HomeMy WebLinkAbout2020-003Aagreement.docx Addendum 3
Agreement
THIS AGREEMENT is by and between INDIAN RIVER COUNTY, a Political Subdivision of the State of Florida
organized and existing under the Laws of the State of Florida, (hereinafter called OWNER) and XGD Systems,
LLC (hereinafter called CONTRACTOR). OWNER and CONTRACTOR, in consideration of the mutual covenants
hereinafter set forth, agree as follows:
ARTICLE 1- WORK
CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The Work is
generally described as follows:
Furnish and install all materials necessary for the construction of a restroom facility, public parking
and associated drainage improvements as depicted in the bid documents and plans. Provide all
excavation, earthwork, grading and supporting culverts, structures, conveyances, boardwalks and
fencing necessary for the construction of the walking trail, wetland creation/enhancement and
upland fill areas as depicted in the bid documents and plans.
ARTICLE 2 - THE PROJECT
The Project for which the Work under the Contract Documents may be the whole or only a part is generally
described as follows:
Project Name: Jones Pier Wetland Restoration and Conservation Improvements
Bid Number: 2020017
Project Address: 7770 Jungle Trail, Vero Beach, FL 32963
ARTICLE 3 - CONTRACT TIMES
3.01 Time of the Essence
A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final
payment as stated in the specifications are of the essence of the Agreement.
3.02 Days to Achieve Substantial Completion, Final Completion and Final Payment
A. The Work will be completed and ready for final payment on or before the 540th day after the date
when the Contract Times commence to run.
ARTICLE 4 - CONTRACT PRICE
4.01 OWNER shall pay CONTRACTOR for completion of the Work an amount in current funds equal to
the sum of the amounts determined pursuant to paragraph 4.01.A and summarized in paragraph
4.01.13, below:
A. For all Work, at the prices stated in CONTRACTOR's Bid, attached hereto as Exhibit 1.
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B. THE CONTRACT SUM subject to additions and deductions provided in the Contract Documents:
Numerical Amount: $ 1393 951.68
Written Amount: One million, three hundred ninety-three thousand, nine hundred fifty-
one dollars and sixty-eight cents
ARTICLE 5 - PAYMENT PROCEDURES
5.01 Progress Payments.
A. The OWNER shall make progress payments to the CONTRACTOR on the basis of the
approved partial payment request as recommended by ENGINEER in accordance with the
provisions of the Local Government Prompt Payment Act, Florida Statutes section 218.70 et.
seq. The OWNER shall retain ten percent (10%) of the payment amounts due to the
CONTRACTOR until fifty percent (50%) completion of the work. After fifty percent (50%)
completion of the work is attained as certified to OWNER by ENGINEER in writing, OWNER
shall retain five percent (5%) of the payment amount due to CONTRACTOR until final
completion and acceptance of all work to be performed by CONTRACTOR under the Contract
Documents. Pursuant to Florida Statutes section 218.735(8)(b), fifty percent (50%)
completion means the point at which the County as OWNER has expended fifty percent
(50%) of the total cost of the construction services work purchased under the Bid and
Specification Documents, together with all costs associated with existing change orders and
other additions or modifications to the construction services work provided under the
Contract Documents.
5.02 Pay Requests.
A. Each request for a progress payment shall contain the CONTRACTOR'S certification. All
progress payments will be on the basis of progress of the work measured by the schedule
of values established, or in the case of unit price work based on the number of units
completed. After fifty percent (50%) completion, and pursuant to Florida Statutes section
218.735(8)(d), the CONTRACTOR may submit a pay request to the County as OWNER for
up to one half (1/2) of the retainage held by the County as OWNER, and the County as
OWNER shall promptly make payment to the CONTRACTOR unless such amounts are the
subject of a good faith dispute; the subject of a claim pursuant to Florida Statutes section
255.05(2005); or otherwise the subject of a claim or demand by the County as OWNER or
the CONTRACTOR. The CONTRACTOR acknowledges that where such retainage is
attributable to the labor, services, or materials supplied by one or more subcontractors
or suppliers, the Contractor shall timely remit payment of such retainage to those
subcontractors and suppliers. Pursuant to Florida Statutes section 218.735(8)(c)(2005),
CONTRACTOR further acknowledges and agrees that: 1) the County as OWNER shall
receive immediate written notice of all decisions made by CONTRACTOR to withhold
retainage on any subcontractor at greater than five percent (5%) after fifty percent (50%)
completion; and 2) CONTRACTOR will not seek release from the County as OWNER of the
withheld retainage until the final pay request.
