the Contract Page 2 Packet Pg. 82 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 4.7.7 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 10.3 If the Contractor believes additional cost is involved for reasons including but not limited to (1) a written interpretation from Project Management, (2) a written order for a minor change in the Work issued by Project Management, (3) failure of payment by the Owner, (4) termination of the Contract by the Owner, (5) Owner's suspension or (6) other reasonable grounds, Claim shall be filed in accordance with the procedure established herein. In a claim by the Contractor against the Owner for compensation in excess of the Contract Sum, any liability of the Owner to the Contractor shall be strictly limited and computed in accordance with the contract documents and shall in no event include indirect costs or consequential damages of the Contractor or any estimated costs or damages. 4.7.8 Claims for Additional Time. 4.7.8.1. If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided herein shall be given. 4.7.8.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time and could not have been reasonably anticipated, and that weather conditions had an adverse effect on the scheduled construction. 4.7.9 Injury or Damage to Person or Property. If either party to the Contract suffers injury or damage to person or property because of an act or omission of the other party, of any of the other party's employees or agents, or of others for whose acts such party is legally liable, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after first observance. The notice shall provide sufficient detail to enable the other party to investigate the matter. If a Claim for additional cost or time related to this Claim is to be asserted, it shall be filed as provided in Subparagraphs 4.7.7 or 4.7.8. 5.0 SUBCONTRACTORS 5.1 Definitions 5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term "Subcontractor' is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include other Contractors or subcontractors of other Contractors. 5.1.2 A Sub - subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term "Sub- subcontractor' is referred to throughout the Contract Documents as if singular in number and means a Sub - subcontractor or an authorized representative of the Sub - subcontractor. 5.2 Award of Subcontracts and Other Contracts for Portions of the Work 5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to Project Management for review by the Owner and Project Management the names of persons or General Conditions of the Contract Page 3 Packet Pg. 83 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS entities (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work. Project Management will promptly reply to the Contractor in writing stating whether or not the Owner or Project Management, after due investigation, has reasonable objection to any such proposed person or entity. Failure of Project Management to reply promptly shall constitute notice of no reasonable objection. 5.2.2 The Contractor shall not contract with a proposed person or entity to which the Owner or Project Management has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Owner or Project Management has made reasonable objection. 5.2.3 If the Owner or Project Management refuses to accept any person or entity on a list submitted by the Contractor in response to the requirements of the Contract Documents, the Contractor shall submit an acceptable substitute; however, no increase in the Contract Sum shall be allowed for any such substitution. 5.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the Owner or Project Management makes reasonable objection to such change. 5.3 Subcontractual Relations 5.3.1 By appropriate written agreement, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by these Documents, assumes toward the Owner or Project Management. Each subcontract agreement shall preserve and protect the rights of the Owner or Project Management under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights. When appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub - subcontractors. The Contractor shall make available to each proposed Subcontractor, copies of the Contract Documents which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors shall similarly make copies of applicable portions of such documents available to their respective proposed Sub - subcontractors. 5.4 Contingent Assignment of Subcontracts 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner provided that: .1 assignment is effective only after termination of the Contract by the Owner for cause pursuant to Paragraph 14.2 and only for those subcontract agreements which the Owner accepts by notifying the Subcontractor in writing; and .2 assignment is subject to the prior rights of the surety, if any, obligated under public construction bond covering the Contract. If the work has been suspended for more than 30 days, the Subcontractor's compensation shall be equitably adjusted. 6.0 CONSTRUCTION BY OWNER OR BY OTHER CONTRACTORS General Conditions of the Contract Page 31 of 50 Packet Pg. 84 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 6.1 Owner's Right to Perform Construction with Own Forces and to Award Other Contracts 6.1.1 The Owner reserves the right to perform construction or operations released to the Project with the Owner's own forces, which include persons or entities under separate contracts not administered by Project Management. The Owner further reserves the right to award other contracts in connection with other portions of the Project or other construction or operations on the site under Conditions of the Contract identical or substantially similar to these including those portions related to insurance and waiver or subrogation. 6.1.2 When the Owner performs construction or operations with the Owner's own forces including persons or entities under separate contracts not administered by Project Management, the Owner shall provide for coordination of such forces with the Work of the Contractor who shall cooperate with them. 6.1.3 It shall be the responsibility of the Contractor to coordinate his work with the work of other contractors on the site. The Owner and Project Management shall be held harmless for any and all costs associated with improper coordination. 6.2 Mutual Responsibility 6.2.1 The Contractor shall afford the Owner's own forces, Project Management and other contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. 6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner's own forces or other contractors, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to Project Management any apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the Owner's own forces or other contractors' completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. 6.2.3 Costs caused by delays or by improperly timed activities or defective construction shall be borne by the Contractor. The Contractor's sole remedy as against the Owner for costs caused by delays or improperly timed activities or defective construction shall be an extension of time. 6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or other contractors as provided in Subparagraph 10.2.5. 6.2.5 Claims and other disputes and matters in question between the Contractor and other contractors shall be subject to the provisions of Paragraph 4.7 provided the other contractors have reciprocal obligations. 6.2.6 The Owner and other contractors shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 3.14. 6.2.7 Should the Contractor contend that he is entitled to an extension of time for completion of any portion or portions of the work, he shall, within (72) hours of the occurrence of the cause General Conditions of the Contract Page 3 r Packet Pg. 85 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS of the delay, notify Project Management in writing, of his contention: setting forth (A) the cause for the delay, (B) a description of the portion or portions of work affected thereby, and (C) all details pertinent thereto. A subsequent written application for the specific number of days of extension of time requested shall be made by the Contractor to Project Management within (72) hours after the delay has ceased to exist. .1 It is a condition precedent to the consideration or prosecution of any claim for an extension of time that the foregoing provisions be strictly adhered to in each instance and, if the Contractor fails to comply, he shall be deemed to have waived the claim. .2 The Contractor agrees that whether or not any delay, regardless of cause, shall be the basis for an extension of time he shall have no claim against the Owner or Project Management for an increase in the Contract price, nor a claim against the Owner or Project Management for a payment or allowance of any kind for damage, loss or expense resulting from delays; nor shall the Contractor have any claim for damage, loss or expense resulting from interruptions to, or suspension of, his work to enable other contractors to perform their work. The only remedy available to the Contractor shall be an extension of time. 6.3 Owner's Right to Clean Up 6.3.1 If a dispute arises among the Contractor, other contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish as described in Paragraph 3.15, the Owner may clean up and allocate the cost among those responsible as Project Management determines to be just. 7.0 CHANGES IN THE WORK 7.1 Changes 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work, subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. 7.1.2 A Change Order shall be based upon agreement among the Owner, Project Management and Contractor; a Construction Charge Directive require agreement by the Owner, Project Management and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by Project Management alone. 7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the Work. 7.1.4 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are so changed in a proposed Change Order or Construction Change Directive that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Contractor, the applicable unit prices shall be equitably adjusted. 7.2 Change Orders General Conditions of the Contract Page 3 Packet Pg. 86 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 7.2.1 A Change Order is a written instrument prepared by Project Management and signed by the Owner, Project Management and Contractor stating their agreement upon all of the following: .1 a change in the Work; 2 the amount of the adjustment in the Contract Sum, if any; and 3 the extent of the adjustment in the Contract Time, if any. 7.2.2 The cost or credit to the Owner resulting from a change in the Work shall be determined in one or more of the following methods: .1 mutual acceptance of lump sum properly itemized and supported by sufficient substantiating data to permit evaluation and payment, and approved by the appropriate authority in writing; .2 unit prices stated in the Contract Documents or subsequently agreed upon, and approved by the appropriate authority in writing; .3 cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; .4 or by method provided in subparagraph 7.2.3. 7.2.3 if none of the methods set forth in Clauses 7.2.1 or 7.2.2 is agreed upon, the Contractor, provided a written order signed by the Owner or Project Management is received, shall promptly proceed with the Work involved. The cost of such Work shall then be determined by daily force accounts in a form acceptable to the Owner and Project Management. The daily force account forms shall identify Contractor and for Subcontractor personnel by name, total hours for each man, each piece of equipment and total hours for equipment and all material(s) by type for each extra Work activity claim. Each daily force account form shall be signed by the designated Project Management representative no later than the close of business on the day the Work is performed to verify the items and hours listed. Extended pricing of these forms shall be submitted to Project Management with all supporting documentation required by Project Management for inclusion into a change order. Unless otherwise provided in the Contract Documents, cost shall be limited to the following: cost of materials, including sales tax and cost of delivery; cost of labor, including social security, old age and unemployment insurance, and fringe benefits required by agreement or custom; works' or workmen's compensation insurance; and the rental value of equipment and machinery. Markups for overhead and profit will be in accordance with subparagraph 7.2.4. Pending final determination of cost, payments on account shall be made as determined by Project Management. The amount of credit to be allowed by the Contractor for any deletion or change, which results in a net decrease in the Contract Sum, will be the amount of the actual net cost to the Owner as confirmed by Project Management. When both additions and credits covering related Work or substitutions are involved in any one change, the allowance for overhead and profit shall be figured on the basis of the net increase, if any with respect to that change. 7.2.4 The actual cost of Changes in the Work may include all items of labor or material, power tools, and equipment actually used, utilities, pro rata charges for foreman, and all payroll charges such as Public Liability and Workmen's Compensation Insurance. No percentage for overhead and profit shall be allowed on items of Social Security and Sales Tax. If deductions are ordered the amount of credit shall be net cost to Owner as defined in section 5.6.1 of the General Conditions of the Contract Page 3 Packet Pg. 87 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS Contract. Items considered as overhead shall include insurance other than that mentioned above, bond or bonds, superintendent, timekeeper, clerks, watchmen, use of small tools, . miscellaneous supplies, incidental job costs, warranties, and all general home /field office expenses. The actual cost of Changes in the Work (other than those covered by unit prices set forth in the Contract Documents) shall be computed as follows: .1 if the Contractor performs the actual Work, the maximum percentage mark -up for overhead shall be five percent (5 %) and the maximum percentage for profit shall be five percent (5 %); .2 if the Subcontractor performs the actual Work, the subcontractor's percentage mark- up for overhead and profit shall be a maximum addition of ten percent (10 %). If the Contractor does not perform the Work, the maximum mark -up for managing the Work will be five percent ( %); 3. If the Subcontractor performs part of the actual Work, his percentage mark -up for overhead and profit shall be a maximum addition of ten percent (10 %) on his direct Work only. If the Contractor performs part of the actual Work, his percentage mark -up for overhead and profit shall be a maximum addition of ten percent (10 %) on his direct Work only. 7.2.5 The Contractor shall furnish to the Owner through Project Management, an itemized breakdown of the quantities and prices used in computing the value of any change that might be ordered. Any additional supporting documentation requested by Project Management such as certified quotations or invoices shall be provided by the Contractor to Project Management at no additional cost to the Owner. 7.2.6 If the Contractor claims that any instructions given to him by Project Management, by drawings or otherwise, involve extra Work not covered by the Contract, he shall give Project Management written notice thereof within five (5) days after the receipt of such instructions and before proceeding to execute the work, except in emergencies endangering life or property, in which case the Contractor shall proceed in accordance with Paragraph 10.3. .1 The written notice to Project Management for the Extra Work shall include a complete description of the extra Work, the total cost and a detailed cost breakdown by labor, material and equipment for each additional activity required to be performed. Mark -ups shall be limited as specified elsewhere in this Article. .2 Except as otherwise specifically provided, no claim for additional cost shall be allowed unless the complete notice specified by this subparagraph is given by the Contractor. 7.2.7 Unless otherwise agreed in writing, the Contractor shall carry on the Work and maintain its progress during any dispute or claim proceeding, and Owner shall continue to make payments to the Contractor in accordance with the Contract Documents. Disputes unresolved shall be settled in accordance with subparagraph 4.7. The Contractor shall maintain completed daily force account forms in accordance with subparagraph 7.2.3 for any dispute or claim item. 7.2.8 One or more changes to the Work within the general scope of this Contract, may be ordered by Change Order. The Owner may also issue written directions for changes in the Work and may issue Construction Change Directives, as set forth below. The Contractor shall proceed with any such changes or Construction Change Directives without delay and in a diligent manner, and same shall be accomplished in strict accordance with the terms and conditions otherwise provided for in the Contract. General Conditions of the Contract Page 3 Packet Pg. 88 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 7.2.9 The execution of a Change Order by the Contractor shall constitute conclusive evidence of the Contractor's agreement to the ordered changes in the work, this Contract as thus amended, the Contract Price and the time for performance by the Contractor. The Contractor, by executing the Change Order, waives and forever releases any claim against the Owner for additional time or compensation for matters relating to, arising out of or resulting from the Work included within or affected by the executed Change Order of which the Contractor knew or should have known. 7.3 Authority 7.3.1 Project Management will have authority to order minor changes in the Work not involving adjustment in the Contract sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order issued through Project Management and shall be binding on the Owner and Contractor. The Contractor shall carry out such written order promptly. 8.0 TIME 8.1 Definitions 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. 8.1.2 The date of commencement of the Work is the date established in the Agreement. The date shall not be postponed by the failure to act of the Contractor or of persons or entities for which the Contractor is responsible. 8.1.3 The date of Substantial Completion is the date certified by Project Management in accordance with Paragraph 9.8. 8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. 8.1.5 The Owner /Project Management shall be the final judge as to whether Substantial Completion has been achieved and certifies the date to the Contractor. 8.2 Progress and Completion 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement the Contractor confirms that the Contract Time is a reasonable period for performing the Work. 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence operations on the site or elsewhere prior to the effective date of insurance required by Article 11 to be furnished by the Contractor. The date of commencement of the Work shall not be changed by the effective date of such insurance. 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. 8.3 Delays and Extensions of Time General Conditions of the Contract Page 3 SO Packet Pg. 89 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 8.3.1 If the Contractor is delayed, at any time, in the progress of the Work by any act or neglect of the Owner, Project Management, or the Architect/Engineer, or by any employee of either, or by any separate contractor employed by the Owner, or by changes ordered in the Work, or by fire, unusual delay in transportation, adverse weather conditions not reasonably anticipatable, unavoidable casualties or any causes beyond the Contractor's control, or by delay authorized by the Owner, Project Management, or by any other cause which Project Management determines may justify the delay, then the Contract Time shall be extended by no cost Change Order for such reasonable time as Project Management may determine, in accordance with subparagraph 6.2.7. 8.3.2 Any claim for extension of time shall be made in writing to Project Management not more than Seventy -two (72) hours after the commencement of the delay in accordance with paragraph 6.2.7; otherwise it shall be waived. Any claim for extension of time shall state the cause of the delay and the number of days of extension requested. If the cause of the delay is continuing, only one claim is necessary, but the Contractor shall report the termination of the cause for the delay within seventy -two (72) hours after such termination in accordance with paragraph 6.2.7; otherwise, any claim for extension of time based upon that cause shall be waived. 8.3.3 No claim for an increase in the Contract Sum for either acceleration or delay will be allowed for extensions of time pursuant to this Paragraph 8.3 or for other changes in the Construction Schedules. 8.3.1 If the Project is delayed as a result of the Contractor's refusal or failure to begin the Work on the date of commencement as defined in Paragraph 8.1.2, or his refusal or failure to carry the Work forward expeditiously with adequate forces, the Contractor causing the delay shall be liable for, but not limited to, delay claims from other Contractors which are affected. 9.0 PAYMENTS AND COMPLETION 9.4 Contract Sum 9.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. 9.2 Schedule of Values 9.2.1 Before submittal of the first Application for Payment, the Contractor shall submit to Project Management, a schedule of values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as Project Management may require. This schedule, unless objected to by Project Management, shall be used as a basis for reviewing the Contractor's Applications for Payment. 9.3 Applications for Payment 9.3.1 At least fifteen days before the date established for each progress payment, the Contractor shall submit to Project Management an itemized Application for Payment for Work General Conditions of the Contract Page 37 of SO Packet Pg. 90 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS completed in accordance with the schedule of values. Such application shall be notarized and supported by such data substantiating the Contractor's right to payment as the Owner or Project Management may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for elsewhere in the Contract Documents. .1 Such applications may include request for payment on account of changes in the Work which have been properly authorized by Construction Change Directives but not yet included in Change Orders. .2 Such applications may not include requests for payment of amounts the Contractor does not intend to pay to a Subcontractor or material supplier because of a dispute or other reason. 9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. if approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest, and shall include applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. 9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which approval for payment have been previously issued and payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief, be free and clear of liens, claims security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. All Subcontractors and Sub - subcontractors shall execute an agreement stating that title will so pass, upon their receipt of payment from the Contractor. The warranties are for the administrative convenience of the Owner only and do not create an obligation on the part of the Owner to pay directly any unpaid subcontractor, laborer or materialmen. Such persons must seek payment from the Contractor or his public construction bond surety only. 9.4 Approval for Payment 9.4.1 Project Management will assemble a Project Application for Payment by combining the Contractor's applications with similar applications for progress payments from other Contractors and certify the amounts due on such applications. 9.4.2 After the Project Management's receipt of the Project Application for Payment, Project Management will either approve the Application for Payment, with a copy to the Contractor, for such amount as Project Management determine is properly due, or notify the Contractor in writing of Project Management's reasons for withholding approval in whole or in part as provided in Subparagraph 9.5.1. 9.4.3 The issuance of a separate Approval for Payment will constitute representations made by Project Management to the Owner, based on their individual observations at the site and the data comprising the Application for Payment submitted by the Contractor, that the Work has General Conditions of the Contract Page 3 Packet Pg. 91 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS progressed to the point indicated and that, to the best of Project Management's knowledge, information and belief, quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by Project Management. The issuance of a separate Approval for Payment will further constitute a representation that the Contractor is entitled to payment in the amount approved. However, the issuance of a separate Approval for Payment will not be a representation that Project Management has (1) made exhaustive or continuous on -site inspections to check the quality or quantity of the Work, (2) reviewed the Contractor's construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 9.5 Decisions to Withhold Approval 9.5.1 Project Management may decline to approve an Application for Payment if, in his opinion, the application is not adequately supported. If the Contractor and Project Management cannot agree on a revised amount, Project Management shall process the Application for the amount it deems appropriate. Project Management may also decline to approve any Application for Payment because of subsequently discovered evidence or subsequent inspections. It may nullify, in whole or part, any approval previously made to such extent as may be necessary in its opinion because of: (1) defective Work not remedied; (2) third party claims filed or reasonable evidence indicating probable filing of such claims; (3) failure of the Contractor to make payments properly to Subcontractors or for labor, materials, or equipment; (4) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; (5) damage to Project Management, the Owner, or another contractor working at the project; (6) reasonable evidence that the Work will not be completed within the contract time; (7) persistent failure to carry out the Work in accordance with the Contract Documents. No payment shall be made to the Contractor until certificates of insurance or other evidence of compliance by the Contractor, with all the requirements of Article 11, have been filed with the Owner and Project Management. 9.5.2 When the above reasons for withholding approval are removed, approval will be made for amounts previously withheld. 9.6 Progress Payments 9.6.1 After Project Management has issued an Approval for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify Project Management. From the total of the amount determined to be payable on a progress payment, a retainage in accordance with the Florida Local Government Prompt Payment Act, Chapter 218, Florida Statutes will be deducted and retained by the Owner until the final payment is made. The balance of the amount payable, less all previous payments, shall be approved for payment. General Conditions of the Contract Page 3 Packet Pg. 92 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS .1 It is understood and agreed that the Contractor shall not be entitled to demand or receive progress payment based on quantities of Work in excess of those provided in the proposal or covered by approved change orders, except when such excess quantities have been determined by Project Management to be a part of the final quantity for the item of Work in question. .2 No progress payment shall bind the Owner to the acceptance of any materials or Work in place, as to quality or quantity. All progress payments are subject to correction at the time of final payments. 9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub - subcontractors in similar manner. 9.6.3 Project Management will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Owner and Project Management on account of portions of the Work done by such Subcontractor. 9.6.4 Neither the Owner nor Project Management shall have an obligation to pay, or to see to, the payment of money to a Subcontractor except as may otherwise be required by law. 9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Subparagraphs 9.6.2, 9.6.3 and 9.6.4. 9.6.6 A progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents. 9.6.7 All material and work covered by partial payments made shall thereupon become the sole property of the Owner, and by this provision shall not be construed as relieving the Contractor from the sole responsibility for the materials and Work upon which payments have been made or the restoration for any damaged material, or as a waiver of the right of the Owner or Project Management to require the fulfillment of all the terms of the Contract. 9.6.8 Except in case of bona fide disputes, or where the Contractor has some other justifiable reason for delay, the Contractor shall pay for all transportation and utility services not later than the end of the calendar month following that in which services are rendered and for all materials, tools, and other expendable equipment which are delivered at the site of the Project. The Contractor shall pay to each of his Subcontractors, not later than the end of the calendar month in which each payment is made to the Contractor, the representative amount allowed the Contractor on account of the Work performed by the Subcontractor. The Contractor shall, by an appropriate agreement with each Subcontractor, also require each Subcontractor to make payments to his suppliers and Sub - subcontractors in a similar manner. 9.8 Substantial Completion 9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so the Owner can occupy or utilize the Work for its intended use. General Conditions of the Contract Page 40 of rin Packet Pg. 93 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor and Project Management shall jointly prepare a comprehensive list of items to be completed or corrected. The Contractor shall proceed promptly to complete and correct items on the list. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. Upon receipt of the list, Project Management will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the inspection discloses any item, whether or not included on the list, which is not in accordance with the requirements of the Contract Documents, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by Project Management. The Contractor shall then submit a request for another inspection by Project Management, to determine Substantial Completion. When the Work or designated portion thereof is substantially complete, Project Management will prepare a Certificate of Substantial Completion, shall establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. 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. The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. 9.8.3 Upon Substantial Completion of the Work or designated portion thereof and upon application by the Contractor and certification by Project Management, the Owner shall make payment, reflecting adjustment in retainage, if any, for such Work or portion thereof as provided in the Contract Documents. 9.9 Partial Occupancy or Use 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Subparagraph 11.3.1 and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion substantially complete, the Contractor and Project Management shall jointly prepare a list as provided under Subparagraph 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of Project Management. 9.9.2 Immediately prior to such partial occupancy or use, the Owner, Project Management and Contractor shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. General Conditions of the Contract Page 41 of r Packet Pg. 94 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.10 Final Completion and Final Payment 9.10.1 Upon completion of the Work, the Contractor shall forward to Project Management a written Notice that the Work is ready for final inspection and acceptance and shall also forward to Project Management a final Contractor's Application for Payment. Upon receipt, Project Management will promptly make such inspection. When Project Management, finds the Work acceptable under the Contract Documents and the Contract fully performed, Project Management will promptly issue a final Approval for Payment stating that to the best of their knowledge, information and belief, and on the basis of their observations and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in said final Approval is due and payable. Project Management's final Approval for Payment will constitute a further representation that conditions listed in Subparagraph 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled. 9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to Project Management (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is made, is currently in effect and will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents„ (4) consent of surety, if any, to final payment and (5), if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract. The following documents ( samples included in section 1027, are required for Final Payment: (1) Application and Certificate for Payment (2) Continuation Sheet (3) Certificate of Substantial Completion (4) Contractor's Affidavit of Debts and Claims (5) Contractor's Affidavit of Release of Liens (B) Contractors Consent of Surety to Final Payment (7) Final Release of Lien (8) Contractor shall provide two (2) hard copies in tabulated divided binders and one (1) saved electronically tabbed and indexed in Adobe Acrobat file (.PDF) format delivered on a downloadable CD /DVD of all the following but not limited to: A. Project Record Documents (As Built Documents). B. Operating and maintenance data, instructions to the Owner's personnel. General Conditions of the Contract Page 4 Packet Pg. 95 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS C. Warranties, bond and guarantees. D. Keys and keying schedule. E. Spare parts and maintenance materials. F.Electronic copies of approved submittals G. Evidence of payment and final release of liens and consent of surety to final release (includes final release from all utilities and utility companies). 9.10.3 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. Such waivers shall be in addition to the waiver described Subparagraph 4.7.5. 9.11 Payment of Subcontractors 9.11.1 Any requirement of this Article 9 that the Contractor furnish proof to the Owner or Project Management that the subcontractors and materialmen have been paid is for the protection and convenience of the Owner only. Unpaid subcontractors and materialmen may only seek payment from the Contractor and the surety that provided the Contractor's Public Construction Bond. The Contractor must insert this paragraph 9.11 in all its contracts with subcontractors and materialmen. 10.0 PROTECTION OF PERSONS AND PROPERTY 10.1 Safety Precautions and Programs 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. The Contractor shall submit the Contractor's safety program to Project Management for review, approval and coordination with the safety programs of other Contractors. 10.1.2 In the event the Contractor encounters on the site material reasonably believed to be asbestos or polychlorinated biphenyl (PCB) which has not been rendered harmless, the Contractor shall immediately stop Work in the area affected and report the condition to the Owner and Project Management in writing. The Work in the affected area shall not thereafter be resumed except by written agreement of the Owner and Contractor if in fact the material is asbestos or polychlorinated biphenyl (PCB) and has not been rendered harmless. The Work in the affected area shall be resumed in the absence of asbestos or polychlorinated biphenyl (PCB), or when it has been rendered harmless, by written agreement of the Owner and Contractor. 10.1.3 The Contractor shall not be required pursuant to Article 7 to perform without consent any Work relating to asbestos or polychlorinated biphenyl (PCB). 10. 1.5 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area General Conditions of the Contract Page 43 of rin Packet Pg. 96 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS and report the condition to Project Management in writing. The Owner, Contractor and Project Management shall then proceed in the same manner described in Subparagraph 10.1.2. 10.1.6 The Owner shall be responsible for obtaining the services of a licensed laboratory to verify a presence or absence of the material or substance reported by the Contractor and, in the event such material or substance is found to be present, to verify that it has been rendered harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the Contractor and Project Management the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Contractor and Project Management will promptly reply to the Owner in writing stating whether or not any of them has reasonable objection to the persons or entities proposed by the Owner. If the Contractor or Project Management has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Contractor and Project Management have no reasonable objection. 