5-2.0 - GTCs Informal Services Procurements 0523.pdf

SECTION 2.0

GENERAL TERMS AND CONDITIONS FOR

PROCUREMENTS FOR SERVICES UNDER $100,000

SOUTH FLORIDA REGIONAL TRANSPORTATION AUTHORITY

GENERAL TERMS AND CONDITIONS

FOR INFORMAL SERVICE

PROCUREMENTS UNDER $100,000

5/23/23 GTC 2 of 20

1. CONTRACTING AGENCY: The Contracting Agency is the South Florida Regional

Transportation Authority (“SFRTA”), a body politic and corporate, a public instrumentality and an agency of the State of Florida, established pursuant to Chapter 343, Florida Statutes. Pursuant to the authority granted to it by Chapter 343, SFRTA operates a commuter rail system under the name “Tri-Rail” in Miami-Dade, Broward, and Palm Beach counties. SFRTA is governed by a 10-member appointed Board.

All SFRTA procurement activities are governed by the SFRTA Procurement Policy.

2. SERVICES OF THE CONTRACTOR: The CONTRACTOR shall employ only persons duly licensed by the State of Florida to perform the services required under this Agreement for which applicable Florida law requires a license, subject to prior approval of the SFRTA.

3. UNIFORM COMMERCIAL CODE: All applicable portions of the Florida Uniform Commercial

Code shall govern agreements with SFRTA.

4. DRUGFREE WORKPLACE: CONTRACTOR shall comply with the terms of Florida Law and the U.S. DOT regulations for Drugfree Workplace Requirements, 49 C.F.R. Part 29, Subpart F.

5. INTEREST OF MEMBERS OF OR DELEGATES TO CONGRESS: In accordance with 18

U.S.C. Section 431, no member of, or delegate to, the Congress of the United States shall be admitted to any share or part of the Agreement or to any benefit arising there from.

6. CONFLICT OF INTEREST:

(a) During the term of this Contract, the Contractor is prohibited from engaging in other work with third parties that creates a conflict of interest. A conflict of interest exists if the Contractor accepts other work which is adverse to the interests of SFRTA or that would impair the independence of judgment of the firm or its employees in the performance of their contractual obligations to SFRTA.

The Contractor may, if in doubt as to a conflict under this section, request in writing an opinion from SFRTA's Legal Department regarding a potential conflict. The request shall contain all relevant facts creating the potential conflict. The opinion of the Legal Department as to whether a conflict of interest exists shall be final and binding on the Contractor. If the Legal Department determines there is an existing conflict of interest, the Contractor shall immediately take steps to eliminate the conflict up to and including terminating its relationship with the third party creating the conflict or terminating its Contract with SFRTA. SFRTA's Contracting Officer shall determine whether the steps taken by the Contractor are sufficient to eliminate the conflict.

(b) The following actions by the Contractor shall constitute an event of default and shall be grounds for termination of this Contract and potential disbarment from future work with SFRTA:

• Failing to disclose a conflict of interest that would be created by entering into a Contract with SFRTA prior to Contract award;

• Entering into a contract with a third party during the term of the Contractor's Contract with SFRTA that creates a conflict of interest; or

• Failing to eliminate a conflict once a previously unknown conflict is discovered after Contract Award.

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(c) If SFRTA's Contracting Officer determines that a conflict of interest exists, he or she shall take into consideration the steps taken by the Contractor to immediately inform SFRTA of the conflict and the measures it has taken to eliminate the conflict once discovered in determining whether to terminate its Contract with the Contractor and/or disbar it from future work with SFRTA.

(d) The Contractor shall not be relieved of its obligations under this Section due to lack of knowledge of SFRTA and its business dealings.

(e) The Contractor shall not enter into a Contract or arrangement in connection with the Work or any property included or planned to be included in the Work covered by this Contract, with any officer, director or employee of SFRTA, or any business entity of which the SFRTA officer, director or employee or the SFRTA officer's, director's or employee's spouse or child is an officer, partner, director, or proprietor of the business entity or in which such SFRTA officer, director or employee or the officer's director's or employee's spouse or child, or any combination of them, has a material interest. Material interest means direct or indirect ownership of more than 5 percent of the total assets or capital stock of any business entity.

The Contractor shall not enter into any Contract or arrangement in connection with the Work or any property included or planned to be included in the Work covered by this Contract, with any person or entity who was represented before SFRTA by any person who at any time during the immediately preceding two (2) years was an officer or employee of SFRTA and who was compensated for their representation.

7. PRIVACY: CONTRACTOR shall comply with the terms of the Privacy Act of 1974, 5 U.S.C.

Section 552a, if applicable. A violation of this Act may involve the imposition of criminal penalties.

8. DISADVANTAGED BUSINESS ENTERPRISE COMPLIANCE AND

SUBCONTRACTING: (if applicable, see Federal Funding supplement).