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5.03 Paragraphs 5.01 and 5.02 do not apply to construction services work purchased by the County as
OWNER which are paid for, in whole or in part, with federal funds and are subject to federal grantor laws
and regulations or requirements that are contrary to any provision of the Local Government Prompt
Payment Act. In such event, payment and retainage provisions shall be governed by the applicable grant
requirements and guidelines.
5.04 The obligations of OWNER under this Agreement are subject to the continuing appropriation of
funds for the services to be performed.
5.05 Acceptance of Final Payment as Release.
A. The acceptance by the CONTRACTOR of final payment shall be and shall operate as a
release to the OWNER from all claims and all liability to the CONTRACTOR other than
claims in stated amounts as may be specifically excepted by the CONTRACTOR for all
things done or furnished in connection with the work under this Agreement and for every
act and neglect of the OWNER and others relating to or arising out of the work. Any
payment, however, final or otherwise, shall not release the CONTRACTOR or its sureties
from any obligations under this Agreement, the Invitation to Bid or the Public
Construction Bond.
ARTICLE 6 - INDEMNIFICATION
6.01 CONTRACTOR shall indemnify and hold harmless the OWNER, and its officers and employees, from
liabilities, damages, losses and costs, including, but not limited to, reasonable attorney's fees, to the
extent caused by the negligence, recklessness, or intentional wrongful misconduct of the
CONTRACTOR and persons employed or utilized by the CONTRACTOR in the performance of the
Work.
ARTICLE 7 - CONTRACTOR'S REPRESENTATIONS
7.01 In order to induce OWNER to enter into this Agreement CONTRACTOR makes the following
representations:
A. CONTRACTOR has examined and carefully studied the Contract Documents and the other related
data identified in the Invitation to Bid documents.
B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the general, local,
and Site conditions that may affect cost, progress, and performance of the Work.
C. CONTRACTOR is familiar with and is satisfied as to all federal, state, and local Laws and Regulations
that may affect cost, progress, and performance of the Work.
D. CONTRACTOR has obtained and carefully studied (or assumes responsibility for having done so) all
additional or supplementary examinations, investigations, explorations, tests, studies, and data
concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site
which may affect cost, progress, or performance of the Work or which relate to any aspect of the
means, methods, techniques, sequences, and procedures of construction to be employed by
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CONTRACTOR, including applying the specific means, methods, techniques, sequences, and
procedures of construction, if any, expressly required by the Contract Documents to be employed
by CONTRACTOR, and safety precautions and programs incident thereto.
E. CONTRACTOR does not consider that any further examinations, investigations, explorations, tests,
studies, or data are necessary for the performance of the Work at the Contract Price, within the
Contract Times, and in accordance with the other terms and conditions of the Contract Documents.
F. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at the
Site that relates to the Work as indicated in the Contract Documents.
G. CONTRACTOR has correlated the information known to CONTRACTOR, information and
observations obtained from visits to the Site, reports and drawings identified in the Contract
Documents, and all additional examinations, investigations, explorations, tests, studies, and data
with the Contract Documents.
H. CONTRACTOR has given OWNER written notice of all conflicts, errors, ambiguities, or discrepancies
that CONTRACTOR has discovered in the Contract Documents, and the written resolution thereof
by OWNER is acceptable to CONTRACTOR.
I. The Contract Documents are generally sufficient to indicate and convey understanding of all terms
and conditions for performance and furnishing of the Work.