10.2 Safety of Persons and Property 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: 1 employees on the Work and other persons who may be affected thereby; .2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub - subcontractors; .3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction; and .4 construction or operations by the Owner or other Contractors. 10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. 10.2.5 The Contractor shall promptly remedy damage and loss to property referred to in Clauses 10.2.1.2, 10.2.1.3, 10.2.1.4 caused in whole or in part by the Contractor, a Subcontractor, a Sub - subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Clauses 10.2.1.2, 10.2.1.3 and 10.2.1.4, except damage or loss attributable to acts or omissions of the Owner, Project Management or Architect or anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable, and not attributable to the fault General Conditions of the Contract Page Packet Pg. 97 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 3.18. 10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner or Project Management. 10.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. 10.3 Emergencies 10.3.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 4.7 and Article 7. 10.4 Site Specific Safety Plan See Section 00970 for minimum requirements of job site safety plan. 11.0 INSURANCE AND BONDS 11.1.1 Prior to commencement of Work governed by this contract (including the pre - staging of personnel and material), the Contractor shall obtain, at its own expense, insurance as specified in the schedule set forth in Section 00110 Bid Form which are made part of this Agreement. The Contractor will ensure that the insurance obtained will extend protection to all subcontractors engaged by the Contractor. As an alternative the Contractor may require all subcontractors to obtain insurance consistent with the attached schedules. 11.1.2 The Contractor will not be permitted to commence Work governed by the Agreement (including pre - staging of personnel and material) until satisfactory evidence of the required insurance has been furnished to the County as specified below. Delays in the commencement of Work resulting from the failure of the Contractor to provide satisfactory evidence of the required insurance shall not extend deadlines specified in this Agreement and any penalties and failure to perform assessments shall be imposed as if the Work commenced on the specified date and time, except for the Contractor's failure to provide satisfactory evidence of insurance. 11.1.3 The Contractor shall maintain the required insurance throughout the entire term of this contract and any extensions specified in any attached schedules. Failure to comply with this provision may result in the immediate suspension of all Work until the required insurance has been reinstated or replaced. Delays in the completion of Work resulting from the failure of the Contractor to maintain the required insurance shall not extend deadlines specified in this Agreement and any penalties and failure to perform assessments shall be imposed as if the Work commenced on the specified date and time, except for the Contractor's failure to provide satisfactory evidence of insurance. 11.1.4 The Contractor shall provide, to the County in care of Project Management as satisfactory evidence of the required insurance, either: General Conditions of the Contract Page 4 Packet Pg. 98 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS Certificate of Insurance Or A certified copy of the actual insurance policy 11.1.5 The County, at its sole option, has the right to request a certified copy of any or all insurance policies required by this Contract. 11.1.6 All insurance policies must specify that they are not subject to cancellation, nonrenewal, material change, or reduction in coverage unless a minimum of thirty (30) days prior notification is given to the County by the insurer. 11.1.7 The acceptance and/or approval of the Contractor's insurance shall not be construed as relieving the Contractor from any liability or obligation assumed under this contract or imposed by law. 11.1.8 The Monroe County Board of County Commissioners, its employees and officials will be included as "Additional Insured" on all policies, except for Worker's Compensation. 11.1.9 In addition, the County will be named as an additional insured and loss payee on all policies covering County -owned property. 11.1.10 Any deviations from these General Insurance Requirements must be requested in writing on the County prepared form entitled "Request for Waiver of Insurance Requirements" and approved by the Monroe County's Risk Manager. 11.2 Builder's Risk Insurance: Required 11.3 A public construction bond equal to the contract is required. 11.3.1 A Public Construction Bond must be issued by an A rated surety company doing business in the State of Florida, 12.0 UNCOVERING AND CORRECTION OF WORK 12.1 Uncovering of Work 12.1.1 If a portion of the Work is covered contrary to Project Management's request or to requirements specifically expressed in the Contract Documents, it must, if required in writing by Project Management, be uncovered for their observation and be replaced at the Contractor's expense without change in the Contract Time. 12.1.2 If a portion of the Work has been covered which Project Management has not specifically requested to observe prior to its being covered, Project Management may request to see such Work and it shall be uncovered by the Contractor, if such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change General Conditions of the Contract Page 46 of 50 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS Order, be charged to the Owner, if such Work is not in accordance with the Contract Documents, the Contractor shall pay such costs unless the condition was caused by the Owner or one of the other Contractors in which event the Owner shall be responsible for payment of such costs. 12.2 Correction of Work 12.2.1 The Contractor shall promptly correct Work rejected by Project Management or failing to conform to the requirements of the Contract Documents, whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Contractor shall bear costs of correcting such rejected Work, including additional testing and inspections and compensation for Project Management's services and expenses made necessary thereby. 12.2.2 If, within one year after the date of Substantial Completion of the Work or designated portion thereof, or after the date for commencement of warranties established under Subparagraph 9.9, or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition. This period of one year shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. This obligation under this Subparagraph 12.2.2 shall survive acceptance of the Work under the Contract and termination of the Contract. The Owner shall give such notice promptly after discovery of the condition. 12.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. 12.2.4 If the Contractor fails to correct nonconforming Work within a reasonable time, the Owner may correct it in accordance with Paragraph 2.4. If the Contractor does not proceed with correction of such nonconforming Work within a reasonable time fixed by written notice from Project Management, the Owner may remove it and store the salvageable materials or equipment at the Contractor's expense. If the Contractor does not pay costs of such removal and storage within ten days after written notice, the Owner may upon ten additional days' written notice sell such materials and equipment at auction or at private sale and shall account for the proceeds thereof, after deducting costs and damages that should have been borne by the Contractor, including compensation for Project Management's services and expenses made necessary thereby. If such proceeds of sale do not cover costs which the Contractor should have borne, the Contract Sum shall be reduced by the deficiency. If payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the Owner. 12.2.5 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the Owner or other Contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. 12.2.6 Nothing contained in this Paragraph 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the time period of one year as described in Subparagraph 12.2.2, relates only to the specific obligation of the Contractor to correct the Work, and has no General Conditions of the Contract Page 47 of 50 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. 12.3 Acceptance of Nonconforming Work 12.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. 13.0 MISCELLANEOUS PROVISIONS 13.1 Governing Law 13. 1.1 The contract shall be governed by the laws of the State of Florida. Venue for any claims or disputes arising under this contract shall be in the Circuit Court of the 16th Judicial Circuit of the State of Florida. 13.2 Successors and Assigns 13.2.1 The Owner or Project Management (as the case may be) and the Contractor each binds himself, his partners, successors, assigns, and legal representatives of such other party in respect to all covenants, agreements, and obligations contained in the Contract Documents. Neither party to the Contract shall assign the Contract or sublet it as a whole without the written consent of the other. 13.2.2 The Contractor shall not assign any monies due or to become due under this Contract without prior written consent of the Owner or Project Management. 13.3 Written Notice 13.3.1 Any written notices or correspondence given pursuant to this contract shall be sent by United States Mail, certified, return receipt requested, or by courier with proof of delivery. Notice shall be sent to the following persons: For Contractor: CHARLEY TOPPINO AND SONS, INC PO BOX 787 Key West FL 33040 (305)296 -5606 For Owner: Director of Project Mana ement 1100 Simonton St., Room 2 -216 Key West, Florida 33040 13.4 Rights and Remedies Assistant Countv Administrator, PW & E 1100 Simonton St. Key West, Florida 33040 General Conditions of the Contract Page 48 of 50 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 13.4.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. 13.4.2 No action or failure to act by the Owner, Project Management, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 13.5 Tests and Inspections 13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The Contractor shall give Project Management timely notice of when and where tests and inspections are to be made so Project Management may observe such procedures. The Owner shall bear costs of test, inspections or approvals which do not become requirements until after bids are received or negotiations concluded. 13.5.2 If Project Management, Owner or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Subparagraph 13.5.1, Project Management will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to Project Management of when and where tests and inspections are to be made so Project Management may observe such procedures. The Owner shall bear such costs except as provided in Subparagraph 13.5.3. 13.5.3 If such procedures for testing, inspection or approval under Subparagraphs 13.5.1 and 13.5.2 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, the Contractor shall bear all costs made necessary by such failure including those of repeated procedures and compensation for Project Management's services and expenses. 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to Project Management. 13.5.5 If Project Management is to observe tests, inspections or approvals required by the Contract Documents, Project Management will do so promptly and, where practicable, at the normal place of testing. 13.5.6 Test or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 13.7 Commencement of Statutory Limitation Period 13.7.1 The statute of limitations applicable to this contact are as provided in Section 95.11 (3) (C), Florida Statutes. General Conditions of the Contract Page 49 of 50 Packet Pg. 102 BIG COPPITT GULF VIEW BOAT RAMP IMPROVEMENTS 14.0 TERMINATION OR SUSPENSION OF THE CONTRACT 14.1 Termination by the Owner for Cause 14.1.1 The Owner may terminate the Contract if the Contractor: .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; .3 persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; .or .4 Otherwise is guilty of substantial breach of a provision of the Contract Documents. 14.1.2 When any of the above reasons exist, the Owner, after consultation with Project Management, and upon certification by Project Management that sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, 72 hours written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety: .1 take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; 2 accept assignment of subcontracts pursuant to Paragraph 5.4; and .3 finish the Work by whatever reasonable method the Owner may deem expedient. 14.1.3 When the Owner terminates the Contract for one of the reasons stated in Subparagraph 14.1.1, the Contractor shall not be entitled to receive further payment until the Work is finished. 14.2 Suspension or Termination by the Owner for Convenience 14.2.1 The Owner may, without cause, order the Contractor in writing to terminate, suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. 14.2.2 In the event of Termination the Owner shall pay for work completed to date of Termination. End of General Conditions of the Contract General Conditions of the Contract Page 50 of 50 Packet Pg. 103 FWC Agreement No. 16060 STATE OF FLORIDA FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION AGREEMENT No. l6O0O WHEREAS, the Cmmruinminm and Grantee have Vadneced og -- to repair \/�nx of boat ramp mid 000akn/otion o� �faoom�uouoamu,y6outdook; and,— '~ Grantee has been awarded Florida Boati u -g'-- grant FBT9 upp][oudoo 16-025 as u uuh'rcui �ot of Sport Fis ^ Restorat cmu Program grout FL F m ������ uWm ������������N|���/�Uo welfare. - Florida, --- -- ^� Now THEREFORE the Commission and the Grantee for the considerations hereafter set forth agree as �^ PROJECT DESCRIPTION. The Grantee sha provide the services and perforiii tile specific responsibilities aiid obligations, as set forth in the Scope ofWork �b attached hereto ou/\�ud/n/out/\ and mmudoapm1 hereof (hon��u� Scope mf\�m6� ��e Scope o[V/mdtmpeci�ca|k/idcmbDmm p iumkmaodmcooumponyiugde|iv --�[em. These deliverables mu/t mubnli�edand npyn�vod any pmymeuLThe - miam . 'vviUluo( ~~° any deliverable that does not comply hthe upmoi� d �dn�qu[r�mio m irno�ve---'~~^~�� °"^°p` r«� and the criteria for t�r�v the muoc�mm0oi m�nmp/��iou o�umoh deliverable. [- n -� serv ^~ perfo _ v 1|hmgreumum[mtben:xu|t mf Grantee responses to the Cmoun[yaion`nruqme /brconq� '� x�id other �uuv� u� ozuorgrant proposals, the Grantee's response is hereby ii1corporated by reference. I ,�� Ver. May, 2017 Page I of 20 This Agreement ia entered into hv and betwuetitile Florida Fish and Wildlife Cooservm<(ouCmmmimmimw whose address is 620 South Meridian �� u Street, T�|;ubnau� Florida d�323���l60O, crea&u °'`` uo �YoureoC000�' Board of County ( �ommimaim 0 00,FEl[)#59-80QV744,p � whose address ]l00Simnutou Key West, Street, " \a FWC Agreement No. 16060 2. PERFORMANCE. The Grantee shall perform the activities described in the Scope of Work in a proper and satisfactory manner. Unless otherwise provided for in the Scope of Work, any and all equipment, products or materials necessary or appropriate to perform under this Agreement shall be supplied by the Grantee. Grantee shall obtain all necessary local, state, and federal authorizations necessary to complete this project, and the Grantee shall be licensed as necessary to perform under this Agreement as may be required by law, rule, or regulation; the Grantee shall provide evidence of such compliance to the Commission upon request. The Grantee shall procure all supplies and pay all charges, fees, taxes and incidentals that may be required for the completion of this Agreement. By acceptance of this Agreement, the Grantee warrants that it has the capability in all respects to fully perform the requirements and the integrity and reliability that will assure good -faith performance as a responsible Grantee. Grantee shall immediately notify the Commission's Grant Manager in writing if its ability to perform under the Agreement is compromised in any manner during the term of the Agreement. The Commission shall take appropriate action, including potential termination of this Agreement pursuant to Paragraph nine (9) below, in the event the Grantee's ability to perform under this Agreement becomes compromised. 3. AGREEMENT PERIOD. A. Agreement Period and Commission's Limited Obligation to Pay. This Agreement is made pursuant to a grant award and shall be effective upon execution by the last Party to sign, and shall remain in effect through 06/30/2039. However, as authorized by Rule 68- 1.003, F.A.C., referenced grant programs may execute Agreements with a retroactive start date of no more than sixty (60) days, provided that approval is granted from the Executive Director or his /her designee and that it is in the best interest of the Commission and State to do so. Agreements executed under this grant award shall not precede a start date of the date of execution. For this agreement, the retroactive start date was not approved. The Commission's Grant Manager shall confirm the specific start date of the Agreement by written notice to the Grantee. The Grantee shall not be eligible for reimbursement or compensation for grant activities performed prior to the start date of this Agreement nor after the end date of the Agreement. For this agreement, preaward costs are not eligible for reimbursement. If necessary, by mutual agreement as evidenced in writing and lawfully executed by the Parties, an Amendment to this Agreement may be executed to lengthen the Agreement period. 4. COMPENSATION AND PAYMENTS. A. Compensation. As consideration for the services rendered by the Grantee under the terms of this Agreement, the Commission shall pay the Grantee on a cost reimbursement basis in an amount not to exceed $75,000. B. Payments. The Commission shall pay the Grantee for satisfactory performance of the tasks identified in Attachment A, Scope of Work, as evidenced by the completed deliverables, upon submission of invoices, accompanied by supporting documentation sufficient to justify invoiced expenses or fees, and after acceptance of services and deliverables in writing by the Commission's Grant Manager identified in Paragraph ten (10), below. Unless otherwise specified in the Scope of Work, invoices shall be due monthly, commencing from the start date of this Agreement. Invoices must be legible and must clearly reflect the Deliverables that were provided in accordance with the terms of the Agreement for the invoice period. Unless otherwise specified in the Scope of Work, a final invoice shall be submitted to the Commission no later than forty -five (45) days following the expiration date of this Agreement to assure the availability of funds for payment. Further, Packet'Pg. 105 GRANT - GOVERNMENTAL., ENTITY Ver. May, 2017 Page 2 of FWC Agreement No. 16060 pursuant to Section 215.971(1)(d), F.S., th e allowable costs resulting from obligations Paragraph three (3). Commission may only reimburse the Grantee for incurred during the agreement period specified in C. Invoices. Each invoice shall include the Commission Agreement Number and the Grantee's Federal Employer Identification (FEID) Number. Invoices, with supporting documentation, may be submitted electronically to the attention of the Commission's Grant Manager identified in Paragraph ten (10), below. If submitting hard copies, an original and two (2) copies of the invoice, plus all supporting documentation, shall be submitted. All bills for amounts due under this Agreement shall be submitted in detail sufficient for a proper pre -audit and post -audit thereof. Grantee acknowledges that the Commission's Grant Manager shall reject invoices lacking documentation necessary to justify invoiced expenses. D. Match. Pursuant to grant program guidelines, the Grantee is required to contribute non - federal match towards this Agreement. If applicable, details regarding specific match requirements are included in Attachment A, Scope of Work. E. Travel Expenses. If authorized in Attachment A, Scope of Work, travel expenses shall be reimbursed in accordance with Section 112.061, F.S. F. State Obligation to Pay. The State of Florida's performance and obligation to pay under this Agreement is contingent upon an annual appropriation and authorization to spend by the Legislature. The Parties hereto understand that this Agreement is not a commitment to future appropriations, but is subject to appropriation and authority to spend provided by the Legislature. The Commission 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 behalf of the Commission or the State. The Commission's Grant Manager shall notify the Grantee in writing at the earliest possible time if funds are not appropriated or available. G. Non - Competitive Procurement and Rate of Payment. Section 216.3475, F.S., requires that under non- competitive procurements, a Grantee may not receive a rate of payment in excess of the competitive prevailing rate for those services unless expressly authorized in the General Appropriations Act. If applicable, Grantee warrants, by execution of this Agreement, that the amount of non - competitive compensation provided in this Agreement is in compliance with Section 216.3475, F.S. H. Time Limits for Payment of Invoices. Payments 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 Deliverables, unless the Scope of Work specifies otherwise. If payment is not available within forty (40) days, measured from the latter of the date the invoice is received or the Deliverables are received, inspected and approved, a separate interest penalty set by the Department of Financial Services pursuant to Section 55.03(1), F.S., will be due and payable in addition to the invoice amount. Invoices returned to a Grantee due to preparation errors will result in a payment delay. Invoice payment requirements do not start until a properly completed invoice is provided to the agency. I. 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: Packet 'Pg. 106 GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 3 of 20 FWC Agreement No. 16060 fit tp :llwww,fldfs,conVaadiifdircct de posit web /Veudors. fit i Questions should be directed to the State of Florida's EFT Section at (850) 413 -5517. Once enrolled, invoice payments will be made by EFT. J. Vendor Ombudsman. A Vendor Ombudsman, whose duties include acting as an advocate for vendors who may be experiencing problems in obtaining timely payment(s) from a State agency, may be contacted at (850) 413 -5516 or by calling the Chief Financial Officer's Hotline, (800) 342- 2762. 5. RETURN OR RECOUPMENT OF FUNDS. A. Overpayment to Grantee. Pursuant to Section 215.971(1)(e) &(f), F.S., the Grantee shall return to the Commission any overpayments due to unearned funds or funds disallowed pursuant to the terms of this Agreement that were disbursed to Grantee by the Commission. In the event the Grantee or its independent auditor discovers that overpayment has been made, the Grantee shall repay said overpayment within forty (40) calendar days without prior notification from the Commission. In the event the Commission first discovers an overpayment has been made, the Commission will notify the Grantee in writing. Should repayment not be made in a timely manner, the Commission shall be entitled to charge interest at the lawful rate of interest established pursuant to Section 55.03(1), F.S., on the outstanding balance beginning forty (40) calendar days after the date of notification or discovery. Refunds should be sent to the Commission's Grant Manager, and made payable to the "The Florida Fish and Wildlife Conservation Commission." B. Additional Costs or Monetary Loss Resulting from Grantee Non - Compliance. If the Grantee's non - compliance with any provision of the Agreement results in additional cost or monetary loss to the Commission or the State of Florida to the extent allowed by Florida Law, the Commission can recoup that cost or loss from monies owed to the Grantee under this Agreement or any other agreement between Grantee and the Commission. In the event the discovery of this cost or loss arises when no monies are available under this Agreement or any other agreement between the Grantee and the Commission, the Grantee will repay such cost or loss in full to the Commission within thirty (30) days of the date of notice of the amount owed, unless the Commission agrees, in writing, to an alternative timeframe. If the Grantee is unable to repay any cost or loss to the Commission, the Commission shall notify the State of Florida, Department of Financial Services, for resolution pursuant to Section 17.0415, F.S. A. Commission Exempt from Taxes. The Grantee recognizes that the State of Florida, by virtue of its sovereignty, is not required to pay any taxes on the services or goods purchased under the terms of this Agreement. Grantee is placed on notice that this exemption generally does not apply to nongovernmental entity recipients, subrecipients, contractors, or subcontractors. Any questions regarding this tax exemption should be addressed to the Commission Grant Manager. B. Property Exempt from Lien. If the Grant involves the improvement of real property titled to the State of Florida, then the following paragraph applies: The Grantee acknowledges that Property being improved is titled to the State of Florida, and is not subject to lien of any kind for any reason. The Grantee shall include notice of such exemptions in any subcontracts and purchase orders issued hereunder. GRANT - GOVERNMENTAL ENTITY Packet'Pg. 107 Ver. May, 2017 Page 4 of 20 FWC Agreement No. 16060 7. MONITORING. The Commission's Grant Manager shall actively monitor the Grantee's performance and compliance with the terms of this Agreement. The Commission reserves the right for any Commission staff to make scheduled or unscheduled, announced or unannounced monitoring visits. Specific State and Federal monitoring terms and conditions are found in Attachment B, Audit Requirements. Additionally, monitoring terms, conditions, and schedules may be included in Attachment A, Scope of Work. 8. TERMINATION. A. Commission Termination. The Commission may unilaterally terminate this Agreement for convenience by providing the Grantee with thirty (30) calendar days of written notice of its intent to terminate. The Grantee shall not be entitled to recover any cancellation charges or lost profits. The Grantee may request termination of the Agreement for convenience. B. Termination — Fraud or Willful Misconduct. This Agreement shall terminate immediately in the event of fraud or willful misconduct. In the event of such termination, the Commission shall provide the Grantee with written notice of termination. C. Termination — Other. The Commission may terminate this Agreement if the Grantee fails to: 1.) comply with all terms and conditions of this Agreement; 2.) produce each deliverable within the time specified by the Agreement or extension; 3.) maintain adequate progress, thus endangering the performance of the Agreement; or, 4.) abide by any statutory, regulatory, or licensing requirement. Rule 60A- 1.006(3), F.A.C., governs the procedure and consequences for default. The rights and remedies of the Commission in this clause are in addition to any other rights and remedies provided by law or under the Agreement. The Grantee shall not be entitled to recover any cancellation charges or lost profits. D. Termination - Funds Unavailability. 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, the Commission may terminate this Agreement upon no less than twenty -four (24) hours' notice in writing to the Grantee. Said notice shall be delivered by certified mail, return receipt requested or in person with proof of delivery. The Commission shall be the final authority as to the availability of funds and will not reallocate funds appropriated for this Agreement to another program thus causing "lack of funds." In the event of termination of this Agreement under this provision, the Grantee will be compensated for any work satisfactorily completed and any non - cancellable obligations properly incurred prior to notification of termination. E. Grantee Discontinuation of Activities upon Termination Notice. Upon receipt of notice of termination, the Grantee shall, unless the notice directs otherwise, immediately discontinue all activities authorized hereunder. Upon termination of this Agreement, the Grantee shall promptly render to the Commission all property belonging to the Commission. For the purposes of this section, property belonging to the Commission shall include, but shall not be limited to, all books and records kept on behalf of the Commission. 9. REMEDIES. A. Financial Consequences. In accordance with Sections 215.971(1)(a) &(b), F.S., Attachment A, Scope of Work, contains clearly established tasks in quantifiable units of deliverables that must be received and accepted in writing by the agency before payment. Each deliverable specifies the required minimum level of service to be performed and the criteria for evaluating the successful Packet'Pg. 108 GRANT - GOVERNMENTAL ENTITY Ver. May, 20 17 Page S o FWC Agreement No. 16060 completion of each deliverable. If the Grantee fails to produce each deliverable within the time frame specified by the Scope of Work, the budget amount allocated for that deliverable will be deducted from the Grantee's payment. In addition, pursuant to Section 215.971(1)(c), the Commission shall apply any additional financial consequences, identified in the Scope of Work. B. Cumulative Remedies. The rights and remedies of the Commission in this paragraph are in addition to any other rights and remedies provided by law or under the Agreement. 10. NOTICES AND CORRESPONDENCE. Any and all notices shall be delivered to the individuals identified below. In the event that either Party designates a different Grant Manager 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 Grant Manager, or an individual authorized to receive notice on behalf of that Party, to all other Parties as soon as possible, but not later than five (5) business days after the new Grant Manager has been named. A designation of a new Grant Manager shall not require a formal amendment to the Agreement. FOR THE COMMISSION FOR THE GRANTEE: Grant Manager Grant Manager Andrea Pelton Cary Knight Grant Specialist II Project Manager FL Fish and Wildlife Conservation Commission Monroe County 620 S. Meridian Street 1100 Simonton Street Tallahassee, FL Key West, FL 33040 (850) 717 -2108 (305) 292 -4527 (850) 488 -9284 (05) 295 -4321 Andrea.pelton@myfwc.com Knight-cary@monroecounty-fl.gov 11. AMENDMENT. A. Waiver or Modification. No waiver or modification of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and lawfully executed by the Parties. B. Change Orders. The Commission may, at any time, by written order, make a change to this Agreement. Such changes are subject to the mutual agreement of both Parties as evidenced in writing. Any change which causes an increase or decrease in the Grantee's cost or time shall require an Amendment. Minor changes, such as those updating a Party's contact information, may be accomplished by a Modification. C. Renegotiation upon Change in Law or Regulation. The Parties agree to renegotiate this Agreement if federal and /or state revisions of any applicable laws or regulations make changes in the Agreement necessary. 12. PROPERTY RIGHTS. If this Agreement includes Federal funds, the provisions of Sections 200.310- 200.316, OMB Uniform Guidance (2 CFR 200), and any language addressing Federal rights, apply. GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 6 of 20 FWC Agreement No. 16060 A. Intellectual and Other Intangible Property. i. Grantee's Preexisting Intellectual Property (Proprietary) Rights. Unless specifically addressed in the Attachment A, Scope of Work, intellectual and other intangible property rights to the Grantee's preexisting property will remain with the Grantee. ii. Proceeds Related to Intellectual Property Rights. Proceeds derived from the sale, licensing, marketing or other authorization related to any intellectual and other intangible property right created or otherwise developed by the Grantee under this Agreement for the Commission shall be handled in the manner specified by the applicable Florida State Statute and/or Federal program requirements. iii. Commission Intellectual Property Rights. Where activities supported by this Agreement produce original writing, sound recordings, pictorial reproductions, drawings or other graphic representations and works of any similar nature, the Commission and the State of Florida have the unlimited, royalty -free, nonexclusive, irrevocable right to use, duplicate and disclose such materials in whole or in part, in any manner, for any purpose whatsoever and to have others acting on behalf of the Commission to do so. If this Agreement is supported by federal funds, the federal awarding agency reserves a royalty -free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for federal purposes, and to authorize others to do so. B. Purchase or Improvement of Real Property This agreement is for the purchase or improvement of real property, therefore the following terms and conditions apply. i. Federal Funds. Any Federal funds provided for the purchase of or improvements to real property are subject to the Property Standards of Sections 200.310 - 200.316, and 200.329, OMB Uniform Guidance (2 CFR 200), as amended. i i. Title. If this agreement is supported by state funds, the Grantee shall comply with Section 287.05805, F.S. This section requires the Grantee to grant a security interest in the property to the State of Florida, the type and details of which are provided for in Attachment A, Scope of Work. Title to state -owned real property remains vested in the state. Title to federally -owned real property remains vested in the Federal government in accordance with the provisions of Section 200.312, OMB Uniform Guidance (2 CFR 200), as amended. iii. Use. Federally -owned real property will be used for the originally authorized purpose as long as needed for that purpose in accordance with Section 200.311, OMB Uniform Guidance (2 CFR 200). State -owned real property will be used as provided in Attachment A, Scope of Work. C. Non - Expendable Propertyy. Tile following provisions apply to the extent that the grant allows the acquisition of non- expendYie property. Non - Expendable Property Defined. For the requirements of this section of the Agreement, "non- expendable 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 non - expendable nature, with a value or cost of $1,000.00 or more, and a normal expected life of one (1) year or more; hardback - covered bound books that are GRANT - GOVERNMENTAL ENTIT Ver. May, 2017 Page 7 of 20 FWC Agreement No. 16060 circulated to students or the general public, with a value or cost of $25.00 or more; and uncirculated hardback - covered bound books, with a value or cost of $250.00 or more). ii. Title to Non - Expendable Property. Title (ownership) to all non - expendable property acquired with funds from this Agreement shall be vested in the Commission and said property shall be transferred to the Commission upon completion or termination of the Agreement unless otherwise authorized in writing by the Commission or unless otherwise specifically provided for in Attachment A, Scope of Work. D. Equipment and Supplies. The following provisions apply to the extent that the grant allows the acquisition of equipment and supplies. Title - Equipment. Title to equipment acquired under a Federal award will vest upon acquisition in the non - Federal entity in accordance with Sections 200.313 and 200.314, OMB Uniform Guidance (2 CFR 200). ii. Title — Supplies. Title to supplies will vest in the non - Federal entity upon acquisition. Unused supplies exceeding $5,000.00 in total aggregate value upon termination or completion of the project or program are subject to Section 200.314, OMB Uniform Guidance. iii. Use — Equipment. Equipment must be used by the non - Federal entity in the program or project for which it was acquired as long as needed 13. RELATIONSHIP OF THE PARTIES. A. Independent Grantee. The Grantee shall perform as an independent grantee and not as an agent, representative, or employee of the Commission. The Grantee covenants that it presently has no interest and shall not acquire any interest that would conflict in any manner or degree with the performance of services required. Each Party hereto covenants that there is no conflict of interest or any other prohibited relationship between the Grantee and the Commission. B. Grantee Training and Qualifications. 