9. EQUAL EMPLOYMENT OPPORTUNITY/NON-DISCRIMINATION: In performing all

Services to be provided hereunder, the CONTRACTOR, shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The Contractor shall take affirmative action to ensure that applicants for employment are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such actions shall include, but not be limited to, the following: (i) employment, upgrading, demotion or transfer;

(ii) recruitment or recruitment advertising; (iii) layoff or termination; (iv) rates of pay or other forms of compensation; and (v) selection for training, including apprenticeship. The Contractor shall post in conspicuous places, available to all employees and applicants for employment notices setting forth the terms of this Equal Employment Opportunity Non-Discrimination Clause and stating that all qualified candidates will receive consideration for employment without regard to race, color, religion, sex or national origin.

10. PUBLIC ENTITY CRIMES: Pursuant to Section 287.133, Florida Statutes, a person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit

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5/23/23 GTC 4 of 20 bids on leases of real property to a public entity, may not be awarded or perform work as a firm, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being on the convicted CONTRACTOR list.

11. MOST FAVORED CUSTOMER: CONTRACTOR shall voluntarily provide SFRTA with the benefits of any more favorable terms it has, or negotiates, with any organization or facility whose circumstances and operations are substantially the same as those of SFRTA.

12. INVOICES AND PAYMENT: CONTRACTOR shall submit invoices upon completion of Work.

CONTRACTOR’s invoice shall be in a form determined by the Project Manager. SFRTA shall pay the CONTRACTOR all invoices or items set forth in such invoices which are not in dispute within forty-five

(45) days after receipt of the invoices. All payments shall be governed by the Florida Prompt Payment Act, as set forth in Part VII, Chapter 218, Florida Statutes.

12.1 SFRTA is exempt from Federal Excise and Sales taxes and CONTRACTOR shall not include any charges representing such charges on any invoices which are submitted.

12.2 CONTRACTOR's invoice shall reference SFRTA's Agreement number and/or Purchase Order number, and a description of the item(s) being billed in an identifiable manner.

Invoices must be submitted in duplicate to SFRTA's Accounts Payable department and not to any other individual or department. Invoices received without sufficient information will be returned to the CONTRACTOR for additional details.

13. DELIVERY: CONTRACTOR shall comply with the schedule(s) as specified in the Agreement. In the event CONTRACTOR is unable to comply with the schedule(s) because of circumstances beyond the control of CONTRACTOR, it shall be the responsibility of CONTRACTOR to notify SFRTA, in writing, whenever a delay is anticipated or experienced, and to inform SFRTA of all facts related to the delay.

14. WARRANTY: In the event that materials and/or workmanship supplied under this Agreement is determined to be defective within one (1) year from the date of delivery, all costs associated with repair or replacement, including labor, shall be borne by the CONTRACTOR under this warranty provision. Please also see the Scope of Services for details regarding the required Warranty.

15. TERMINATION FOR CONVENIENCE: SFRTA may terminate the Contract Documents, in whole or in part, at any time upon providing fourteen (14) days written notice to the CONTRACTOR.

The CONTRACTOR shall be paid its costs, including agreement close-out costs, and profit on work performed up to the effective date of termination. The CONTRACTOR shall promptly submit its termination claim to SFRTA to be paid the CONTRACTOR. If the CONTRACTOR has any property in its possession belonging to the SFRTA, the CONTRACTOR will account for the same, and dispose of it in the manner the SFRTA directs.

16. TERMINATION FOR DEFAULT: If the CONTRACTOR fails to comply with the terms and requirements set forth in the Contract Documents, SFRTA may terminate the Contract Documents for default upon providing fourteen (14) days of written notice to CONTRACTOR. Termination shall be

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5/23/23 GTC 5 of 20 effected by serving the notice of termination on the CONTRACTOR setting forth the manner in which the CONTRACTOR is in default. The CONTRACTOR will only be paid for services properly invoiced and performed in accordance with the Contract Documents.

17. INSURANCE: CONTRACTOR shall provide, pay for, and maintain in force at all times during the Services to be performed the required insurance coverage as set forth in in this section. SFRTA reserves the right to reject coverage from any company not acceptable to SFRTA and to require CONTRACTOR to obtain coverage from another source. Self-insurance shall not be acceptable under the terms of this Agreement. SFRTA further reserves the right to require any other additional insurance coverage and/or higher limits of liability it deems necessary based on the nature of work being performed pursuant to the Agreement.

17.1 CONTRACTOR shall furnish a Certificate of Liability Insurance to SFRTA within ten (10) business days of CONTRACTOR's receipt of a fully executed Agreement. If the insurance certificate is received within the specified time frame, but not in the manner prescribed, CONTRACTOR shall be verbally notified of such deficiency and shall have an additional five (5) business days to submit a corrected certificate to SFRTA. If CONTRACTOR fails to submit the required insurance certificate in the manner prescribed within fifteen (15) business days from the receipt of a fully executed Agreement, the CONTRACTOR shall be in default, and this Agreement shall be rescinded. Under such circumstances, CONTRACTOR may be prohibited from submitting future Bids to SFRTA.

Such policy or policies shall be issued by a company or companies authorized to transact business in the State of Florida or an eligible surplus lines insurer in good standing with the Florida Insurance Commissioner's Office. ALL POLICIES MUST BE ENDORSED TO PROVIDE

SFRTA WITH THIRTY (30) DAYS, NOTICE OF CANCELLATION, NON-RENEWAL

AND/OR RESTRICTION AND IT SHALL BE STATED ON THE INSURANCE

CERTIFICATE THAT THIS COVERAGE IS PRIMARY TO ALL OTHER COVERAGE

SFRTA MAY POSSESS. POLICY(IES) MUST ALSO BE ENDORSED WITH A WAIVER OF

SUBROGATION IN FAVOR OF SFRTA AND FLORIDA DEPARTMENT OF

TRANSPORTATION (FDOT).

