Item T16 I�`�
County of Monroe
�y,4 ' '�, "tr, BOARD OF COUNTY COMMISSIONERS
County �a� Mayor Michelle Coldiron,District 2
�1 nff `_ll Mayor Pro Tem David Rice,District 4
-Me Florida.Keys Craig Cates,District 1
Eddie Martinez,District 3
w � Vacant,District 5
County Commission Meeting
September 15, 2021
Agenda Item Number: T.16
Agenda Item Summary #9762
BULK ITEM: No DEPARTMENT: Airports
TIME APPROXIMATE: STAFF CONTACT: Richard Strickland(305) 809-5200
N/A
AGENDA ITEM WORDING: Approval to award the Construction Manager At Risk Services
(CMAR) to NV2A Gulf Keystar Joint Venture for the Key West International Airport Concourse A
and Terminal Improvements program and approval of the CMAR Pre-Construction Activities
(Design) Agreement. The total lump sum compensation for the pre-construction phase will be
subsequently agreed upon in a scope Gross Maximum Price (GMP) amendment, to be funded by
Airport Operating Fund 404 and FDOT Grant GAKD149.
ITEM BACKGROUND: NV2A Gulf Keystar Joint Venture (NV2A)was the only respondent to
the RFP at the bid opening held on June 30, 2021. At a public meeting on July 8, 2021, the selection
committee announced the Phase 1 scores. On July 22, 2021, the selection committee interviewed
NV2A, and at a public meeting held immediately thereafter, the selection committee announced the
Phase 2 and final scoring.
PREVIOUS RELEVANT BOCC ACTION: On October 21, 2020, the BOCC granted approval to
advertise the competitive solicitation for the Construction Manager At Risk Services for Key West
International Airport Concourse A and Terminal Improvements program. On May 19, 2021, the
BOCC rejected all proposals and granted approval to re-advertise the competitive solicitation with a
reduced period of advertisement from 45 days to 30 days.
CONTRACT/AGREEMENT CHANGES:
new pre-construction activities (design) agreement
STAFF RECOMMENDATION: Approval.
DOCUMENTATION:
CMAR Selection comm Ph 1
CMAR Selection comm Final Ph 2
Bid Tabulation Sheet
EYW CMAR Pre-Construction Contract
RFP
Concourse A Schematic Design
Concourse A Preliminary Report
Addendum 1
Addendum No. 2
FINANCIAL IMPACT:
Effective Date: Upon Notice to Proceed(NTP)
Expiration Date: Nine (9) months after NTP
Total Dollar Value of Contract: TBD
Total Cost to County: -0-
Current Year Portion: -0-
Budgeted: Yes
Source of Funds: Airport Operating Fund 404 and FDOT Grant GAKD149
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required: Yes, will be provided prior to County execution of the agreement.
Additional Details:
10/20/21 404-63002 - KEY WEST AIRPORT R & R $400,000.00
REVIEWED BY:
Beth Leto Completed 09/14/2021 1:26 PM
Richard Strickland Completed 09/14/2021 1:29 PM
Pedro Mercado Completed 09/14/2021 1:30 PM
Purchasing Completed 09/14/2021 1:34 PM
Budget and Finance Completed 09/14/2021 2:24 PM
Maria Slavik Completed 09/14/2021 2:36 PM
Liz Yongue Completed 09/14/2021 2:43 PM
Board of County Commissioners Pending 09/15/2021 9:00 AM
Key West International Airport
CMAR Services for Monroe County Key West International Airport Concourse A
and Terminal Improvements Program
Selection Committee Rankings
07.08.2021
NV2A Gulf Key Star
Alvin (Cab) Bentley ,..
Beth Leto
fJ
Richard Strickland :
TOTAL
Average
RANKING ORDER
By: le
Na Alvin(Cab tle r
Title: Battalion Chief
Date: July 8, 2021
1
Name: Beth Leto
Title: Deputy Dir.,_Airport Finance&Admin
Date: July8.202 --
By. ..
Name: Richard Strickland
Title: Director of Airports
Date: July 8,2021
Key West International Airport
CMAR Services for Monroe County Key West International Airport Concourse A and Terminal Improvements Program
Selection Committee Rankings
07.08.2021
NV2A Gulf Key Star
Tab 1
Max Points Executive Summary
5
Tab 2 Relevant Experience,References,
Max Points Past Performance on Similar
25 Projects
Tab 3 Project Approach and
Max Points Management
30
Tab 4 Staffing for Project and
Max Points qualifications of Key Personnel
30
Tab 5
Max Points DBE
5
Tab 6 Financial Information
Max Points and Litigation
5
Tab 7 Required County Forms
pass/fail
and Licenses "
TOTAL POINTS
By:
Name: Alvin(Cabs Bentlev
Date: Jul 8 2021
Key West International Airport
CMAR Services for Monroe County Key West International Airport Concourse A and Terminal Improvements Program
Selection Committee Rankings
07.08.2021
NV2A Gulf Key Star
Tab 1
Max Points Executive Summary
5
Tab 2 Relevant Experience,References,
Max Points Past Performance on Similar �} '
25 Projects '
Tab 3 Project Approach and
Max Points Management
-
30
Tab 4 Staffing for Project and ,
Max Points qualifications of Key Personnel
30
Tab 5
Max Points DBE
5
Tab 6 Financial Information
Max Points and Litigation
5
Tab 7 Required County Forms
pass/fail and Licenses s
TOTAL POINTS
r
Name: Beth Leto
Date: July 8.2021
Key West International Airport
CMAR Services for Monroe County Key West International Airport Concourse A and Terminal Improvements Program
Selection Committee Rankings
07.08.2021
NV2A Gulf Key Star
Tab 1
Max Points Executive Summary
5
Tab 2 Relevant Experience,References,
Max Points Past Performance on Similar
25 Projects
Tab 3 Project Approach and
Max Points Management
30
Tab 4 Staffing for Project and
Max Points Qualifications of Key Personnel
30
Tab 5
Max Points DBE
5
Tab 6 Financial Information
Max Points and Litigation
5
Tab 7 Required County Forms
pass/fail and Licenses
TOTAL POINTS
...