ARTICLE 8 - CONTRACT DOCUMENTS
8.01 Contents
A. The Contract Documents consist of the following:
(1) This Agreement (pages 1 to 9, inclusive);
(2) Notice to Proceed
(3) Public Construction Bond (pages 39 to 42, inclusive);
(4) Certificate of Liability Insurance
(5) Invitation to Bid 2020017
(6) Construction plans titled JONES PIER WETLAND RESTORATION AND CONSERVATION
IMPROVEMENTS PHASE 1 dated 10-28-2019 prepared by MBV Engineering, Inc. (sheets C1
through C16, inclusive)
(7) Construction plans titled BOARDWALK PLANS FOR JONES' PIER CONSERVATION AREA PHASE 2
WETLAND ENHANCEMENT AND CREATION PROJECT dated 7-29-2019 prepared by DANSCO
Engineering, LLC (sheets CS and S1 through S3 inclusive)
(8) Construction plans titled JONES' PIER CONSERVATION AREA PHASE 2 WETLAND ENHANCEMENT
AND CREATION PROJECT dated 11-07-2019 prepared by Carter Associates, Inc. (sheets C-000,
S-100 and C-100 through C-112 inclusive)
(9) JONES' PIER CONSERVATION AREA RESTROOM BUILDING dated 02-05-2019 prepared by
Donadio Associates, Inc. (sheets 1 through 18 inclusive)
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(10)Addenda (numbers 1 to 4, inclusive);
(11)CONTRACTOR'S Bid Form Addendum 3 (pages 1 to 6, inclusive);
(12)Bid Bond (pages 1 to 2 inclusive);
(13)Qualifications Questionnaire (pages 22 to 24, inclusive);
(14)Drug Free Workplace Form (pages 19 to 19, inclusive)
(15)Sworn Statement Under Section 105.08, Indian River County Code, on Disclosure of
Relationships (pages 20 to 21, inclusive);
(16)Certification Regarding Prohibition Against Contracting with Scrutinized Companies
(17)Certification Regarding Lobbying
(18)The following which may be delivered or issued on or after the Effective Date of the Agreement
and are not attached hereto:
a) Written Amendments;
b) Work Change Directives;
c) Change Order(s).
ARTICLE 9 - MISCELLANEOUS
9.01 Terms
A. Terms used in this Agreement will have the meanings indicated in the Invitation to Bid.
9.02 Assignment of Contract
A. No assignment by a party hereto of any rights under or interests in the Agreement will be binding
on another party hereto without the written consent of the party sought to be bound; and,
specifically but without limitation, moneys that may become due and moneys that are due may not
be assigned without such consent (except to the extent that the effect of this restriction may be
limited by law), and unless specifically stated to the contrary in any written consent to an
assignment, no assignment will release or discharge the assignor from any duty or responsibility
under the Contract Documents.
9.03 Successors and Assigns
A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal
representatives to the other party hereto, its partners, successors, assigns, and legal representatives
in respect to all covenants, agreements, and obligations contained in the Contract Documents.
9.04 Severability
A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law
or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and
binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed
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to replace such stricken provision or part thereof with a valid and enforceable provision that comes
as close as possible to expressing the intention of the stricken provision.
9.05 Venue
A. This Agreement shall be governed by the laws of the State of Florida. Venue for any lawsuit brought
by either party against the other party or otherwise arising out of this Agreement shall be in Indian
River County, Florida, or, in the event of a federal jurisdiction, in the United States District Court for
the Southern District of Florida.
9.06 Public Records Compliance
A. Indian River County is a public agency subject to Chapter 119, Florida Statutes. The Contractor
shall comply with Florida's Public Records Law. Specifically, the Contractor shall:
(1) Keep and maintain public records required by the County to perform the service.
(2) Upon request from the County's Custodian of Public 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 Chapter 119 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 required by the County to
perform the service. If the Contractor transfers all public records to the County 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 County, upon request from the Custodian of Public Records, in a format that is compatible
with the information technology systems of the County.
B. 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 AT:
(772) 226-1424
publicrecords@ircgov.com
Indian River County Office of the County Attorney
180127 1h Street
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Vero Beach, FL 32960
C. Failure of the Contractor to comply with these requirements shall be a material breach of this
Agreement.
ARTICLE 10— Contract Provisions for Department of Commerce (DOC) Funded Agreements (if applicable
at award
OWNER and CONTRACTOR will comply the provisions of Attachment 8 to the Grant Agreement, attached
as Exhibit 2 to this agreement.
Article 11: TERMINATION OF CONTRACT
A. The occurrence of any of the following shall constitute a default by CONTRACTOR and shall provide
the OWNER with a right to terminate this Contract in accordance with this Article, in addition to
pursuing any other remedies which the OWNER may have under this Contract or under law:
(1) if in the OWNER's opinion CONTRACTOR is improperly performing work or violating any
provision(s) of the Contract Documents;
(2) if CONTRACTOR neglects or refuses to correct defective work or replace defective parts
or equipment, as directed by the Engineer pursuant to an inspection;
(3) if in the OWNER's opinion CONTRACTOR's work is being unnecessarily delayed and will
not be finished within the prescribed time;
(4) if CONTRACTOR assigns this Contract or any money accruing thereon or approved
thereon; or
(5) if CONTRACTOR abandons the work, is adjudged bankrupt, or if he makes a general
assignment for the benefit of his creditors, or if a trustee or receiver is appointed for
CONTRACTOR or for any of his property.