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. C. Commission Security. All employees, subcontractors, or agents performing work under the Agreement must comply with all security and administrative requirements of the Commission. The Commission may conduct, and the Grantee shall cooperate in, a security background check or otherwise assess any employee, subcontractor, or agent furnished by the Grantee. The Commission 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 the Commission's other requirements. Such refusal shall not relieve Grantee of its obligation to perform all work in compliance with the Agreement. The Commission, in coordination with the Grantee, may reject and bar from any facility for cause any of Grantee's employees, subcontractors, or agents. D. Commission Rights to Assign or Transfer. The 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 GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 8 of 20 FWC Agreement No. 16060 another governmental agency in the State of Florida, upon giving prior written notice to the Grantee. E. Commission Rights to Undertake and Award Supplemental Agreements. Grantee agrees that the Commission may undertake or award supplemental agreements for work related to the Agreement. The Grantee and its subcontractors shall cooperate with such other Grantees and the Commission in all such cases. 14. SUBCONTRACTS. A. Authority. Grantee is permitted to subcontract work under this Agreement, therefore, the following terms and conditions apply. The Grantee shall ensure, and provide assurances to the Commission upon request, that any subcontractor selected for work under this Agreement has the necessary qualifications and abilities to perform in accordance with the terms and conditions of this Agreement. The Grantee must provide the Commission with the names of any subcontractor considered for work under this Agreement; the Commission in coordination with the Grantee reserves the right to reject any subcontractor. The Grantee agrees to be responsible for all work performed and all expenses incurred with the project. Any subcontract arrangements must be evidenced by a written document available to the Commission upon request. The Grantee further agrees that the Commission shall not be liable to the extent allowed by law, to any subcontractor for any expenses or liabilities incurred under the subcontract and the Grantee shall be solely liable to the subcontractor for all expenses and liabilities incurred under the subcontract. B. Grantee Payments to Subcontractor. If subcontracting is permitted pursuant to Paragraph A, above, Grantee agrees to make payments to the subcontractor upon completion of work and submitted invoice in accordance with the contract between the Grantee and subcontractor. Failure to make payment pursuant to any subcontract will result in a penalty charged against Grantee and paid to the subcontractor in the amount of one -half of one percent (0.50%) 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 percent (15%) of the outstanding balance due." C. Commission Right to Reject Subcontractor Employees. The Commission in coordination with Grantee shall retain the right to reject any of the Grantee's or subcontractor's employees whose qualifications or performance, in the Commission's judgment, are insufficient. D. Subcontractor as Independent Contractor. If subcontracting is permitted pursuant to Paragraph A above, the 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. 15. MANDATORY DISCLOSURE. These disclosures are required by State law, as indicated, and apply when this Agreement includes State funding; and by Federal law, as indicated, and apply when the Agreement includes a Federal award. A. Disclosure of Interested State Employees and Conflict of Interest. This Agreement is subject to Chapter 112, F.S. Grantee shall provide the name of any officer, director, employee, or other agent who is affiliated with this project and an employee of the State of Florida. If the Agreement includes a Federal award, then the Agreement is also subject to Section 200.112, OMB Uniform Guidance (2 CFR 200). Grantee must disclose, in writing, any potential conflict of interest to the Commission in accordance with applicable Federal awarding agency policy. GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 9 of 20 FWC Agreement No. 16060 B. Convicted Vendors. Grantee hereby certifies that neither it, nor any person or affiliate of Grantee, has been convicted of a Public Entity Crime as defined in section 287.133, F.S., nor placed on the convicted vendor list. Grantee shall have a continuing obligation to disclose, to the Commission, in writing, if it, its principals, recipient, subrecipient, contractor, or subcontractor, are on the convicted vendors list maintained by the Florida Department of Management Services pursuant to Section 287.133(3)(d), F.S. i. Convicted Vendor List. Pursuant to Subsection 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 be awarded or perform work as a Grantee, supplier, subcontractor or consultant under a contract 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. The State of Florida, Department of Management Services, Division of State Purchasing provides listings for convicted, suspended, discriminatory and federal excluded parties, as well as the vendor complaint list at: litLp ://www .di , iis.ii ivf"lo.i - id�t.cojii/btisijiess operations /state__ PLII chasinalv,endor , information/co nvicted_ suspended discriminatory complaints vendor lets ii. Notice of Conviction of Public Entity Crime. Any person must notify the Department of Management Services and the Commission, in writing, within thirty (30) days after conviction of a public entity crime, applicable to that person or an affiliate of that person as defined in Section 287.133, F.S. C. Vendors on Scrutinized Companies List. Scrutinized Companies. Grantee certifies that it and any of its affiliates are not scrutinized companies as identified in Section 287.135, F.S. In addition, Grantee agrees to observe the requirements of Section 287.135, F.S., for applicable sub - agreements entered into for the performance of work under this Agreement. Pursuant to Section 287.135, F.S., the Commission may immediately terminate this Agreement for cause if the Grantee, its affiliates, or its subcontractors are found to have submitted a false certification; or if the Grantee, its affiliates, or its subcontractors are placed on any applicable scrutinized companies list or engaged in prohibited contracting activity during the term of the Agreement. As provided in Subsection 287.135(8), F.S., if federal law ceases to authorize these contracting prohibitions then they shall become inoperative. D. Discriminatory Vendors. Grantee shall disclose to the Commission, in writing, if they, their subrecipient, contractor, or subcontractor, are on the Discriminatory Vendor List maintained by the Florida Department of Management Services pursuant to Section 287.134(3)(d), F.S. "An entity or affiliate who has been placed on the discriminatory vendor list may not submit a bid, proposal, or reply on a contract to provide any goods or services to a public entity; may not submit a bid, proposal, or reply on a contract 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 contractor, supplier, subcontractor, or consultant under a contract with any public entity; and may not transact business with any public entity." Section 287.134(2)(a), F.S.. Grantee has a continuing duty to disclose to the Commission whether they appear on the discriminatory vendor list. E. Prompt Disclosure of Litigation, Investigations, Arbitration, or Administrative Proceedings. Throughout the term of the Agreement, the Grantee has a continuing duty to promptly disclose to GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 10 of 20 FWC Agreement No. 16060 the Commission's Grant Manager, in writing, upon occurrence, all civil or criminal litigation, investigations, arbitration, or administrative proceedings (Proceedings) relating to or affecting the Grantee's ability to perform under this agreement. If the existence of such Proceeding causes the Commission concern that the Grantee's ability or willingness to perform the Agreement is jeopardized, the Grantee may be required to provide the Commission with reasonable assurances to demonstrate that: a.) the Grantee will be able to perform the Agreement in accordance with its terms and conditions; and, b.) Grantee and /or its employees or agents have not and will not engage in conduct in performing services for the Commission which is similar in nature to the conduct alleged in such Proceeding. F. Certain Violations of Federal Criminal Law. If this agreement includes a Federal award, then in accordance with Section 200.113, OMB Uniform Guidance (2 CFR 200), Grantee must disclose, in a timely manner, in writing to the Commission all violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award. 16. INSURANCE. The Grantee warrants and represents that it is insured, or self- insured for liability insurance, in accordance with applicable state law and that such insurance or self- insurance offers protection applicable to the Grantee's officers, employees, servants and agents while acting within the scope of their employment with the Grantee. 17. SPONSORSHIP. As required by Section 286.25, F.S., if any recipient, subrecipient, contractor or subcontractor under this grant 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, Fish and Wildlife Conservation Commission." If the sponsorship reference is in written material, the words "State of Florida, Fish and Wildlife Conservation Commission" shall appear in the same size letters or type as the name of the Grantee's organization. Additional sponsorship requirements may be specified in Attachment A, Scope of Work. 18. PUBLIC RECORDS. A. This Agreement may be unilaterally canceled by the Commission for refusal by the Grantee to allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, F.S., and made or received by the Grantee in conjunction with this Agreement, unless exemption for such records is allowable under Florida law. B. If the Contractor meets the definition of "Contractor" in Section 119.0701(1)(a) F.S., the Contractor shall comply with the following: IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF THE CHAPTER 119, FLORIDA STATUES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: 850 - 488 -6553, R cordsCustodian m- yfwc.com and 620 South Meridian Street, Tallahassee FL 32399 GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 11 of 20 FWC Agreement No. 16060 ii. Keep and maintain public records required by the Commission to perform the service. iii. Upon request from the Commission's custodian of public records, provide the Commission with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, F.S. or as otherwise provided by law. iv. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Contractor does not transfer the records to the Commission. V, Upon completion of the contract transfer, at no cost, to the Commission all public records in possession of the Contractor or keep and maintain public records required by the Commission to perform the service. If the Contractor transfers all public records to the Commission upon completion of the contract, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the contract, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the Commission, upon request from the Commission's custodian of public records, in a format that is compatible with the information technology systems of the Commission. 19. COOPERATION WITH INSPECTOR GENERAL. Pursuant to subsection 20.055(5), F.S., Contractor, and any subcontractor to the Contractor, understand and will comply with their duty to cooperate with the Inspector General in any investigation, audit, inspection, review, or hearing. Upon request of the Inspector General or any other authorized State official, the Contractor shall provide any type of information the Inspector General deems relevant to the Contractor's integrity or responsibility. Such information may include, but shall not be limited to, the Contractor's business or financial records, documents, or files of any type or form that refer to or relate to the Agreement. The Contractor agrees to reimburse the State for the reasonable costs of investigation incurred by the Inspector General or other authorized State official for investigations of the Contractor's compliance with the terms of this or any other agreement between the Contractor and the State which results in the suspension or debarment of the Contractor. 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. 20. SECURITY AND CONFIDENTIALITY. The Grantee shall not divulge to third parties any clearly marked confidential information obtained by the Grantee or its agents, distributors, resellers, subcontractors, officers or employees in the course of performing Grant work. To ensure confidentiality, the Grantee shall take appropriate steps regarding its personnel, agents, and subcontractors. The warranties of this paragraph shall survive the Grant. 21. RECORD KEEPING REQUIREMENTS. A. Grantee Responsibilities. The Grantee shall maintain accurate books, records, documents and other evidence that sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this Agreement, in accordance with generally accepted accounting principles. B. State Access to Grantee Books, Documents, Papers, and Records. The Grantee shall allow the Commission, 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 authorized representatives of the state or federal government to have access to any of the Grantee's books, GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 12 of 20 FWC Agreement No. 16060 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. C. Grantee Records Retention. Unless otherwise specified in the Scope of Work, these records shall be maintained for five (5) fiscal years following the close of this Agreement, or the period required for this particular type of project by the General Records Schedules maintained by the Florida Department of State (available at: http://dos.myflorida.com/library- archives /records- management /general- records - schedules /), whichever is longer. Grantee shall cooperate with the Commission to facilitate the duplication and transfer of such records upon the Commission's request. D. Grantee Responsibility to Include Records Requirements — Subcontractors. In the event any work is subcontracted under this Agreement, the Grantee shall include the aforementioned audit and record keeping requirements in all subsequent contracts. E. Compliance with Federal Funding Accountability and Transparency. Any federal funds awarded under this Agreement must comply with the Federal Funding Accountability and Transparency Act ( FFATA) of 2006. The intent of the FFATA is to empower every American with the ability to hold the government accountable for each spending decision. The result is to reduce wasteful spending in the government. The FFATA legislation requires that information on federal awards (federal financial assistance and expenditures) be made available to the public via a single, searchable website: http: //w w U AS cndin .1 ov. Grant recipients awarded a new Federal grant greater than or equal to $25,000.00 awarded on or after October 1, 2010 are subject to the FFATA. The Grantee agrees to provide the information necessary, over the life of this Agreement, for the Commission to comply with this requirement. 22. FEDERAL AND FLORIDA SINGLE AUDIT ACT REQUIREMENTS. Pursuant to the FSAA (or Federal) Vendor / Recipient Determination Checklist, the Grantee has been determined to be a recipient of state financial assistance and /or a subrecipient of a federal award. Therefore, pursuant to Section 215.97, F.S. and/or OMB Uniform Guidance (2 CFR 200), the Grantee may be subject to the audit requirements of the Florida and/or Federal Single Audit Acts. If applicable, the Grantee shall comply with the audit requirements outlined in Attachment B, "Requirements of the Federal and Florida Single Audit Acts," attached hereto and made a part of the Agreement, as applicable. 23. FEDERAL COMPLIANCE. As applicable, Grantee shall comply with all federal laws, rules, and regulations, including but not limited to: i. Clean Air Act and Water Pollution Control Act. All applicable standards, orders, or requirements issued under the Clean Air Act (42 U.S.C. 7401- 7671q), and the Water Pollution Control Act (33 U.S.C. 1251 -1387, as amended). ii, Lacey Act, 16 U.S.0 3371 -3378. This Act prohibits trade in wildlife, fish and plants have been illegally taken, possessed, transported or sold. iii. Magnuson- Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 -1884. This Act governs marine fisheries in Federal waters. iv. Migratory Bird Treaty Act, 16 U.S.C. 703 -712. The Act prohibits anyone, unless permitted, to pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, deliver for shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be transported, carry or cause to be carried by any means GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 13 of 20 FWC Agreement No. 16060 whatsoever, receive for shipment, transport of carriage, or export, at any time, or in any manner, any migratory bird, or any part, nest, or egg of such bird. Endangered Species Act, 16 U.S.C. 1531, et seq. The Act provides a program for the conservation of threatened and endangered plants and animals and the habitat in which they are found. The Act also prohibits any action that cause a "taking" of any listed species of endangered fish or wildlife. Also generally prohibited are the import, export, interstate, and foreign commerce of listed species. 24. FEDERAL FUNDS. This Agreement relies on federal funds, therefore, the following terms and conditions apply: A. Prior Approval to Expend Federal Funds to Federal Agency or Employee. It is understood and agreed that the Contractor is not authorized to expend any federal funds under this Contract to a federal agency or employee without the prior written approval of the awarding federal agency. B. Equal Employment Opportunity. Executive Order 11246 of September 24, 1965, entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR Chapter 60). Applicable, except as otherwise provide under 41 CFR Part 60, to any grant, contract, loan, insurance, or guarantee involving Federal assisted construction. C. Davis -Bacon Act. The Davis -Bacon Act, 40 U.S.C. 3141 -3148, as supplemented by Department of Labor regulations at 29 CFR Part 5. Applicable to contractors and subcontractors performing on federally funded or assisted contracts in excess of $2,000.00 for the construction, alteration, or repair (including painting and decorating) of public buildings or public works. Under this Act, contractors and subcontractors must pay their laborers and mechanics employed under the contract no less than the locally prevailing wages and fringe benefits for corresponding work on similar projects in the area. D. Copeland "Anti- Kickback Act. The Copeland "Anti- Kickback" Act, 40 U.S.C. 3141 -3148, and 3146 -3148, as supplemented by Department of Labor regulations (29 CFR Part 5). Applicable to contracts awarded by a non - Federal entity in excess of $100,000.00 that involve employment of mechanics or labors. Under this Act, contractors and subrecipients are prohibited from inducing, by any mean, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. E. Contract Work Hours and Safety Standards Act. Sections 103 and 107 of the Agreement Work Hours and Safety Standards Act (40 U.S.C. 327 -330) as supplemented by Department of Labor regulations (29 CFR part 5). Applicable to construction contracts awarded by Contractors and subcontractors in excess of $2,000.00, and in excess of $2,500.00 for other contracts which involve the employment of mechanics or laborers. Under this Act, contractors and subcontractors must compute wages of mechanics and laborers (workers) on the basis of a standard forty (40) hour work week; provide workers no less than time and a half for hours worked in excess of the forty (40) hour work week; and not require workers to work in surroundings or work conditions that are unsanitary, hazardous, or dangerous. F. Rights to Inventions Made Under a Contract or Agreement. 37 CFR Part 401. If the Federal award meets the definition of "funding agreement' under 37 CFR 401.2(a) and the recipient or Subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under the "funding agreement," the recipient or subrecipient must comply with the requirements of 37 GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 14 of 20 FWC Agreement No. 16060 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency. G. Energy Efficiency. Mandatory standards and policies relating to energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94 -163, 89 Stat. 871). H. Debarment and Suspension Contractor Federal Certification. In accordance with Federal Executive Order 12549 and 2 CFR Part 1400 regarding Debarment and Suspension, the Contractor certifies that neither it, nor its principals, is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any federal department or agency; and, that the Contractor shall not knowingly enter into any lower tier contract, or other covered transaction, with a person who is similarly debarred or suspended from participating in this covered transaction. I. Prohibition against Lobbying. Contractor Certification — Payments to Influence. The Contractor certifies that no Federal appropriated funds have been paid or will be paid, on or after December 22, 1989, by or on behalf of the Contractor, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress, in connection with the awarding, renewal, amending or modifying of any Federal contract, grant, or cooperative agreement. The Contractor also certifies that they have not engaged any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on behalf of the Contractor with respect to this Contract and its related federal contract, grant, loan, or cooperative agreement; or, if the Contractor has engaged any registrant with respect to this Contract and its related Federal contract, grant, loan, or cooperative agreement, the Contractor shall, prior to or upon execution of this Contract, provide the Commission Contract Manager a signed declaration listing the name of any said registrant. During the term of this Contract, and at the end of each Calendar quarter in which any event occurs that materially affects the accuracy of this certification or declaration, the Contractor shall file an updated declaration with the Commission's Contract Manager. If any non- federal funds are used for lobbying activities as described above in connection with this Contract, the Contractor shall submit Standard Form -LLL, "Disclosure Form to Report Lobbying ", and shall file quarterly updates of any material changes. The Contractor shall require the language of this certification to be included in all subcontracts, and all subcontractors shall certify and disclose accordingly. ii. Contractor — Refrain from Subcontracting with Certain Organizations. Pursuant to the Lobbying Disclosure Act of 1995, the Contractor agrees to refrain from entering into any subcontracts under this Contract with any organization described in Section 501(c)(4) of the Internal Revenue Code of 1986, unless such organization warrants that it does not, and will not, engage in lobbying activities prohibited by the Act as a special condition of the subcontract. J. Compliance with Office of Management and Budget Circulars. As applicable, Contractor shall comply with the following Office of Management and Budget (OMB) Uniform Guidance (2 CFR 200). GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 15 of 20 FWC Agreement No. 16060 K. Drug Free Workplace. Pursuant to the Drug -Free Workplace Act of 1988, the Contractor attests and certifies that the contractor will provide a drug -free workplace compliant with 41 U.S.C. 81. 25. CONTRACT - RELATED PROCUREMENT. A. PRIDE. In accordance with Section 946.515(6), F.S., if a product or service required for the performance of this Contract is certified by or is available from Prison Rehabilitative Industries and Diversified Enterprises, Inc. (PRIDE) and has been approved in accordance with Subsection 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 contract shall be purchased from [PRIDE] in the same manner and under the same procedures set forth in Subsections 946.515(2) and (4), F.S.; and for purposes of this contract the person, firm or other business entity carrying out the provisions of this contract 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 htW:/ /www pr idc- enter )i�isl •es.org B. Respect of Florida. In accordance with Subsection 413.036(3), F.S., if a product or service required for the performance of this Contract is on the procurement list established pursuant to Subsection 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 contract 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 Subsections 413.036(1) and (2), F.S.; and for purposes of this contract, the person, firm or other business entity carrying out the provisions of this contract 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 littp://www.resliectoffloi C. Procurement of Recycled Products or Materials. Contractor agrees to procure any recycled products or materials which are the subject of or are required to carry out this Contract in accordance with Section 403.7065, F.S. 26. PROFESSIONAL SERVICES. A. Architectural, Engineering, Landscape Architectural, or Survey and Mapping. If this Agreement is for the acquisition of professional architectural, engineering, landscape architectural, or registered surveying and mapping services, and is therefore subject to Section 287.055, F.S., the following provision applies: The architect (or registered surveyor and mapper or professional engineer, as applicable) warrants that he or she has not employed or retained any company or person, other than a bona fide employee working solely for the architect (or GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 16'of 20 FWC Agreement No. 16060 registered surveyor and mapper, or professional engineer, as applicable) to solicit or secure this Agreement and that he or she has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the architect (or registered surveyor and mapper or professional engineer, as applicable) any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this contract. B. Termination for Breach. For the breach or violation of this provision, the Commission shall have the right to terminate the Agreement without liability and, at its discretion, to deduct from the Agreement price, or otherwise recover, the full amount of such fee, commission, percentage, gift, or consideration. 27. INDEMNIFICATION. If Grantee is a state agency or subdivision, as defined in Subsection 768.28(2), F.S., pursuant to Subsection 768.28(19), F.S., neither Party indemnifies nor insures the other Party for the other Party's negligence. If Grantee is not a state agency or subdivision as defined above, 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 the Commission, 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 loss or damages proximately caused by the negligent act or omission of the State or the Commission. If this is a Professional Services Agreement as defined in Subsection 725.08 F.S., then notwithstanding the provisions of Subsection 725.06 F.S., the design professional shall only be liable for, and fully indemnify, defend, and hold harmless the State, the Commission, and their officers, agents, and employees, for actions caused in whole or in part, by the negligence, recklessness, or intentionally wrongful conduct of the design professional and other persons employed or utilized by the design professional in the performance of the Agreement. No person, on the grounds of race, creed, color, national origin, age, sex, or disability, shall be excluded from participation in, be denied the proceeds or benefits of, or be otherwise subjected to discrimination in performance of this Agreement. 11i 11 R , ; 111 p 1 i 1 1 1 1 This Agreement has been delivered in the State of Florida and shall be construed in accordance with the laws of Florida. Wherever possible,_each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Any action in connection herewith, in law or equity, shall be brought in Leon County, Florida, to the exclusion of all other lawful venues. GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 17 of 20 FWC Agreement No. 16060 The Parties hereto do not intend nor shall this Agreement be construed to grant any rights, privileges or interest to any person not a party to this Agreement. 31. JURY TRIAL WAIVER. As part of the consideration for this Agreement, the Parties hereby waive trial by jury in any action or proceeding brought by any party against any other party pertaining to any matter whatsoever arising out of or in any way connected with this Agreement, or with the products or services provided under this Agreement, including but not limited to any claim by the Grantee of quantum meruit. 32. PROHIBITION OF UNAUTHORIZED ALIENS. In accordance with Federal Executive Order 96 -236, the Commission shall consider the employment by the Grantee of unauthorized aliens a violation of Section 274A(e) of the Immigration and Nationalization Act. Such violation shall be cause for unilateral cancellation of this Agreement if the Grantee knowingly employs unauthorized aliens. 33. EMPLOYMENT ELIGIBILITY VERIFICATION (E- VERIFY). A. Requirement to Use E- Verify. Executive Order 11 -116, signed May 27, 2011, by the Governor of Florida, requires Commission contracts in excess of nominal value to expressly require the Contractor to: 1.) 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, 2.) 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. B. E- Verify Online. E- Verify is an Internet -based system that allows an employer, using information reported on an employee's Form I -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.l.c. 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 online at littp.//kvww,dlis.gov/files/progra 1 g/ c 1185221678150.shtm C. Enrollment in E- Verify. If Grantee does not have an E- Verify MOU in effect, the Grantee must enroll in the E- Verify system prior to hiring any new employee after the effective date of this Agreement. D. E- Verify Recordkeeping. The Grantee further agrees to maintain records of its participation and compliance with the provisions of the E- Verify program, including participation by its subcontractors as provided above, and to make such records available to the Commission or other authorized state entity consistent with the terms of the Grantee's enrollment in the program. This includes maintaining a copy of proof of the Grantee's and subcontractors' enrollment in the E- Verify Program (which can be accessed from the "Edit Company Profile" link on the left navigation menu of the E- Verify employer's homepage). GRANT - GOVERNMENTAL EN Ver. May, 2017 Page 18 of 20 FWC Agreement No. 16060 E. Employment Eligibility Verification. Compliance with the terms of the Employment Eligibility Verification provision is made an express condition of this Agreement and the Commission may treat a failure to comply as a material breach of the Agreement. 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 Agreement believes is excusable under this paragraph, Grantee shall notify the Commission's Grant Manager 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. The Commission, 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 damages, other than for an extension of time, shall be asserted against the Commission. Grantee shall not be entitled to an increase in the Agreement price or payment of any kind from the Commission 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 the Commission determines, in its sole discretion, that the delay will significantly impair the value of the Agreement to the Commission or the State, in which case, the Commission may do any or all of the following: (1) accept allocated performance or deliveries from Grantee, provided that Grantee grants preferential treatment to the Commission 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. 35. 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 the Scope of Work, Attachment A. 36. ENTIRE AGREEMENT. This Agreement with all incorporated attachments and exhibits represents the entire Agreement of the Parties. Any alterations, variations, changes, modifications or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing, and duly signed by each of the Parties hereto, unless otherwise provided herein. In the event of conflict, the following order of precedence shall prevail; GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 19 of 20 FWC Agreement No. 16060 this Agreement and its attachments, the terms of the solicitation and the Grantee's response to the solicitation. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed through their duly authorized signatories on the day and year last written below. MONROE COUNTY BOARD OF COUNTY COMMISSIONERS SIGNATURE Name: David Rice FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION SIGNATURE Name: Title: Date: Approved as to form and legality by FWC Attorney: ATURE Attachments in this Agreement include the following: Attachment A Scope of Work Attachment 1 Requirements of the Federal and Florida Single Audit Act Attachment C Copy of Federal Award FL F- F17AF01194 Attachment D Sample Site Dedication Form Attachment E Cost Reimbursement Contract Payment Requirements Attachment F Title 50 CFR, Part 80 Attachment C Sample Invoice Form Attachment H Progress Report Form Attachment 1 Certification of Completion t l + CLERK CLER1{ Packet'Pg. 123 GRANT - GOVERNMENTAL ENTITY Ver. May, 2017 Page 20 of Attachment A — SCOPE OF WORK Project Name.7 Monroe Count —Gulf View Boat Ramp FWC Contra No . I 160 1. INTRODUCTION A. Background: The Gulf View Boat Ramp is in need of repairs due to erosion on the sides and at the end of the ramp, which has worsened over time and has resulted in a potential hazard when launching a boat. Boat trailer tires can drop off and cause the frame or axle to rest on the ramp. There is currently no boarding dock at the ramp which makes it difficult for one person to launch from the ramp. B. Purpose: Erosion repair at the boat ramp and the construction of a concrete accessory dock adjacent to the boat ramp will make launching safer and allow boaters to use the ramp quicker. C. Project Benefits: The improvements to Gulf View Boat Ramp will significantly improve recreational boating access and safety, and provide numerous benefits to the boating community. With the construction of the boarding accessory dock it will be easier for boaters that maybe by themselves to use the ramp, and allow multiple boaters to use the ramp while staging, launching or parking /retrieving the trailer. This will improve the overall experience of using the public boat ramp in an increasingly busy area. 2. PROJECT DESCRIPTION A. Term of Agreement: The term of the Agreement includes two phases: Phase I, Project Construction, and Phase II, Project Site Management. During Phase I, the County (Grantee) shall complete the tasks and provide the deliverables described in this Scope of Work. All Phase I activities must be completed by June 30, 2019. During Phase II, which includes the remaining term of the Agreement, the Grantee shall maintain the project site as a recreational boating access facility open to the public on a first -come, first - served basis. B. Deliverable(s): Repair erosion around the boat ramp and construct a boarding accessory dock adjacent at the boat ramp according to the engineering and design plans included in FBIP application #16 -025. C. Tasks: The Grantee shall provide all labor, equipment and materials to complete the following tasks: 1. Hand place approximately 2,096 cubic yards of rubble riprap around the edges with a 13.5' wide x 12.5' long articulating block mat at the end of the existing boat ramp. 2. Install cofferdam and dewater during all Phase I activities. 3. Temporarily deploy turbidity curtains during all Phase I activities. 