8y y
Name: Richard Strickland
Date: JUIy 8.2021
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Key West International Airport
CMAR Services for Monroe County
Key West International Airport Concourse A and Terminal Improvements Program
Selection Committee Rankings
Phase 2
7.22.2021
NV2A Gulf Key Star
Quality of Presentation
(Max 10 Points)
Quality of Responses
during Q&A Session
(Max 7 points)
Pricing
(Max 3 Points)
Total
By,
Name: Alvin Bentlev
Title: Battlion Chief
Date: July 22,2021
Key West International Airport
CMAR Services for Monroe County
Key West International Airport Concourse A and Terminal Improvements Program
Selection Committee Rankings
Phase 2
7.22.2021
NV2A Gulf Key Star
Quality of Presentation
(Max 10 Points)
Quality of Responses
during Q&A Session
(Max 7 points)
Pricing
(Max 3 Points)
Total
Name: Richard Strickland
Title: Director of Airports
Date: July 22 2021
Key West International Airport
CMAR Services for Monroe County
Key West International Airport Concourse A and Terminal Improvements Program
Selection Committee Rankings
Phase 2
7.22.2021
NV2A Gulf Key Star
Quality of Presentation j
(Max 10 Points) (�J
Quality of Responses
during Q&A Session
(Max 7 points)
Pricing
(Max 3 Points)
Total t
By:.
Name: Beth Leto
Title: Dep.Dir.Airport Finance&Adm.
Date: July 22,2021
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Agreement
Between Owner and Construction Manager at Risk
(Pre-Construction Activities)
Where the basis of payment is a STIPULATED SUM
THIS AGREEMENT Made as of this 15th day of September 12021
BETWEEN the Owner: Monroe County Board of County Commissioners
500 Whitehead Street
Key West, Florida 33040
And the Construction Manager:
NV2A Gulf Keystar, A Joint Venture
5450 MacDonald Avenue 43
Key West Florida 33040
Project: Key West International Airport Concourse A and Terminal Improvements
Program
This Agreement("Agreement"or"Contract") is made and entered into by and between Monroe
County, Florida, a political subdivision of the State of Florida ("Owner") and NV2A Gulf
Keystar JV ("Construction Manager"), to perform all work ("Work") in connection with the
management during the pre-construction phase of the Key West International Airport
Concourse A and Terminal Improvements Program ( "Project"), located in Monroe County,
Florida, with said Work being set forth in the plans and specifications being prepared by the
"Design Professional", and all other Contract Documents hereinafter specified and having an
estimated construction cost of eighty million dollars ("Construction Budget").
Owner and Construction Manager, for consideration herein set forth, agree as follows:
ARTICLE 1
The Contract Documents
1.1 The Contract Documents consist of this Agreement including any Exhibits or
Attachments to this Agreement,Conditions of the Contract(General, Supplementary and
other Conditions including but not limited to those set forth in Attachment 1), the
Request for Proposals (RFP) issued to secure the services of the Construction Manager,
Addenda to the RFP issued prior to execution of this Agreement, together with the
Construction Manager's response to RFP, all required insurance documentation, and any
addenda, amendments, change orders, construction change directives, and field orders
issued after execution of this Agreement. The Contract Documents shall also include all
plans or specifications for the Project("Construction Documents"), but only after said
Construction Documents have been completed by Design Professional and approved in
writing by Owner. All of the foregoing Contract Documents are sometimes referred to
herein as the "Contract."
2021.09.14 EYW CMAR Pre-Construction Contract 1
1.2 The Contract represents the entire and integrated agreement between the parties hereto
and supersedes prior negotiations, representations or agreements, either written or oral.
In the event of a discrepancy between the documents, precedence shall be determined
by the order of the documents as just listed.
1.3 A portion of the funding for this Project is coming from the Federal Aviation Authority,
FDOT, Passenger Facility Charges, and Monroe County. The Construction Manager is
required to comply with all terms and conditions in these Funding Agreements.
ARTICLE 2
Scope of Services
2.1 Pre-Construction Phase Services. The Construction Manager shall review and
comment on Construction Documents being developed by Design Professional. The
scope of that review shall include, but not be limited to, reviewing those various
documents for value engineering and constructability. As the Construction Documents
are being developed by Design Professional through the various design phases set forth
in the Agreement for Professional Architectural and Engineering Services for the
"Project" between Design Professional and County ("Design Agreement"),
Construction Manager shall provide Owner with progressive construction cost estimates
with respect to those documents. Construction Manager agrees to attend any and all
design and preconstruction conferences necessary to perform its duties and otherwise to
assist and cooperate with Design Professional with respect to design of the Project.
2.2 Construction Manager shall provide all other services during the Pre-Construction phase
of the Project as set forth in the Contract Documents.
ARTICLE 3
Date of Commencement, Contract Time and Liquidated Damages
3.1 The date of commencement is the date to be fixed in a Notice to Proceed issued by the
Owner.