CONTRACTOR shall use the Standard “ACORD” 25 Certificate of Liability Insurance form and Acord form 101, Additional Remarks Schedule, if necessary. Any required endorsement pages shall be submitted with the Standard “ACORD” Insurance Certificate.

17.2 Renewal of Insurance. CONTRACTOR shall be responsible for assuring that the insurance certificates required in conjunction with this section remains in force with no changes for the duration of the agreement period. If the insurance certificate is scheduled to expire during this period, CONTRACTOR shall be responsible for submitting a new or renewed insurance certificate to SFRTA prior to expiration. In the event that expired certificate is not replaced with a new or renewed certificate, which covers agreement period, SFRTA shall suspend this Agreement and shall suspend all payments until such time as the new or renewed certificate is received by SFRTA.

17.3 Additional Insured. In all instances where the CONTRACTOR’s insurance is required to name parties as Additional Insureds, a copy of the Additional Insured Endorsement(s) shall be attached to the Certificate of Insurance. The additional insured coverage shall be primary to the

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Additional Insureds and not contributing with any other insurance or similar protection available to the Additional Insureds, whether other coverage is primary, contributing or excess.

The above indicated insurance coverages shall be issued by insurers of financial responsibility that are rated “A” or better by Best’s Insurance Report, “AA” or better by Standard & Poor’s Insurance Rating Service, or “AA” or better by Moody’s Investors Service. SFRTA reserves the right to reject as inadequate any insurance coverage provided by an insurance company that is rated less than the ratings above by any of the aforementioned rating services.

17.4 Minimum Coverage. Insurance Coverage in the minimum amounts set forth herein shall not be construed to relieve CONTRACTOR of liability in excess of such coverage, nor shall it preclude SFRTA from taking such other actions as is available to it under any other provisions of this Agreement or otherwise in law or equity.

17.4.1 Worker’s Compensation Insurance is to apply to all employees in compliance with the "Workers' Compensation Law" of the State of Florida and all applicable federal laws.

In addition, the policy(ies) must include Employer's Liability with the minimum limit of One Hundred Thousand Dollars ($100,000.00).

17.4.2 Commercial General Liability (CGL) Insurance with the minimum limit of One Million Dollars ($1,000,000.00) per occurrence or aggregate combined single limit for Bodily Injury Liability and Property Damage. Coverage must be afforded on a form no more restrictive than the latest edition of the Commercial General Liability Policy, without restrictive endorsements, as filed by the Insurance Services Office, and must include the following coverages:

A. Premises and/or Operations;

B. Products and Completed Operations Extension Endorsement, providing that loss occurring or discovered within Three (3) years after date of Final Acceptance of the Project by SFRTA shall be deemed to be an occurrence within the policy period;

C. Independent CONTRACTORs;

D. Broad Form Property Damage;

E. Broad Form Contractual Coverage applicable to this specific Agreement, including any hold harmless and/or indemnification agreement; and

F. Personal Injury Coverage with Employee and Contractual Exclusions removed with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability.

G. CONTRACTOR shall specifically protect SFRTA by obtaining an endorsement to its Commercial General Liability policy naming SFRTA, FDOT, and their respective employees and officers as Additional Insureds.

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17.4.3 Business Automobile Liability with minimum limits of Three Hundred Thousand Dollars ($300,000.00) per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability. CONTRACTOR shall specifically protect SFRTA by obtaining an endorsement to its Automobile Liability policy naming SFRTA, FDOT, and their respective employees and officers, as Additional Insureds. Coverage must be afforded on a form no more restrictive than the latest edition of the business Automobile Liability Policy, without restrictive endorsements, as filed by the Insurance Services Office and must include the following coverages:

A. Owned vehicles;

B. Hired and non-owned vehicles;

C. Employees’ non-ownership; and, D. Personal Injury, Property Damage, Uninsured Motorist, Collision, and

Comprehensive coverages.

17.4.4 If specifically required by the Contract Documents, Contractor shall provide Professional Liability Insurance (Errors & Omissions) covering all Project services in an amount not less than One Million Dollars ($1,000,000) per occurrence or claim and Two Million Dollars ($2,000,000) policy aggregate. The policy shall include a discovery period for reporting claims of not less than twelve (12) months from the date of Contract completion. The Professional Liability Insurance requirement shall apply to all members of the Project team within the scope of professional liability coverage for the amounts stated.

17.5 Any insurance required of the CONTRACTOR pursuant to this section must also be required by any subcontractor in the same limits and with all requirements as provided herein, including naming SFRTA and FDOT as additional insured, in any work that is subcontracted unless such subcontractor is covered by the protection afforded by the CONTRACTOR and provided proof of such coverage is provided to SFRTA. The CONTRACTOR and any subcontractors shall maintain such policies during the term of this Agreement.