B. OWNER shall, before terminating the Contract for any of the foregoing reasons, notify
CONTRACTOR in writing of the grounds for termination and provide CONTRACTOR with ten (10)
calendar days to cure the default to the reasonable satisfaction of the OWNER.
C. If the CONTRACTOR fails to correct or cure within the time provided in the preceding Sub -Article
B, OWNER may terminate this Contract by notifying CONTRACTOR in writing. Upon receiving
such notification, CONTRACTOR shall immediately cease all work hereunder and shall forfeit any
further right to possess or occupy the site or any materials thereon; provided, however, that the
OWNER may authorize CONTRACTOR to restore any work sites.
D. The CONTRACTOR shall be liable for:
(1) any new cost incurred by the OWNER in soliciting bids or proposals for and letting a new
contract; and
(2) the difference between the cost of completing the new contract and the cost of completing
this Contract;
(3) any court costs and attorney's fees associated with any lawsuit undertaken by OWNER to
enforce its rights herein.
E. TERMINATION FOR CONVENIENCE: OWNER may at any time and for any reason terminate
CONTRACTOR's services and work for OWNER's convenience. Upon receipt of notice of such
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termination CONTRACTOR shall, unless the notice directs otherwise, immediately discontinue
the work and immediately cease ordering of any materials, labor, equipment, facilities, or
supplies in connection with the performance of this Contract. Upon such termination Contractor
shall be entitled to payment only as follows:
(1) the actual cost of the work completed in conformity with this Contract and the
specifications; plus,
(2) such other costs actually incurred by CONTRACTOR as are permitted by the prime
contract and approved by the OWNER.
Contractor shall not be entitled to any other claim for compensation or damages against the
County in the event of such termination.
F. TERMINIATION IN REGARDS TO F.S. 287.135: TERMINATION IN REGARDS TO F.S. 287.135:
CONTRACTOR certifies that it and those related entities of CONTRACTOR as defined by Florida law
are not on the Scrutinized Companies that Boycott Israel List, created pursuant to s. 215.4725 of
the Florida Statutes, and are not engaged in a boycott of Israel. In addition, if this agreement is
for goods or services of one million dollars or more, CONTRACTOR certifies that it and those
related entities of CONTRACTOR as defined by Florida law are not on the Scrutinized Companies
with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum
Energy Sector List, created pursuant to Section 215.473 of the Florida Statutes and are not
engaged in business operations in Cuba or Syria.
OWNER may terminate this Contract if CONTRACTOR is found to have submitted a false
certification as provided under section 287.135(5), Florida Statutes, been placed on the
Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in
the Iran Petroleum Energy Sector List, or been engaged in business operations in Cuba or Syria, as
defined by section 287.135, Florida Statutes.
OWNER may terminate this Contract if CONTRACTOR, including all wholly owned subsidiaries,
majority-owned subsidiaries, and parent companies that exist for the purpose of making profit, is
found to have been placed on the Scrutinized Companies that Boycott Israel List or is engaged in
a boycott of Israel as set forth in section 215.4725, Florida Statutes.
IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in duplicate. One
counterpart each has been delivered to OWNER and CONTRACTOR. All portions of the Contract Documents
have been signed or identified by OWNER and CONTRACTOR or on their behalf.
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This Agreement will be effective on January 7, 2020 (the date the Agreement is approved by the Indian
River County Board of County Commissioners, which is the Effective Date of the Agreement).
OWNER: CONTRACTOR:
INDIAN RIVER COUNTY ti X&- :n
BFSZAdams,
:
Chai on act )
By: ' �'�' o� '• ( RPORATE
Jason . Br n, County A ministrator'•;�i%FR
COUtir. Attest
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
By: ftw4=A , 04y
. Dylan Reingold, County Attorney Address for giving notices:
Jeffrey R. Smith, Clerk of Court and Comptroller
Attest: &I �/0'4=
Deputy Clerk
(SEAL)
Designated Representative:
Name: Beth Powell
Title: Assistant Parks Director
550077 th Street
Vero Beach, Florida 32967
772-226-1873
bpowell@ircgov.com
License No. (/G 15U -Ki
(Where applicable)
Agent for service of process:
Designated Re r sent�ve:
Name:
Title:
%L: U� w a111911
r
i tNr '' E
(If CONTRACTOR is a corporation or a partnership,
attach evidence of authority to sign.)