3.2 Time is of the essence in the performance of Work under this Contract. Construction
Manager shall commence the Pre-Construction Phase Services of the Work within five
(5)calendar days after issuance of the Notice to Proceed,unless a later date is established
in writing by the Owner. Any work performed by the Construction Manager prior to
execution of this Agreement shall be at the sole risk of the Construction Manager. No
work performed prior to issuance of the Notice to Proceed shall be reimbursed.
3.3 The Work to be performed under this Agreement, Pre-Construction Phase Services, is a
precursor to construction work that will be performed subsequently and that will be
covered by a separate contract("Construction Phase Services"). Because the Work is to
be completed in two phases, the timely completion of the first phase is critical to the
timely completion of the Construction Phase Services. Accordingly, the Construction
2021.09.14 EYW CMAR Pre-Construction Contract 2
Manager agrees to provide the Pre-Construction Phase Services in accordance with the
Master Program Phase Bar Schedule in the RFP to have a completed and fully
operational and occupied facility by October 1, 2024. The Master Program Phase Bar
Schedule may be adjusted from time to time, but only in writing, and only with the
concurrence of the Construction Manager, Owner and Design Professional, which
concurrence shall not be unreasonably withheld.
Owner and Construction Manager recognize that since time is of the essence,the Owner
will suffer financial loss if the Work associated with this Agreement is not completed
within the times specified on the Project Schedule, as said time may be adjusted as
provided for herein. In such event, the Owner's damages will be difficult, if not
impossible, to ascertain and quantify definitively, because this is a public construction
project that will, when completed, benefit the public and enhance the delivery of the
"Project"and other services to the public,in Monroe County,Florida.It is hereby agreed
that it is appropriate and fair that Owner should receive liquidated damages in the
amount of two thousand, five hundred dollars ($2,500.00) per day from Construction
Manager,if Construction Manager fails to complete the Work covered by this Agreement
within the required time periods,until such time as the work is completed,provided that
the Construction Manager is solely responsible for not completing the work within the
times specified on the Project Schedule. For the purpose of this Article, the term "day"
means a business day, to include Monday through Friday but not Saturdays, Sundays,
or holidays recognized by the County. The Construction Manager shall not be held
responsible for any delays caused by the Design Professional or Owner. In the event that
the Construction Manager is solely responsible for a delay, the Construction Manager
shall not be entitled to additional compensation but may be entitled as an exclusive
remedy to an extension of time. Construction Manager hereby knowingly and expressly
waives and relinquishes any right which it may have to seek to characterize the above
liquidated damages as apenalty. The liquidated damages under this Section 3.3 shall be
capped at Fifty Thousand Dollars ($50,000).
3.4 The Construction Manager's recovery of damages and sole remedy for any delay
caused by the Owner shall be an extension of time on the Contract and an equitable
adjustment of the Contract Sum for Pre-Construction Phases Services, as it may be
applicable.
ARTICLE 4
Contract Sum
4.1 For all Pre-Construction Phase Services, including but not limited to providing value
engineering services, reviewing Construction Documents for constructability, assisting
and meeting with Design Professional during the various design phases, and preparing
cost estimates, the Owner shall pay and Construction Manager shall receive for the pre-
construction phase services for a period of 9 (nine) months from the Notice to Proceed
per the Project Schedule. The total lump sum compensation for Pre-Construction Phase
Services ("Contract Sum") shall be subsequently agreed upon in a Scope GMP
Amendment upon the establishment of the scope of services and deliverables based on
2021.09.14 EYW CMAR Pre-Construction Contract 3
the Contract Documents, The Contract Sum shall be all inclusive and based on rates
proposed in the RFP response and no additional amount for reimbursable expenses
(including but not limited to, transportation, per diems, postage, photocopying,
telephone) shall be allowed. Monthly installment payment of the Contract Sum shall be
based on the percent completion of the designated portion of the Pre-Construction
Services for each particular month and Owner's receipt of Construction Manager's
written invoice for such payment.
4.2 The Construction Manager shall not be entitled to payment unless and until it submits
to the Owner invoices with supporting documentation acceptable to the Clerk of Court
of which may include partial and final releases and waivers of lien;releases and waivers
of lien from all subcontractors of the contractor and of any and all parties required by
the owner. Acceptability to the Clerk is based on generally accepted accounting
principles and such laws, rules and regulations as may govern the Clerk's disbursal of
funds. The County designates the Clerk of Courts as its agent under the Local
Government Prompt Payment Act, Florida Statues Section 218.735.
ARTICLE 5
Pre-Construction Phase Services
Construction Manager shall provide the following review and commentary services in
addition to any other Pre-Construction Phase Services required by the terms of this
Agreement:
5.1 Review,Recommendations and Warranty: Construction Manager shall familiarize itself
thoroughly with the evolving architectural, civil, mechanical, plumbing, electrical and
structural plans and specifications and shall follow the development of design from
Schematic Pre-Construction Phase through Construction Documents Phase (as those
phases are defined in the Design Agreement). Construction Manager shall make
recommendations with respect to the selection of systems and materials, and cost-
reducing alternatives including assistance to Design Professional and Owner in
evaluating alternative comparisons versus long term cost effects. The evaluation shall
address the benefits of the speed of erection and early completion of the Work.
Construction Manager shall furnish pertinent information as to the availability of
materials and labor that will be required. Construction Manager shall submit to Owner
and Design Professional such comments as may be appropriate concerning construction
feasibility and practicality. Construction Manager shall call to Owner's and Design
Professional's attention any defects in the design, drawings and specifications or other
documents of which it is aware in its capacity as a Construction Manager, not a design
professional. As questions arise or as more information is needed from the Designer or
the Owner, the Construction Manager shall track who is responsible for each item and
record the status of each item at every meeting. Construction Manager shall prepare
estimates of the construction cost utilizing the unit quantity survey method in a format
mutually agreed to by the Owner and Construction Manager. These estimates shall be
performed following each design phase, including Programming, Schematic Design;
Design Development; 60% Construction Documents; and 100% Construction
2021.09.14 EYW CMAR Pre-Construction Contract 4
Documents.