18. INDEMNIFICATION:

18.1 The CONTRACTOR shall indemnify and hold harmless SFRTA, FDOT, and their respective individual officers, employees, and subcontractors, from any liabilities, damages, losses, and costs, arising from CONTRACOR’s performance of the Agreement, including but not limited to, reasonable attorneys’ fees and appellate costs, to the extent such claims are caused by the negligence, recklessness, or intentional wrongful misconduct of the CONTRACTOR and other persons employed or utilized by the CONTRACTOR in the performance of the Agreement.

SFRTA reserves the right to select its own legal counsel to conduct any defense in any such proceeding.

18.2 Intellectual Property Indemnification. CONTRACTOR shall indemnify and hold harmless SFRTA, FDOT, and their respective individual officers, employees, and subcontractors, from any

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5/23/23 GTC 8 of 20 and all liabilities, damages, losses, costs, suits, legal actions, investigations, or any threat of the same, that the manufacture or furnishing of goods and/or services pursuant to the Agreement, or that the sale or use of such goods and/or services constitutes an infringement of any patent, trade secret, trademark, service mark, copyright, or related application, or other intellectual property or proprietary information infringement. If any use of the goods and/or services is enjoined in any manner due to such infringement, CONTRACTOR shall, at its own expense and at its option, either: (i) procure for SFRTA the right to continue using said goods and/or services, (ii) replace the infringing item with a non- infringing equivalent, (iii) modify the item so that it becomes non-infringing, or (iv) upon showing an inability to do any of the foregoing, remove the goods/services and refund the purchase price and any related transportation and installation costs.

18.3 The CONTRACTOR’s obligation to indemnify SFRTA and FDOT shall be activated by SFRTA’s notice of claim for indemnification to the CONTRACTOR. The CONTRACTOR’s inability to evaluate liability or its evaluation of liability shall not excuse the CONTRACTOR’s duty to indemnify within seven (7) days after such notice by SFRTA is given by registered mail.

Only an adjudication or judgment after the highest appeal is exhausted specifically finding SFRTA solely negligent shall excuse performance of this provision by the CONTRACTOR. The CONTRACTOR shall pay all costs and fees related to this obligation and its enforcement by SFRTA. SFRTA’s failure to notify the CONTRACTOR of a claim shall not release the CONTRACTOR of the above duty to indemnify.

18.4 It is specifically agreed between the parties executing the Agreement that it is not intended by any of the provisions of any part of the Agreement to create in the public or any member thereof, a third-party beneficiary hereunder, or to authorize anyone not a party to the Agreement to maintain a suit for personal injuries or property damage pursuant to the terms or provisions of the Agreement.

18.5 The CONTRACTOR guarantees the payment of all just claims for materials, supplies, tools or labor and other just claims against it or any subcontractor or subconsultant, in connection with the Agreement.

18.6 The parties hereby agree and acknowledge that one hundred dollars ($100.00) of the first payment to the CONTRACTOR for performance of this Agreement is the specific consideration from SFRTA to the CONTRACTOR for the CONTRACTOR’s indemnity agreement.

18.7 Any amendments to this indemnification, including changes in the parties to be indemnified (which shall depend on the Project and its relation to the South Florida Rail Corridor), may be addressed in the Special Terms and Conditions if applicable.

18.8 The forgoing indemnification provisions shall survive the expiration or termination of this Agreement.

18.9 Nothing in the Contract Documents is intended nor shall be construed to waive SFRTA’s rights and immunities provided to it by law and as may be limited by Section 768.28, Florida Statutes.

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19. ASSIGNMENT. The Contract Documents and any interests granted thereunder, shall not be assigned, transferred or otherwise encumbered, under any circumstances, by CONTRACTOR without the prior written consent of SFRTA. For purposes of this Agreement, any change of ownership of CONTRACTOR shall constitute an assignment which requires SFRTA approval. Subject to the foregoing, the Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties to the Agreement.

20. FORCE MAJEURE: Should the CONTRACTOR be obstructed or delayed in the prosecution of or completion of the work as a result of unforeseeable causes beyond the control of CONTRACTOR, and not due to its fault or neglect, including, but not restricted to, acts of God or of the public enemy, acts of government, fires, floods, epidemics, quarantine regulation, strikes, lockouts, unusually severe weather conditions not reasonably anticipated, the CONTRACTOR shall notify SFRTA in writing within forty-eight (48) hours after the commencement of such delay, stating the cause or causes, or be deemed to have waived any right which the CONTRACTOR may have had to request a time extension.

21. MODIFICATIONS: All Modifications to the scope of Work shall be in writing. This Agreement may not be changed, altered, or modified except by an instrument in writing signed by all parties against whom enforcement of such change would be sought (i.e. Contract Amendment), with the exception of a Change Directive. SFRTA may issue a Change Directive directing the Contractor to make changes in the plans, specifications or work that does not involve a material change in the Agreement’s scope of Work.

In addition, SFRTA shall have the unilateral right to issue a Change Directive and negotiate cost and price for time and materials, if applicable, after its issuance.

22. SEVERABILITY: In the event any term or provision of this Agreement shall be determined by appropriate judicial authority to be illegal or otherwise invalid, such provision shall be given its nearest legal meaning or be construed or deleted as such authority determines, and the remainder of this Agreement shall be construed to be in full force and effect.