ATTACHMENT 8
Contract Provisions for Department of Commerce (DOC) Funded Agreements
The Department, as a Non -Federal Entity as defined by 2 CFR §200.69, shall comply with the following provisions,
where applicable. For purposes of this Grant Agreement between the Department and the Grantee, the term
"Recipient" shall mean "Grantee."
Further, the Department, as a pass-through entity, also requires the Grantee to pass on these requirements to all lower
tier subrecipients, and to comply with the provisions of the award, including applicable provisions of the OMB
Uniform Guidance (2 CFR Part 200), and all associated terms and conditions. Therefore, Grantees must include these
requirements in all related subcontracts and/or sub -awards. Grantees can include these requirements by incorporating
this Attachment in the related subcontract and/or sub -awards, however for all such subcontracts and sub -awards, the
Grantee shall assume the role of the Non -Federal Entity and the subrecipients shall assume the role of the Recipient.
2 CFR PART 200 APPENDIX 2 REQUIREMENTS
1. Administrative, Contractual, and Legal Remedies
The following provision is required if the Agreement is for more than $150,000. In addition to any of the remedies
described elsewhere in the Agreement, if the Recipient materially fails to comply with the terms and conditions of this
Contract, including any Federal or State statutes, rules or regulations, applicable to this Contract, the Non -Federal
Entity may take one or more of the following actions.
i. Temporarily withhold payments pending correction of the deficiency by the Recipient.
ii. Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost
of the activity '
or action not in compliance.
iii. Wholly or partly suspend or terminate this Contract.
iv. Take other remedies that may be legally available.
The remedies identified above, do not preclude the Recipient from being subject to debarment and suspension under
Presidential Executive Orders 12549 and 12689. The Non -Federal entity shall have the right to demand a refund,
either in whole or part, of the funds provided to the Recipient for noncompliance with the terms of this Agreement.
2. Termination for Cause and Convenience
Termination for Cause and Convenience are addressed elsewhere in the Agreement.
3. Equal Opportunity Clause
The following provision applies if the agreement meets the definition of "federally assisted construction contract" as
defined by 41 CFR Part 60-1.3:
During the performance of this Agreement, the Recipient agrees as follows:
i. The Recipient will not discriminate against any employee or applicant for employment because of
race, color, religion, sex, sexual orientation, gender identity, or national origin. The Recipient 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:
a. Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for training, including
apprenticeship. The Recipient agrees to post in conspicuous places, available
to employees and applicants for employment, notices to be provided setting forth the provisions of
this nondiscrimination clause.
ii. The Recipient will, in all solicitations or advertisements for employees placed by or on behalf of
the Recipient, state that all qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
iii. The Recipient 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 Recipient's legal duty to furnish information.
Attachment 8
Page 1 of 5
Rev. 6/14/2019
iv. The Recipient will send to each labor union or representative of workers with which he has a collective
bargaining agreement or other Agreement or understanding, a notice to be provided advising the said
labor union or workers' representatives of the Recipient's commitments under this section, and shall
post copies of the notice in conspicuous places available to employees and applicants for employment.
v. The Recipient 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.
vi. The Recipient will furnish all information and reports required by Executive Order 11246 of
September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant
thereto, and will permit access to his books, records, and accounts by the administering agency and the
Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations,
and orders.
vii. In the event of the Recipient's noncompliance with the nondiscrimination clauses of this Agreement or
with any of the said rules, regulations, or orders, this Agreement may be canceled, terminated, or
suspended in whole or in part and the Recipient may be declared ineligible for further Government
contracts or federally assisted construction 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.
viii. The Recipient will include the portion of the sentence immediately preceding paragraph (1) and the
provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by
rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive
Order 11246 of September 24, 1965, so that such provisions will be binding upon
each subcontractor or vendor. The Recipient will take such action with respect to any subcontractor
purchase order as the administering agency may direct as a means of enforcing such provisions,
including sanctions for noncompliance.