5.1.1 Construction Budget:In performing the services listed in the paragraph above,
the Construction Manager shall:
(a) Define at the Programming Phase the construction budget range and system
assumptions to provide cost guidance across all divisions;
(b) Develop budget tracking categories, applicable to the scopes of work;
(c) Conduct a budget variance evaluation and produce a list of
recommendations; and
(d) Track and identify scope changes,review with team, and schedule critical
decisions as it relates to the budget.
5.2 Review Reports: Within ten business (10) days after receiving the documents produced
by Design Professional, Construction Manager shall perform a specific review thereof,
focused upon factors of a nature encompassed in Paragraph 5.1 above and on factors set
out in Paragraphs 5.3 and 5.4 below. Within the same ten (10) day period, Construction
Manager shall submit to Owner, with copies to Design Professional, a written report
covering suggestions or recommendations previously submitted, additional suggestions
or recommendations as Construction Manager may deem appropriate, and all actions
taken by Design Professional with respect to same, any comments Construction
Manager may deem to be appropriate with respect to separating the Work into separate
subcontracts, alternative materials, and any other appropriate or required comments.
Ongoing constructability reviews to include: Staging and Maintenance of Traffic, Cost
Analysis and evaluation for means and methods of systems being evaluated. Provide
Monthly reports on the Pre-Construction progress, include specific meetings with any
Agencies, Owner, Design Professional, Public meetings or any other related activities.
5.3 Guaranteed Maximum Price, Guaranteed Completion Date: As a deliverable under this
Agreement, the Construction Manager agrees to provide to the Owner a guaranteed
maximum price (GMP)with a detailed breakdown acceptable to the Owner. In order to
begin work as soon as the working fronts become available, permits are issued and the
applicable design documents are complete, the Construction Manager and the Owner
shall utilize a progressive approach to a GMP, by executing early GMP packages and
subsequent scope amendments to the GMP. If and when the GMP is accepted by the
Owner, except only as to specific matters that may be recognized in a GMP Amendment
approved by the Owner, the Construction Manager shall be deemed to have warranted
to the Owner,without assuming any architectural or engineering responsibility,that the
construction documents are consistent with each other, practical, feasible, and
constructable. Included in this GMP will be the Construction Manager's lump sum
General Conditions, General Requirements and Construction Phase fee. At the same
time, the Construction Agreement shall also provide a guaranteed completion date.
5.4 Long Lead Procurement: Construction Manager shall review the Project design for the
purpose of identifying long lead procurement items (machinery, equipment, materials
and supplies) and consult with Design Professional concerning same. When each item
is identified, Construction Manager shall notify prospective subcontractors, Owner and
2021.09.14 EYW CMAR Pre-Construction Contract 5
Design Professional of the required procurement and schedule. Specific packages for
long lead items may be identified and released as either individual GMPs or incorporated
into a progressive GMP Scope Amendment(s). Such information shall be included in
the bid documents and made a part of all affected subcontracts. Construction Manager
shall keep itself informed of the progress of the respective subcontractors or suppliers
manufacturing or fabricating such items, and revise the Construction Schedule when
required as a result of delays in delivery. Delays in delivery time for long lead
procurement items will not entitle Construction Manager to a time extension for
completion of the Project.
5.5 Scheduling of Pre-Construction Activities: Construction Manager shall provide a
preliminary construction schedule with monthly updates.
5.6 Permits and notices: Construction Manager shall define essential milestone submission
dates. This Pre-Construction Design Phase includes obtaining all necessary permits,
including but not limited to building permits. Construction Manager is in charge of
identifying all necessary permits, defining milestone submission dates, and obtaining the
permits. The permit status will be tracked and made available to all attendees and will
accompany the meeting notes that will be distributed.
5.7 Interfacing:
5.7.1 Construction Manager shall take such measures as are appropriate to provide that
all construction requirements will be covered in the separate procurement of long
lead items, the separate construction subcontractors and the general conditions
items without duplication or overlap, and are sequenced to maintain completion
of all Work on schedule. The Construction Manager will produce a Pre-
Construction project schedule that includes deliverables to the owner in
conjunction with the Owner and the Designer. Owner Direct Purchase Items,
long lead items and potential early start items will be identified as well and
included in this schedule. The progress of this schedule will be tracked at every
meeting and statuses recorded and distributed with the meeting notes.
5.7.2 Without assuming any design responsibilities of Design Professional,
Construction Manager shall include in the reports required under Paragraph 5.2
above, comments on overlap with any other separate subcontracts, omissions,
lack of correlation between drawings, and any other deficiencies noted, in order
that Design Professional may arrange for necessary corrections. Construction
Manager shall provide all required Value Engineering as may be required to
provide cost guidance for the Owner.
5.8 Cost Model ing/BuiIding Information Modeling (BIM): Construction Manager may be
requested for a separate Scope GMP Amendment for developing a BIM Execution plan,
clash detection and Model coordination. The Owner may elect to not have a Building
Information Model provided pending final discussions. Clash detection shall be
provided by the Construction Manager as part of the Scope GMP Amendment for BIM
services.
2021.09.14 EYW CMAR Pre-Construction Contract 6
5.9 Meetings: Construction Manager shall attend all of the meetings as outlined in the scope
of work.