23. NO WAIVER: The failure of SFRTA to enforce at any time or for any period of time any one or more of the provisions of the Agreement shall not be construed to be and shall not be a waiver of any such provision or provisions or of its right thereafter to enforce each and every such provision.

24. GOVERNING LAW AND JURISDICTION: The Agreement shall be interpreted construed, and given effect in all respects under according to the laws of the State of Florida. Venue for litigation concerning this Agreement shall be in Broward County, Florida.

Any litigation between the SFRTA and Contractor (which term for the purposes of this subparagraph shall include the Contractor's surety), whether arising out of any Claim or arising out of the Contract or any breach thereof, shall be brought, maintained and pursued only in the appropriate State courts of the State of Florida; and the SFRTA and the Contractor each hereby waive and renounce any and all rights and options which they, or either of them, have or might have to bring or maintain any such litigation or action in the Federal Court system of the United States or in any United States Federal District Court.

Venue of any such litigation between the SFRTA and Contractor shall lie and be only in the appropriate State courts of the State of Florida's Seventeenth Circuit in and for Broward County, Florida. SFRTA and Contractor consent and submit to the jurisdiction of any such court and agree to accept service of process

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5/23/23 GTC 10 of 20 outside the State of Florida in any matter to be submitted to any such court pursuant hereto. By submittal of its Bid, Proposal or Submittal, the Bidder or Proposer (and ultimately the Contractor) and SFRTA

EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY REGARDING ANY DISPUTE RELATING

TO THE CONTRACT (AND THE CONTRACTOR’S WORK HEREUNDER) THAT RESULTS IN

LIGITATION. CONTRACTOR SHALL NOT BRING ANY COURT ACTION AGAINST SFRTA

EITHER IN EQUITY OR IN LAW, AND CONTRACTOR EXPRESSLY WAIVES ITS RIGHT TO

INSTITUTE LITIGATION AGAINST SFRTA FOR ANY MATTER ARISING UNDER THE TERMS

OF THIS CONTRACT, UNTIL AFTER THE PROJECT HAS BEEN COMPLETED AND ACCEPTED

BY SFRTA.

25. MATERIAL SAFETY DATA SHEET: If any chemicals, materials, or products containing toxic substances, as defined by Chapter 442, Florida Statutes, or any local, state or federal statutes or regulations, are contained in the products used on site or incorporated into the construction by the CONTRACTOR or any of its subcontractors, the CONTRACTOR shall provide to SFRTA a Material Safety Data Sheet at the time of each delivery or prior to each new use of such product.

26. HIALEAH YARD SAFETY RULES: In the event this Agreement relates to any work to be conducted at the SFRTA Hialeah Yard Facility (or Hialeah Yard), a live train yard, the following provision shall apply. The CONTRACTOR must be available for a mandatory general safety briefing before beginning any work activity, for all personnel on the Project. All workers will be required to be certified in 49 CFR 214 Roadway worker protection rules prior to commencement of work. Safety rules within the Hialeah Yard are established and enforced by the SFRTA Maintenance of Equipment Contractor, Herzog Transit Services, Inc. (“Herzog”). All safety rules directed by Herzog will be observed. Work must be performed under the guidance of an SFRTA Employee in Charge of track Safety. Railroad tracks in and around the engine house must not be fouled without prior permission from the Herzog engine house supervisor. All debris must be removed from the Project site daily to ensure a neat work environment.

Also, access to the Hialeah Yard is via an electronic entry gate. A limited number of access cards can be provided at the commencement of the effort, but must be returned at the end of the Project.

27. NOTICES: See the Agreement (i.e. the two page document executed by the CONTRACTOR and

SFRTA).

28. DEBARMENT AND SUSPENSION: CONTRACTOR shall comply with U.S. DOT regulations, "Government wide Debarment and Suspension (Nonprocurement)". This requirement shall pass through to any and all subcontractors engaged to perform services under this Agreement.

29. CLAIMS AND DISPUTES: A Claim is a demand or assertion by one of the parties seeking an adjustment or interpretation of the terms of the Contract Documents, payment of money, extension of time or other relief with respect to the terms of the Contract Documents. The term "Claim" also includes other disputes and matters in question between SFRTA and Contractor arising out of or relating to the Contract Documents. The responsibility to substantiate a Claim shall rest with the party making the Claim.

Initial notice of Claims by Contractor shall be made in writing to the SFRTA Project Manager within five

(5) business days after the first day that the Contractor is aware of the event giving rise to such Claim or else Contractor shall be deemed to have waived the Claim. Written supporting data shall be submitted to the SFRTA Project Manager within thirty (30) calendar days after the occurrence of the event, unless

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SFRTA grants additional time in writing, or else Contractor shall be deemed to have waived the Claim.

All Claims shall be priced so as to compensate Contractor for its actual and direct labor, material and equipment costs and extended general conditions expenses, together with markup, as set forth below.

Contractor shall proceed diligently with its performance as directed by SFRTA, regardless of any pending Claim, unless otherwise agreed to by SFRTA in writing. SFRTA shall continue to make payments in accordance with the Contract Documents during the pendency of any Claim.