4. Construct cast -in -place concrete accessory dock that is 5 feet wide by 52 feet long. 3. PERFORMANCE A. Commencement of Work: The Grantee shall commence work on Phase I of the Project within 90 days of execution of the Agreement. Failure by the Grantee to begin work shall constitute a breach of the Agreement and may result in termination of the Agreement by the Commission. B. Criteria for Evaluating Successful Completion: The Grantee shall complete the project as described in this Scope of Work and Florida Boating Improvement Program Application 16 -025, Page 1 of 5 Attachment A — SCOPE OF WORK Pro'ect Name: Monroe Count —Gulf View Boat Ram FWC Contract No. 16060 incorporated herein by reference, according to the approved bid specifications. Failure to complete the project in a satisfactory manner could result in financial consequences as specified herein. C. Procurement: The Grantee shall procure goods and services through a competitive solicitation process in accordance with Chapter 287, Florida Statutes. The Grantee shall forward one copy of any solicitation to the Commission's Grant Manager for review prior to soliciting for quotations or commencing any work. The Commission's Grant Manager shall have 30 working days for review. This review shall ensure that minimum guidelines for the Project's scope of work are adhered to. The Grantee shall forward one copy of the bid tabulation, or similar list of responses to the solicitation, along with the award recommendation to the Commission's Grant Manager D. Acknowledgement: Upon completion of Phase I, the Grantee, at its expense, shall purchase, erect and maintain a permanent sign, not less than three (3) feet by four (4) feet in size, displaying the Commission's logo acknowledging the Commission and the Florida Boating Improvement Program as a funding source for the Project. Any other form of acknowledgement must be approved by the Commission's Grant Manager. Such acknowledgement shall be maintained for the duration of the Agreement. Failure by the Grantee to maintain such acknowledgement shall be considered a breach of the Agreement. The Grantee shall provide a draft copy of the acknowledgement sign for approval by the Commission prior to displaying on site. E. Directional Signs: The Grantee, at its expense, shall purchase, erect and maintain directional signs, approved by the Commission, on main public highways to direct public users to each boating facility funded through the Program regardless of which phase(s) the Program funded. The Grantee agrees to provide and maintain such signs at its expense for the duration of the Agreement. Failure by the Grantee to erect and maintain such signs shall be considered a breach of the Agreement. This requirement can be waived by the Commission's Grant Manager, in writing, if the Grantee receives a written denial from the Florida Department of Transportation for the installation of the signs. F. Engineering: If applicable, all engineering must be completed by a professional engineer or architect registered in the State of Florida. All work must meet or exceed minimum design standards and guidelines established by all applicable local, state and federal laws. G. Site Dedication: The Grantee agrees to dedicate the Project site as a boat access facility for the use and benefit of the public for the duration of the Agreement. Such dedication must occur before any grant funds are reimbursed. A Site Dedication Form is included as Attachment D as an example for form and content. Land under control other than by ownership by the Grantee (i.e. lease, management agreement, cooperative agreement, inter -local agreement or other similar instrument) shall be managed by the Grantee as a boat access facility for the duration of the Agreement. Title to all improvements shall be retained by the Grantee upon final payment by the Commission. Should the Grantee convert all or any part of the Project to other than Commission approved uses within the term of the Agreement, the Grantee shall replace the area, facilities, resource or site at its own expense with a project acceptable to the Commission of comparable scope and quality. In the event the Project is converted to use for other purposes during this period and not replaced with a like project acceptable to the Commission, the Grantee agrees to return to the Commission all funds tendered for the original Project. Page 2 of 5 Attachment A — SCOPE OF WORK Project Name: Monroe County — Gulf View Boat Ramp FWC Contract No. 16060 Site dedication survives any contract termination. If mutually agreed upon by both parties in writing the site dedication may be rescinded. The Commission shall waive the site dedication requirement if no program funds were dispersed. H. Phase II, Project Site Management: During Phase II, the Grantee shall provide and be responsible for any and all costs associated with the ordinary and routine operations and maintenance of the project site, including any and all personnel, equipment or service and supplies costs beyond the costs approved for reimbursement in Phase I of this Agreement. 4. FINANCIAL CONSEQUENCES Pursuant to 215.971(1)(c), Florida Statutes, the Commission will withhold payment of Program funds for failure to complete the Project as described herein within the timeframe allowed for Phase I, or for failure to correct any Project deficiencies, as noted in the final Project inspection. During Phase II of the Project, the Grantee shall repay any Program funds received for Phase I for failure to maintain the Project site as a public boating access facility according to the terms and conditions herein for the duration of the Agreement. 5. COMPENSATION AND PAYMENT A. Compensation: For satisfactory completion of the tasks described in this Scope of Work, by the Grantee under the terms of this Agreement, the Commission shall pay the Grantee on a cost reimbursement basis in an amount not to exceed $75,000. The Grantee shall be reimbursed only for budgeted expenses incurred during the term of Phase I of the Agreement that are directly related to the project. There is no monetary compensation during Phase II. B. Cost Share: The Grantee agrees to provide 25% of the total cost for Phase I of the project as indicated in FBIP Grant Application No. 16 -025. The total compensation by the Commission shall be $75,000 or 75% of the total cost for Phase I, whichever is less. C. Travel Expenses: No travel expenses are authorized under the terms of this agreement. D. Invoice Schedule: The Grantee will submit one request for reimbursement within 30 days after completion of Phase I of the Project, as described herein, and acceptance of deliverables in writing by the Commission's Grant Manager. The Commission shall have 45 working days to inspect and approve goods and services. E. Forms and Documentation: The Grantee shall be reimbursed on a cost reimbursement basis in accordance with Cost Reimbursement Contract Payment Requirements as shown in the Department of Financial Services, Bureau of Accounting and Auditing, Reference Guide for State Expenditures, attached hereto and made a part hereof as Attachment E. The request for reimbursement shall include an invoice in a format similar to Attachment G, Sample Invoice Form, which shall include the FWC Contract Number, the Grantee's Federal Employer Identification (FEID) Number, and indicate the dates of service. The invoice shall be accompanied by a Certification of Completion, photographs to document project completion, an Page 3 of 5 Attachment A — SCOPE OF WORK Project Name: I Monroe County — Gulf View Boat Ramp FWC Contract No. 1 16060 itemized list of all project expenditures, and copies of invoices and cancelled checks or check numbers to document payment for all project expenditures. 6. MONITORING A. Compliance Monitoring and Corrective Actions: The Commission will monitor the Grantee's service delivery to determine if the Grantee has achieved the required level of performance. If the Commission at its sole discretion determines that the Grantee failed to meet any of the Terms and Conditions of this Agreement, the Grantee will be sent a formal written notice. The Grantee shall correct all identified deficiencies within forty -five (45) days of notice. Failure to meet 100% compliance with all of the Terms and Conditions of this Agreement or failure to correct the deficiencies identified in the notice within the time frame specified may result in delays in payment or termination of this Agreement in accordance with the Termination section. B. Site Inspections: The Commission may inspect the Project site prior to and, if applicable, during the construction of the Project. The Grantee shall notify the Commission's Grant Manager when the Project has reached substantial completion so that inspection may occur in a timeframe allowing for the timely submission and processing of the final invoice. The Commission's Grant Manager, or designee, shall inspect the work accomplished on the Project and, if deemed complete and in compliance with the terms of the Agreement, approve the request for payment. The Grantee shall allow unencumbered access to the Project site to the Commission, its employees or agent for the duration of the Agreement for the purpose of site visit or inspection to verify the facility is being maintained, in operation and is open and available to the public. As part of the inspection, the Commission may request maintenance and use information from the Grantee to validate the condition of the facility. C. Project Progress Reports: The Grantee shall submit to the Commission, on a quarterly basis, project progress reports outlining the progress of the Project, identifying any problems that may have arisen, and actions, taken to correct such problems. Such reports shall be submitted on the Project Progress Report Form attached hereto and made a part hereof as Attachment H. Reports are due to the Commission's Grant Manager by the 15" of the month immediately following the reporting period until the Certification of Completion is submitted. 7. INTELLECTUAL PROPERTY RIGHTS No additional requirements. Refer to Section 12 of the Agreement. 8. SUBCONTRACTS No additional requirements. Refer to Section 14 of the Agreement. 9. INSURANCE No additional requirements. Refer to Section 16 of the Agreement. 10. SECURITY AND CONFIDENTIALITY No additional requirements. Refer to Section 20 of the Agreement. Page 4 of 5 Attachment A — SCOPE OF WORK Project N ame Monroe County —Gulf View Boat Ramp 'WC Contract No. 16060 n'n 1 1 , 11 Records shall be maintained for ten (10) years following the completion of Phase I of the Project. Completion of Phase I of the Project has occurred when all reporting requirements are satisfied and final payment has been received by the Grantee. Refer to Section 21 of the Agreement. The Grantee is not authorized to use funds provided herein for the purchase of any non - expendable equipment or personal property valued at $1,000 or more for performance under this Agreement. Refer to Section G, Site Dedication, above in Section 3, Performance, A. Certificate of Completion: Upon completion of Phase I, the Grant Manager for the Grantee shall sign a Certification of Completion form, Attachment I, attached hereto and made a part hereof, that certifies the Project was completed in accordance with the Scope of Work and the Agreement. B. Fees: The Commission reserves the right to review and approve any and all fees proposed for grant project sites, funded in whole or in part by this Program, for the term of the Agreement to ensure that excess collection does not occur and that funds collected are not reallocated or diverted to any non - boating access related purpose. Page 5 of 5 FWC Agreement No. 16060 Attachment B AUDIT REQUIREMENTS The administration of resources awarded by the Florida Fish and Wildlife Conservation Commission (Commission) to the Grantee may be subject to audits and /or monitoring by the Commission as described in Part II of this attachment regarding State funded activities. If this Agreement includes a Federal award, then Grantee will also be subject to the Federal provisions cited in Part I. If this Agreement includes both State and Federal funds, then all provisions apply. 1 1; In addition to reviews of audits conducted in accordance with Sections 200.500- 200.521, Uniform Guidance: Cost Principles, Audit, and Administrative Requirements for Federal Awards (2 CFR 200), as revised, hereinafter "OMB Uniform Guidance" and Section 215.97, F.S., as revised (see "AUDITS" below), the Commission may conduct or arrange for monitoring of activities of the Contractor. Such monitoring procedures may include, but not be limited to, on -site visits by the Commission staff or contracted consultants, limited scope audits as defined by Section 200.331, OMB Uniform Guidance and /or other procedures. By entering into this Agreement, the Grantee agrees to comply and cooperate with any monitoring procedures /processes deemed appropriate by the Commission. The Grantee further agrees to comply and cooperate with any inspections, reviews, investigations, or audits deemed necessary by the Florida Department of Financial Services or the Florida Auditor General. PART I: FEDERALLY FUNDED. If this Agreement includes a Federal award, then the following provisions apply: A. This part is applicable if the Grantee is a State or local government or a non - profit organization as defined in Sections 200.90, 200.64, or 200.70, respectively, OMB Uniform Guidance. B. In the event that the Grantee expends $500,000.00 ($750,000.00 for fiscal years beginning on or after December 26, 2014) or more in Federal awards in its fiscal year, the Grantee must have a single or program- specific audit conducted in accordance with the provisions of the Federal Single Audit Act of 1996 and Sections 200.500- 200.521, OMB Uniform Guidance. EXHIBIT 1 to this Attachment indicates Federal resources awarded through the Commission by this Agreement. In determining the Federal awards expended in its fiscal year, the Grantee shall consider all sources of Federal awards, including Federal resources received from the Commission. The determination of amounts of Federal awards expended should be in accordance with the guidelines established by Sections 200.500- 200.521, OMB Uniform Guidance. An audit of the Grantee conducted by the Auditor General in the OMB Uniform Guidance, will meet the requirements of this part. C. In connection with the audit requirements addressed in Part I, paragraph A. herein, the Grantee shall fulfill the requirements relative to auditee responsibilities as provided in Section 200.508, OMB Uniform Guidance. This includes, but is not limited to, preparation of financial statements, a schedule of expenditure of Federal awards, a summary schedule of prior audit findings, and a corrective action plan. D. If the Grantee expends less than $500,000.00 ($750,000.00 for fiscal years beginning on or after December 26, 2014) in Federal awards in its fiscal year, an audit conducted in accordance with the provisions of Sections 200.500- 200.521, OMB Uniform Guidance, is not required. In the event that the Grantee expends less than $500,000.00 ($750,000.00 for fiscal years beginning on or after Audit Requirements rev.06 /01/2017 Pag Packet'Pg. 129 FWC Agreement No. 16060 December 26, 2014) in Federal awards in its fiscal year and elects to have an audit conducted in accordance with the provisions of Sections 200.500- 200.521, OMB Uniform Guidance, the cost of the audit must be paid from non - Federal resources (i.e., the cost of such an audit must be paid from Grantee resources obtained from other than Federal entities). E. Such audits shall cover the entire Grantee's organization for the organization's fiscal year. Compliance findings related to agreements with the Commission shall be based on the agreement requirements, including any rules, regulations, or statutes referenced in the Agreement. The financial statements shall disclose whether or not the matching requirement was met for each applicable agreement. All questioned costs and liabilities due to the Commission shall be fully disclosed in the audit report with reference to the Commission agreement involved. Additionally, the results from the Commission's annual financial monitoring reports must be included in the audit procedures and the Sections 200.500- 200.521, OMB Uniform Guidance audit reports. F. If not otherwise disclosed as required by Section 200.510, OMB Uniform Guidance, the schedule of expenditures of Federal awards shall identify expenditures by contract number for each agreement with the Commission in effect during the audit period. G. If the Grantee expends less than $500,000.00 in Federal awards in its fiscal year, an audit conducted in accordance with the provisions of Sections 200.500- 200.521, OMB Uniform Guidance, is not required. In the event that the Grantee expends less than $500,000.00 in Federal awards in its fiscal year and elects to have an audit conducted in accordance with the provisions of Sections 200.500- 200.521, OMB Uniform Guidance, the cost of the audit must be paid from non - Federal resources (i.e., the cost of such an audit must be paid from the Grantee's resources obtained from other -than Federal entities). H. A web site that provides links to several Federal Single Audit Act resources can be found at: 1 1 /Iia vestei-.ccttst ov /sac /s,t ril`o.httiiI PART II: STATE FUNDED. If this Agreement includes State funding, then the following provisions apply: This part is applicable if the Grantee is a non -state entity as defined by Section 215.97, F.S., (the Florida Single Audit Act). A. In the event that the Grantee expends a total amount of state financial assistance equal to or in excess of $750,000.00 ($500,000.00 in fiscal years prior to July 1, 2016) in any fiscal year of such Grantee, the Grantee must have a State single or project- specific audit for such fiscal year in accordance with Section 215.97, F.S.; applicable rules of the Executive Office of the Governor and 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 Attachment indicates state financial assistance awarded through the Commission by this Agreement. In determining the state financial assistance expended in its fiscal year, the Grantee shall consider all sources of state financial assistance, including state financial assistance received from the Commission, 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 non -state entity for Federal program matching requirements. B. In connection with the audit requirements addressed in Part II, paragraph A herein, the Grantee shall ensure that the audit complies with the requirements of Section 215.97(7), F.S. This includes submission of a financial reporting package as defined by Section 215.97(2)(d), F.S., and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for - profit organizations), Rules of the Auditor General. Audit Requirements rev.06 /01/2017 Pag Packet 'Pg. 130 FWC Agreement No. 16060 C. If the Grantee expends less than $750,000.00 ($500,000.00 in fiscal years prior to July 1, 2016) in state financial assistance in its fiscal year, an audit conducted in accordance with the provisions of section 215.97, F.S., is not required. In the event that the Grantee expends less than $750,000.00 ($500,000.00 in fiscal years prior to July 1, 2016) in state financial assistance in its fiscal year and elects to have an audit conducted in accordance with the provisions of section 215.97, F.S., the cost of the audit must be paid from the non -state entity's resources (i.e., the cost of such an audit must be paid from the Grantee's resources obtained from other -than State entities). D. Additional information regarding the Florida Single Audit Act can be found at: littl s: / /:tp s,fl(Its.com/fsaa/ E. Grantee shall provide a copy of any audit conducted pursuant to the above requirements directly to the following address: Office of Inspector General Florida Fish and Wildlife Conservation Commission Bryant Building 620 S. Meridian St. Tallahassee, FL 32399 -1600 PART III: REPORT SUBMISSION A. Copies of reporting packages, to include any management letter issued by the auditor, for audits conducted in accordance with Sections 200.500- 200.521, OMB Uniform Guidance, and required by Part I of this Attachment shall be submitted by or on behalf of the Grantee directly to each of the following at the address indicated: 1. The Commission at the following address: Office of Inspector General Florida Fish and Wildlife Conservation Commission Bryant Building 620 S. Meridian St. Tallahassee, FL 32399 -1600 2. The Federal Audit Clearinghouse designated in Section 200.512, OMB Uniform Guidance (the reporting package required by Section 200.512, OMB Uniform Guidance, should be submitted to the Federal Audit Clearinghouse): Federal Audit Clearinghouse Bureau of the Census 1201 East 10 " Street Jeffersonville, IN 47132 3. Other Federal agencies and pass- through entities in accordance with Section 200.512, OMB Uniform Guidance. B. Copies of audit reports for audits conducted in accordance with Sections 200.500- 200.521, OMB Uniform Guidance, and required by Part I of this Attachment (in correspondence accompanying the Audit Requirements rev.06 /01/2017 Pag Packet'Pg. 131 FWC Agreement No. 16060 audit report, indicate the date that the Grantee received the audit report); copies of the reporting package described in Section 200.512, OMB Uniform Guidance, and any management letters issued by the auditor; copies of reports required by Part II of this Attachment must be sent to the Commission at the addresses listed in paragraph C. below. C. Copies of financial reporting packages required by Part II of this Attachment, including any management letters issued by the auditor, shall be submitted by or on behalf of the Grantee directly to each of the following: 1. The Commission at the following address: Office of Inspector General Florida Fish and Wildlife Conservation Commission Bryant Building 620 S. Meridian St. Tallahassee, FL 32399 -1600 2) The Auditor General's Office at the following address: Auditor General's Office G74 Claude Pepper Building 111 West Madison Street Tallahassee, FL 32399 -1450 D. Any reports, management letter, or other information required to be submitted to the Commission pursuant to this Agreement shall be submitted timely in accordance with OMB Sections 200.500- 200.521, OMB Uniform Guidance, Florida Statutes, and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and for - profit organizations), Rules of the Auditor General, as applicable. Grantees and sub - Grantees, when submitting financial reporting packages to the Commission for audits done in accordance with Sections 200.500- 200.521, OMB Uniform Guidance, or Chapters 10.550 (local governmental entities) 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 Grantee /sub- Grantee in correspondence accompanying the reporting package. - End of Attachment — Audit Requirements rev.06 /01/2017 Page Packet'Pg. 132 FWC Agreement No. 16060 Exhibit 1 FEDERAL AND STATE FUNDING DETAIL FEDERAL RESOURCES AWARDED TO THE GRANTEE PURSUANT TO THIS AGREEMENT CONSIST OF THE FOLLOWING: CFDA # I CFDA Title I Amount 15.605 1 Sort Fish Restoration — Boating Access Program $75,000 Total Federal Awards 1 $75 ,000 1 COMPLIANCE REQUIREMENTS APPLICABLE TO THE FEDERAL RESOURCES AWARDED PURSUANT TO THIS AGREEMENT ARE AS FOLLOWS: Federal Program(s) _ Compliance Requirements CFDA # Compliance Requirements 15.605 Recipient must comply with requirements found in Title 50 CFR Part 80 attached hereto and made a part of this A greement as Attach F. Recipient must comply with the Florida Boating Improvement Program Guidelines, January 2015 STATE RESOURCES AWARDED TO THE GRANTEE PURSUANT TO THIS AGREEMENT CONSIST OF THE FOLLOWING: MATCHING RF SOURCES OR FEDERAL PROGRAMS: Matching Funds Provided by CFDA CFDA ,1 CFDA Title Amount of Matching Funds Total Matching Funds Associated with Federal SUBJECT TO SECTION 215,97, FLORIDA STATUTES: State Project(s) CSFA # CSFA Title Amount Tot al Federal Aw ards Audit Requirements rev.06 /01/2017 Page Packet 'Pg. 133 FWC Agreement No. 16060 COMPLIANCE REQUIREMENTS APPLICABLE TO STATE RESOURCES AWARDED PURSUANT TO THIS AGREEMENT ARE AS FOLLOWS: NOTE: Section 200.513, OMB Uniform Guidance (2 CFR 200), 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 Grantee. - End of EXHIBIT I - Audit Requirements rev.06 /01/2017 Page Packet'Pg. 134 Attachment C Copy of Federal Award FL F- F17AF01194 FWC Agreement No. 16060 a aF ,. United States Department of the Interior FISH AND WILDLIFE SERVICE 1875 Century Boulevard CH 3 "i& Atlanta, Georgia 30345 In Reply Refer To: SEP 0 7 2017 FWS/R4/WSFR Mr. Nick Wiley, Executive Director Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, FL 32399 -1600 DUNS #: 838103893 Subject: Notice of Grant Award for FL F- F17AF01194 Dear Mr. ey: G� Your organization's application for Federal financial assistance titled "Golf View Boat Ramp Repair and Dock Installation," submitted to the U.S. Fish and Wildlife Service CFDA Program (15.605) is approved effective October 1, 2017. This award is made under the authority of the Dingell- Johnson Sport Fish Restoration Act of 1950, 64 Stat. 430, as amended 16 U.S.C. 777- 777; and 50 CFR Part 80- Administrative Requirements, Pittman Robertson Wildlife Restoration and Dingell- Johnson Sport Fish Restoration Act as amended July 24, 2008. For a complete list of this program's authorizing legislation, go to: https: / /www.cfda.gov and search by the CFDA Program number. This award is made based on Service approval of your organization's application package, hereby incorporated by reference into this award. The purpose of this grant award is to repair erosion on the sides and at the end of the ramp on the Gulf View boat ramp and construct a concrete accessory boarding boat dock (5 feet by 52 feet long). The performance period of this award is October 1; 2017, through September 30, 2019. If you need more time to complete project activities, you must submit an Amendment request to extend the performance period to the Wildlife and Sport Fish Restoration Program Chief at r4federalassistance @fws.gov before the end of the stated performance period (see Performance Period Extension section in enclosure). Only allowable costs resulting from obligations incurred during the performance period may be charged to this award. All obligations incurred under the award must be liquidated no later than 90 calendar days after the end of the performance period, unless the Service approves a final financial reporting period extension (see Reporting Requirements section in enclosure). Ettntling Information: The table below documents the approved funding for this award, including the Federal share and non - Federal snatch: Grant Award Action Funding Subaccount Federal Funds Federal % Matching Funds Match % Total Award A roved/Obli sled 9522 $75000 75% $25000 25% $100000 Totals: $75 75% $25 25% $100,000 Mr. Wiley Page 2 Prior Al2provals Recipients are required to request prior approvals for project and budget revisions in accordance with 2 CFR 200.308 unless otherwise specifically waived in this award. See Project and Budget Revisions section in enclosure. Financial and Performance Reporting _Rg uirements: Final fmancial and performance reports are required under this award. The report periods and due dates under this award are: Re ort Title Re ort Period: Due Date Interim Federal Financial Re ort SF-425 October 1, 2017 — September 30, 2018 December 29, 2018 Interim Performance R+e ort October 1, 2017 — Se tember 30 2018 December 29, 2018 Final Federal Financial Re ort 5F -425 October 1, 2017 — September 30, 2019 December 29 2019 Final Performance Report October 1 2017 — September 30, December 29, 2019 All Reports should be sent to r4federalassi tance .fws.&gv The TRACS number(s) for this grant is: 216360475. l ' ` . Acceptance of this financial assistance award carries with it the responsibility to be aware of and comply with the terms and conditions, attached, that are applicable to the award. This includes the Federal regulations that are applicable to Service awards; these terms and conditions for State, Local and Federally - recognized Indian Tribal Governments are found in the Service's Financial Assistance Award Terms and Conditions (see Terms of Acceptance in enclosure). In addition, the following Special Conditions apply to this grant award: Special Conditions and Provi -sig its° Grant Award Approval is determined to be at the Grant Award Level. Your agency should track performance accomplishments at the Grant level, and report on all of them in the Final Performance Report. See Reporting Requirements section in enclosure for details. Accounting: Cost accounting is required at the grant award subaccount level(s). Your agency should track cost at this /these levels and report them in the Final Financial Report. Equipment Purchased: Equipment purchased with grant funds shall be used by the grantee or subgrantee in the program or project for which it was acquired as long as needed, whether or not the project continues to be supported by federal funds. When the equipment is no longer needed for the original program purposes, the equipment may be used in other activities currently or previously supported by the Federal agency. The State will use, manage, and dispose of equipment acquired with Federal Aid funds in accordance with State laws and procedures. If equipment with a current market value over $5,000 is sold, the proceeds must be treated as program income. The Service Protect Officer for Torre Anderson US Fish & Wildlife Service 1875 Century Boulevard Atlanta, Georgia 30345 404.679.4168 is: The Recipient Project Officer for this award ._... Deborah Furrow, Boating Access Coordinator Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, FL 32399 850.617.9517 Mr. Wiley Page 3 Copies of the Grant Award documents have been e- mailed to your grant coordinator. Please contact me at (404) 679 -4154 or Torre' Anderson at (404) 679 -4168 if you have any questions. Thank you for your interest and efforts in supporting conservation for fish and wildlife and their habitats. Sincerely yours, Enclosure XA�_ Michael L. Piccirilli Chief - Wildlife and Sport Fish Restoration Program Additional Information Terms of Acceptance: Acceptance of a financial assistance award i.e., � grant or cooperative agreeme from the U.S. Fish and Wildlife Service (Service carries) with it the responsibility to be aware of and comply with the terms and conditions applicable to the award. Acceptance is defined as the start of work, drawin down or requesting funds, or accepting the award via electronic means, Awards are based on the application submitted to and approved by the Service. Awards are subject to the terries and conditions incorporated int the notice of award either by direct citation or by reference to the following: Federal regulations; progra legislation or regulation; and special award terms and conditions, The Federal regulations applicable to Service awards are listed by recipient type in the Service Financial Assistance Award Terms and Conditions posted on the Internet at http: // - �vw.fws,gov /grants /ate.htm] under the link "Effective as of: January 1, 2016 ". If you do not have access to the Internet and require a full text copy of the award terms and conditions, contact our office. System for Award Management (SAM) Registration: Under the terms and conditions of this award., y organization must maintain an active SAM registration at https: / /1N w.sarr�.gov /portal /publicSA1 until the our tr final financial report is submitted or final payment is received, whichever is later. If Your organization's SAM registration expires during the required period, the Service will suspend payment tinder this and all other Service awards to your organization until you update your organization's SAM registration, Project and Budget Revisions. Recipients are required to inform us regarding any deviations from approved budgets, project scopes, or objectives. In accordance with 2 CFR 200.305, recipients are required to request prior approvals for these project and budget revisions unless otherwise specifically waived in this award,. For a n.on- construction grant with a Federal share of the project exceeding the Simplified Acquisition Threshold of $150,000, this Grant Award is subject to the prior written approval requirements oft CFR 200.308(e) for transfer of funds among direct cost categories or programs, functions, and activities in which the cumulative amount of such transfers exceeds 10 % of the total budget as last approved by the Federal awarding agency. Performance Period Extensions: If additional time is needed to complete the approved project, you trust send. an SF424 and written notice to the Service at r @fws,gov, This notice must be received by the Service before the authorized ,performance period end date of the grant, and trust include supporting reasons and a revised end date. Extensions for time cannot be authorized for the purpose of spending an unused balance of funds that remains after the approved project activities have been completed. Reporting Requirements. Recipients must use the Standard Forth (SF) 425, Fed eral Tina rrcial fieport forte for all financial reporting. This form is available at http:///W%vw,whitehouse.gov/oinb/grants—forms. Performance reports must contain: 1) a comparison of actual accomplishments with the goals and objectives of the award as detailed in the approved scope of work; 2) a description of reasons why established goals were not met, if appropriate; and 3) any other pertinent information relevant to the project results. Please include the Service award number provided in the subject line of this letter on all reports„ Financial and performance reporting due dates may be extended by the Service upon receipt of written request addressed to the Service at r fws.gov identifying the type Of report to be extended, the requested revised due elate up to 90 days, and a justification for the extension, The Service may approve an additional extension if justified by a catastrophe that significantly impairs the recipient's operations. Requests for reporting due date extensions must be received by the Service no later than one day be are the original reporting due date. Failure to Report: In accordance with the Service Manual chapter 516 FW 2 Performance Reportingfor Grant and Cooperative greement ,fwardr, failure to submit reports by the required due dates may result in the following progressive actions, including but not limited to: a) notifying your State Director in writing that a Financial Status and /or Project Performance Effective: 28 June 2016 Packet 'Pg. 139 Report was not received; b) withholding cash payment pending receipt of the required report(s); c) denying the use of Federal hands and all forms of matching funds; d) whole or partial suspension, or termination of the current grant award; e) withholding of future awards for the program; and, f) other legal actions as stated in the interim guidance Payments: Your organization has completed enrollment in U.S. Treasury's Automated Standard Application for Payment (ASAP) system. When requesting payment in A SAP, your Payment Requestor will be required to enter an Account 11D. The number assigned to this award is the partial Account ED in ASAP, When entering the Account LD in ASAP, the Payment Requestor should enter the award number identified in the subject line on letter followed by a percent sign (%). Refer to the ASAP.gov Help menu for detailed instructions on requesting payments in ASAP. Significant Developments Reports (see 2 CFR 200.328(d)): Events may occur between the scheduled performance reporting dates that have significant impact upon the supported activity. In such cases, notify the Service Project Officer in writing as soon as the following types of conditions become known: • Problems, delays, or adverse conditions that will materially impair the ability to meet the objective of the Federal award. This disclosure must include a statement of any corrective action(s) taken or contemplated, and any assistance needed to resolve the situation. • Favorable developments that enable meeting time schedules and objectives sooner or at less cost than anticipated or producing more or different beneficial results than originally planned, 0 Conflict of Interest Disclosures: Recipients are responsible for notifying the Service Project office i writing of any actual or potential conflicts of interest that may arise during the life of this award. Conflicts of interest include any relationship or matter which might place the Recipient, the Recipient's employees, or the Recipient's subrecipients in a position of conflict, real or apparent, between their responsibi 'under this award and any other outside interests. Conflicts of interest may also include, but are not limited to, direct or indirect financial interests, close personal relationships, positions of trust in outside organizations, consideration of future employment arrangements with a different organization, or decision-making affecting the award that would cause a reasonable person with knowledge of the relevant facts to question the impartiality ofthe Recipient, the Recipient's employees, or the Recipient's subrecipients in the matter. tipo receipt of such a notice, the Service Project Officer in consultation with their Ethics Counselor will detcrmine if a conflict of interest exists and, if so, if there are any possible actions to be taken by the Recipient, the Recipient's employee(s), or the Recipient's subrecipients) that could reduce or resolve the conflict. Failure to resolve conflicts of interest in a mariner that satisfies the Service may result in any of the remedies described in 2 CFR 200.338, Remedies for Noncompliance, including termination of this award. Other Mandatory Disclosures: Recipients and their subrecipients must disclose, in a timely manner, in writing to the Service or pass-through entity all violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting this award. Failure to make required disclosures can result in any of the remedies described in 2 CFR 200.338, J?eme&esfor noncompliance, including suspension or debarment (See 2 CFR 200.113, 2 CFR Part 180, and 31 U.S.C. 3321). Integrated Pest Management The Wildlife and Sport Fish Restoration Program encourages a ll grantees to comply with all of their State laws, regulations, and policies regarding pest management, pesticide application, invasive species management, disease control, and best management practices when conducting pest management actions using funding associated with a Wildlife and Sport Fish Restoration Program gTari This includes compliance with the Federal Insecticide, Fungicide and Rodenticide Act as your State implements it. For further information, contact Your State agency that manages Pest control issues and/or visit the Service Environmental