ARTICLE 6
Final Payment
6.1 Final payment, constituting the entire unpaid balance of the Contract Sum,shall be made
by the Owner to the Construction Manager when (1) the Contract has been fully
performed by the Construction Manager except for the Construction Manager's
responsibility to correct nonconforming Work as provided in 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 Resident Project
Representative/Contract Administrator(RPR/CA). Such final payment shall be made by
the Owner not more than twenty (20) days after the issuance of the final approval for
payment.
ARTICLE 7
Miscellaneous Provisions
7.1 Payment shall be made according to the Florida Local Government Prompt Payment Act
and Monroe County Code.
7.2 Monroe County's performance and obligation to pay under this contract is contingent
upon an annual appropriation by the Board of County Commissioners. In the event of
termination, the Construction Manager shall be paid for all eligible contract work
completed, accepted and delivered prior to the date a notice of suspension of funding
was received by the County. Any cost incurred after a notice of suspension or
termination is received by the County may not be funded with funds provided under any
of the Funding Agreements unless previously approved in writing by the State of
Florida.
7.3 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 Construction Manager, supplier, subcontractors, or consultants 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, for CATEGORY TWO
for a period of thirty-six (36) months from the date of being placed on the convicted
vendor list.
By signing this Agreement, Construction Manager represents that the execution of this
Agreement will not violate the Public Entity Crimes Act (Section 287.133, Florida
Statutes).
2021.09.14 EYW CMAR Pre-Construction Contract 7
Violation of terms of this contract shall result in termination of this Agreement and
recovery of all monies paid hereto, suspension of the ability to bid on and perform
County contracts, and may result in debarment from County's competitive procurement
activities.
In addition to the foregoing, Construction Manager further represents that there has been
no determination, based on an audit, that it or any subcontractors has committed an act
defined by Section 287.133, Florida Statutes, as a "public entity crime" and that it has
not been formally charged with committing an act defined as a "public entity crime"
regardless of the amount of money involved or whether Construction Manager or
subcontractors has been placed on the convicted vendor list.
Construction Manager shall promptly notify the County if it or any subcontractor is
formally charged with an act defined as a "public entity crime" or has been placed on
the convicted vendorlist
7.4 Miscellaneous.
a) Construction Manager shall maintain all books, records, and documents directly
pertinent to performance of any and all work under this Agreement in accordance
with generally accepted accounting principles consistently applied. Records shall be
retained for a period of seven years from the termination of this agreement or for a
period of three years from the submission of the final expenditure report as per 2
CFR §200.333, whichever is greater. Each party to this Agreement or its 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 seven years following the termination of this Agreement. If an
auditor employed by the County or Clerk determines that monies paid to
Construction Manager pursuant to this Agreement were spent for purposes not
authorized by this Agreement, the Construction Manager shall repay the monies
together with interest calculated pursuant to Sec. 55.03, Florida Statutes, running
from the date the monies were paid to Construction Manager.
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 Construction Manager 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 Construction Manager 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. The parties agree that both parties participated
equally in the drafting of this Agreement.
2021.09.14 EYW CMAR Pre-Construction Contract 8
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 Construction Manager 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 Construction Manager 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 Construction Manager 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 submit this Contract to legal counsel of its choice and
enters into this agreement freely, voluntarily and with advice of counsel.
g) Claims for Federal or State Aid. Construction Manager 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 Construction Manager 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 Construction Manager agree to participate, to the extent
2021.09.14 EYW CMAR Pre-Construction Contract 9
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 Construction Manager specifically agree that no
party to this Agreement shall be required to enter into any arbitration proceedings
related to this Agreement.
j) Nondiscrimination. The parties 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. The parties 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 VII of the Civil Rights Act of 1964 (PL 88-
352), which prohibit discrimination in employment on the basis of race, color,
religion, sex, and national origin; 2) Title IX of the Education Amendment of 1972,
as amended (20 USC §§ 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 § 794), which prohibits discrimination on the basis of
handicaps; 4) The Age Discrimination Act of 1975, as amended (42 USC §§ 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, §§ 523 and 527 (42 USC §§ 690dd-3 and 290ee-
3), as amended, relating to confidentiality of alcohol and drug abuse patent records;
8) Title VIII of the Civil Rights Act of 1968 (42 USC §§ 3601 et seq.), as amended,
relating to nondiscrimination in the sale, rental or financing of housing; 9) The
Americans with Disabilities Act of 1990 (42 USC §§ 1201), as amended from time
to time, relating to nondiscrimination in employment on the basis of disability; 10)
Monroe County Code Chapter 14,Article VII,which prohibits discrimination on the
basis of race,color, sex,religion,national origin,ancestry,sexual orientation,gender
identity or expression, familial status or age; and 11) any other nondiscrimination
provisionsin 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 Construction Manager 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.
1) Code of Ethics. The parties understand and agree 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.
2021.09.14 EYW CMAR Pre-Construction Contract 10
m) No Solicitation/Payment. The County and Construction Manager 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 Construction Manager 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. Construction Manager 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 Construction
Manager 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 Construction Manager 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 Construction
Manager. Failure of the Construction Manager 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
parry, 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.
Pursuant to F.S. 119.0701 and the terms and conditions of this contract, the
Construction Manager 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 Construction Manager 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 Construction Manager or keep and maintain
2021.09.14 EYW CMAR Pre-Construction Contract I I
public records that would be required by the County to perform the service.
If the Construction Manager transfers all public records to the County upon
completion of the contract, the Construction Manager shall destroy any
duplicate public records that are exempt or confidential and exempt from
public records disclosure requirements. If the Construction Manager keeps
and maintains public records upon completion of the contract, the
Construction Manager 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 Construction
Manager of the request, and the Construction Manager must provide the
records to the County or allow the records to be inspected or copied within
a reasonable time.