Prior to the initiation of any action or proceeding permitted by these Contract Documents to resolve Claims between the parties, the parties shall first make a good faith effort to resolve any such Claim through this section. If the Contractor fails to first submit its Claim to the Claim resolution process in this Section, the Contractor forever waives its right to bring any legal action against SFRTA for breach of contract arising from the Claim.

Venue of any such litigation between the SFRTA and the Contractor shall lie in the State of Florida's Seventeenth Judicial Circuit in and for Broward County, Florida, or the United States Federal District Court for the Southern District of Florida. SFRTA and the Contractor consent and submit to the jurisdiction of any such court and agree to accept service of process outside the State of Florida in any matter to be submitted to any such court pursuant hereto. SFRTA AND THE CONTRACTOR

EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY.

At all times during the term, including during the course of, and notwithstanding the existence of, any dispute, the Contractor shall perform as directed by SFRTA, in a diligent manner and without delay, and shall abide by SFRTA’s decision or order, and shall comply with all applicable provisions of the Contract Documents.

30. ATTORNEYS’ FEES: In the event it shall become necessary for either party to this Agreement to institute legal proceedings against the other party for recovery of any amounts due and owing under this Agreement, then in such event, it is expressly agreed that the prevailing party in any such action shall be entitled to recover from the non-prevailing party all costs, including reasonable attorneys' fees, of pre-suit collection attempts, suit, and post judgment or settlement collection including those incurred on appeal.

31. PRIORITY ORDER OF CONTRACT DOCUMENTS: Where there appears to be a variance or conflicts between provisions within the Contract Documents, the Bidder, Proposer, or Contractor shall immediately make a written request for clarification to SFRTA or, in the absence of a request, the more stringent provision shall apply.

All parts of the Contract Documents are integral to the Project; a requirement occurring in one part of the Contract Documents is as binding as though incurring in all. All parts of the Contract Documents are complementary and describe and provide for the complete Project. The Work and Materials specified in the Drawings and Specifications and/or Scope of Work include additional, incidental Work, not specifically mentioned, when obvious or apparent, as being necessary for the proper completion of the Work.

In case of discrepancy, the governing order of the Contract Documents is as follows, when applicable:

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1) Modifications

2) Agreement (i.e. the document executed by the CONTRACTOR and SFRTA, usually 2 pages)

3) Federal Funding Supplement (only if federally funded)

4) General Terms and Conditions

5) SFRTA-approved Drawings/Plans

6) Scope of Services/Work including its Exhibits/Attachments, but excluding any items listed above in the governing order

7) Notice to Proceed

8) Solicitation Document (e.g. Request for Quote/Proposals, Invitation to Bid), including its Exhibits and Attachments (excluding any items listed above it in the governing order)

9) Proposer’s/Bidder’s Submittal Documents

32. PUBLIC RECORDS: The Contractor shall comply with all of the applicable provisions of

Chapter 119, Florida Statutes (“F.S.”), including Section 119.0701, F.S.

IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF

CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR’S DUTY TO

PROVIDE PUBLIC RECORDS RELATING TO THE CONTRACT DOCUMENTS,

THE CONTRACTOR SHALL CONTACT SFRTA’S RECORDS CUSTODIAN AT 954-

788-7919, barbosas@sfrta.fl.gov, 801 NW 33rd Street, Pompano Beach, FL 33064.

As required by law, the Contractor must comply with the following provisions;

• Keep and maintain public records that ordinarily and necessarily would be created or required by a public agency in order to perform the services.

• Provide the public with access to public records on the same terms and conditions that a public agency would provide the records and at a cost that does not exceed the cost provided by law.

• Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law.

• Meet all requirements for retaining public records and transfer, at no cost, to SFRTA all public records in possession of the Contractor upon termination of the Contract Documents and destroy any duplicate public records that are exempt or confidential from public records disclosure requirements. All records stored electronically must be provided to SFRTA in a format that is compatible with the information technology systems of SFRTA.

33. CONTRACTOR CERTIFICATION REGARDING SCRUTINIZED COMPANIES: By executing this Agreement, the Contractor certifies that it is not on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, Scrutinized Companies that boycott Israel List, and that it does not have business operations in Cuba or Syria as provided in Fla. Stat. §287.135, as may be amended or revised. The Authority may terminate the Contract Documents at SFRTA’s option if the Contractor is found to have submitted a false certification as provided under subsection (5) of Fla. Stat. §287.135, as may be amended or revised, or been placed on the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List or has been engaged mailto:barbosas@sfrta.fl.gov

FOR INFORMAL SERVICE

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5/23/23 GTC 13 of 20 in business operations in Cuba, Syria, Sudan, or Scrutinized Companies that Boycott Israel List, as defined in Fla. Stat. § 287.135, as may be amended or revised.