Quality site at.. https; //www.fws.gov/ecological-serviceslhabitat- conservation/pdf/DOIIPMpolicy Effective: 28 June 2016 Pg. 40 1 gki� Attachment D FWC # 16060 SITE DEDICATION This Site Dedication gives notice that the Real Property identified as described in Exhibit A, Legal Description, attached hereto, (the "Property ") has been developed with financial assistance provided by the Florida Legislature, through the Fish and Wildlife Conservation Commission, under the grant program called the Florida Boating Improvement Program (FBIP). In accordance with Chapter 68- 1.003, F.A.C., and the Program Guidelines of the FBIP, the Property is hereby dedicated to the public as a boating access facility for the use and benefit of the general public for a minimum period of twenty (20) years from the date of this dedication. DEDICATOR Original signature Printed Name Title Date STATE OF FLORIDA COUNTY OF Witness Printed Name Witness Printed Name The foregoing instrument was acknowledged before me this day of 20_ by who is personally known to me or who produced as identification. Stamp: Notary Public, State of Florida Attachment E FWC Contract No. 16060 1 Pursuant to the February, 2011 Reference Guide for State Expenditures published by the Department of Financial Services, invoices for cost reimbursement contracts must be supported by an itemized listing of expenditures by category (salary, travel, expenses, etc.). In addition, supporting documentation must be provided for each amount for which reimbursement is being claimed indicating that the item has been paid. Check numbers may be provided in lieu of copies of actual checks. Each piece of documentation should clearly reflect the dates of service. Only expenditures for categories in the approved contract budget should be reimbursed. Listed below are examples of types of supporting documentation: (1) Salaries: A payroll register or similar documentation should be submitted. The payroll register should show gross salary charges, fringe benefits, other deductions and net pay. If an individual for whom reimbursement is being claimed is paid by the hour, a document reflecting the hours worked times the rate of pay will be acceptable. (2) Fringe Benefits: Fringe Benefits should be supported by invoices showing the amount paid on behalf of the employee (e.g., insurance premiums paid). If the contract specifically states that fringe benefits will be based on a specified percentage rather than the actual cost of fringe benefits, then the calculation for the fringe benefits amount must be shown. Exception: Governmental entities are not required to provide check numbers or copies of checks for fringe benefits. (3) Travel: Reimbursement for travel must be in accordance with Section 112.061, Florida Statutes, which includes submission of the claim on the approved State travel voucher or electronic means. (4) Other direct costs: Reimbursement will be made based on paid invoices /receipts. If nonexpendable property is purchased using State funds, the contract should include a provision for the transfer of the property to the State when services are terminated. Documentation must be provided to show compliance with Department of Management Services Rule 60A- 1.017, Florida Administrative Code, regarding the requirements for contracts which include services and that provide for the contractor to purchase tangible personal property as defined in Section 273.02, Florida Statutes, for subsequent transfer to the State. (5) In -house charges: Charges which may be of an internal nature (e.g., postage, copies, etc.) may be reimbursed on a usage log which shows the units times the rate being charged. The rates must be reasonable. (6) Indirect costs: If the contract specifies that indirect costs will be paid based on a specified rate, then the calculation should be shown. Contracts between state agencies may submit alternative documentation to substantiate the reimbursement request that may be in the form of FLAIR reports or other detailed reports. Additionally, the invoice or submitted documentation must evidence the completion of all tasks required to be performed for the deliverable and must show that the provider met the minimum performance standards established in the agreement. August 2013 Attachment F Title 50 CFR, Part 80 FWC Agreement No. 16060 A 46150 Federal Register/Vol. 76, No. 147/Monday, August 1, 2011/Rules and Regulations DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 80 [Docket No. FW - Rg-WSR -2009 -0088; 91 400 - 51 1 0-- POLI -713, 91400- 941 0-- Pf3Ll- 713] RIN 1018 -AW65 Financial Assistance: Wildlife Restoration, Sport Fish Restoration, Hunter Education and Safety AGENCY: Fish and Wildlife Service, Interior. ACTION: Final rule. SUMMARY: We, the U.S. Fish and Wildl ife Service, are revising regulations governing the Wildlife Restoration, Sport Fish Restoration, and Hunter E(luacation a cid Safety (Enharacced Hunter Es: ucation and Safety) fivaaanciail aissistauc:e progranis. We prcrl:ti col as revision of these reguialions on June 10, 2 010, to address c lip ua es it, law, r•egi.ilaatiOu, pohot +, tochnology, and practice during; fbe past 25 years, We also proposed a tslaarifir.aation of some provisions of the issue - specific final t`i.ilts lliaat we laatblished on ]rely 24, 2008. This final rule Simplifies specific; requirements of alas; establishing auathorities of the three prograrus and clarifies burins in those authorities kis well was triraaas generally usetd in grant administration, We organized the final rule to follow (lie life cayclo of a graurt, ad we reworded and re�foruikilte,�d the re following Federal plain language policy and cuarrerat rulernaking guidance. DATES: The final rule is effective on August 31, 2011. FOR FURTHER INFORMATION CONTACT: JeaycO Jo.lansoa Wildlife and Sport Fish Re;ststriaticin Program, Division of Policy kind Programs, I_i.S, Fish and Wildlife Service, 703 -358 -2156. Background This final ruler, N vases titles 50 part 80 of the Code of Iavderad Regulations (CFR), which is , "AtIn uistrative Requirements, Pittman - Robertson Wildlife Restoration and Dingell- Johnson Sport Fish Restoration Acts." The priniary trier;: of these i °crgulvutloiis are (lie fish ;mcl wildlife age u(ies of Ilae 50 States, tile; t:otiauiaonweattlis of Puerto Rico auatl the Northern Mariana Islands, the District of Columbia, and the territories of Guaain, the U.S. Virgin Islands, and American Samoa. We use "State" or "States" in this document to refer to any or all of these jurisdictions, except the District of Columbia for purposes of the Pittman - Robertson Wildlife Restoration Act and the two g;ranl lirograarns and one'subpreaurairl nrider its authority, because th Ae t dues not authorize fundin" for tlis Distric°k The term, "tile 50 stales " ai],rplles warily to tike 50 States of th United States. It does not include the Commonwealths of Puerto Rico and the Northern Mariana Islands, the District of Columbia, or the territories of Guam, the U.S. Virgin Islands, and American Samoa. The regulations to 11 States hovv they unaay: (a) lise reVeriauus >s liciata hutiutitig and frsluixug lie:tsilst t (b) receive aannnaal apportionments from the Federal Aid to Wildlife Restoration Fund anal the Sport Fish Restoration and Boating Trust usf. Fund (i) receive financial assisUtauce from this Wildlife Restoration prugratri, tilt Bkisic: i Eelua cal ic:in aaael Saafety sufipreagrana, and the Enlaainuod Hunter Educ'Ition and Safety progr<aru; and (d) receive financial assistance froiu the Sport Fish Restoration program, the Rey€ vationad Boating Access subprogram, the Aquatic Re sources Educailion subprograina, and the Outreach and Communications snhprogram. These prograins provide financial assistance to Shil:e fish acrid wildlife agencies to: (a) Restore or tuau,age wildlife and sport fish; (b) provide hunter-education, hunter- development, and Minter - sails *,ty programs (c) provide recreational boating access; (d) enhance the public's understanding of watts reseia.usx aquakitic-life forms, and sport fishing; and (e) develof) respoansilale attit kind ethics toward auluaatic an(l related eraulroaamenl 1'lie t:atalog, ofF "col.ral Doaraestic. Assistance at )I lips:// Wtariix .c.fdci.,grru1 these prograiIns undeir 15.611, 15.605, and 15.626. "r ile Pittman - Robertson Wildlife Restoration Act, as amended (50 Stat. 917; 16 U.S.C. 669- 669k), and the Dingell - Johnson Sport Fish Restoration Act, as arnende(l (64 Stat. 430; 16 t).S.C. 777 -777n, except 777e-1 and g -1), established the programs: alffecteel by this final rule in 1937 and 1950 respectively. We refer to these acts in this document and in the final rule as "the Acts." "I'hev established a hunting- and angling -based uson' -pay and user - benefit system in which the Siatsi fuslr and wildlife agencies of the 50 States, the Coinu onwealths, and the territories receive forniula- based funding from a continuing appropriation from a dedicated funs) it) the; Treasury. The District of Col unnbiai tiIso receives funding, but only under the Dingell - Johnson Sport Fish Restoration al.ct. The Pittman - Robertson Wildlife Restoration Act does not authorize funding for the District of Columbia. Industry partners pay excise taxes into a dedicated fund in the Treasury on equiltnient and oear manufactured for purchIase by hunters, anglers, boaters, archers, and recreational shooters. The Service distributes these funds to the fish and wildlife agencies of the States that contribute inaalc;hing funds, generally dou w,"d lreian huta(ino and fishing license sales. lit fiscal year 2010, the States and other eligible jurisdictions received $384 million in new funding through the Wildlife Restoration kind Enhanced Hunter Education and Safety pioe lrams and $363 million in new funding through the Sport Fish Restoration arooram. We pulilis ietf a proposed rule in the June 10, 2010, Federal Register [75 FR 328771 to revise the regulations governing 50 CFR part 80. We reviewed and considered all comments that were delivered to the Service's Division of Policy and Directives Management during a 60 -day period from June 10 to August 9, 2010, and all comments that were entered on http: // www.r'cgkillcrtitrrts.gov or postmarked during that period. We received 10 comments from State agencies, 2 comments from nonprofit organizations, and 2 comments from one individual. Most commenters addressed several issues, so we reorganized the issues into 33 single -issue comments. This final rule adopts the proposed rule than we publishtasl on June 10, 2010, with changes based on the comments received. We discuss these comments in the following section. Response to Public Comments We arranged the public comments under the relevant sections of the rule. Each numbered comment is from only one agency, organization, or individual unless it states otherwise. The comments summarize the recommendations or opinions as the commenter presented them. We state in the response to each comment whether we made any changes as a result of the recommendation. We also state how we changed the rule, or we refer the reader to the location of the change in the final rule. Some public comments led us to reexamine sections beyond those that the public addressed specifically. Based on this reexamination, we made nonsubstantive changes throughout the document to improve clarity, consistency, organization, or comprehensiveness. We addressed any substantive changes that resulleti from this reexamination in our responses to the comments. �r; Federal Register/Vol, 76, No. 147/Mon August 1, 2011/Rules and Regulations 46151 We use the term "current" to refer to 50 CFR part 80 or any section or paragraph of 50 CFR part 80 that became effective after publication of a final rule in the Federal Register at 73 FR 43120, Jaal 24, 2008. °f ho term "proposed" refers to language: that was in the proposed rule published in the Federal Register at 75 FR 32877, June 10, 2010. '1 teraaa "new" refers to the language Of 50 Ur putt 80 as published in this final rides. Subpart A— General Section 80.2 What terms do I need to know? Cornnrent 1: Define personal property and hrw enforcement activities. Response 1: We defined personal prolasarty to include intellectual property aand gave exa mples at the new § 80.2. We removed the definition of intellec,lual property and all eaxaniples from On, proposed § 80.20. To conform to thesee Changes for personal property, we, proved [lie, examples of read pltaperty from the proposed §80.20(b)(1) to the definition at § 80.2. We will consider proposing a definition of law enforcement during the next revision of 50 CFR part 80, so we can receive public comments on a proposed definition. Comment 2: Three commenters had concerns about the proposed definition of tvildlifo, whit li includes only lairds and ananun"als. One cominentesrsaid that the narrow definition would cause conflicts with States that define it more broadly. Ancather coninionter requested that we broaden the definition to include alligators. The third commenter noted the proposed definition does not include snapping turtles or bullfrogs, which are part of at least one State's hunting or sportfishing program. Response 2: Wo slid not rnaak e any c;haanges in response its these comments. The proposed rule's definition of wildlife is specific to wild birds and mammals. This is a common element in all State definitions of wildlife, and program regulations since 1956 have limited the benefits of the Pittman - Robertson Wildlife: restoration Act (Act) to wild birds and inbnaunals. The Act dial not, define wildlife in the original 1937 tegislation, and none of its amendments defined wildlife for purposc,s of projects under the Act. Although Public Law 106 - 553 (December 21, 2000) amended the Act and defined wildlife, the only effects of the amendment were to authorize fiscal year 2001 funds for the Wildlife Conservation nad restoration program and to clarify the effect of tine Federal Advisory Committee Act. Public Law 106 -553's definition of wildlife did not apply to projects under the Act according to section 902(f). Subpart C— License Revenue Section 80.20 What does revenue from hunting and fishing licenses include? (:Ionnnent 1'rhe op €sating; staatonient in § M20( a) rc;ads, "Hunting and fishing license rev includes: (1) proceeds that the State fish and wildlife agency receives from the sale of State- issued general or spt c i al hunting or fishing licenses * * "This is as change from the catirrent § 80.4, which reac'Is. "Revenues from license h €as paid b hunters area fishernion are any revenues the State receives from the sale- of Iicel'rses * ' *" This ch €urge could exclardte as license revenue any license h,cs Colle lay agounJes on hehaalf of'the Suite fish aartt.l wildlife agencies. Response 3: We changed the proposed t30.20(a) Io read, " All proceeds from the wife. of State - issued general or special hunting and fishing lice sas=s, l orrtaits„ staarraps, tags, access and use; fees, and other Stale charges It) hunt. or fish for recrealionarl purposes." Subpart D— Certification of License Holders Section 80.31 How does an agency Certify then number of lsaid license holders? Comment 4: Insert "or his or her designee" after "the director of the [State] agency" at § 80.31(b) because another individual may he responsible for submitting annual lic €tnse- c:e:rtil` caation data electronically to the Service oil hchalfof t:iie agency director. Response 4: Wet c.:hanged § 80.31(b) to Incorporate the reconnuendation. Section 80.33 [ does an a envy decide; who to csnint as paid hearses holders in this rannual C01tifiC:ationi' Comment 5: One commenter supported the language at § 80.33(a)(1) allowing States to cornet license holders regardless of whether the licensee engages in the activity. Two other commenters said that the State should not count license holders in the annual certification if the licensee does not hunt or fish. Response 5: We did not make any changes based on this cornment. Some people grease as liceytase because they plain to haunt or fish, but never do, Others buy a license to teak €s part in other outdoor activities on a State Wildlife Mauaaagen ont Area where it is required for rantry. Settle buy a license solely to support wildlife rind sport fish prergrarris. Others buy a lifelirne license as a gift for a child who is too voting to g rant of fish. I'll(, Acts require Stages to coarratl the ara.naaber of paid lrtarating- or fishing - license holders. Th do not require States to count those who actually hunt or fish. (:orrar ent 6: Allow rya ,Stine" to %Pvril 4t liccnsra l older in Staler a'escords usiarg as unique identifier inslead ofa naarne' This will accommodate a State that does not record the name of certain categories ofhconse holsaers, such as minors, crr�st- of-State hunters and anglers, and inrlividuaals who do not want lea give their mares for religious reasons. ff ,:spcsnsc: fa: 1PV'e "acc"Op e d Ills' recommendation, but we need to ensure that thus agen caan associate as Iicens€ holder With the uniqur: identifier. We ch,M ee_t the proposed §80,33(a) to read: "A Stater, fish and wild IM, alooncy nitrst count only those people- who have a lic ense , issued: (1) In tyre: licensee hotcler's name, or (2) With a unique; identifier that is trac a..abh to the lictsnse holder, who must be verifiable in State records." Comment 7: Section 80.33(x)(4) does not allow a State director to count all persons who have panel licenses to hunt or fish in the Stale-specified ified certification period. This is inconsistent with the Acts and the proposed § 80.31(a). Response 7: We did not ni akoe any changes based on this c„ornnre ut. We use data from the annual certification of licenses to divide excise tax revenue among the States. Section 80.33 provides an equitable way to couIit: (aa) Individuals holding licenses for to fixed period corresponding to the license - certification year, and (b) other individuals holdin" licenses fear as period that starts oil the date of purchase and eiads 1365 days haters (variable period), A State that sells vaarialale- period licenses should not be a;ilal €i to count their in two annual certification periods if as State that sells only single, - year fixe =d- period 1rcenses can count them in only orte annual Certification period. Comment £1: Conibination license holders should be counted as both anglers and hunle:=r;s at § 80.3.3(ar)(6) only if the State offers all option tlo buy a separate liconsc to hunt or fish. if no such option exists, the State should conduct a survey or use other means to find out how many license holders intend to hunt and hoa+ar nulnv intend to fish. The saaruo approach should apply to nst permits and entr,anc.e It ass for wildlife management areas, to find out how many enter to hunt or fish, and how many enter for other activities. States should count only those who hunt or fish cis paid liconse h Response 8: f'he Acts require States to ccsaanl tiler rararrahcer of Paid hunting and 46152 Federal Register / Vol. 7 6, No, 147 / Monday, August 1, 2011 / Rules and Regulati fishing license holders. They do not require States to count those who actually hunt or fish, so we will not require surveys as the commenter recommended. Comment 9: The proposed § 80.33(b) states that, for a multiyear license to be counted in each certification period, a State fish and wildlife agency must receive $1 per year of net revenue for each year in which the license is valid. Clarify whether the agenc A' can count the inultivuar license as a paid license if tile aagelua °v Spends the e.aatiro multiyear license fee immediately after receiving it. Without this clarification, an alternative interpretation is that the agency must hold the fee over the lifetime of the license so that $1 of net revenue is available hi each year that file agency will count it as a paid lia ellso. Response 9: We added a new § 80.35 on requirements for multiyear licenses. Paragraph (b) of this new section addresses the commenter's concern: "The agency must receive net revenue from a multiyear license that is in close approximation to the net revenue received for a single -year license providing similar privileges: (1) Each year during the license period, or (2) At the time of sale as if it were a single- payment annuity, which is an investment of the license fee that shows the agency would have received at least the minimum required net revenue for each year of the license period." Section 80.34 (new section 80.36) May an atgemcy count license holders in the CI UUaaal certification if the aagency receives funds from the State to cover their license fees? Comment 10: One commenter said that senior cilizeans in his State anttsi pay $11 for as license, of which the State fish and wildlife agency receives about $9. The commenter said this $9 in net revenue allows the State to count the license in only nine annual certification periods. He compared this to the proposed §§ 80.33(b) and 80.34 which would allow as State to provide funds to its fish and wildlife agency to cover fees normally charged for a category= of license, such as senior citizens or veterans. The agency would be able to count those license holders in the annual cedificaation for each year that the State covers the fees. The commenter said this change would potentially shift funds from States that offer low -cost licenses to those where the State covers fees normally charged for a category of license. Two other commenters opposed the proposed §§ 80.33(b) and 80.34, and two commenters supported these sections. Response 10: We slid not anake any changes based on this coaaaauont. If a State chooses to pay the hunting and fish iiai, Iic use fees for a category of its citizens, it should be able to count the license holders in the annual certification if the State and its fish and wildlife agency satisfy the conditions at the new § 80.36. Comment 11: The proposed § 80.34(b) requires that any funds that a State provides to its fish and wildlife agency to cover fees for a category of license holder must equal or exceed the fees that the license holder would have paid. Why is this different from the stancla rd at the proposed § 80.33(a)(4), which requires that the agency receive at least $1 per year of net revenue? Response 11: Licenses that provide similar privileges should not have a lower fee just because the State is paying for it. We retained this requirement with an additional clarification at the new § 80.36(d). Subpart h,' —EIi ible Activities Section 80.50 What activities are eligible for funding under the Pittman - Robertson Wildlife Restoration Act? Comment 12: Add as an eligible activity, "Obtain data to guide and direct the relralation of hunting." Response 12: We added the recommended eligible activity at a new paragraph (a)(3). Comment 13: The use of "or" in the proposed § 80.50(ra)(4) allows lttaaaling for anything that simply provtdt.s public access. The public access should be associated with a wildlife- or habitat - management or conservation purpose. Response 13: We changed the pr €sla€ so,d § 80.50(at)(4) to read. " Acquire real property suitable or capable of baring uaaade suitable for. (i) Wildlifi. =.. habitat, or (ii) Public access for bunting and other wildlife - oriented recreation." We also moved the proposed § 80.50(a)(5)(ii) to the new § 80.50(a)(6)(ii) and changed it to read, "Provide public, access for l'aunting or other wildlife. oriented recreQation. °" Comment 14: Add coordination of grants as an eligible activity for the Wildlife and Sport Fish Restoration programs. Add technical assistance as an eligible activity for the Wildlife Restoration program. Response 14: We added "Coordinate grants in the Wildlife Restoration program and related programs and subprograarns" as an eligible activity for the WiIdIifa Restoration prograatn at the new § 80.50(a)(8). We also added "Coordinate grants in the Sport Fish Restoration program and related programs and subprograms" as an eligible activity for the Sport Fish Restoration program at the new § 80.51(a)(11). We did not add technical assistance because we may need to establish criteria to decide when it is appropriate, and we do not want to do this without the benefit of public comment following a proposed rule. However, the Regional Director may still approve technical assistance as an eligible activity on a case-by-case basis under the new section § 80,52, which we discuss in Response 15. Comment 15: The "closed list" of eligible activities could exclude some creative projects that may be appropriate under the Act. Response 15: We added a new section § 80.52 which reads- "Ala activity may be eligible for funding even it dais lrarl does not explicitly desigaaaate it as an eligible activity if. (aa) The State fish and wildlife agency justifies it) the project staatoment how the activity will help cOrry €aa.at Ilaea llurposes of the Pittinan- Robertson Wildlife Restoration Act or the Dingell- Johnson Sport Fish Restoration Act, and (b) The Regional Director concurs with the justification." Comment 16: One commenter was pleased than than proposed rule included hunter developa°areaat and recruitment as eligible for funding under the Enhanced Hunter Echicatiora and Safety program. AnolhePr conin said that recruitment has no foundation in the Act. The commenter also said that the Service could consider marketing, promotion, and adverlisi no that may be part of recruitment as pnilic relations, which is an ineligible activity. Responses 16: We disar4greed with the coanaatenleCs view that recruitment may be ataa inaligibiv activity. The Pittman - Robertson Wildlife Restoration Act at 16 U.S.C. 669h -1 specifically allows the use of funds for hunter - development progranns, and re cruiiaaae rat may be the first phrase of hunter devr lopauent. We amine no changes based on this comment. Comment 17: The linkage that § 80.50(c)(1) makes between hunter development and target shooting is weak at best. Response 17: Target shooting is an activity that develops cerUn hunting skills and supplrnu.nts bunter education and fireaaran safety. We made no changes based on this comment. Comment 18: The proposed rule should have said whether conaltetitive shooting events are eligible a ctivities and more specifically whether a grant could pay for prizes, scholarships, and awards associated with competitive shooting, events.. Federal Register/Vol. 76, No, 147/Monday, August 1, 2011/Rules and Regulations 46153 Response 18: If the State fish and wildlife agency, or more t pically, the subgrantee, holds the competitive shooting event for the primary purpose of prciducing inc:onic -, the event would not be eligible for funding under the Pittman - Robertson Wildlife Restoration Act. We will consider develupirn, Service policy on competitive events in the grant programs and subprograms authorized by the Acts. We tra.aade no changes based on this comment. Section 80.51 What activities are elildble for funding under the Dingell- Johnson Sport Fish Restoration Act. Connne nt 19: Add as an eligibles activity for the Sport Fish Restcrraation program, "Stock fish for recreational purposes." Response 19: We incorporated the recommendation at the new § 80.51(a)(5). Comment 20: Change the second sentence at § 80.51(b)(1) so that it reads, "A broad range of access facilities and associated amenities can qualify for funding, but they must provide benefits to recreational boaters." This change will align the regulation with the language of the Act. The Service's policy at 517 1 °'W 7.12(B) already ensures that the facilities accommodate stakeholders who buy motorboat fuels or angling gear. Response 20: We changed the sentence as recommended. Section 80.52 (80.53 in final rule) What activities are ineligible for funding? Comment 21: Clarify whether wildlife daaaaaage aand predator control art, eligible for Banding frown (a) a grant in the Wildlife Restoration program, or (b) license reveaaaue. Response 21: We will consider this issue during the next revision of 50 CFR 80, so that the public will have the opportunity to offer comments. We made no changes based on this comment. Subpart F— Allocation of Funds by an Agency Section 80,60 What is the relationship between the Basic Hunter Educaati €sn. and Safety subprogram and the Enhanced Hunter Education and Safety program? Comment 22: Explain at § 80.60(c) that the Service reapportions unobligated Enhanced Hunter Education funds to eligible States as Wildlife Restoration funds and not Hunter Education funds. Response 22: We changed § 80.60(c) to incorporate this recommendation. Section 80.66 What requiroulents apply to allocation of fu tads hotxveen marine and freshwater fisheries projects? Comment 23: The proposed § 80.66(a) requires the use of a proportion based on the ratio of a State's resident marine anglers to the State's total anglers. This ratio must equal the ratio of: (a) The Sport Fish Restoration funds that the State allocates for marine; projects, to (b) the total Sport Fish Restoration funds. However, some marine anglers also fish in freshwater, so a State has to allocate this overlap when developing a ratio for marine and a ratio for freshwater anglers. The Service has misinterpreted 16 U.S.C. 777(b)(1) which reads, " [E]ach coastal State * * * shall equitcalaly allocate amounts apportioned to such State * * * between n arisar7 fish projects and freshwater fish projects in the same, proportion as the estho aced nurnbcr of resident marine ang ors and the esiirri aced number of resident freshwato-r anglers, respectively, bear to the estimated nttazaber of all resident anglers in that State." `Phis requires only a comparison of the mamber of nia nine anglers to the number of freshwater anglers in the same order as a comparison of the dollars allocated to marine projects and the dollars allocated to freshwater projects. The relationship of the nuanbers of the two types of :anglers is a ratio, just as the relationship of the two dollar amounts is a ratio. The two ratios are in the "same proportion" as required by § 777(1))(1). The proposed rule incorrectly requires a proportion based on: (a) A comparison of the funds allocated to marine fisheries projects with the total fu tads allocated to inarine and freshwater fisheries, and (b) a comparison of marhaes anglers to the total number of marine and freshwater anglers. Response 23: The commenter's recommendation would make the allocation of funds simpler, but the proposed § 80.66(a) is the most reasonable interpretation of what the drafters of the legislation intended. In any case, it would not be appropriate to impose a different allocation method based on an alternative interpretation without the benefit of public review. We made no changes based on this comment, but we will review this issue before the next revision of 50 CFR 80. Subpart G— Application for a Grant Section 80.83 What is the Federal share of allowable cost? Cttaraaamnt 24: Section 80.83(a) gives the Re vional Director the discretion to reimburse allowable costs on a sliding sc:asle betweim '1.1) and 75 percow, but does not giv €, guidance on heat -v the Regional Director should make that decision. Response 24: The commenter's general concern was also applicable to the other l:aarea of § 80.83. We claaauged the proposed § 80.83 to provide nags °e detail on how the Retgiorial Director decides on the Federal share. Subpart I— Program Income Section 80.120 What is program income? Cornmeal 25: Explain at the proposed § 80A 20(c:)(1) why huratitag ;teal tislairsg lac erase reverille c ollecte cl as fc:c✓xs for special -area access or recreation cannot be program income. Response 25: We deleted the proposed § 80.120(c)(1) from the list of examples of revenue that cannot be program income. This deletion is the result of a July 2010 determination that hunter - access fees on lands leased with grant funds for public hunting may qualify as program income under certain conditions. Comment 26: Explain the basic: cif the distinction between leases with terms greater than 10 years and leases with terms less than 10 years. Response 26. Lc°asers are legally coaaaplex Their classification assificcation as personal or real property varies significantly among the States and even within a Stale do pc ndiur oat 1hc!= ty +pes of property. 1"he classification of as loaaso as real or personal property is huportaant because it determines whether tent earned by a grantee from the lease of real property acquire d under a grant is classified as program inc.otaae or as proceeds from the disposition of real Property We proposed 1he 10 -year threshold to siraaplify this coanplexity by adopting a coninion staandaard for classifying leases as real or personal property for purposes of the grant programs under the Acts. We chose 10 years because it is a connnonly ac.cefated dividing litre between long- tears and short -term leases, rvlaicll chill :afrocts the lessees' rights and responsibilities. We will present this subject in the context of a future proposed rule that focuses on the acquisition and disposition of all types of real property under a graant. Until we can develop a proposed role with that focus, we will rely on case - lay -case legal interpretations when fiscal with lease•ri; 'llated issues. We changed the proposed § 80.120(c)(6), which is the new § 80.120(c)(5), to read, "Proceeds from the sale of real property." 46154 Feder R egister / Vol. 76, No. 147 / Mo nday, August 1, 2011 / Rules and Regulations Section 80.123 How may an agency use program income? Comment 27: One commenter stated that we should not require State fish and wildlife agencies to obtain the Regional Director's approval of the matching method for using program income if we do not require the Regional Director's approval for other activities under a grant. This commenter and another stated that all grants qualified for use of the matching method under the criteria at § 80.123(c), and both commenters said that we should consider approving the use of the matching method without conditions or give specific guidance on when its use is appropriate. A third commenter also requested guidance on when the matching method is appropriate. Response 27: The statement at § 80.123(c) that the Regional Director may approve the use of the matching method is consistent with other prior - approval requirements of this regulation. The Director has delegated the authority to conduct grant programs to the Regional Director with only a few exceptions. The definition of "Regional Director" at § 80.2 includes his or her designated representative, and Regional Directors have generally delegated most decisions on grant programs to the chiefs of their Regional Wildlife and Sport Fish Restoration Program Divisions. We will consider proposing criteria for approval of the matching method of using program income during the next revision 01'50 CFR 80 so the public will have the opportunity to offer comments. We made no changes based on these comments. Subpart I- -Real Property Section 80.130 Does an agency have to hold title to real property acquired under a grant? Comment 28: Do not restrict a State agency's ability in § 80.130 to carry out a grant - funded project on lands to which it does not have title. States may want to use grant funds to manage wildlife on Federal lands under the terms of a cooperative agreement. Response 28: Both §§ 80.130 and 80.132 relate to the commenter's concern. We based these sections on 16 U.S.C. 777g(a), 43 CFR 12.71(x) and (b), and the current regulation at § 80.20, which has been part of 50 CFR part 80 with only a minor change since 1982. The final rule does not affect an agency's ability to manage Federal lands cooperatively if this management does not include the completion of a capital improvement. diatrc,l.ion. Response 29: A sula is an entity that za ceives an award of nzonoy or property. A subgrantee is accountable to the grantee for the use of the money or property (see definitions of subgrant and subgrantee at 43 CFR 12.43). The proposed § 80.131(b) allows the grantee to subgrant only a concurrent right to hold the eaasmnent or a right of enforcement. The grantee will be able to set the terms of the subgrant agreement and ensure that the subgrantee's right will not supersede and will be concurrent with the agency's right of enforcement. Since a third party is not necessarily a subgrantee, the grantee may not be able to set the terms of any agreement on the right of enforcement or a concurrent right to hold the easement. We made no changes based on this comment. Comment 30: Define "concurrent right to laolti. Response 30: We defined the term at the new § 80.131(b)(2). Section 80.132 Does an agency have to control the land or water where it completes capital improvements? See Comments 31 and 32 and our responses. Section 80,134 How must an agency use real property? Comment 31: Instead of requiring a grantee to use real property for the uses in the grant, the regulation should state that the property must continue to serve the purpose of the grant and must be used for the administration of the fish and wildlife pro;, =a°aius. Response 31:11w, new § 80.134(a) states, "If a grant funds acquisition of an interest in a parcel of land or water, the State fish and wildlife agency must use it for the purpose authorized in the grant." The requirement to use property for the administration of fish and wildlife programs applies only if; (a) The administration of fish and wildlife programs is a purpose of the grant - funded project that acquired, completed, operated, or maintained the real property; or (b) license revenue funded all or part of the project [see the proposed 50 CFR 80.10(c)(2)]. We made no changes based on this comment. Comment 32: Clarify that grant projects on property other than that acquired with grant funds fall within the requirements of § 80.134. Section 80.137 What if real property is no longer useful or needed for its original purpose? Comment 33: The proposed § 80.137 says that if a State fish and wildlife agency's director and the Service's Regional Director jointly decide that grant - funded real property is no longer useful or needed for its original purpose, the State agency's director may rc qu st disposition instructions. Provide guidance on how the Service and State agency will cooperatively formulate these instructions. Response 33: We changed the proposed § 80.137(b) so that it reads: "Request disposition instructions for the real property under the process described at 43 CFR 12.71, `Administrative and Audit Requirements and Cost Principles for Assistance Programs' " Required Determinations Regulatory Planning and Review (RO. 12866) The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under E.O. 12866. OMB bases its determination on the following four criteria: a. Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government. b. Whether the rule will create inconsistencies with other Federal agencies' actions. c. Whellier the rule will materially affect enlitlenrents, grants, user fees, loan programs, or the rights and obligations of their recipients. d. Whr,ther the rule raises novel legal or policy issues. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) The Regulatory Flexibility Act requires an agency to consider the impact of final rules on small entities, i.e., small businesses, small organizations, and small government jurisdictions. If there is a significant economic impact on a substantial number of small entities, the agency must perform a Regulatory Flexibility Analysis. This is not roquired if the Section 80.131 i lazes an agency have to Response 32: The comment applies to hold an easement acquired under a § 80,132 as well as § 80.134. We grant? changed §§ 80.132 and 80.134 to Comment 29: Replace "subgrantee" incorporate the recommendation and to with "third party" because "subgrant" clarify in § 80.134 the differences in use implies that grant funding passes to a requirements for specific types of grant - si rantee for use at the subgrantee's funded projects. Federal Register/Vol. 76, No. 147/Monday, August 1, 2 and Regulations 46155 head of an agency certifies the rule , ,vould not have a signifivant economic impact on a substantial number of small entities. The Small Business [�ovnilatory l ai forcement Fairn Act (SI3l EFA) €nuended the Rego[Wory Flexibility Act to require federal agencies to state the factual basis for cortifying that a rule would not have a significant economic impact on a substantial number of small entities. We have examined this final rule's potential effects on small entities as re quired by lire Regulatory Flexibility Act:. We have dctle minted that the changes in the final rule will not have a significanrl impact and do not require a 1 000la:lory Flexibility Analysis because the changes: a, Give infornaailiion to Shalv� fish and wildlife agencies that allows them to apply for and administer granits more e >aasply, more effilJvnlly, alnd with greater flexibility. Only State fi an d tvilcllife: agencies may receive grants in the three prograirls rffcacted by this raep; arlaliern, but srra<all entities som etilaaes vol untarrily b ecoauee subgraantte s of atgejlciees. Any irripaact tail these si,akigraaritees tvriaale..l be beriefic:ial. b. Address changes in law and regulation. This rule helps grant aapiplic.ants and recipients by making the regarlarlions consistent with current standards. Any impact on small entities that voluntarily become subgrantees of agencies would be beneficial. c. Change three provisions on license certification adopted in a final rule published on July 24, 2008, based on subsequonl experience, These changes would impact only agencies and not small entities. d. Clarify additional issues in the Pittman - Robertson Wildlife Restoration Act and Dingell- Johnson Sport Fish Restoration Act. This clarification will help agencies comply with statutory requirements and increase awareness of alternatives available under the law. Any impact on small entities that voluntarily become subgrantees of agencies would be beneficial. e. Clarify that (1) eoopin alive farming or grazing a rrangternenis and (2) sales receipts retained by concessioners or contractors are not program income. This clarification allows States to expand projects with small businesses and farmers without making these cooperative arrangements or sales receipts subject to program income restrictions. This clarification would be potentially beneficial to the small entities that voluntarily become cooperative farmers, cooperative ranchers, and concessioners, f. Add information that allows States to enter into agreements with nonprofit organizations to share rights or re for easements acquired miler grains for the mutual benefil of both parties. This addition would benefit the small entities that enter into these aagreements t�olaurt:arily. g. Reword and reorganize the regulation to make it easier to understand. Any impact on the small entities Ilial voluntarily bea, onle snbgrant of aagencle.s would be beneficial. The Service has determined that the changes primarily impact State governments. The small entities affected by the changes are primarily concessioners, cooperative farmers, coopaer raincPh €ors. ariel stligranrtaates Who voluntarily enter iaatc:a rnrrtuaally beneficial relationships tttilh all agen The ilarpaact on sulall entities tvoarlcl he very limited and beneficial in all cases. Consequently, we certify that because this final rule would not have a significant economic effect on a substantial number of small entities, a regulatory Flexibility Analysis is not required. In addition, this final rule is not a major rule under SBREFA (5 U.S.C. 804(2)) and would not have a significaant . millact on a :substantial munber of small entities because it does not: a. Have an annual effect on the economy of $100 million or more. b. Cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions. c. Have significant adverse effects on competition, employment, investment, prodrtt tivity, innovation, or the ability of ll,S, based enterprises to compete with foreign-based eretcrp Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. Ch. 25; Pub. L. 104- 4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Iribal governments and than private sector. The Act requires eaa(di Federal agency, to the extent permitted by law, to prepare a written assessment of the effects of a final rule with Federal mandates that may result in the expenditure by State, local, and tribal governments, in arggreegatee, or by the private sector, ctor, of $'100 nli Ilion or more (aeljusleed annually for inflation) in any one year. We have det( - mined the following under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.): a. As discussed in the determination for the Regulatory Flexibility Act, this final rule= would not have a significant economic effect on a substantial number of small entities. b. The reegula €Marn doers not re(jaiiro ai snaaall go ernnient age racy pilau or aaray (Altor reglliv emenl for expenditure of laical fonds. c. Tiw programs governrd by [lie cnrre:rit regnbAli(MS nand en lane' ed by the chatages pi0ta ,111ti ally a.ls: rst suurll governs emts financially tvhvn they occasicaaarall> turd voluntarily participate as sits ces of an aaount y, d. Trie fiaral rule chirifies and enhances the current reagulations allowing State, local, arid tribal governments, and the private sector to receive the benefits of grant funding in ar more flexible, efficient, anti effective manner. They may receive these benefits as a subgrantee of a State fish and wildlife aagency, a coopceraling farine,r' or raracher, a concessioner, a concurrent holder of a grant - acquired easement, or a holder of aanforcen ent rights under an easement. e Any costs hu,; fired bar as State, local, and tribal government, or the, private sector are voluntaary. `I'.here k1l aIa mandated costs associated with the final rule. f. `File benefits of grant funding outweigh the costs. The Federal ( ",overnment I)rovides up to 75 percent of the cost of each grant to the 50 States ill th €s three Programs arffecta=d by the finial fall(" Tire•: Federal Government may also provide sap to 100 percent of the cost of each grant to the Commonwealths of Puerto Rico and the Northern Mariana Islands, the District of Columbia, and the territories of Guam, the U.S. Virgin Islands, and American Sranioar. All 50 States arul other eh IM_iselictions Voluntarily agaply for grants ill these programs v4,ich yeaan T his rate of p<arlicipii iora is clear evidonc e that the benefits of grant funding outweigh the costs. g. This final rifle would not produce a Federal mandate of $100 million or greater in any year, i.e., it is not a " significant regulatory action" under the t,infunded Mandates Reform Act. Takings This final rule does not have significant takings implications under E.O. 12630 because it does not have a provision for taking private property. The.raeforo, a takings implication assessment is not required. Federalism This final rule does not have sufficient Federalism effects to warrant preparation of a Federalism assessment under E.O. 13132. It will not interfere with the States' ability to manage themselves or their funds. We work 46156 Fe deral Register/Vol. 76, No. 1 47/Monday, August 1, 2011/Rules and Regulations closely with the States in administration of these programs, and they helped us identify those sections of the current regulations in need of change and new issues in need of clarification through regulation. In drafting the final rule, we received comments from committees of the Association of Fish and Wildlife Agencies and from the Joint Federal/ State Task Force on Federal Assistance Policy. The Director of the U.S. Fish and Wildlife Service and the President of the Association of Fish and Wildlife Agencies jointly chartered the Joint Federal /State Task Force on Federal Assistance Policy in 2002 to identify issues of national concern in the three grant programs affected by the final rule. Civil Justice Reform The Office of the Solicitor has determined under E.O. 12988 that the rule would not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The final rule will benefit grantees because it: a. Updates the regulations to reflect changes in policy and practice during the past 25 years; b. Makes the regulations easier to use and understand by improving the organization and using plain language; c. Modifies four provisions in the final rule to amend 50 CFR part 80 published in the Federal Register at 73 FR 43120 on July 24, 2008, based on subsequent experience; and d. Addresses four new issues that State fish and wildlife agencies raised in response to the proposed rule to amend 50 CFR part 80 published in the Federal Register at 73 FR 24523, May 5, 2008. Paperwork Reduction Act We examined the final rule under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). We may not collect or sponsor and you are not required to respond to a collection of information unless it displays a current OMB control number. The final rule at 50 CFR 80.160 describes eight information collections. All of these collections request information from State fish and wildlife agencies, and all have current OMB control numbers. OMB authorized and approved Governmentwide standard forms for four of the eight information collections. These four information collections are for the purposes of: (a) Application for a grant; (b) assurances related to authority, capability, and legal compliance for nonconstruction programs, (c) assurances related to authority, capability, and legal compliance for construction programs; and (d) reporting on the use of Federal funds, match, and program income. OMB approved three other information collections in the final rule under control number 1018 -0109, but has not approved Governmentwide standard forms for these collections. The purposes of these information collections are to provide the Service with: (a) A project statement in support of a grant application, (b) a report on progress in completing a grant - funded project, and (c) a request to approve an update or another change in information provided in a previously approved application. OMB authorized these information collections in its Circular A -102. The Acts and the current 50 CFR 80.10 authorize the eighth information collection. This collection allows the Service to learn the number of people who have a paid license to hunt and the number of people who have a paid license to fish in each State during a State - specified certification year. The Service uses this information in statutory formulas to apportion funds in the Wildlife Restoration and Sport Fish Restoration programs among the States. OMB approved this information collection on forms FWS 3 -154a and 3- 154b under control number 1018 -0007. The final rule does not change the information required on forms FWS 3- 154a and 3 -154b. It merely establishes a common approach for States to assign license holders to a certification year. National Environmental Policy Act We have analyzed this rule under the National Environmental Policy Act, 42 U.S.C. 432- 437(f) and part 516 of the Departmental Manual. This rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental impact statement /assessment is not required due to the categorical exclusion for administrative changes provided at 516 DM 8.5A(3). Government -to- Government Relationship With Tribes We have evaluated potential effects on federally recognized Indian tribes under the President's memorandum of April 29, 1994, "Government -to- Government Relations with Native American Tribal Governments" (59 FR 22951), E.O. 13175, and 512 DM 2. We have determined that there are no potential effects. This final rule will not interfere with the tribes' ability to manage themselves or their funds. Energy Supply, Distribution, or Use (E.O. 13211) E.O. 13211 addresses regulations that significantly affect energy supply, distribution, and use and requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under E.O. 12866 and will not affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required. List of Subjects in 50 CFR Part 80 Education, Fish, Fishing, Grants administration, Grant programs, Hunting, Natural resources, Real property acquisition, Recreation and recreation areas, Signs and symbols, Wildlife. Final Regulation Promulgation For the reasons discussed in the preamble, we amend title 50 of the Code of Federal Regulations, chapter I, subchapter F, by revising part 80 to read as set forth below: PART 80— ADMINISTRATIVE REQUIREMENTS, PITTMAN- ROBERTSON WILDLIFE RESTORATION AND DINGELL- JOHNSON SPORT FISH RESTORATION ACTS Sec. 80.1 What does this part do? 80.2 What terms do I need to know? Subpart —State Fish and Wildlife Agency Eligibility 80.10 Who is eligible to receive the benefits of the Acts? 80.11 How does a State become ineligible to receive the benefits of the Acts? 80.12 Does an agency have to confirm that it wants to receive an annual apportionment of funds? Subpart C— License Revenue 80.20 What does revenue from hunting and fishing licenses include? 80.21 What if a State diverts license revenue from the control of its fish and wildlife agency? 80.22 What must a State do to resolve a declaration of diversion? 80.23 Does a declaration of diversion affect a previous Federal obligation of funds? Subpart D— Certification of License Holders 80.30 Why must an agency certify the number of paid license holders? 80.31 How does an agency certify the number of paid license holders? 80.32 What is the certification period? Federal Register/Vol. 76, No. 147/Monday, August 1, 2011/Rules and Regulations 46157 80.33 How does an agency decide who to count as paid license holders in the annual certification? 80.34 I 1cm does an aagen,cy calculate net revenue fr €.rrn a lir; onse? 80.35 What additional requirements apply to multiyear licenses? 80.36 May Carr aggesas:v (:otani lic. =ruse holders ill ilae annual c ortificaticrar If the a rrrr a;riw`e:s funds frorra thu Staate to clover their license fees? 80.37 What must an agency do if it becomes aware of errors in its certified license data? 80.38 May the Service recalculate an a 1) portion luent if an agency submits ra,vised r.trataa? 80.39 May the Director correct a Service error in apportioning funds? Subpart - Eligible Activities 80.50 What activities are eligible for funding antler the Pittman-Robertson Wildlife Restoration Act? 80.51 Wla at rae,tivitic s are eligible for fluid as +, under die Dingr:ll Johnson Sport Fish Restoration Act? 80.52 May an activity be eligible for funding; ifit is not explicitly eligible in this part? 80.53 Are costs of State central services eligible for funding? 80.54 Wbaat activities are ineligible for funding? 80.55 Mayan agency receive a grant to carry writ part of as larger pr olr c.9.1 80.56 Ilow dcaes a p tapcasacl drrcaleet €lualily as sul:rstarallasai in chaa €acer, <and d4 sign? Subpart F- Allocation of Funds by an Agency 80.60 Whaat is tlae rohitionsiaip Ixitween the Ilasio Haant €er Education and Safety subprograaau and than i~;c3,la aom +gel flouiIJ Ldoc ation and S°afe;ly plrugr�ani? 80.64 What requirements apply to funds for tlae Reec re' atiunal Boating AC'ec ess sc abprogra ru? 80.62 What lisnitntimis appl to spendita on the Aquaat:ic Ria source Education and the Outreach and Communications subprograms? 80.63 Does an agency have to allocate costs in multipurpose projects and facilities? 80.64 HOW c.d0es an ,agency allotraate costs in multipurpose projects and faacilltia,si 80.65 Does an ages icy have to allocate faraads between marine and freslrwaatcsr fisheries projects? 80.66 Wbaal rcnitrirenionts apply= to allocation off' inds between marine and freshwater fiseries projects? 80.67 May an ¢age *.racy finance an activity from more than one annual apportionment? 80.68 what requiroments apply to fia ski aicing an activity froin more than one anaattaal apportionment? Subpart G- Application for a Grant 80.80 How does an agency apply for a grant? 80.81 What must an aoencv submit when apptying for a coniprehonisive- naanagerrrent -systs uacarat? 80.82 What anus[ aaaa ageaac,y solanait "Nils on applying for as project-by-project grail? 80.83 What is the Federal share of allowable costs? 80.84 How does the Service establish the non - Federal share of allowable costs? 80.85 What requirements apply to match? Subpart li- General Grant Administration 80.90 What are the grantee's responsibilities? 80.91 What is a Federal obligation of funds and how does it occur? 80.92 How long are funds available for a Federal obligation? 80.93 When may an agency incur costs under a grant? 80.94 Mayan agency incur costs before the beginning of the grant period? 80.95 How does an agency receive Federal grant funds? 80.96 May an agency use Federal funds without using match? 80.97 Mayan agency barter goods or services to carry out a grant- funded project? 80.98 How must an agency report barter transactions? 80.99 Are symbols available to identify projects? 80.100 Does an agency have to display one of the symbols in this part on a completed project? Subpart I- Program Income 80.120 What is program income? 80.121 May an agency earn program income? 80.122 May an agency deduct the costs of generating program income from gross inc oloo? 80.123 How may an agency use program income? 80.124 How may an agency use unexpended program income? 80.125 How must an agoncv treat income that it earns after the g,raant period? 80.126 How must an agency treat income eaarood by a subgrantee after the grant period? Subpart J -Real Property 80.130 Does an agency have to hold title to real property acquired under a grant? 80.131 Does an agency have to hold an easement acquired under a grant? 80.1 L OOS aaa aga3alq have to control the I €nand tar csaaater Whore it completes capital i 1I IInou1"' 80.133 Does an agency have to maintain ac y €fired or completed capital irtalarave;rneents? 80.134 How must an agency use real property? 80.135 What if aan agency aaltows a use of real property Ihat interferers with its authorized purpose? 80.136 Is it a diversion if an agency does not use grant- aac;tinired real property for its authorized purpose? 80.137 What. ifreeal property is no longer useful or needed for its original purpose? Subpart K- Revisions and Appeals 80.150 How does an agency ask for revision of a grant? 80.151 May an agency appeal a decision? Subpart L- Information Collection 80.160 What are the information collection requirements of this part? Authority: 16 U.S.C. 669 -669k; 16 USE. 777 -777n, except 777e -1 and g -1. Subpart - General §80.1 What does this part do? This part of the Code of Federal Regulations tills States hoot they ntay: (a) Userewennes diyriwecl I`t °caan,Staale hunting and fishing licenses in compliance with the Acts. (b) Receive annual apportionments from the l'"ecle =,ral Aid to Wildlife Ra :storution Fund (16 U.S.C. 669(b)), if authorized, and the Sport Fish Restoration and Boating Trust Fund (26 U.S.0 9504). (c) Receive financial assistance from ill(! Wildlife, program, the Basic flamer hdeat: flan and Siifety subprograatn, and tlae l nitaaia €s,tl Hunter Education and Safety grant program, if authorized. (d) Receive financial assistance from Ilia: Sport I "ish Restoration program, the Re.c rceaallunaal Boating Access subprogram, the Aquatic resources Education subprograam, and the Outreach and Communications subprogram. (e) Comply with the requirements of the Acts. 80.2 What terms do I need to know? The terms in this section pertain only to the regulations in this part, A cts me aus Ilse pilt€maan- Robertson Wildlife l'Zr storatiun Act of September 2, 1937, aas cam encicrci (16 U.S.C. 669- 6(i9k), and the Dingell-Johnson Spurt Fish J <estoraaticua Act of August 9, l950, as amended ('1 U.S.C. 777 - 777n, except 777( and g -1). Agency means a State fish and wildlife agency. Angler means a person who fishes for sport fish for recreational purposes as permitted by State law. Capital improvement. (1) Capital Improvement means: (i) A structure that costs at least $10,000 to build; or (ii) The alteration, renovation, or repair of a structure if it increases the structure's useful life or its market value by at least $10,000. (2) Ali agency to ty use its own definition of capital iinprov enlent if its datfinition includes all aaatpataal inaproven ents as defined here. t,onipre heerasitFr3 rrrerricrgterrt rrt s}yk tem is a Staate':> fish and wildlife agencv's method ofoperatlions thaal links programs, financial systems, human resources, goals, products, and services. It assesses the current, projected, and 46158 Fe Register / Vol. 76, No. 147 / Monday, August 1, 2011 / Rules and R egulations desired status of fish and wildlife; it develops a strategic plan and carries it out through an operational planning process; and it evaluates results. The planning period is at least 5 years using a minimum 15 -year projection of the desires and needs of the State's citizens. A comprehensive- management- system grant funds all or part of a State's comprehensive management system. Construction means the act of building or significantly renovating, altering, or repairing a structure. Acquiring, clearing, and reshaping land and demolishing structures are types or phases of construction. Examples of structures are buildings, roads, parking lots, utility lines, fences, piers, wells, pump stations, ditches, dams, dikes, water - control structures, fish - hatchery raceways, and shooting ranges. Director means: (1) "I' he person whom the Secresla rt , (i) Appointed as the chief ex €aquatic official of the U.S. Fish and Wildlife Service, and (ii) Delegated authority to administer the Acts nationally; or (2) A deputy or another person authorized temporarily to administer the Acts nationally. Diversion means any use of revenue from hunting and fishing licenses for a purpose other than administration of the Staw Bala and wilcilife agency. Parse interest nioans the right to possession, use, and enjoyment of a parcel of land or water for an indefinite period. A fee interest, as used in this part, may be the: (1) Fee simple, which includes all possible interests or rights that a person can hold in a parcel of land or water; or (2) Fee with exceptions to title, which excludes one or more real property interests that would otherwise be part of the fee simple. Grant means an award of money, the principal purpose of which is to transfer funds or property from a Federal agency to a grantee to support or stimulate an authorized public purpose under the Acts. This part uses the term grant for both a grant and a cooperative agreement for convenience of reference. This use does not affect the legal distinction between the two instruments. The meaning of grant in the terms grant funds, grant- funded, under a grant, and under the grant includes the matching cash and any matching in -kind contributions in addition to the Federal award of money. Grantee means the State fish and wildlife agency that applies for the grant and carries out grant - funded activities in programs authorized by the Acts. The State fish and wildlife agency acts on behalf of the State government, which is the legal entity and is accountable for the use of Federal funds, matching funds, and matching in -kind contributions. Lease means an agreement in which the owner of a fee interest transfers to a lessee the right of exclusive possession and use of an area of land or water for a fixed period, which may be renewable. The lessor cannot readily revoke the lease at his or her discretion. The lessee pays rent periodically or as a single payment. The lessor must be able to regain possession of the lessee's interest (leasehold interest) at the end of the lease term. An agreement that does not correspond to this definition is not a lease even if it is labeled as one. Match means the value of any non - Federal in -kind contributions and the portion of the costs of a grant - funded project or projects not borne by the Federal Government. Personal property means anything tangible or intangible that is not real property. (1) Tangible personal property includes: (i) Objects, such as equipment and supplies, that are moveable without substantive damage to the land or any structure to which they may be attached; (ii) Soil, rock, gravel, minerals, gas, oil, or water after excavation or extraction from the surface or subsurface; (iii) Commodities derived from trees or other vegetation after harvest or separation from the land; and (iv) Annual crops before or after harvest. (2) Intangible personal property includes: (i) Intellectual property, such as patents or copyrights; (ii) Securities, such as bonds and interest - bearing accounts; and (iii) Licenses, which are personal privileges to use an area of land or water with at least one of the following attributes: (A) Are revocable at the landowner's discretion; (B) Terminate when the landowner dies or the area of land or water passes to another owner; or (C) Do not transfer a right of exclusive use and possession of an area of land or water. Project means one or more related undertakings in a project -by- project grant that are necessary to fulfill a need or needs, as defined by a State fish and wildlife agency, consistent with the purposes of the appropriate Act. For convenience of reference in this part, the meaning of project includes an agency's fish and wildlife program under a comprehensive management system grant. Project -by- project grant means an award of money based on a detailed statement of a project or projects and other supporltrag clo attnnxnlation. Real properly aaaeaaata one. several, or all interests, benefits, and rights inherent in the ownership of a parcel of land or water. Examples of real property include fee and leasehold interests, conservation easements, and mineral rights. (1) A parcel includes (unless limited by its legal description) the air space above the parcel, the ground below it, and anything physically and firmly attached to it by a natural process or human action, Examples include standing timber, other vegetation (except annual crops), buildings, roads, fences, and other structures. (2) A parcel may also have rights attached to it by a legally prescribed procedure. Examples include water rights or an access easement that allows the parcel's owner to travel across an adjacent paarcul. (3) Tke logatl classification of an interest, benefit, or right depends on its attributes rather than the name assigned to it. For example, a grazing "lease" is often a type of personal property known as a license, which is described in the definition of personal property in this section. Regional Director means the person appointed by the Director to be the chief executive official of one of the Service's geographic Regions, or a deputy or another person temporarily authorized to exercise the authority of the chief executive official of one of the Service's geographic Regions. This person's responsibility does not extend to any administrative units that the Service's Washington Office supervises directly in that geogrsapltic Region. Secrvtair means the person appointed by the President to direct the operation of the Department of the Interior, or a deputy or another person who is temporarily authorized to direct the operation of (lie Department. Servivca means the U.S. Fish and Wildlife Service. Sport fish means aquatic, gill - breathing, vertebrate animals with paired fins, having material value for recreation in the marine and fresh waters of the United States. State means any State of the United States, the Commonwealths of Puerto Rico and the Northern Mariana Islands, and the territories of Guam, the U.S. Virgin Islands, and American Samoa. State also includes the District of Columbia for purposes of the Dingell - Johnson Sport Fish Restoration Act, the Federal Regis ter/Vol. 76, No. 147/Monday, August 1, 2011/Rules an Regula tions 46159 Sport Fish Restoration program, and its subprograms. State does not include the District of Columbia for purposes of the Pittman - Robertson Wildlife Restoration Act and the programs and subprogram under the Act because the Pittman - Robertson Wildlife Restoration Act does not authorize funding for the District. References to "the 50 States" apply only to the 50 States of the United States and do not include the Commonwealths of Puerto Rico and the Northern Mariana Islands, the District of Columbia, or the territories of Guam, the U.S. Virgin Islands, and American Samoa. State fish and wildlife agency means the administrative unit designated by State law or regulation to carry out State laws for management of fish and wildlife resources. If an agency has other jurisdictional responsibilities, the agency is considered the State fish and wildlife agency only when exercising responsibilities specific to management of the State's fish and wildlife resources. Subaccount means a record of financial transactions for groups of similar activities based on programs and subprograms. Each group has a unique number. Different subaccounts also distinguish between benefits to marine or freshwater fisheries in the programs and subprograms authorized by the Dingell- Johnson Sport Fish Restoration Act. Useful life means the period during which a federally funded capital improvement is capable of fulfilling its intended purpose with adequate routine maintenance. Wildlife means the indigenous or naturalized species of birds or mammals that are either: (1) Wild and free - ranging; (2) Held in a captive breeding program established to reintroduce individuals of a depleted indigenous species into previously occupied range; or (3) Under the jurisdiction of a State fish and wildlife agency. .... . .......... 80.10 Who is eligible to receive the benefits of the Acts? States acting through their fish and wildlife agencies are eligible for benefits of the Acts only if they pass and maintain legislation that: (a) Assents to the provisions of the Acts; (b) Ensures the conservation of fish and wildlife; and (c) Requires that revenue from hunting and fishing licenses be: (1) Controlled only by the State fish and wildlife agency; and (2) Used only for administration of the State fish and wildlife agency, which includes only the functions required to manage the agency and the fish- and wildlife- related resources for which the agency has authority under State law. §80.11 How does a State become ineligible to receive the benefits of the Acts? A State becomes ineligible to receive the benefits of the Acts if it: (a) Fails materially to comply with any law, regulation, or term of a grant as it relates to acceptance and use of funds under the Acts; (b) Does not have legislation required at § 80.10 or passes legislation contrary to the Acts; or (c) Diverts hunting and fishing license revenue from: (1) The control of the State fish and wildlife agency; or (2) Purposes other than the agency's administration. 80.20 What does revenue from hunting and fishing licenses include? Hunting and fishing license revenue includes: (a) All proceeds from State - issued general or special hunting and fishing licenses, permits, stamps, tags, access and use fees, and other State charges to hunt or fish for recreational purposes. Revenue from licenses sold by vendors is net income to the State after deducting reasonable sales fees or similar amounts retained by vendors. (b) Real or personal property acquired with license revenue. (c) Income from the sale, lease, or rental of, granting rights to, or a fee for access to real or personal property acquired or constructed with license revenue. (d) Income from the sale, lease, or rental of, granting rights to, or a fee for access to a recreational opportunity, product, or commodity derived from real or personal property acquired, managed, maintained, or produced by using license revenue. (e) Interest, dividends, or other income earned on license revenue. (f) Reimbursements for expenditures originally paid with license revenue. (g) Payments received for services funded by license revenue. §80.21 What if a State diverts license revenue from the control of its fish and wildlife agency? The Director may declare a State to be in diversion if it violates the requirements of § 80.10 by diverting license revenue from the control of its fish and wildlife agency to purposes other than the agency's administration. The State is then ineligible to receive benefits under the relevant Act from the date the Director signs the declaration until the State resolves the diversion. Only the Director may declare a State to be in diversion, and only the Director may rescind the declaration. 80.22 What must a State do to resolve a declaration of diversion? The State must complete the actions in paragraphs (a) through (e) of this section to resolve a declaration of diversion. The State must use a source of funds other than license revenue to fund the replacement of license revenue. (a) If necessary, the State must enact adequate legislative prohibitions to prevent diversions of license revenue. (b) The State fish and wildlife agency must replace all diverted cash derived from license revenue and the interest lost up to the date of repayment. It must enter into State records the receipt of this cash and interest. (c) The agency must receive either the revenue earned from diverted property during the period of diversion or the current market rental rate of any diverted property, whichever is greater, (d) The agency must take one of the following actions to resolve a diversion of real, personal, or intellectual property: (1) Regain management control of the property, which must be in about the same condition as before diversion; (2) Receive replacement property that meets the criteria in paragraph (e) of this section; or (3) Receive a cash amount at least equal to the current market value of the diverted property only if the Director agrees that the actions described in paragraphs (d)(1) and (d)(2) of this section are impractical. (e) To be acceptable under paragraph (d)(2) of this section: (1) Replacement property must have both: (i) Market value that at least equals the current market value of the diverted property; and (ii) Fish or wildlife benefits that at least equal those of the property diverted. 