If the Construction Manager 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
Construction Manager.
A Construction Manager 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 Construction Manager 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 CONSTRUCTION MANAGER HAS QUESTIONS
REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA
STATUTES, TO THE CONSTRUCTION MANAGER'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 1111 12TH 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 Construction Manager 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
2021.09.14 EYW CMAR Pre-Construction Contract 12
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 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 Construction Manager agree that neither the
County nor the Construction Manager 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. Construction Manager agrees to execute such documents as the County
may reasonably require, to include a Public Entity Crime Statement, an Ethics
Statement, and a Drug-Free Workplace Statement.
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.
2021.09.14 EYW CMAR Pre-Construction Contract 13
v) Hold Harmless and Indemnification. Notwithstanding any minimum insurance
requirements prescribed elsewhere in this agreement, Construction Manager 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 Construction Manager or any of its
employees, agents, Construction Managers or other invitees during the term of this
Agreement, (B) the gross negligence or recklessness, intentional wrongful
misconduct, errors or other wrongful act or omission of Construction Manager or
any of its employees, agents, sub- Construction Managers or other invitees, or (C)
Construction Manager'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,
Construction Managers or invitees (other than Construction Manager). The monetary
limitation of liability under this contract shall be not less than $1 million per
occurrence pursuant to F.5.725.06. 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 Construction Manager's failure to purchase
or maintain the required insurance, the Construction Manager 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 Construction Manager,the Construction
Manager agrees and warrants that the Construction Manager 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 Construction Manager is
for the indemnification provided for the above.
Also:
To the fullest extent permitted by law, the County's contractor/consultant shall
indemnify and hold harmless the County and the State of Florida Department of
Transportation, including the Department's officers and employees, from liabilities,
damages, losses and costs, including, but not limited to, reasonable attorneys' fees,
to the extent caused by the gross negligence, recklessness, or intentional wrongful
misconduct of the contractor/consultant and persons employed or utilized by the
contractor/consultant in the performance of this Agreement.
2021.09.14 EYW CMAR Pre-Construction Contract 14
This indemnification shall survive the termination of this Agreement. Nothing
contained in this paragraph is intended to nor shall it constitute a waiver of the State
of Florida and the Agency's sovereign immunity.
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 as referenced in RFP
Section 1-8.B Tab 5. The County and its Construction Manager agree to ensure that
DBE's have the opportunity to participate in the performance of the Agreement. In
this regard, all recipients and Construction Managers 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 Construction Manager 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 Construction Manager
subcontracts any or all of the work in this project to any third party,the Construction
Manager specifically agrees to identify the County as an additional insured on all
insurance policies required by the County. In addition, the Construction Manager
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
conformto Florida Green Building Coalition standards.
7.5 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 Construction Manager:
Gilberto Neves
NV2A Gulf Keystar, A Joint Venture
5450 MacDonald Avenue 43
Key West Florida 33040
2021.09.14 EYW CMAR Pre-Construction Contract 15
For Owner: Director of Airports
Key West International Airport
3491 South Roosevelt Boulevard
Key West, Florida 33040
7.6 Federal clauses. Recognizing that a portion of the funding for this Project comes from
one or more federal awards as that term is defined in 2 C.F.R. §200.38,the following provisions
from 2 C.F.R. part 200 apply to this Agreement:
a) Audit of records. Construction Manager shall grant to the County, the Federal
Aviation Administration, Florida Department of Transportation, the Federal
Government, and any other duly authorized agencies of the State or Federal
Government or the County where appropriate the right to inspect and review all
books and records directly pertaining to the Contract resulting from this RFP for a
period of five (5) years after final grant close-out by FAA or FDOT, or as required
by applicable County, State and Federal law. Records shall be made available during
normal working hours for this purpose. In the event that FAA, FDOT, or any other
Federal or State agency, or the County, issues findings or rulings that the amounts
charged by the Construction Manager, or any portions thereof, were ineligible or
were non-allowable under federal or state Law or regulation, Construction Manager
may appeal any such finding or ruling. If such appeal is unsuccessful, the
Construction Manager shall agree that the amounts paid to the Construction Manager
shall be adjusted accordingly, and that the Construction Manager shall, within 30
days thereafter, issue a remittance to the County of any payments declared to be
ineligible or non-allowable. Construction Manager shall comply with federal and/or
state laws authorizing an audit of Construction Manager's operation as a whole, or
of specific Project activities.
b) Equal Employment Opportunity
During the performance of this Agreement,the CONTRACTOR, in accordance with
Equal Employment Opportunity (30 Fed. Reg. 12319, 12935, 3 C.F.R. Part, 1964-
1965 Comp., p. 339), as amended by Executive Order 11375, Amending Executive
Order 11246 Relating to Equal Employment Opportunity, and implementing
regulations at 41C.F.R. Part 60 (Office of Federal Contract Compliance Programs,
Equal Employment Opportunity, Department of Labor). See 2 C.F.R. Part 200,
Appendix 11, ¶ C, agrees as follows:
(1) The Construction Manager will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, sexual
orientation, gender identity, or national origin. The Construction Manager
will take affirmative action to ensure that applicants are employed, and that
employees are treated during employment, without regard to their race,
color, religion, sex, sexual orientation, gender identity, or national origin.
Such action shall include,but not be limited to the following: Employment,
upgrading, demotion, or transfer, recruitment or recruitment advertising;
layoff or termination; rates of pay or other forms of compensation; and
2021.09.14 EYW CMAR Pre-Construction Contract 16
selection for training, including apprenticeship. The Construction Manager
agrees to post in conspicuous places, available to employees and applicants
for employment, notices to be provided by the contracting officer setting
forth the provisions of this nondiscrimination clause.