34. RIGHTS IN TECHNICAL DATA:

a. Except as may be otherwise provided in any licenses applicable to the Supplies, Contractor shall have the limited right to use, duplicate or disclose the following specific types of technical data (which is otherwise defined below), solely for the purposes of completing and/or operating the Project:

(1) Any manuals, instructional materials prepared for installation, operation, maintenance or training purposes;

(2) Technical data pertaining to end items, components or processes which were prepared solely for the purpose of identifying interface or operational parameters ("form, fit and function" data; e.g., specification control drawings, catalog sheets, outline drawing; but specifically excluding, without limitation, the source code, algorithm, process, formulae, and flow charts and Level 2 or other requirements as related to of the software and any technical data marked or identified as proprietary or restricted);

(3) Other technical data which has been, or is normally furnished without restriction by the Contractor or subcontractor;

(4) Other specifically described technical data which the parties have agreed will be furnished without restriction.

b. The Contractor shall have the right to use, duplicate, or disclose technical data other than that defined in paragraph a. in whole or in part, with the express limitation that such technical data shall not, without the written permission of the party furnishing such technical data, be:

(1) released or disclosed in whole or in part outside SFRTA,

(2) used in whole or in part by Contractor for manufacture, overhaul, or reverse engineering, or

(3) used by a party other than the Contractor except for emergency repair or overhaul Work only, by or for SFRTA where Contractor is unable to perform the required Work relative to the item or process concerned in a reasonable and timely manner and SFRTA’s operations will be critically impacted by such delay; provided, that the release or disclosure thereof outside the SFRTA shall be made subject to a prohibition against further use, release or disclosure of any kind, other than completion of Work relative to the item or process to alleviate the critical impact.

c. Nothing herein shall impair the SFRTA’s duty to comply with Florida’s Public Records Law, Chap. 119, Fla. Stat., or the right of the SFRTA to use similar or identical data acquired from other sources.

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5/23/23 GTC 14 of 20

d. The term technical data as used in this article means technical writing, or documents, requirements, specification, intellectual property (i.e. copyrights, patent rights or trade secrets, computer software, sound recordings, pictorial reproductions, engineering or other drawings, or other graphic representations and Works of a technical nature, whether or not copyrighted, which are created or delivered by Contractor pursuant to this Contract and/or used by Contractor in designing or providing any of the Supplies under the Contract. The term does not include financial reports, cost analyses, and other information incidental to Contract administration. Computer software as used in this article means computer programs, computer data bases, and documentation thereof.

e. Ownership of technical data: Except as expressly provided in the Contact Documents or in any software license nothing contained in this article shall imply or grant to Contractor any ownership rights in any technical.

g. Material covered by copyright:

(1) The Contractor agrees to and does hereby grant to the SFRTA, and to its officers, agents and employees acting within the scope of their official duties, a royalty-free, nonexclusive and irrevocable license throughout the world for SFRTA purposes to publish, translate, reproduce, deliver, perform, dispose of, and to authorize others so to do, all technical data now or hereafter covered by copyright and produced by Contractor pursuant to the Contract Documents.

(2) No such copyrighted matter shall be included in technical data furnished hereunder without the written permission of the copyright owner to use such copyrighted matter in the manner above described.

(3) The Contractor shall report to the SFRTA (or higher-tier contractor) promptly and in reasonable written detail each notice or claim of copyright infringement received by the Contractor with respect to any technical data delivered hereunder.

h. Relation to patents: Nothing contained in this article shall imply a license to the SFRTA under any patent, or be construed as affecting the scope of any license or other right otherwise granted to the SFRTA under any patent.

i. Any dispute under this article shall be subject to the Claims & Disputes article of the Contract Documents.

j. Notwithstanding any other payment provision in this contract, the Project Manager may retain from payment up to 10 percent of the contract price until final delivery and acceptance of the technical data defined in this article and as required to be furnished by the Quote schedule or the contract specification.

35. MAINTENANCE OF RECORDS: CONTRACTOR shall keep such records and accounts and require any and all subcontractors to keep records and accounts as may be necessary in order to record complete and correct entries as to personnel hours charged to this engagement and any expenses or costs for which CONTRACTOR expects to be reimbursed. Such books and records shall be available at all reasonable times for examination and audit by SFRTA and shall be kept for a period of five (5) years after

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5/23/23 GTC 15 of 20 the completion of all Work to be performed. Incomplete or incorrect entries in such books and records will be grounds for disallowance by SFRTA of any fees or expenses based upon such entries.

36. END USER LICENSE OR MAINTENANCE AGREEMENTS: if applicable, CONTRACTOR shall provide SFRTA with any license agreements, maintenance agreements, software-as-a-service terms and conditions, and end use license agreements defining SFRTA’s rights and restrictions in using a specific software, equipment or materials contemplated by the Contract Documents prior to execution of the Agreement. SFRTA expressly reserves the right to review and negotiate such terms. In the event of any conflicts with the requirements set forth herein with the terms and conditions contained in any such agreement(s) the requirements set forth herein shall prevail and take precedence.

The aforementioned agreements shall be subject to Florida law, including the venue and statutorily required provisions specifically stated herein.