4. Davis Bacon Act
If the Agreement is a prime construction contract in excess of $2,000 awarded by the Recipient, and if required by
the Federal Legislation, the Recipient must comply with the Davis -Bacon Act (40 U.S.C. 3141-3144, and 3146-
3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions
Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with the statute,
contractors must pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a
wage determination made by the Secretary of Labor. In addition, contractors must pay wages not less than once a
week. The Recipient must comply with the Copeland "Anti -Kickback" Act (40 U.S.C. 3145), as supplemented by
Department of Labor regulations (29 CFR Part 3, "Contractors and Subcontractors on Public Building or Public
Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each
Recipient or subrecipient must be prohibited from inducing, by any means, 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.
5. Contract Work Hours and Safety Standards Act
Where applicable, if the Agreement is in excess of $100,000 and involves the employment of mechanics or laborers,
the Recipient must comply with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29
CFR Part 5). Under 40 U.S.C. 3702 of the Act, each Recipient must be required to compute the wages of every
mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week
is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of
pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable
to construction work and provide that no laborer or mechanic must be required to work in surroundings or under
working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases
of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or
transmission of intelligence.
6. Rights to Inventions Made Under Ap-reement
If the Federal award meets the definition of "funding agreement" under 37 CFR §401.2 (a) and the Non -Federal
Entity 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 Non -Federal Entity 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.
Attachment 8
Page 2 of 5
Rev. 6/14/2019
7. Clean Air Act (42 U.S.C. 7401-7671 q.) and the Federal Water Pollution Control Act (33 U.S.C. 1251-
1387
If the Agreement is in excess of $150,000, the Recipient shall 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).
8. Debarment and Suspension (Executive Orders 12549 and 12689)
The Recipient certifies that it is not 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."
9. Byrd Anti -Lobbying Amendment (31 U.S.C. 1352)
If the Federal funds exceed $100,000, the Recipient certifies 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. If applicable,
the Recipient shall disclose any lobbying with non -Federal funds that takes place in connection with obtaining any
Federal award, using form SF -LLL, available at: https:Hgpply07. rg ants.gov/apply/forms/sample/SFLLL 1 2 P-
V 1.2.pdf.
10. Procurement of Recovered Materials
The Recipient must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act as described in 2 CFR part 200.322.
ADMINISTRATIVE
11. General Federal Regulations
Grantees shall comply with regulations listed in 2 CFR Part 200, 2 CFR Part 1326, 48 CFR Part 31 and 40 U.S.C.
1101 et sequence.
12. Rights to Patents and Inventions Made Under a Contract or Agreement
Rights to inventions made under this assistance agreement are subject to federal patent and licensing regulations,
which are codified at Title 37 CFR Part 401 and Title 35 U.S.C. 200 through 212.
13. Compliance with the Trafficking Victims Protection Act of 2000 (2 CFR Part 175)
Grantees, their employees, subrecipients under this award, and subrecipients' employees may not:
i. Engage in severe forms of trafficking in persons during the period of time that the award is in effect;
ii. Procure a commercial sex act during the period of time that the award is in effect; or
iii. Use forced labor in performance of the award or subawards under the award.
14. Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L. 93-234)
Grantee must comply with flood insurance requirements of Section 102(a) of the Flood Disaster Protection Act of
1973 (P.L. 93-234), if applicable. This act requires recipients in a special flood hazard area to participate in the
program and to purchase flood insurance if the total cost of insurable construction and acquisition is $10,000 or more.
15. Water Resources Reform and Development Act (WRRDA) P.L. 113-121
Grantees must comply with the Water Resources Reform and Development Act (WRRDA) P.L. 113-121, if applicable.
This act provides for improvements to the rivers and harbors for the United States, to provide for the conservation and
development of water and related resources.
16. Whistleblower Protection
Grantees shall comply with U.S.C. §4712, Enhancement of Recipient and Subrecipient Employee Whistleblower
Protection. This requirement applies to all awards issued after July 1, 2013, and effective December 14, 2016, has
been permanently extended (Public Law (P.L.) 114-261).
(a) This award, related subawards, and related contracts over the simplified acquisition threshold and all
employees working on this award, related subawards, and related contracts over the simplified acquisition threshold
are subject to the whistleblower rights and remedies in the pilot program on award recipient employee whistleblower
protections established at 41 U.S.C. 4712 by section 828 of the National Defense Authorization Act for Fiscal Year
2013 (P.L. 112-239).