(2) The Construction Manager will, in all solicitations or advertisements for
employees placed by or on behalf of the Construction Manager, state that
all qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, sexual orientation, gender identity, or
national origin.
(3) The Construction Manager will not discharge or in any other manner
discriminate against any employee or applicant for employment because
such employee or applicant has inquired about, discussed, or disclosed the
compensation of the employee or applicant or another employee or
applicant. This provision shall not apply to instances in which an employee
who has access to the compensation information of other employees or
applicants as a part of such employee's essential job functions discloses the
compensation of such other employees or applicants to individuals who do
not otherwise have access to such information, unless such disclosure is in
response to a formal complaint or charge,in furtherance of an investigation,
proceeding, hearing, or action, including an investigation conducted by the
employer, or is consistent with the Construction Manager's legal duty to
furnish information.
(4) The Construction Manager will send to each labor union or representative
of workers with which it has a collective bargaining agreement or other
contract or understanding,a notice to be provided by the agency contracting
officer, advising the labor union or workers' representative of the
Construction Manager's commitments under section 202 of Executive Order
11246 of September 24, 1965, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(5) The Construction Manager will comply with all provisions of Executive
Order 11246 of September 24, 1965, and of the rules, regulations, and
relevant orders of the Secretary of Labor.
(6) The Construction Manager will furnish all information and reports required
by Executive Order 11246 of September 24, 1965, and by the rules,
regulations, and orders of the Secretary of Labor, or pursuant thereto, and
will permit access to his books, records, and accounts by the contracting
agency and the Secretary of Labor for purposes of investigation to ascertain
compliance with such rules, regulations, and orders.
(7) In the event of the Construction Manager's non-compliance with the
nondiscrimination clauses of this contract or with any of such rules,
2021.09.14 EYW CMAR Pre-Construction Contract 17
regulations, or orders, this contract may be canceled, terminated or
suspended in whole or in part and the Construction Manager may be
declared ineligible for further Government contracts in accordance with
procedures authorized in Executive Order 11246 of September 24, 1965,
and such other sanctions may be imposed and remedies invoked as provided
in Executive Order 11246 of September 24, 1965, or by rule, regulation, or
order of the Secretary of Labor, or as otherwise provided by law.
(8) The Construction Manager will include the portion of the sentence
immediately preceding paragraph (1) and the provisions of paragraphs (1)
through (7) in every subcontract or purchase order unless exempted by
rules, regulations, or orders of the Secretary of Labor issued pursuant to
section 204 of Executive Order 11246 of September 24, 1965, so that such
provisions will be binding upon each subcontractor or vendor. The
Construction Manager will take such action with respect to any subcontract
or purchase order as the administering agency may direct as a means of
enforcing such provisions, including sanctions for non-compliance;
provided, however, that in the event a contractor becomes involved in, or
is threatened with, litigation with a subcontractor or vendor as a result of
such direction by the administering agency the contractor may request the
United States to enter into such litigation to protect the interests of the
United States.
c) Rights to Inventions Made Under a Contract or Agreement. 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 that"funding
agreement," the recipient or subrecipient must comply with the requirements of 37
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.
d) Clean Air Act (42 U.S.C. 7401-7671q.) and the Federal Water Pollution Control
Act (33 U.S.C. 1251-1387), as amended. Contracts and subgrants of amounts in
excess of$150,000 must comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act(42 U.S.C. 7401-7671q) and the Federal Water
Pollution Control Act as amended (33 U.S.C. 1251-1387). Violations must be
reported to the Federal awarding agency and the Regional Office of the
Environmental Protection Agency(EPA).
e) Debarment and Suspension(Executive Orders 12549 and 12689)—A contract award
(see 2 CFR 180.220) must not be made to parties listed on the governmentwide
exclusions in the System for Award Management (SAM), in accordance with the
OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part
1986 Comp.,p. 189) and 12689 (3 CFR part 1989 Comp.,p. 235), "Debarment and
Suspension." SAM Exclusions contains the names of parties debarred, suspended,
or otherwise excluded by agencies, as well as parties declared ineligible under
2021.09.14 EYW CMAR Pre-Construction Contract 18
statutory or regulatory authority other than Executive Order 12549.
f) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) - Construction Managers that
apply or bid for an award exceeding $100,000 must file the required certification.
Each tier certifies to the tier above that it will not and has not used Federal
appropriated funds to pay any person or organization for influencing or attempting
to influence an officer or employee of any agency, a member of Congress, officer or
employee of Congress, or an employee of a member of Congress in connection with
obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352.
Each tier must also disclose any lobbying with non-Federal funds that takes place in
connection with obtaining any Federal award. Such disclosures are forwarded from
tier to tier up to the non-Federal award.
g) Procurement of recovered materials as set forth in 2 CFR § 200.322. Construction
Manager must comply with section 6002 of the Solid Waste Disposal Act, as
amended, by the Resource Conservation and Recovery Act. The requirements of
Section 6002 include procuring only items designated in guidelines of the
Environmental Protection Agency(EPA)at 40 CFR part 247 that contain the highest
percentage of recovered materials practicable, consistent with maintaining a
satisfactory level of competition, where the purchase price of the item exceeds
$10,000 or the value of the quantity acquired during the preceding fiscal year
exceeded $10,000; procuring solid waste management services in a manner that
maximizes energy and resource recovery; and establishing an affirmative
procurement program for procurement of recovered materials identified in the EPA
guidelines.