37. E-VERIFY: CONTRACTOR warrants and represents that it complies with Section 448.095, Florida Statutes, as may be amended.

a. CONTRACTOR has: (1) registered with and uses the E-Verify System (E-Verify.gov), to electronically verify the work authorization status of all newly hired employees; and (2) verified that all of the CONTRACTOR' subcontractors performing the duties and obligations of this Agreement are registered with and use the E-Verify System to electronically verify the employment eligibility of all newly hired workers.

b. CONTRACTOR shall obtain from each of its subcontractors an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an Unauthorized Alien, as that term is defined in Section 448.095(1)(k), Florida Statutes, as may be amended. CONTRACTOR shall maintain a copy of any such affidavit from a subcontractor for, at a minimum, the duration of the subcontract and any extension thereof. This provision shall not supersede any provision of this Agreement which requires a longer retention period.

c. SFRTA shall terminate this Agreement if it has a good faith belief that CONTRACTOR has knowingly violated Section 448.09(1), Florida Statutes, as may be amended. If SFRTA has a good faith belief that CONTRACTOR’S subcontractor has knowingly violated Section 448.09(1), Florida Statutes, as maybe amended, but the Contractor has otherwise complied with the requirements of Section 448.091(2), SFRTA shall promptly notify CONTRACTOR to terminate its contract with the subcontractor and CONTRACTOR shall immediately terminate its contract with the subcontractor.

d. If SFRTA terminates this Agreement pursuant to the Subsections 36.b or 36.c above, CONTRACTOR shall be barred from being awarded a future contract by SFRTA for a period of one (1) year from the date on which this Agreement was terminated. In the event of such Agreement termination, CONTRACTOR shall also be liable for any additional costs incurred by SFRTA as a result of the termination.

e. Pursuant to Section 448.09(2)(c)(3), Florida Statutes, termination of a contract pursuant to Sections 36.b or 36.c is not a breach of contract and shall not be considered as such.

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5/23/23 GTC 16 of 20

38. PROTECTION OF PROPRIETARY RIGHTS

38.1 SFRTA Proprietary Rights. Contractor acknowledges and agrees that SFRTA retains all rights, title and interest in and to all materials, data, documentation and copies thereof furnished by SFRTA to Contractor pursuant to the Contract Documents, including all copyright and other proprietary rights therein, which Contractor as well as its employees, agents, subconsultants, and suppliers may use only in connection with the performance of Services under the Contract Documents. All rights, title and interest in and to certain ideas, designs and methods, specifications, and other documentation related thereto developed by Contractor and its subconsultants specifically for SFRTA (collectively, "Developed Works") shall be and remain the property of SFRTA. Accordingly, neither Contractor nor its employees, agents, subconsultants, or suppliers shall have any proprietary interest in such Developed Works. The Developed Works may not be utilized, reproduced, or distributed by or on behalf of Contractor, or any employee, agent, subconsultants, or supplier thereof, without the prior written consent of SFRTA, except as required for Contractor's performance hereunder. Except to the extent otherwise expressly provided herein, Contractor retains all rights and ownership to any intellectual property materials of Contractor.

38.2 Contractor Confidential Information. Any material submitted to SFRTA that Contractor contends constitutes or contains trade secrets or is otherwise exempt from production under Florida public records laws (including Florida Statutes Chapter 119) ("Trade Secret Materials") must be separately submitted and conspicuously labeled "EXEMPT FROM PUBLIC RECORD PRODUCT – TRADE SECRET." In addition, Contractor must, simultaneous with the submission of any Trade Secret Materials, provide a sworn affidavit from a person with personal knowledge attesting that the Trade Secret Materials constitute trade secrets under Section 812.081, F.S. and stating the factual basis for same. In the event that a third party submits a request to SFRTA for records designated by Contractor as Trade Secret Materials, SFRTA shall refrain from disclosing the Trade Secret Materials, unless otherwise ordered by a court of competent jurisdiction or authorized in writing by Contractor. Contractor shall indemnify and defend SFRTA and its employees and agents from any and all claims, causes of action, losses, fines, penalties, damages, judgments, and liabilities of any kind, including attorneys' fees, litigation expenses, and court costs, relating to the non-disclosure of any Trade Secret Materials in response to a records request by a third party.

38.3 SFRTA Confidential Information.

38.3.1 All Developed Works and other materials, data, transactions of all forms, financial information, documentation, inventions, designs and methods that Contractor obtains from SFRTA in connection with the Services performed under this Agreement, that are made or developed by Contractor in the course of the performance of the Agreement, or in which SFRTA holds proprietary rights, constitute SFRTA Confidential Information.

38.3.2 All SFRTA-provided employee information, financial information, and personally identifiable information for individuals or entities interacting with SFRTA (including, without limitation, social security numbers, birth dates, banking and financial information, and other information deemed exempt or confidential under state or federal law) also constitute SFRTA Confidential Information.

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5/23/23 GTC 17 of 20

38.3.3 SFRTA Confidential Information may not, without the prior written consent of SFRTA, or as otherwise required by law, be used by Contractor or its employees, agents, subconsultants or suppliers for any purpose other than for the benefit of SFRTA pursuant to this Agreement. Neither Contractor nor its employees, agents, subconsultants or suppliers may sell, transfer, publish, disclose, display, license or otherwise make available to any other person or entity any SFRTA Confidential Information without the prior written consent of SFRTA.

38.3.4 Contractor expressly agrees to be bound by and to defend, indemnify and hold harmless SFRTA and its officers and employees from the breach of any federal, state or local law by Contractor or its employees, agents, subconsultants or suppliers regarding the unlawful use or disclosure of SFRTA Confidential Information.

38.3.5 Upon expiration or termination of this Agreement, or as otherwise demanded by SFRTA, Contractor shall…