(b) Recipients, their subrecipients, and their contractors awarded contracts over the simplified acquisition
threshold related to this award, shall inform their employees in writing, in the predominant language of the workforce,
of the employee whistleblower rights and protections under 41 U.S.C. 4712.
(c) The recipient shall insert this clause, including this paragraph (c), in all subawards and in contracts over
the simplified acquisition threshold related to this award; best efforts should be made to include this clause, including
this paragraph (c) in any subwards and contracts awarded prior to the effective date of this provision.
17. Notification of Termination (2 CFR § 200.340)
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In accordance with 2 CFR § 200.340, in the event that the Agreement is terminated prior to the end of the period of
performance due to the Grantee's or subcontractor's material failure to comply with the Federal statutes, regulations
or the terms and conditions of this Agreement or the Federal award, the termination shall be reported to the Office of
Management and Budget (OMB)-designated integrity and performance system, accessible through System for Award
Management (SAM) currently the Federal Awardee Performance and Integrity Information System (FAPIIS). The
Recipient will notify the Grantee of the termination and the Federal requirement to report the termination in FAPIIS.
See 2 CFR § 200.340 for the requirements of the notice and the Grantee's rights upon termination and following
termination
18. Additional Lobbying Requirements
i. The Grantee certifies that no funds provided under this Agreement have been used or will be used to
engage in the lobbying of the Federal Government or in litigation against the United States unless
authorized under existing law.
ii. The Lobbying Disclosure Act of 1995, as amended (2 U.S.C. § 1601 et seq.), prohibits any organization
described in Section 501(c)(4) of the Internal Revenue Code, from receiving federal funds through an
award, grant (and/or subgrant) or loan unless such organization warrants that it does not, and will not
engage in lobbying activities prohibited by the Act as a special condition of such an award, grant (and/or
subgrant), or loan. This restriction does not apply to loans made pursuant to approved revolving loan
programs or to contracts awarded using proper procurement procedures.
iii. Pursuant to 2 CFR § 200.450 and 2 CFR § 200.454E, the Grantee is hereby prohibited from using funds
provided by this Agreement for membership dues to any entity or organization engaged in lobbying
activities.
COMPLIANCE WITH ASSURANCES
19. Assurances
Grantees shall comply with any and all applicable assurances made by the Department or the Grantee to the Federal
Government during the Grant application process.
20. Contracting with Small and Minority Businesses, Women's Business Enterprises, and Labor Surplus Area
Firms
Grantee shall take all affirmative steps necessary to assure that minority business, women's business enterprises, and
labor surplus area firms are used when possible, including those steps listed in 2 CFR § 200.321(b).
FEDERAL REPORTING REOUIREMENTS
Grant Recipients awarded a new Federal grant greater than or equal to $30,000 awarded on or after October 1, 2015,
are subject to the FFATA the Federal Funding Accountability and Transparency Act ("FFATA") of 2006. 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, which is www.USASpending_gov. The Grantee agrees to
provide the information necessary, within one (1) month of execution, for the Department to comply with this
requirement.
DEPARTMENT OF COMMERCE-SPECIFIC
21. Department of Commerce (DOC) Financial Assistance Terms and Conditions
Grantees shall comply with the U.S. Department of Commerce Financial Assistance Terms and Conditions, available
online (http://www.osec.doc.gov/oam/ rg ants manap-ement/12olicy/default.htm and incorporated by reference.
22. DOC Regulations
Grantee shall comply with the following regulations: 2 CFR 1300-1399, 15 CFR 8, 15 CFR 8a, 15 CFR 8b, 15 CFR
13, 15 CFR 20, and 15 CFR 28
23. Drug-Free Workplace
Grantee must make an on-going, good faith effort to maintain a drug-free work place pursuant to the specific
requirements set forth in Title 2 CFR Part 1329. Additionally, in accordance with these regulations, the recipients
must identify all known workplaces under its federal awards, and keep this information on file during the performance
of the award.
24. Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act
As applicable, Grantee shall comply with the requirements of the Uniform Relocation Assistance and Real Property
Acquisition Polices Act of 1970 (P.L. 91-646) to provide for fair and equitable treatment of persons displaced or
whose property is acquired as a result of Federal or federally assisted programs. These requirements apply to all
interests in real property acquired for project purposes regardless of Federal participation in purchases.
25. Property Management Requirements
If the purchase of equipment is authorized under paragraph 20 of this Agreement, then the Grantee shall comply with
the property management requirements set forth in 2 CFR §200.313. An inventory of all personal property/equipment
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purchased under this Agreement shall be completed at least once every two (2) years and submitted to the
Department's Grant Manager no later than January 31 st for each year this Agreement is in effect.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (NOAA)-SPECIFIC
26. Scientific Integrity, as established in the Department of Commerce Financial Assistance Alert 16-
02 (January 13, 2016)
The NOAA Acquisition and Grants Office (AGO) has established the following policy to provide appropriate
protections for all NOAA grants, financial assistance awards, and cooperative agreements:
a. Maintaining Integrity. The recipient shall maintain the scientific integrity of research performed pursuant to
this grant or financial assistance award including the prevention, detection, and remediation of any allegations
regarding the violation of scientific integrity or scientific and research misconduct, and the conduct of inquiries,
investigations, and adjudications of allegations of violations of scientific integrity or scientific and research
misconduct. All the requirements of this provision flow down to subrecipients.
b. Peer Review. The peer review of the results of scientific activities under a NOAA grant, financial assistance
award, or cooperative agreement shall be accomplished to ensure consistency with NOAA standards on quality,
relevance, scientific integrity, reproducibility, transparency, and performance. NOAA will ensure that peer review of
"influential scientific information" or "highly influential scientific assessments" is conducted in accordance with the
Office of Management and Budget (OMB) Final Information Quality Bulletin for Peer Review and NOAA policies
on peer review, such as the Information Quality Guidelines.
c. In performing or presenting the results of scientific activities under the NOAA grant, financial assistance
award, or cooperative agreement and in responding to allegations regarding the violation of scientific integrity or
scientific and research misconduct, the recipient and all subrecipients shall comply with the provisions herein and
NOAA Administrative Order (NAO) 202-735D, Scientific Integrity, and its Procedural Handbook, including any
amendments thereto. That Order can be found at http://nrc.noaa.gov/ScientificIntegrityCommons.aspx.
d. Primary Responsibility. The recipient shall have the primary responsibility to prevent, detect, and investigate
allegations of a violation of scientific integrity or scientific and research misconduct. Unless otherwise instructed by
the grants officer, the recipient shall promptly conduct an initial inquiry into any allegation of such misconduct and
may rely on its internal policies and procedures, as appropriate, to do so.
e. By executing this grant, financial assistance award, or cooperative agreement the recipient provides its
assurance that it has established an administrative process for performing an inquiry, investigating, and reporting
allegations of a violation of scientific integrity or scientific and research misconduct; and that it will comply with its
own administrative process for performing an inquiry, investigation, and reporting of such misconduct.
f. The recipient shall insert this provision in all subawards at all tiers under this grant, financial assistance
award, or cooperative agreement.
26. Investigating Scientific Integrity or Scientific and Research Misconduct
a. Inhibiting Investigation. If the recipient or subrecipient determines that there is sufficient evidence to proceed to
an investigation, it shall notify the grants office and, unless otherwise constructed, the recipient or subrecipient shall:
i. Promptly conduct an investigation to develop a complete factual record and an examination of such record
leading to either a finding regarding the violation of scientific integrity or scientific and research misconduct and an
identification of appropriate remedies or a determination that no further action is warranted.
ii. If the investigation leads to a finding regarding the violation of scientific integrity or scientific and research
misconduct, obtain adjudication by a neutral third -party adjudicator. The adjudication must include a review of the
investigative record and, as warranted, a determination of appropriate corrective actions and sanctions.
b. Finalizing Investigation. When the investigation is complete, the recipient shall forward to the grants officer a
copy of the evidentiary record, the investigative report, any recommendations made to the recipient adjudicating
official, the adjudicating official's decision and notification of any corrective action taken or planned, and the subject's
written response (if any).
27. Findings and Corrective Actions
If the recipient finds that scientific integrity has been violated or scientific and research misconduct has
occurred, it shall assess the seriousness of the misconduct and its impact on the research completed or in process and
shall:
a. Take all necessary corrective actions, which includes, but are not limited to, correcting the research record, and,
as appropriate, imposing restrictions, controls, or other parameters on research in process or to be conducted in the
future, and
b. Coordinate remedial action with the grants officer.
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