46160 Federal Register/Vol. 76, No. 147/Monday, August 1, 2011/Rules and Regulations (2) The Director must agree that the replacement property meets the requirements of paragraph (e)(1) of this section. §80.23 Does a declaration of diversion affect a previous Federal obligation of funds? No. Federal funds obligated before the date that the Director declares a diversion remain available for expenditure without regard to the intervening period of the State's ineligibility. See § 80.91 for when a Federal obligation occurs. holders by responding to the Director's calarta,ra:al request for the following information: (1) The number of people who have paid lac eases In Murat ill barb :state during t1le Slate'- specifier) corlificatia:ata period (ca rtalic:aalic?aa period); and (2) i'lle number of people who laravve faraid licenses to fish in the State during the € ;ertificatiou period, (b) TIae agency direc:loor or his or her designee: (1) Must certify the information at paragraph (a) of this section in the format that the Director specifics; (2) Must provido dtar;aaaaaetitation to support the accuracy of this information at the Director's request; (3) Is responsible for eliminating multiple counting of the same individuals in the information that he or she certifies; and (4) May use statistical sampling, automated record consolidation, or other techniques approved by the Director for this purpose. (c) If an agency director uses statistical sampling to eliminate multiple counting of the same individuals, he or she must ensure that the sampling is complete by the earlier of the following: (1) )wive years after the last statistical sample; or (2) Before completing the first certification following any change in the licensing system that could affect the number of license holders. Subpart D— Certification of License Holders §80.30 Why must an agency certify the number of paid license holders? A State fish and wildlife agency must certify the number of people having paid licenses to hunt and paid licenses to fish because the Service uses these data in statutory formulas to apportion funds in the Wildlife Restoration and Sport f1sli Restoration programs among the States, §80.31 How does an agency certify the number of paid license holders? (a) A State fish and wildlife agency certifies the number of paid license §80.32 What is the certification period? A certification period must: (a) Be 12 consecutive months; (b) Correspond to the State's fiscal year or license year; (c) Be consistent from year to year unless the Director approves a change; and (d) End at least 1 year and no more than 2 years before the beginning of the Federal fiscal year in which the apportioned funds first become available for expenditure. 80.33 How does an agency decide who to count as paid license holders in the annual certification? (a) A State fish and wildlife agency must count only those people who have a license issued: (1) In the license holder's name; or (2) With a unique identifier that is traceable to the license holder, who must be verifiable in State records. (b) An agency must follow the rules in this table in deciding how to count license holders in the annual certification: Type of license holder How to count each license holder (1) A person who has either a paid hunting license or a paid Once. sportfishing license even if the person is not required to have a paid license or Is unable to hunt or fish. (2) A person who has more than one paid hunting license because the Once. person either voluntarily obtained them or was required to have more than one license. (3) A person who has more than one paid sportfishing license because Once. the person either voluntarily obtained them or was required to have more than one license. (4) A person who has a paid single -year hunting license or a paid sin- Once in the certification period in which the license first becomes valid. gle -year sporlfishing license for which the agency receives at least $1 of net revenue (Single -year licenses are valid for any length of time less than 2 years.) (5) A person who has a paid multiyear hunting license or a paid Once in each certification period in which the license is valid, multiyear sportfishing license for which the agency receives at least $1 of net revenue for each year in which the license is valid. (Multiyear licenses must also meal the requirements at § 80.35.) (6) A person holding a paid single -year combination license permitting Twice in the first certification period in which the license is valid: once both hunting and sportfishing for which the agency receives at least as a person who has a paid hunting license, and once as a person $2 of net revenue who has a paid sportfishing license. (7) A person holding a paid mulliyear combination license permilting Twice in each certification period in which the license is valid; once as both hunting and sportfishing for which the agency receives at least s a person who has a paid hunting license, and once as a person who $2 of net revenue for each year in which the license is valid. has a paid sportfishing license. (Multiyear licenses must also meet the requirements in §80.35.) (8) A person who has a license that allows the license holder only to Cannot be counted. trap animals or only to engage in commercial fishing or other com- mercial activities. §80.34 How does an agency calculate net costs of issuing the license from the and the costs of printing and revenue from a license? revenue generated by the license. distribution. The State fish and wildlife agency Examples of costs of issuing licenses are must calculate net revenue from a vendors' fees, automated license- system license by subtracting the per - license costs, licensing -unit personnel costs, F R eg i ste r / Vol. 76, No. 147 / Monday, August 1, 2011 / Rules and Regulations 46161 §80.35 What additional requirements apply to multiyear licenses? The following additional requirements apply to multiyear licenses: (a) A multiyear license may be valid for either a specific or indeterminate number of years, but it must be valid for at least 2 years. (b) The agency must receive net revenue from a multiyear license that is in close approximation to the net revenue received for a single -year license providing similar privileges: (1) Each year during the license period; or (2) At the time of sale as if it were a single- payment annuity, which is an investment of the license fee that results in the agency receiving at least the minimum required net revenue for each year of the license period. (c) An agency may spend a multiyear license fee as soon as the agency receives it as long as the fee provides the minimum required net revenue for the license period. (d) The agency must count only the licenses that meet the minimum required net revenue for the license period based on: (1) The duration of the license in the case of a multiyear license with a specified ending date; or (2) Whether the license holder remains alive. (e) The agency must obtain the Director's approval of its proposed technique to decide how many multiyear - license holders remain alive in the certification period. Some examples of techniques are statistical sampling, life - expectancy tables, and mortality tables. §80.36 Mayan agency count license holders in the annual certification if the agency receives funds from the State to cover their license fees? If a State fish and wildlife agency receives funds from the State to cover fees for some license holders, the agency may count those license holders in the annual certification only under the following conditions: (a) The State funds to cover license fees must come from a source other than hunting- and fishing- license revenue. (b) The State must identify funds to cover license fees separately from other funds provided to the agency. (c) The agency must receive at least the average amount of State - provided discretionary funds that it received for the administration of the State's fish and wildlife agency during the State's five previous fiscal years. (1) State - provided discretionary funds are those from the State's general fund that the State may increase or decrease if it chooses to do so. (2) Some State - provided funds are from special taxes, trust funds, gifts, bequests, or other sources specifically dedicated to the support of the State fish and wildlife agency. These funds typically fluctuate annually due to interest rates, sales, or other factors. They are not discretionary funds for purposes of this part as long as the State does not take any action to reduce the amount available to its fish and wildlife agency, (d) The agency must receive State funds that are at least equal to the fees charged for the single -year license providing similar privileges. If the State does not have a single -year license providing similar privileges, the Director must approve the fee paid by the State for those license holders. (e) The agency must receive and account for the State funds as license revenue. (f) The agency must issue licenses in the license holder's name or by using a unique identifier that is traceable to the license holder, who must be verifiable in State records. (g) The license fees must meet all other requirements of 50 CFR 80. §80.37 What must an agency do if it becomes aware of errors in its certified license data? A State fish and wildlife agency must submit revised certified data on paid license holders within 90 days after it becomes aware of errors in its certified data. The State may become ineligible to participate in the benefits of the relevant Act if it becomes aware of errors in its certified data and does not resubmit accurate certified data within 90 days. §80.38 May the Service recalculate an apportionment if an agency submits revised data? The Service may recalculate an apportionment of funds based on revised certified license data under the following conditions: (a) If the Service receives revised certified data for a pending apportionment before the Director approves the final apportionment, the Service may recalculate the pending apportionment. (b) If the Service receives revised certified data for an apportionment after the Director has approved the final version of that apportionment, the Service may recalculate the final apportionment only if it would not reduce funds to other State fish and wildlife agencies. §80.39 May the Director correct a Service error in apportioning funds? Yes. The Director may correct any error that the Service makes in apportioning funds. ... ., . 80.50 What activities are eligible for funding under the Pittman- Robertson Wildlife Restoration Act? The following activities are eligible for funding under the Pittman - Robertson Wildlife Restoration Act: (a) Wildlife Restoration program. (1) Restore and manage wildlife for the benefit of the public. (2) Conduct research on the problems of managing wildlife and its habitat if necessary to administer wildlife resources efficiently. (3) Obtain data to guide and direct the regulation of hunting. (4) Acquire real property suitable or capable of being made suitable for: (i) Wildlife habitat; or (ii) Public access for hunting or other wildlife- oriented recreation. (5) Restore, rehabilitate, improve, or manage areas of lands or waters as wildlife habitat. (6) Build structures or acquire equipment, goods, and services to: (i) Restore, rehabilitate, or improve lands or waters as wildlife habitat; or (ii) Provide public access for hunting or other wildlife - oriented recreation. (7) Operate or maintain: (i) Projects that the State fish and wildlife agency completed under the Pittman - Robertson Wildlife Restoration Act; or (ii) Facilities that the agency acquired or constructed with funds other than those authorized under the Pittman - Robertson Wildlife Restoration Act if these facilities are necessary to carry out activities authorized by the Pittman - Robertson Wildlife Restoration Act. (8) Coordinate grants in the Wildlife Restoration program and related programs and subprograms. (b) Wildlife Restoration —Basic Hunter Education and Safety subprogram. (1) Teach the skills, knowledge, and attitudes necessary to be a responsible hunter. (2) Construct, operate, or maintain firearm and archery ranges for public use. (c) Enhanced Hunter Education and Safety program. (1) Enhance programs for hunter education, hunter development, and firearm and archery safety. Hunter - development programs introduce individuals to and recruit them to take part in hunting, bow hunting, target shooting, or archery. 4616 Fe deral Regis 76, No. 147/Monday August 1, 2011 and Regulations (2) Enhance interstate coordination of hunter - education and firearm- and archery -range programs. (3) Enhance programs for education, safety, or development of bow hunters, archers, and shooters. (4) Enhance construction and development of firearm and archery ranges. (5) Update safety features of firearm and archery ranges. §80.51 What activities are eligible for funding under the Dingell- Johnson Sport Fish Restoration Act? The following activities are eligible for funding under the Dingell- Johnson Sport Fish Restoration Act: (a) Sport Fish Restoration program. (1) Restore and manage sport fish for the benefit of the public. (2) Conduct research on the problems of managing fish and their habitat and the problems of fish culture if necessary to administer sport fish resources efficiently. (3) Obtain data to guide and direct the regulation of fishing. These data may be on: (i) Size and geographic range of sport fish populations; (ii) Changes in sport fish populations due to fishing, other human activities, or natural causes; and (iii) Effects of any measures or regulations applied. (4) Develop and adopt plans to restock sport fish and forage fish in the natural areas or districts covered by the plans; and obtain data to develop, carry out, and test the effectiveness of the plans. (5) Stock fish for recreational purposes. (6) Acquire real property suitable or capable of being made suitable for: (i) Sport fish habitat or as a buffer to protect that habitat; or (ii) Public access for sport fishing. Closures to sport fishing must be based on the recommendations of the State fish and wildlife agency for fish and wildlife management purposes. (7) Restore, rehabilitate, improve, or manage: (i) Aquatic areas adaptable for sport fish habitat; or (ii) Land adaptable as a buffer to protect sport fish habitat. (8) Build structures or acquire equipment, goods, and services to: (i) Restore, rehabilitate, or improve aquatic habitat for sport fish, or land as a buffer to protect aquatic habitat for sport fish; or (ii) Provide public access for sport fishing. (9) Construct, renovate, operate, or maintain pumpout and dump stations. A pumpout station is a facility that pumps or receives sewage from a type III marine sanitation device that the U.S. Coast Guard requires on some vessels. A dump station, also referred to as a "waste reception facility," is specifically designed to receive waste from ortaatrle toilets on vessels. (10 p i 1)crate or maintain: (i) Projects that the State fish and wildlife agency completed under the Dingell- Johnson Sport Fish Restoration Act; or (ii) Facilities that the agency acquired or constructed with funds other than those authorized by the Dingell - Johnson Sport Fish Restoration Act if these facilities are necessary to carry out activities atutborized by the Act. (11) Coordinale grains in the Sport Fish Restoration program and related programs and subpro;ortaraas. (b) Sport Fish Restorral ion — Recreational Boating Access subprogram. (1) Acquire land for new facilities, build new facilities, or acquire, renovate, or improve existing facilities to create or improve public access to the waters of the United States or improve the suitability of these waters for recreational boating. A broad range of access facilities and associated amenities can qualify for funding, but they must provide benefits to recreational boaters. "Facilities" includes auxiliary structures necessary to ensure safe use of recreational boating access facilities. (2) Conduct surveys to determine the adequacy, number, location, and quality of facilities providing access to recreational waters for all sizes of recreational boats. (c) Sport Fish Restoration— Aquatic Resource Education subprogram. Enhance the public's understanding of water resources, aquatic life forms, and sport fishing, and develop responsible attitudes and ethics toward the aquatic environment. (d) Sport Fish Restoration — Outreach and Communications subprogram. (1) Improve communicaatioars with anglers, boaters, and the general public on sport fishing and boating opportunities. 2) Increase participation in sport fishing and boating. (3) Advance the adoption of sound fishing and boating practices including safety. (4) Promote conservation and responsible use of the aquatic resources of the United States. §80.52 Mayan activity be eligible for funding if it is not explicitly eligible in this part? An activity may be eligible for funding even if this part does not explicitly designate it as an eligible activity if: (a) The State fish and wildlife agency justifies in the project statement how the activity will help carry out the purposes of the Pittman - Robertson Wildlife Restoration Act or the Dingell - Johnson Sport. Fish Restoration Act; and (b) The Regional DirecAor concurs with the justification. § 80.53 Are costs of State central services eligible for funding? Administrative costs in the form of overhead or indirect costs for State central services outside of the State fish and wildlife agency are eligible for funding under the Acts and must follow an approved cost allocation plan. These expenses must not exceed 3 percent of the funds apportioned annually to the State under the Acts. §80.54 What activities are ineligible for funding? The following activities are ineligible for funding under the Acts, except when necessary to carry out project purposes approved by the Regional Director: (a) Law enforcement activities. (b) Public relations activities to promote the State fish and wildlife agency, other State administrative units, or the State. (c) Activities conducted for the primary purpose of producing income. (d) Activities, projects, or profr,arns that promote or encourage opposition to the regulated taking of fish, hunting, or the trapping of wildlife. 80.55 Mayan agency receive a grant to carry out part of a larger project? A State fish and wildlife agency may receive a grant to carry out part of a larger project that uses funds unrelated to the grant. The grant - funded part of the larger project mast. (a) Result in an identifiable outcome consistent with the purposes of the grant program; (b) Be substantial in character and design; (c) Meet the requirements of §§ 80.130 through 80.136 for any real property acquired under the grant and any capital improvements completed under the grant; and (d) Meet all other requirements of the grant program. 80.56 How does a proposed project qualify as substantial in character and design? A proposed project qualifies as substantial in character and design if it: (a) Describes a need consistent with the Acts; (b) States a purpose and sets objectives, both of which are based on the need; Federal Register 7 6, N o. 147 /Mo n day, August 1, 2011/Rules and Regulations 46163 (c) Uses a planned approach, appropriate procedures, and accepted principles of fish and wildlife conservation and management, research, or education; and (d) Is cost effective. Subpart F— Allocation of Funds by an Agency §80.60 What is the relationship between the Basic Hunter Education and Safety subprogram and the Enhanced Hunter Education and Safety program? The relationship between the Basic Hunter Education and Safety subprogram (Basic Hunter Education) and the Enhanced Hunter Education and Safety program (Enhanced Hunter Education) is as follows: Basic Hunter Education funds I Enhanced Hunter Education funds Those listed at §80.50(a) and (b) ................... (a) Which activities are eligible for funding? .... (b) How long are funds available for obligation? (c) What if funds are not fully obligated during the period of availability? (d) What if funds are fully obligated during the period of availability? Two Federal fiscal years ... ............................... The Service may use unobligated funds to carry out the Migratory Bird Conservation Act (16 U.S.C. 715 et seq.). If Basic Hunter Education funds are fully obli- gated for activities listed at 80.50(b), the agency may use that fiscal year's En- hanced Hunter Education funds for eligible activities related to Basic Hunter Education, Enhanced Hunter Education, or the Wildlife Restoration program. §80.61 What requirements apply to funds for the Recreational Boating Access subprogram? The requirements of this section apply to allocating and obligating funds for the Recreational Boating Access sub rogram. (a} A State fish and wildlife agency must allocate funds from each annual apportionment under the Dingell - Johnson Sport Fish Restoration Act for use in the subprogram. (b) Over cacti 5 -year period, the total allocation for the subprogram in each of the Service's geographic regions must average at least 15 percent of the Sport Fish Restoration funds apportioned to the States in that Region. As long as this requirement is met, an individual State agency may allocate more or less than 15 percent of its annual apportionment in a single Federal fiscal year with the Re icnal'I)irector's appeo���a�rl. (c j 1'Ite Regional Director calculates Regional allocation averages for separate 5 -year periods that coincide with Federal fiscal years 2008 -2012, 2013- 2017, 2018 -2022, and each subsequent 5 -year period. (d) I the total Regional allocation for a 5 -year period is less than 15 percent, the State agencies may, in a memorandum of understanding, agree among themselves which of them will make the additional allocations to eliminate the Rergionarl shortfall. (e) T his paragt °aph applies if State fish and wildlife agencies do not agree on which of them will make additional allocations to bring the average Regional allocation to at least 15 percent over a 5 -year period. If the agencies do not agree: (1) The Regional Director may require States in the Region to make changes needed to achieve the minimum 15- percent Regional average before the end of the fifth year; and (2) The Regional Director must not require a State to increase or decrease its allocation if the State has allocated at least 15 percent over the 5 -year period. (f) A Federal obligation of these allocated funds must occur by the end of the fourth consecutive Federal fiscal year after the Federal fiscal year in which the funds first became available for allocation. (g) If the agency's application to use these funds has not led to a Federal obligation by that time, these allocated funds become available for reapportionment among the State fish and wildlife agencies for the following fiscal year. Those listed at 80.50(c), but see 80.60(d) under Basic Hunter Education funds. One Federal fiscal year. The Service reapportions unobligated funds to eligible States as Wildlife Restoration funds for the following fiscal year. States are eligi- ble to receive funds only if their Basic Hun- ter Education funds were fully obligated in the preceding fiscal year for activities at § 80.50(b). No special provisions apply. Fund for activities in both subprograms. The 15- percent maximum applies to both subprograms as if they were one. (b) The 15- percent maximum for the subprograms does not apply to the Commonwealths of Puerto Rico and the Northern Mariana Islands, the District of Columbia, and the territories of Guam, the U.S. Virgin Islands, and American Samoa. These jurisdictions may spend more than 15 percent of their annual apportionments for both subprograms with the approval of the Regional Director. §80.63 Does an agency have to allocate costs in multipurpose projects and facilities? Yes. A State fish and wildlife agency must allocate costs in multipurpose projects and facilities. A grant - funded project or facility is multipurpose if it carries out the purposes of: (a) A single grant program under the Acts; and (b) Another grant program under the Acts, a grant program not under the Acts, or an activity unrelated to grants. §80.64 How does an agency allocate costs in multipurpose projects and facilities? A State fish and wildlife agency must allocate costs in multipurpose projects based on the uses or benefits for each purpose that will result from the completed project or facility. The agency must describe the method used to allocate costs in multipurpose projects or facilities in the project 46 1 6 4 Federal Re 76, No. 147/Monday, August 1, 2011/Rules and Regulations statement included in the grant application. 80.65 Does an agency have to allocate funds between marine and freshwater fisheries projects? Yes. Each coastal State's fish and wildlife agency must equitably allocate the funds apportioned under the Dingell - Johnson Sport Fish Restoration Act between projects with benefits for marine fisheries and projects with benefits for freshwater fisheries. (a) The subprograms authorized by the Dingell - Johnson Sport Fish Restoration Act do not have to allocate funding in the same manner as long as the State fish and wildlife agency equitably allocates Dingell- Johnson Sport Fish Restoration funds as a whole between marine and freshwater fisheries. (b) The coastal States for purposes of this allocation are: (1) Alabama, Alaska, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Louisiana, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Oregon, Rhode Island, South Carolina, Texas, Virginia, and Washington; (2) The Commonwealths of Puerto Rico and the Northern Mariana Islands; and (3) The territories of Guam, the U.S. Virgin Islands, and American Samoa. 80.66 What requirements apply to allocation of funds between marine and freshwater fisheries projects? The requirements of this section apply to allocation of funds between marine and freshwater fisborlos projects. (a) When a State fish and wildllife agency allocates and obligates funds it must meet the following requirements: (1) The ratio of total funds obligated for marine fisheries projects to total funds obligated for marine and freshwater fisheries projects combined must equal the ratio of resident marine anglers to the total number of resident anglers in the State; and (2) The raatlo of total funds obligated for freshwater fisheries projects to total funds obligated for marine and freshwater fisheries projects combined must equal the ratio of resident freshwater anglers to the total number of resident anglers in the State. (b) A resident angler is one who fishes for recreational purposes in the same State where he or she maintains legal resi (c) Agencies must determine the relative distribution of resident anglers in the State between those that fish in marine environments and those that fish in freshwater environments. Agencies must use the National Survey of Fishing, Hunting, and Wildlife - associated Recreation or another statistically reliable survey or technique approved by the Regional Director for this purpose. (d) If an agency uses statistical sampling to determine the relative distribution of resident anglers in the State between those that fish in marine environments and those that fish in freshwater environments, the sampling must be complete by the earlier of the following: (1) Five years after the last statistical sample; or (2) Before completing the first certification following any change in the licensing system that could affect the number of sportfishing license holders. (e) The amounts allocated from each year's apportionment do not necessarily have to result in an equitable allocation for each year. However, the amounts allocated over a variable period, not to exceed 3 years, must result in an equitable allocation between marine and freshwater fisheries projects. (f) Agencies that fail to allocate funds equitably between marine and freshwater fisheries projects may become ineligible to use Sport Fish Restoration program funds. These agencies must remain ineligible until they demonstrate to the Director that they have allocated the funds equitably. 80.67 Mayan agency finance an activity from more than one annual apportionment? A State fish and wildlife agency may use funds from more than one annual apportionment to finance high -cost projects, such as construction or acquisition of lands or interests in lands, including water rights. An agency may do this in either of the following ways: (a) Finance the entire cost of the acquisition or construction from a non - Federal funding source. The Service will reimburse funds to the agency in succeeding apportionment years according to a plan approved by the Regional Director and subject to the availability of funds. (b) Negotiate an installment purchase or contract in which the agency pays periodic and specified amounts to the seller or contractor accord ia'ag to as plan that schedules either roiniburs(nnfants or advances of funds immediately before need. The Service will reimburse or advance funds to the agency according to a plan approved by the Regional Director and subject to the availability of funds. §80.68 What requirements apply to financing an activity from more than one annual apportionment? The following conditions apply to financing an activity from more than one anntaaal apportionment: (a) A State fish and wildlife agency must agree to complete the project even if Federal funds are not available. If an agency does not complete the project, it must recover any expended Federal funds that did not result in commensurate wildlife or sport- fishery benefits. The agency must then reallocate the recovered funds to approved projects in the s €ame nogr$am. (b) The project statement inr: tided with the application must have a complete schedule of payments to finish the project. (c) Interest and other financing costs may be allowable subject to the restrictions in the applicable Federal Cost Principles. m L- ��. �. c §80.80 How does an agency apply for a grant? (a) Ata aagd,ncy applies for as grant by sending thaF Regional Director. (1) t: ornplc ltA slaaadat'd forms that are: (i) Approved by the Office of Management and Budget for the grant application process; and (ii) Available on the Federal Web site for electronic grant applications at http: / /tt nand (2) Informaat u ii required for a comprehensive-management-system grant or a project-by project grant. (b) The director cif the State fish and wildlife agency or his or her designee must sign all standard forms submitted in the application process. (c) Tlie agency must send copies of all standard forms and supporting information to the State Clearinghouse or Single Point of Contact before sending it to the Regional Director if the State supports this process under Executive Order 12372, Intergovernmental Review of Federal Programs. §80.81 What must an agency submit when applying for a comprehensive- management- system grant? A State fish and wildlife agency must submit: the following documents when applying for a comprehensive- M, grant: (a) The standard form for an application for Federal assistance in a mandatory grant prograam. (b) ,],he staandard forms for assurances for nonconstruction programs and construction programs as applicable, Agencies may submit these standard forms for assurances annually to the Federal Register/Vol. 76, No. 147/Monday, August 1, 201 1/Rules and Regulations 46165 Regional Director for use with all applications for Federal assistance in the programs and subprograms under the Acts. (c) A statement of cost estimates by subaccount. Agencies may obtain the subaccount numbers from the Service's Regional Division of Wildlife and Sport Fish Restoration. (d) Supporting documentation explaining how the proposed work complies with the Acts, the provisions of this part, and other applicable laws and regulations. (e) A statement of the agency's intent to carry out and fund part or all of its comprehensive management system through a grant. (f) A description of the agency's comprehensive management system including inventory, strategic plan, operational plan, and evaluation. "Inventory" refers to the process or processes that an agency uses to: (1) Determine actual, projected, and desired resource and asset status; and (2) Identify management problems, issues, needs, and opportunities. (g) A description of the State fish and wildlife agency program covered by the comprehensive management system. (h) Contact information for the State fish and wildlife agency employee who is directly responsible for the integrity and operation of the comprehensive management system. (i) A description of how the public can take part in decisionmaking for the comprehensive management system. 80.82 What must an agency submit when applying for a project -by- project grant? A State fish and wildlife agency must submit the following documents when applying for a project -by- project grant: (a) The standard form for an application for Federal assistance in a mandatory grant program. (b) The standard forms for assurances for nonconstruction programs and construction programs as applicable. Agencies may submit these standard forms for assurances annually to the Regional Director for use with all applications for Federal assistance in the programs and subprograms under the Acts. (c) A project statement that describes each proposed project and provides the following information: (1) Need. Explain why the project is necessary and how it fulfills the purposes of the relevant Act. (2) Purpose and Objectives. State the purpose and objectives, and base them on the need. The purpose states the desired outcome of the proposed project in general or abstract terms. The objectives state the desired outcome of the proposed project in terms that are specific and quantified. (3) Results or benefits expected. (4) Approach. Describe the methods used to achieve the stated objectives. (5) Useful life. Propose a useful life for each capital improvement, and reference the method used to determine the useful life of a capital improvement with a value greater than $100,000. (6) Geographic location. (7) Principal investigator for research projects. Record the principal investigator's name, work address, and work telephone number. (8) Program income. (i) Estimate the amount of program income that the project is likely to generate. (ii) Indicate the method or combination of methods (deduction, addition, or matching) of applying program income to Federal and non - Federal outlays. (iii) Request the Regional Director's approval for the matching method. Describe how the agency proposes to use the program income and the expected results. Describe the essential need for using program income as match. (iv) Indicate whether the agency wants to treat program income that it earns after the grant period as license revenue or additional funding for purposes consistent with the grant or program. (v) Indicate whether the agency wants to treat program income that the subgrantee earns as license revenue, additional funding for the purposes consistent with the grant or subprogram, or income subject only to the terms of the subgrant agreement. (9) Budget narrative. Provide costs by project and subaccount with additional information sufficient to show that the project is cost effective. Agencies may obtain the subaccount numbers from the Service's Regional Division of Wildlife and Sport Fish Restoration. Describe any item that requires the Service's approval and estimate its cost. Examples are preaward costs and capital expenditures for land, buildings, and equipment. Include a schedule of payments to finish the project if an agency proposes to use funds from two or more annual apportionments. (10) Multipurpose projects. Describe the method for allocating costs in multipurpose projects and facilities as described in §§ 80.63 and 80.64. (11) Relationship with other grants. Describe any relationship between this project and other work funded by Federal grants that is planned, anticipated, or underway. (12) Timeline. Describe significant milestones in completing the project and any accomplislurrr nts to date. (13) General. Prop +isle information in the project statement that: (i) Shows that the proposed activities are eligible for funding and substantial in charact or and design; and (ii) Enables the Service to comply with the applicable requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 and 4331 - 4347), the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), the National Historic Preservation Act (16 U.S.C. 470x), and other laws, regulations, and policies. §80.83 What is the Federal share of allowable costs? (a) The Regional Director must provide at least 10 percent and no more than 75 percent of the allowable costs of a grant - funded project to the fish and wildlife agencies of the 50 States. The Regional Director generally approves any Federal share from 10 to 75 percent as proposed by one of the 50 States if the: (1) Funds are available; and (2) Application is complete and consistent with laws, regulations, and policies. (b) The Regional Director may provide funds to the District of Columbia to pay 75 to 100 percent of the allowable costs of a grant - funded project in a program or subprogram authorized by the Dingell - Johnson Sport Fish Restoration Act. The Regional Director decides on the specific Federal share between 75 and 100 percent based on what he or she decides is fair, just, and equitable. The Regional Director may reduce the Federal share to less than 75 percent of allowable project costs only if the District of Columbia voluntarily provides match to pay the remaining allowable costs. However, the Regional Director must not reduce the Federal share below 10 percent unless he or she follows the procedure at paragraph (d) of this section. (c) The Regional Director may provide funds to pay 75 to 100 percent of the allowable costs of a project funded by a grant to a fish and wildlife agency of the Commonwealths of Puerto Rico and the Northern Mariana Islands and the territories of Guam, the U.S. Virgin Islands, and American Samoa. The Regional Director decides on the specific Federal share between 75 and 100 percent based on what he or she decides is fair, just, and equitable. The Regional Director may reduce the Federal share to less than 75 percent of allowable project costs only if the Commonwealth or territorial fish and 46166 Federal Register / Vol. 76, No. 147 / M Augu 1, 2011 / Rul and Regulati wildlife agency voluntarily provides match to pay the remaining allowable costs. However, the Regional Director must not reduce the Federal share below 10 percent unless he or she follows the procedure at paragraph (d) of this section. The Federal share of allowable costs for a grant - funded project for the Commonwealth of the Northern Mariana Islands and the territories of Guam, the U.S. Virgin Islands, and American Samoa may be affected by the waiver process described at § 80.84(c). (d) The Regional Director may waive the 10- percent minimum Federal share of allowable costs if the State, District of Columbia, Commonwealth, or territory requests a waiver and provides compelling reasons to justify why it is necessary for the Federal government to fund less than 10 percent of the allowable costs of a project. §80.84 How does the Service establish the non - Federal share of allowable costs? (a) To establish the non - Federal share of a grant - funded project for the 50 States, the Regional Director approves an application for Federal assistance in which the State fish and wildlife agency proposes the specific non - Federal share by estimating the Federal and match dollars, consistent with § 80.83(a). (b) To establish the non - Federal share of a grant - funded project for the District of Columbia and the Commonwealth of Puerto Rico, the Regional Director: (1) Decides which percentage is fair, just, and equitable for the Federal share consistent with § 80.83(b) through (d); (2) Subtracts the Federal share percentage from 100 percent to determine the percentage of non - Federal share; and (3) Applies the percentage of non - Federal share to the allowable costs of a grant - funded project to determine the match requirement. (c) To establish the non - Federal share of a grant - funded project for the Commonwealth of the Northern Mariana Islands and the territories of Guam, the U.S. Virgin Islands, and American Samoa, the Regional Director must first calculate a preliminary percentage of non - Federal share in the same manner as described in paragraph (b) of this section. Following 48 U.S.C. 1469a, the Regional Director must then waive the first $200,000 of match to establish the final non - Federal match requirement for a project that includes funding from only one grant program or subprogram. If a project includes funds from more than one grant program or subprogram, the Regional Director must waive the first $200,000 of match applied to the fonds for each program and subprogram. 