h) Americans with Disabilities Act of 1990 (ADA) — The CONSTRUCTION
MANAGER will comply with all the requirements as imposed by the ADA, the
regulations of the Federal government issued thereunder, and the assurance by the
CONSTRUCTION MANAGER pursuant thereto.
i) E-Verify. The Construction Manager shall utilize the U.S. Department of Homeland
Security's E- Verify system to verify the employment eligibility of all new
employees hired by the Construction Manager during the term of the Contract and
shall expressly require any subcontractors performing work or providing services
pursuant to the Contract to likewise utilize the U.S. Department of Homeland
Security's E-Verify system to verify the employment eligibility of all new employees
hired by the subcontractors during the Contract term.
j) No Obligation by Federal Government. The federal government is not a parry to this
contract and is not subject to any obligations or liabilities to the non-Federal entity,
Construction Manager, or any other party pertaining to any matter resulting from the
contract.
k) Program Fraud and False or Fraudulent Statements or Related Acts. The
Construction Manager acknowledges that 31 U.S.C. Chapter 38 (Administrative
2021.09.14 EYW CMAR Pre-Construction Contract 19
Remedies for False Claims and Statements) applies to the Construction Manager's
actions pertaining to this contract.
1) Uncontrollable Circumstance - Any delay or failure of either Party to perform its
obligations under this Agreement will be excused to the extent that the delay or
failure was caused directly by an event beyond such Party's control, without such
Party's fault or negligence and that by its nature could not have been foreseen by
such Party or, if it could have been foreseen, was unavoidable: (a) acts of God; (b)
flood, fire, earthquake, explosion, tropical storm, hurricane or other declared
emergency in the geographic area of the Project; (c) war, invasion, hostilities
(whether war is declared or not), terrorist threats or acts, riot, or other civil unrest in
the geographic area of the Project; (d) government order or law in the geographic
area of the Project; (e) actions, embargoes, or blockades in effect on or after the date
of this Agreement; (f) action by any governmental authority prohibiting work in the
geographic area of the Project;(each, a "Uncontrollable Circumstance").
CONTRACTOR'S financial inability to perform, changes in cost or availability of
materials,components,or services,market conditions,or supplier actions or contract
disputes will not excuse performance by Contractor under this Section. Contractor
shall give County written notice within 7 days of any event or circumstance that is
reasonably likely to result in an Uncontrollable Circumstance, and the anticipated
duration of such Uncontrollable Circumstance. Contractor shall use all diligent
efforts to end the Uncontrollable Circumstance to ensure that the effects of any
Uncontrollable Circumstance are minimized and resume full performance under this
Agreement
m)Prohibition on certain telecommunications and video surveillance services or
equipment as set forth in 2 CFR § 200.216. Recipients and subrecipients and their
contractors and subcontractors may not obligate or expend any federal funds to (1)
Procure or obtain; (2) Extend or renew a contract to procure or obtain; or (3) Enter
into a contract (or extend or renew a contract) to procure or obtain equipment,
services, or systems that uses covered telecommunications equipment or services as
a substantial or essential component of any system, or as critical technology as part
of any system. As described in Public Law 115-232, section 889, covered
telecommunications equipment is telecommunications equipment produced by
Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate
of such entities).
(i) For the purpose of public safety, security of government facilities, physical
security surveillance of critical infrastructure, and other national security purposes,
video surveillance and telecommunications equipment produced by Hytera
Communications Corporation, Hangzhou Hikvision Digital Technology Company,
or Dahua Technology Company (or any subsidiary or affiliate of such entities).
(ii)Telecommunications or video surveillance services provided by such entities
or using such equipment.
(iii) Telecommunications or video surveillance equipment or services produced
or provided by an entity that the Secretary of Defense, in consultation with the
Director of the National Intelligence or the Director of the Federal Bureau of
2021.09.14 EYW CMAR Pre-Construction Contract 20
Investigation, reasonably believes to be an entity owned or controlled by, or
otherwise connected to, the government of a covered foreign country.
n) Domestic preference for procurements as set forth in 2 CFR §200.322. - The
COUNTY and CONTRACTOR should, to the great extent practicable, provide a
preference for the purchase, acquisition, or use of goods, products, or materials
produced in the United States (including but not limited to iron, aluminum, steel,
cement, and other manufactured products). These requirements of this section must
be included in all subawards including contracts and purchase orders for work or
products under federal award. For purposes of this section:
(1) "Produced in the United States" means, for iron and steel products, that all
manufacturing processes, from the initial melting stage through the application
of coatings, occurred in the United States.
(2) "Manufactured products"means items and construction materials composed
in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-
based products such as polyvinyl chloride pipe; aggregates such as concrete; glass,
including optical fiber; and lumber.
ARTICLE 8
Termination or Suspension
8.1 The Contract may be terminated by the Owner or Contract as provided in Paragraphs
1.18, 1.19 or 1.20 of the RFP or Article 14 of the General Conditions.
This Agreement is entered into as of the day and year first written above and is executed in at
least two (2) original copies of which one (1) is to be delivered to the Construction Manager.
(SEAL) OWNER:
Attest: Kevin Madok, Clerk BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA
By: By:
Deputy Clerk Mayor Michelle Coldiron
Witnesses: CONSTRUCT NAGER AT RISK
By: By:
Print name: Print nam . Gilberto Neves
Date: Title: na in Partner NV2A Gulf Ke star JV
Date: tember 14 2021
By:
Print name:
Date: A , E COUN
TY AT1O nEY
te C F
ASSZPE .
TA NTY ATTORNEY
Cate 9/14/21
2021.09.14 EYW CMAR Pre-Construction Contract 21