80.85 What requirements apply to match? The requirements that apply to match include: (a) Match may be in the form of cash or in -kind contributions. (b) Unless authorized by Federal law, the State fish and wildlife agency or any other entity must not: (1) Use as match Federal funds or the value of an in -kind contribution acquired with Federal funds; or (2) Use the cost or value of an in -kind contribution to satisfy a match requirement if the cost or value has been or will be used to satisfy a match requirement of another Federal grant, cooperative agreement, or contract, (c) The agency must fulfill tuatcli requirements at the: (1) Grant level if the grant has funds from a single subaccount; or (2) Subaccount level if the grant has funds from more than one subaccount. Subpart — General Grant Administration §80.90 What are the grantee's responsibilities? A State fish and wildlife agency as a grantee is responsible for all of the actions rcltluired by this section. (a) Compliance with all applicable Federal, State, and local laws and regulations. (b) Supervision to ensure that the work follows the terms of the grant, includ i rag; (1) T'roper and effective use of funds; (2) Maintenance of records; (3) Submission of complete and accurate Federal financial reports and performance reports by the due dates in the terms and conditions of the grant; and (4) Regular inspection and monitoring of ivork in progress, (c) Selection and supervision of personnel to ensure that; (1) Adequate and competent personnel are available to complete the grant - funded work on schedule; and (2) Project personnel meet time schedules, accomplish the proposed work, meet objectives, and submit the required reports. (d) Settlement of all procurement - related contractual and administrative issues. (e) Giving reasonable access to work sites and records by employees and contractual auditors of the Service, the Department of the Interior, and the Comptroller General of the United States. (1) Access is for that purpose of: (i) Monitoring progress, ccanchicting audits, or other reviews of grant - funded projects; and (ii) Monitoring the use of license revenue. (2) Regulations on the uniform administrative requirements for grants awarded by the Department of the Interior describe the records that are subject to Hirst access requiraxs'aients. (3) The closeoul of an award does not affect the grantee's responsibilities described in this section. (f) Control of all assets acquired under the grant to ensure that they serve the purpose for which acquired throughout their useful life. 80.91 What is a Federal obligation of funds and how does it occur? An obligation of funds is a legal liability to disburse funds immediately or at a later date as a result of a series of actions. All of these actions must occur to obligate funds for the formula - based grant programs authorized by the Acts: (a) The Service sends an annual certificate of apportionment to a State fish and wildlife agency, which tells the agency how much funding is available according to forntaalaas in the Acts. (b) The agonc.y3 sends the Regional Director an application for Federal assistance to use the funds available to it under the Acts and commits to provide the required match to carry out projects that are substantial in character and design. (c) The Regional Director notifies the agency that he or she approves the application for Federal assistance and states the terms and conditions of the grant. (d) The agency accepts the terms and conditions of the grant in one of the following ways: (1) Starts work on the grant - funded project by placing an order, entering into a contract, awarding a subgrant, receiving goods or services, or otherwise incurring allowable costs during the grant period that will require payment immediately or in the future; (2) Draws down funds for an allowable activity under the grant; or (3) Sends the Regional Direc.tca;r a letter, fax, or e -mail accepting the terms and conditions of the grant. 80.92 How long are funds available for a Federal obligation? Funds are available for a Federal obligation during the fiscal year for which they are apportioned and until the close of the following fiscal year except for funds in the Enhanced Hunter Education and Safety program and the Recreational Boating Access subprogram. See §§ 80.60 and 80.61 for the length of time that funds are available in this program and subprogram. F ederal Register/Vol. 76, No. 147 A ugust 1, 2 / Rules a nd Regul 4 6167 §60.93 When may an agency incur costs under a grant? A State fish and wildlife agency may incur costs under a grant from the effective date of the grant period to the end of the grant period except for preaward costs that meet the conditions in § 80.94. §80.94 Mayan agency incur costs before the beginning of the grant period? (a) A State fish and wildlife agency may incur costs of a proposed project before the beginning of the grant period (preaward costs). However, the agency has no assurance that it will receive reimbursement until the Regional Director awards a grant that incorporates a project statement demonstrating that the preaward costs conform to all of the conditions in pear #agrapb (b) otitis section. (b) Preaward costs must meet the following requirements: (i ) "rbi costs are necessary and reasonable for accomplishing the grant objectives. (2) The Regional Director would have approved the costs if the State fish and wildlife agency incurred them during the grant period. (3) The agency incurs these costs in anticipation of the grant and in conformity with the negotiation of the award wilt the Regional 1irector. (4) The rat tivitic s associated with the preaward costs comply with all laws, regulations, and policies applicable to a grant-funded project, (5)'l by sags nc:y inirst: (i) Obtain the Re clonal Director's concurrence that the Service will be able to comply with the applicable laws, regulations, and policies before the agency starts work on the ground; and (ii) Provide the Service with all the information it needs with enough lead time for it to comply with the applicable laws, regulations, and policies. (6) "flue, agency must not complete the project before the beginning of the grant period unless the Regional Director concurs that doing so is necessary to Uake advantage of temporary circumstances favorable to the project or to meet legal deadlines. An agency completes a project when it incurs all costs and finishes all work necessary to achieve the project objectives. (c) The agency can receive reimbursement for preaward costs only after the beginning of the grant period. 80.95 How does an agency receive Federal grant funds? (a) A State fish and wildlife agency may receive Federal grant funds through eitlier: (1) A request for reimbursement; or (2) A request for an advance of funds if the agency maintains or demonstrates that it will maintain procedures to minimize time between transfer of funds and disbursement by the agency or its subgrantee. (b) An agency must use the following procedures to receive a reimbursement or an advance of funds: (1) Request funds through an electronic payment system designated by the Regional Director; or (2) Request funds on a standard form for that purpose only if the agency is unable to use the electronic payment system. (c) The Regional Director will reimburse or advance funds only to the office or official designated by the agency and authorized by State law to receive public funds for the State. (d) All payments are subject to final determination of allowability based on audit or a Service review. The State fish and wildlife agency must repay any overpayment as directed by the Regional Director. (e) The Regional Director may withhold payments pending receipt of all required reports or documentation for the project. §60.96 Mayan agency use Federal funds without using match? (a) The State fish and wildlife agency must not draw down any Federal funds for a grant - funded project under the Acts in greater proportion to the use of match than total Federal funds bear to total match unless: (1) The grantee draws down Federal grant funds to pay for construction, including land acquisition; (2) An in -kind contribution of match is not yet available for delivery to the grantee or subgrantee; or (3) The project is not at the point where it can accommodate an in -kind contribution. (b) If an agency draws down Federal funds in greater proportion to the use of match than total Federal funds bear to total match under the conditions described at paragraphs (a)(1) through (a)(3) of this section, the agency must: (1) Obtain the Regional Director's prior approval, and (2) Satisfy the project's match requirement before it submits the final Federal financial report. §80.97 Mayan agency barter goods or services to carry out a grant- funded project? Yes. A State fish and wildlife agency may barter to carry out a grant - funded project. A barter transaction is the exchange of goods or services for other goods or services without the use of cash. Barter transactions are subject to the Cost Principles at 2 CFR part 220, 2 CFR part 225, or 2 CFR part 230. §80.98 How must an agency report barter transactions? (a) A State fish and wildlife agency must follow the requirements in the following table when reporting barter transactions in the Federal financial report: If " Then the agency " (1) The goods or services exchanged have the same market value,. (2) The market value of the goods or services relin- quished exceeds the market value of the goods and services received,. (3) The market value of the goods or services received exceeds the market value of the goods and services relinquished,. (4) The barter transaction was part of a cooperative farm- ing or grazing arrangement meeting the requirements in paragraph (b) of this section,. (i) Does not have to report bartered goods or services as program income or grant expenses in the Federal financial report; and (ii) Must disclose that barter transactions occurred and state what was bartered in the Remarks section of the report. Must report the difference in market value as grant expenses in the Federal financial report. Must report the difference in market value as program income in the Federal finan- cial report. (i) Does not have to report bartered goods or services as program income or grant expenses in the Federal financial report; and (ii) Must disclose that barter transactions occurred and identify what was bartered in the Remarks section of the Federal financial report. 46168 Federal Re gister/Vol. 76, No. 1 47/Monday, August 1, 2 011/Rules and Regulations (b) For purposes of paragraph (a)(4) of this section, cooperative farming or grazing is an arrangement in which an agency: (1) Allows an agricultural producer to farm or graze livestock on land under the agency's control; and (2) Designs the farming or grazing to advance the agency's fish and wildlife management objectives. 80.99 Are symbols available to identify projects? Yes. The following distinctive symbols are available to identify projects funded by the Acts and products on which taxes and duties have been collected to sia aporl [lie Acts: (a) "l`be symbol of the Pallman- Robertson Wildlife Restoration Act follows: §80.100 Does an agency have to display one of the symbols in this part on a completed project? No. A State fish and wildlife agency does not have to display one of the symbols in § 80.99 on a project completed under the Acts. However, the Service encourages agencies to display the appropriate symbol following these requirements or guidelines: (a) An agency aaaay display the appropriate symbol(s) on: (1) Areas such as wildlife - management areas, shooting ranges, and sportfishing and boating - access facilities that were acquired, developed, operated, or maintained with funds ac diorize ltd^ Ilie Acts; and (2) Prinla�t.j or Web -based material or other visual representations of project acs Olul:blidea fonts. (b) An agency may require a subgrantee to display the appropriate symbol or symbols in the places described in paragraph (a) of this section. (c) The Director or Regional Director may authorize an agency to use the symbols in a manner other than as described in paragraph (a) of this section. (d) The Director or Regional Director may authorize other persons, organizations, agencies, or governments to use the symbols for purposes related to the Acts by entering into a written agreement with the user. An applicant must state how it intends to use the symbol(s), to what it will attach the symbol(s), and the relationship to the specific Act. (e) The user of the symbol(s) must indemnify and defend the United States and hold it harmless from any claims, suits, losses, ,bad damages from: (1) Any allege( fly unauthorized use of any patent, process, idea, method, or device by the user in connection with its use of the symbol(s), or any other alleged action of the user; and (2) Any claims, suits, losses, and damages arising from alleged defects in the articles or services associated with the symbol(s). (f) The appearance of the symbol(s) on projects or products indicates that the manufacturer of the product pays excise taxes in support of the respective Act(s), and that the project was funded under the respective Act(s) (26 U.S.C. 4161, 4162, 4181, 4182, 9503, and 9504). The Service and the Department of the Interior make no representation or endorsement whatsoever by the display of the symbol(s) as to the quality, utility, suitability, or safety of any product, service, or project associated with the symbol(s). (g) No one may use any of the symbols in any other manner unless the Director or Regional Director authorizes it. Unauthorized use of the symbol(s) is a violation of 18 U.S.C. 701 and subjects the violator to possible fines and imprisonment. * == §80.120 What is program income? (a) Program income is gross income received by the grantee or subgrantee and earned only as a result of the grant during the grant period. (b) Program income includes revenue from: (1) Services performed under a grant; (2) Use or rental of real or personal property acquired, constructed, or managed with grant funds; (3) Payments by concessioners or contractors under an arrangement with the agency or subgrantee to provide a service in support of grant objectives on real property acquired, constructed, or managed with grant funds; (4) Sale of items produced under a grant; (5) Royalties and license fees for copyrighted material, patents, and inventions developed as a result of a grant; or (6) Sale of a product of mining, drilling, forestry, or agriculture during the period of a grant that supports the: (i) Mining, drilling, forestry, or agriculture; or (ii) Acquisition of the land on which these activities occurred. (c) Program income does not include: (1) Interest on grant funds, rebates, credits, discounts, or refunds; (2) Sales receipts retained by concessioners or contractors under an arrangement with the agency to provide a service in support of grant objectives on real property acquired, constructed, or managed with grant funds; (3) Cash received by the agency or by volunteer instructors to cover incidental costs of a class for hunter or aquatic - resource education; (4) Cooperative farming or grazing arrangements as described at § 80.98; or (5) Proceeds from the sale of real property. §80.121 Mayan agency earn program income? A State fish and wildlife agency may earn income from activities incidental to the grant purposes as long as producing income is not a primary purpose. The agency must account for income received from these activities in the project records and dispose of it according to the terms of the grant. 80.122 Mayan agency deduct the costs of generating program income from gross income? (a) A State fish and wildlife agency may deduct the costs of generating program income from gross income when it calculates program income as long as the agency does not: Federal Register/Vol. 76, No. 147/Monday, August 1, 2011/Rules and Regulations 46169 (1) Pay these costs with: (i) Federal or matching cash under a Federal grant; or (ii) Federal cash unrelated to a grant. (2) Cover these costs by accepting: (i) Matching in -kind contributions for a Federal grant; or (ii) Donations of services, personal property, or real property unrelated to a Federal grant. (b) Examples of costs of generating prognnni incorne Resit aaaay gapaplify fear deduction frcwi gross inconte if llatey are consistent Witip paragtaal:rla (ap) of "Ilais section are: (1) Cost of estimating the amount of commercially acceptable timber in a forest and marking it for harvest if the commercial harvest is incidental to a grant - funded habitat - management or facilities- construction project. (2) Cost of publishing research results as a pamphlet or book for sale if the publication is incidental to a grant - funded research project. §80.123 How may an agency use program income? (a) A State fish and wildlife aalency may choose any of the three methods listed in paragraph (b) of this section for applying program income to Federal and non Federpal outlays. The aayency may also use a combination of these methods. The method or methods that the agency chooses will apply to the program income that it earns during the grant period and to the preag;rani income that any subgrantee earns during the grant period, The agency must indicate the method that it wants to use in the project statement that it submits with each application for Federal assistance. (b) The three methods for applying prol;ra m income to Federal and non - 1 ederal outlays are in the following table: Method Requirements for using the method (1) Deduction ,,,.,.., . The agency must deduct the program income from total allowable costs to determine the net allowable costs. (ii) The agency must use program income for current costs under the grant unless the Regional Director author- izes otherwise. (iii) If the agency does not indicate the method that it wants to use in the project statement, then it must use the deduction method. (2) Addition ........................... (i) The agency may add the program income to the Federal and matching funds under the grant. (ii) The agency roust use the program income for the purposes of the grant and under the terms of the grant. (3) Matching ......................... (i) The agency must request the Regional Director's approval in the project statement. (ii) The agency must explain in the project statement how the agency proposes to use the program income, the expected results, and why it is essential to use program income as match. (iii) The Regional Director may approve the use of the matching method if the requirements of paragraph (c) of this section are met. (c) The Regional Director may approve the pese of the matching method if the proposed ease of the progxaam income would: (1) Be consistent with the intent of the applicable Act or Acts; and (2) Result in at least one of the following: (i) The agency substitutes program income for at least some of the match that it would ollierwise have to provide, and then uses; this saved nuitch for other fish or wildlife - related projects; (ii) Tlie agency substitutes program income for at least some of dies apportioned Federal funds, and then uses the saved Federal funds for additional eligible activities under the program; or (iii) A net benefit to the program. § 80.124 How may an agency use unexpended program income? If a Slate fish and wildlife agency has urge w-nded program income on its final F ederal financial report, it naay use the incoine sander ap subsequent grant for arty activity eligible for ftindiug in the grant program that generated the income. §80.125 How must an agency treat income that it earns after the grant period? (a) The State fish and wildlife agency must treat program income that it earns after the grant period as either: (1) License revenue for the administration of the agency; or (2) Additional funding for purposes consistent with the grant or the program. (b) The agency must indicate its choice of one of the alternatives in paragraph (a) of this section in the project statement that the agency submits with eiacli application for Federal assistance. If the agency does not record its choice in the project statement, the agency must treat the incoaue earned after the grant period as liar =rasa revenue. §80.126 How must an agency treat income earned by a subgrantee after the grant period? (a) The State fish and wildlife agency must treat income earned by a subgrantee after the grant period as: (1) Licenser revenue for the administration of the agency; (2) Additional funding for purposes consistent with the grant or the program; or (3) Income subject only to the terms of the subgrant agreement and any subsequent contractual agreetueuts between the ageency and the subgrantee. (b) The agency must indicate its choice of one of the above alternatives in the project statement that it submits with each application for Federal assistance. If the agency does not indicate its choice in the project statement, the subgrantee does not have to account for any income that it earns after the grant period unless required to do so in the subgrant ag _; eanent or in any subsequent contractual agreement. � = 80.130 Does an agency have to hold title to real property acquired under a grant? A State fish and wi ldlife agency must hold title to an of nerslaip interest in real property acquired under a grant to the extent possible tnadeer State law. (a) Some States do not authorize their fish and wildlife agency to hold the title to real property that the agency manages. In these cases, the State or one Of iIs adminitaraative units may hold the t:itha to grant-funded real property as hang as tlae agency has the Gaul l'etarity to manage the real property for its authorized purpose under the grant. The agency, the State, or another administrative unit of State government must not hold title to an undivided owna:rslailr inlere'st in tlae rerad property concurrently with a subgrante or any other entily. (b) An ownership interest is an interest in real property that gives the person who holds it the right to use and occupy a parcel of land or water and to exclude others. Ownership interests include fee and leasehold intert.sts but not easements. 4617 F R eg i ster/Vol. 76, No. 147/Mo nday, August 1, 2011/Rules and Regulations 80.131 Does an agency have to hold an easement acquired under a grant? A State fish and wildlife agency must hold an easement acquired under a grant, but it may share certain rights or responsibilities as described in paragraph (b) of this section if consistent with State law. (a) Any sharing of rights or responsibilities does not diminish the agency's responsibility to manage the easement for its authorized purpose. (b) The agency may share holding or enforcement of an easement only in the following situations: (1) The State or another administrative unit of State government may hold an easement on behalf of its fish and wildlife agency. (2) The agency may subgrant the concurrent right to hold the easement to a nonprofit organization or to a local or tribal government. A concurrent right to hold an easement means that both the State agency and the subgrantee hold the easement and share its rights and responsibilities. (3) The agency may subgrant a right of enforcement to a nonprofit organization or to a local or tribal government. This right of enforcement may allow the subgrantee to have reasonable access and entry to property protected under the easement for purposes of inspection, monitoring, and enforcement. The subgrantee's right of enforcement must not supersede and must be concurrent with the agency's right of enforcement. §80.132 Does an agency have to control the land or water where it completes capital Improvements? Yes. A State fish and wildlife agency must control the parcel of land and water on which it completes a grant - funded capital improvement. An agency must exercise this control by holding title to a fee or leasehold interest or through another legally binding agreement. Control must be adequate for the protection, maintenance, and use of the improvement for its authorized purpose during its useful life even if the agency did not acquire the parcel with grant funds. 80.133 Does an agency have to maintain acquired or completed capital Improvements? Yes. A State fish and wildlife agency is responsible for maintaining capital improvements acquired or completed under a grant to ensure that each capital improvement continues to serve its authorized purpose during its useful life. §80.134 How must an agency use real property? (a) If a grant funds acquisition of an interest in a parcel of land or water, the State fish and wildlife agency must use it for the purpose authorized in the grant. (b) If a grant funds construction of a capital improvement, the agency must use the capital improvement for the purpose authorized in the grant during the useful life of the capital improvement. The agency must do this even if it did not use grant funds to: (1) Acquire the parcel on which the capital iinprovernent is located; or (2) Build the structure in which the capital inel,woveinent is a con pone�nt. (c) If a grant funds managoTinmi, operation, or maintenance of a parcel of land or water, or a capital improvement, the agency must use it for the purpose authorized in the grant during the grant period. The agency must do this even if it did not acquire the parcel or construct the capital improvement with grant funds. (d) A State agency may allow commercial, recreational, and other secondary uses of a grant - funded parcel of land or water or capital improvement if these secondary uses do not interfere with the authorized purpose of the grant. §80.135 What if an agency allows a use of real property that Interferes with Its authorized purpose? (a) When a State fish and wildlife agency allows a use of real property that interferes with its authorized purpose under a grant, the agency must fully restore the real property to its authorized purpose. (b) if the agesin',-.y cannot fully restore the real property to its authorized purpose, it must replace the real property using non - Federal funds. (c) The agency must determine that the replaceettent property: (1) Is of at least equal value at current market prices; and (2) Has fish, wildlife, and public -use benefits consistent with the purposes of the original graant. (d) The Regional Director may require the agency to obtain an appraisal and appraisal review to estimate the value of the replacement property at current market prices if the agency cannot su ort its assessmu t of value, (e The agency must obtain the Regional Director's approval of: (1) Its determination of the value and benefits of the replacement property; and (2) The documentation supporting this determination. (f) The agency may have a reasonable time, up to 3 years from the date of notification by the Regional Director, to restore the real property to its authorized purpose or acquire replacement property. If the agency does not restore the real property to its authorized purpose or acquire replacement property within 3 years, the Director may declare the agency ineligible to receive new grants in the program or programs that funded the original acquisition. §80.136 Is it a diversion if an agency does not use grant - acquired real property for its authorized purpose? If a State fish and wildlife agency does not use grant- acquired real property for its authorized purpose, a diversion occurs only if both of the following conditions apply: (a) The agency used license revenue as match for the grant; and (b) The unauthorized use is for a purpose other than management of the fish- and wildlife - related resources for which the agency has authority under State law. §80.137 What if real property is no longer useful or needed for Its original purpose? If the director of the State fish and wildlife agency and the Regional Director jointly decide that grant - funded real property is no longer useful or needed for its original purpose under the grant, the director of the agency must: (a) Propose another eligible purpose for the real property under the grant program and ask the Regional Director to approves this proposed purpose, or (b) Request disposition instructions for the real property under the process described at 43 CFR 12.71, "Administrative and Audit Requirements and Cost Principles for Assistance Programs." 60.150 How does an agency ask for revision of a grant? (a) A State fish and wildlife agency must ask for revision of a project or grant by sending the Service the following documents: (1) The standard form approved by the Office of Management and Budget as an application for Federal assistance. The agency may use this form to update or request a change in the information that it submitted in an approved application. The director of the agency or his or her designee must sign this form. (2) A statement attached to the application for Federal assistance that explains: (i) How the requested revision would affect the information that the agency Federal Re g i ster/Vol. 76, No. 147/Monday, August 1, 2011/ and Regulat 46171 submitted with the original grant application; and (ii) Why the requested revision is necessary. (b) An agency must send any requested revision of the purpose or objectives of a project or grant to the State Clearinghouse or Single Point of Contact if the State maintains this process under Executive Order 12372, Intergovernmental Review of Federal Programs. §80.151 Mayan agency appeal a decision? ! 80.160 What are the information collection requirements of this part? (a) This part requires each State fish and wildlife agency to provide the following information to the Service. The State agency must: (1) Certify the number of people who have paid licenses to hunt and the number of people who have paid licenses to fish in a State during the State - specified certification period (OMB control number 1018 - 0007). (2) Provide information for a grant application on a Governmentwide standard form (OMB control number 4040 - 0002). (3) Certify on a Governmentwide standard form that it: (i) Has the authority to apply for the grant; (ii) Has the capability to complete the project; and (iii) Will comply with the laws, regulations, and policies applicable to nonconstruction projects, construction projects, or both (OMB control numbers 4040 -0007 and 4040 - 0009). (4) Provide a project statement that describes the need, purpose and objectives, results or benefits expected, approach, geographic location, explanation of costs, and other information that demonstrates that the project is eligible under the Acts and meets the requirements of the Federal Cost Principles and the laws, regulations, and policies applicable to the grant program (OMB control number 1018 - 0109). (5) Change or update information provided to the Service in a previously approved application (OMB control number 1018 - 0109). (6) Report on a Governmentwide standard form on the status of Federal grant funds and any program income earned (OMB control number 0348- 0061). (7) Report as a grantee on progress in completing the grant - funded project (OMB control number 1018- 0109). (b) The authorizations for information collection under this part are in the Acts and in 43 CFR part 12, subpart C, "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments." (c) Send comments on the information collection requirements to: U.S. Fish and Wildlife Service, Information Collection Clearance Officer, 4401 North Fairfax Drive, MS 2042 —PDM, Arlington, VA 22203. Bated July 19, 2011, Rachel Jacobson, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2011 -19206 Filed 7- 29 -11; 8:45 am] BILLING CODE 437D-55 -P FWC Contract No. 16060 INVOICE Billed to: Fish and Wildlife Conservation Commission Florida Boating Improvement Program 620 South Meridian Street Tallahassee, Florida 32399 -1600 Remit payment to: G rantee: FEID #: Address: PROJECT COSTS: Attachment # G Invoice No. Invoice Date: FWC Contract #: Amount of Grant Award: $ Billing Period /Dates of Service: From: To: Total Project Cost: $ Grantee Share ( %): $ Amount for Reimbursement: $ hereby certify that the above costs are true and valid costs incurred in accordance with the project Agreement, and that the matching funds, in -kind or cash, were utilized toward the project in this Agreement. Signed: Project Manager Date:. Page 1 of 2 FWC Contract No. 16060 FLORIDA BOATING IMPROVEMENT PROGRAM Partial Payment Request Form FWC Contract # FEID # Project Title: Payment No. Amount $ Brief Description — Project Summary: Dates of Service: Percentage of Completion: Describe below deliverables completed to document percentage of work completed for invoice submitted: Signature Title Date Attachment # G Page 2of2 FWC Contract No. 16060 Attachment # H FLORIDA BOATING IMPROVEMENT PROGRAM PROJECT PROGRESS REPORT Mail to FWC at 620 South Meridian Street, Tallahassee, FL 32399 -1600 or fax to (850) 488 -9284. FWC Contract # Grantee: Project Title: Reporting Period (Month/Year): _ (Due 15 days after the end of each quarter) 1. Describe progress of project, including percent completed for each task in the Scope of Work: 2. Is project currently on schedule for completion by Phase I due date? YES ❑ NO ❑ Anticipated Phase I completion date: (If project is not on schedule, please explain any problems encountered and/or possible delays) 3. Reporting requirements: (Check all that have been submitted to date) ❑ Bid package Bid tabulation ❑ Progress photographs ❑ Final photographs ❑ Draft acknowledgement Project Manager Print Name Page 1 of 1 Date Phone FWC Contract No. 16060 1 , representing FLORIDA FISH AND WILDLIFE CONSERVATION COMM ISSION C.2.b Attachment # Florida Boating Improvement Program CERTIFICATION OF COMPLETION STATEMENT (Print Name and Title) (Name of Local Government) do hereby certify that the Florida Boating Improvement Program project funded by FWC Contract No. has been completed in compliance with all terms and conditions of said Agreement; that all amounts payable for materials, labor and other charges against the project have been paid; and that no liens have been attached against the project. (Signature) (Date) WARNING: "Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his or her official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083." § 837.06, Florida Statutes. CERTIFICATE BY COMMISSION I certify: That, to the best of my knowledge and belief, the work on the above -named project has been satisfactorily completed under the terms of the Agreement. Division: By: Name: Title: Date: