5-2.0 - GTCs Supplies and Services 5.23.pdf

5/23/23

SECTION 2

GENERAL TERMS AND CONDITIONS

SUPPLIES AND SERVICES CONTRACT

OVER $100,000.00

TABLE OF CONTENTS

1. CHANGES IN THE WORK

2. EXTRAS

3. VARIATION IN QUANTITY

4. INSPECTION

5. RESPONSIBILITY FOR INSPECTION

6. TITLE AND RISK OF LOSS

7. ACCEPTANCE

8. PAYMENTS

9. DELAY OF WORK

10. STOP WORK ORDER

11. CLAIMS AND DISPUTES

12. TERMINATION FOR DEFAULT

13. TERMINATION FOR CONVENIENCE

14. FEDERAL, STATE AND LOCAL TAXES

15. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT-OVERTIME

COMPENSATION

16. CONFLICT OF INTEREST

17. COVENANT AGAINST CONTINGENT FEES

18. TRUTH IN NEGOTIATING

19. NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT

INFRINGEMENT

20. NOTICE OF LABOR DISPUTES

21. INSURANCE

22. INDEMNIFICATION

23. PATENT INDEMNITY

24. ROYALTY INFORMATION

25. RIGHTS IN TECHNICAL DATA

26. AUDITING RIGHTS

27. PRICE REDUCTION FOR DEFECTIVE COST OR PRICING DATA – PRICE

ADJUSTMENTS

28. NEW MATERIAL

29. GOVERNING ORDER OF CONTRACT DOCUMENTS

30. CORRECTION OF DEFICIENCIES

31. ASSIGNMENT

32. PRICING OF ADJUSTMENTS

33. CERTIFICATE OF CURRENT COST OR PRICING DATA

34. ACCOUNTING AND RECORD KEEPING

35. PUBLIC RECORDS

36. PERFORMANCE AND PAYMENT BOND

37. FLORIDA LAW PREVAILS, JURISDICTION, VENUE, WAIVER OF JURY TRIAL

38. SPECIFICATIONS

39. LIQUIDATED DAMAGES

41. MISCELLANEOUS

42. PUBLIC ENTITY CRIMES

43. NO WAIVER

44. JOINT PREPARATION

45. SEVERABILITY

46. ATTORNEY'S FEES

47. CONFLICT WITH GOVERNING LAW

48. WARRANTY OF WORK

49. PARTS PURCHASED SEPARATELY FOR MAINTENANCE AND/OR REPAIR OF

ORIGINAL EQUIPMENT

50. REVISION IN GOVERNING RESTRICTIONS

51. COMPLIANCE WITH LAWS

52. MOST FAVORED CUSTOMER

53. CONDITIONS AFFECTING THE WORK

54. DBE COMPLIANCE AND SUBCONTRACTING (if applicable, see Section 5.0 Federal Funding Supplement of the Contract Documents)

55. EQUAL EMPLOYMENT OPPORTUNITY/NON-DISCRIMINATION

56. WAIVER OF SUBROGATION

57. INTENT OF CONTRACT DOCUMENTS

58. E-VERIFY

59. CONTRACTOR CERTIFICATION REGARDING SCRUTINIZED COMPANIES

60. INDEPENDENT CONTRACTOR AND LEASED/TEMPORARY EMPLOYEES

61. THIRD PARTY BENEFICIARIES

62. MATERIALITY AND WAIVER OF BREACH

63. PRIOR AGREEMENTS

64. REPRESENTATION OF AUTHORITY

65. MULTIPLE ORIGINALS

66. COOPERATION WITH INSPECTOR GENERAL

67. QUALITY MANAGEMENT SYSTEM PLAN (QMSP)

68. PROHIBITION AGAINST USE OF SFRTA OR TRI-RAIL NAMES OR LOGOS

69. CONTRACT DOCUMENTS MODIFICATION

70. CONTRACTOR PERSONNEL

71. NOTICES

72. OWNERSHIP OF DOCUMENTS

73. PROPOSAL COSTS

74. REQUIRED STATEMENTS AND CERTIFICATIONS

75. UNCONTROLLABLE FORCES

76. NO WAIVER OF SOVEREIGN IMMUNITY

77. PROHIBITION AGAINST CONSIDERATION OF SOCIAL, POLITICAL, OR

IDEOLOGICAL INTERESTS

78. DEFINITIONS

Rev. 05/23/23 GTC- 1 of 51

1. CHANGES IN THE WORK

a. SFRTA or Contractor may request Modifications that would increase, decrease, or otherwise modify the scope of Work as more specifically described in the Solicitation or scope in accordance with the SFRTA Procurement Policy. Any changes proposed by Contractor must first gain written approval from SFRTA Modifications must be contained in a Contract Amendment or Change Directive prior to any deviation, including the initiation of any Extra Work. In no event will Contractor be compensated for any Work which is not described in the Contract Documents, Contract Amendment, or Change Directive executed by the parties. Contractor shall promptly perform changes authorized by executed Modifications.

b. SFRTA shall have the right at any time during the progress of the Work to increase or decrease the Work. Promptly after being notified of a change, Contractor shall submit an itemized estimate of any cost or time increases or savings it foresees as a result of the change. Except in an emergency endangering life or property, no Modification shall be made except upon written order of SFRTA, and SFRTA shall not be liable to Contractor for any increased compensation or adjustment to the Contract Time without such written order. No officer, employee or agent of SFRTA is authorized to direct any Modification orally.

c. Requested changes by the Contractor shall be prepared and submitted by the Contractor in the form of a Contract Amendment (Attached as Exhibit 16 to Section 1.0 Instructions to Bidders of the Contract Documents).

d. A Contract Amendment, in the form attached, shall be promptly executed by the Contractor and SFRTA after an agreement is reached between the parties concerning the requested changes.

The Contract Amount and Contract Time shall be adjusted in the Contract Amendment in the manner mutually agreed upon by SFRTA and Contractor.

e. If SFRTA and Contractor are unable to agree on a Contract Amendment for the requested change, Contractor shall, nevertheless, promptly perform the change as directed by SFRTA in a written Change Directive. In that event, the Contract Amount and Contract Time shall be adjusted as directed by SFRTA.

2. EXTRAS

Except as otherwise provided in this Contract, no payment for Extra Work shall be made unless such Extra Work and the price therefore have been authorized in writing in advance by the Project Manager and in compliance with the SFRTA Procurement Policy.

3. VARIATION IN QUANTITY

No variation in the quantity of any item called for by this Contract will be accepted unless such variation has been caused by conditions of loading, shipping, or packing, or allowances in manufacturing processes, and then only to the extent, if any, specified elsewhere in this Contract.

Rev. 05/23/23 GTC- 2 of 51

4. INSPECTION

a. All Supplies, including raw materials, Materials, intermediate assemblies, and end products, shall be subject to inspection and test by SFRTA, to the extent practicable at all times and places, including the period of manufacture, and in any event prior to acceptance.

b. In case any Supplies or lots of Supplies are defective in material or workmanship or otherwise not in conformity which the requirements of the Contract Documents, SFRTA shall have the right either to reject them (with or without instruction as to their disposition) or to require their repair or replacement. Supplies or lots of Supplies which have been rejected or required to be repaired or replaced shall be removed or, if permitted or required by the Project Manager, repaired or replaced in place by and at the expense of the Contractor promptly after notice, and shall not thereafter be tendered for acceptance unless the former rejection or requirement of repair or replacement is disclosed. If the Contractor, within a reasonable amount of time, fails to remove such Supplies or lots of Supplies, which are required to be removed or, to replace or repair such Supplies or lots of Supplies, SFRTA may either:

(1) By contract or otherwise repair or correct such Supplies and charge the Contractor for all SFRTA’s costs for the replacement or repair; or

(2) Terminate this Contract for default as provided in the DEFAULT article of this Contract. Unless the Contractor repairs or replaces such Supplies within the delivery schedule, the Project Manager may require the delivery of such Supplies at a reduction in price which is equitable under the circumstances. Failure to agree to such reduction of price shall be a dispute concerning a question of fact within the meaning of the CLAIMS AND DISPUTES article of this Contract.

c. If any inspection or test is made by SFRTA on the premises of the Contractor or a subcontractor, the Contractor without additional charge shall provide all reasonable facilities and assistance for the safety and convenience of SFRTA inspectors in the performance of their duties.

If an SFRTA inspection or test is made at a point other than the premises of the Contractor or a subcontractor, it shall be at the expense of SFRTA except as otherwise provided in this Contract;

provided, that in case of rejection, SFRTA shall not be liable for any reduction in value of samples used in connection with such inspection or test. All inspections and tests by SFRTA shall be performed in such a manner as not to unduly delay this Work. SFRTA reserves the right to charge to the Contractor any additional cost for inspection and testing when Supplies are not ready at the time the SFRTA inspection and testing is requested by the Contractor or when re-inspection or retest is necessitated by prior rejection. Acceptance or rejection of the Supplies shall be made as promptly as practicable after delivery, except as otherwise provided in this Contract; but failure to inspect and accept or reject Supplies shall neither relieve the Contractor from responsibility for providing Supplies that are in accordance with the Contract requirements nor impose liability on SFRTA for Contractor’s failure to do so.

d. The inspection and testing by SFRTA of any Supplies or lots thereof does not relieve the Contractor from any responsibility regarding defects or other failures to meet the Contract requirements which may be discovered prior to acceptance. Except as otherwise provided in this

Rev. 05/23/23 GTC- 3 of 51

Contract, acceptance shall be conclusive except as regards to latent defects, fraud, or such gross mistakes as amount to fraud.

e. The Contractor shall provide and maintain an inspection system acceptable to SFRTA covering the Supplies hereunder. Records of all inspection work by the Contractor shall be kept complete and available to SFRTA during the performance of this Contract and for such longer period as may be specified elsewhere in this Contract.

5. RESPONSIBILITY FOR INSPECTION

Notwithstanding the requirements for any SFRTA inspection and test contained in Specifications applicable to this Contract, except where specialized inspections or tests are specified for performance solely by SFRTA, the Contractor shall perform or have performed the inspections and tests required to substantiate that the Supplies and Services provided under the Contract conform to the Drawings, Specifications and Contract requirements.

6. TITLE AND RISK OF LOSS

Unless this Contract specifically provides for earlier passage of title, title to Supplies covered by this Contract shall pass to SFRTA upon formal acceptance, regardless of when or where SFRTA takes physical possession.

(1) Unless this Contract specifically provides otherwise, risk of loss of or damage to Supplies covered by this Contract shall remain with the Contractor until, and shall pass to SFRTA upon:

(a) Delivery of the Supplies to a carrier, if transportation is FOB origin; or,

(b) Acceptance by SFRTA or delivery of possession of the Supplies to SFRTA at the destination specified in this Contract, whichever is later, if transportation is FOB destination.

(2) Notwithstanding (1)(b) above, the risk of loss of or damage to Supplies which so fail to conform to the Contract as to give a right of rejection shall remain with the Contractor until cure or acceptance, at which time (1) above shall apply.

7. ACCEPTANCE

Submission of any Proposal indicates a Contractor's acceptance of the conditions contained in the Solicitation and Contract Documents. Entering into the Agreement constitute an incontrovertible representation by Contractor that Contractor shall perform and furnish the Work required by the Contract Documents and shall apply the specific means, methods, techniques, sequences, or procedures for the Work that may be shown or indicated or expressly required by the Contract Documents; that Contractor has given SFRTA written notice of all conflicts, errors, ambiguities and discrepancies that Contractor has discovered in the Contract Documents and the written response to the notice provided by SFRTA is acceptable to the Contractor; and that the Contract

Rev. 05/23/23 GTC- 4 of 51

Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performing and furnishing the Work.

Unless otherwise specified in the Contract Documents, acceptance shall take place upon completion of final inspection by SFRTA of the materials, or equipment at the delivery or installation site. Pursuant to Article 4, within a reasonable time after delivery to SFRTA, the Contractor will be notified by SFRTA of any damage incurred during transit and any non-conformance of Work, materials, or equipment determined during final inspection. Upon notification by SFRTA, the Contractor shall commence corrective action.

8. PAYMENTS

a. The Contractor will be paid, upon the submission of proper invoices for performance of the Work which each invoice represents, the prices stipulated for Work, Supplies and equipment delivered and accepted, less deductions, if any, as provided. Contractor’s invoice shall show a complete breakdown of the Work performed, including but not limited to deliverables, applicable Purchase Order and/or Contract Number, service hours expended and hourly billable rates, together with such supporting evidence as may be required by the SFRTA Project Manager. All invoices must meet or exceed generally accepted accounting standards and must be in a form suitable for SFRTA’s audit requirements. SFRTA shall pay Contractor all invoices or items set forth in such invoices which are not in dispute within forty-five (45) pursuant to §218.73, Florida Statutes.

Invoices are to be sent to the Attention of SFRTA’s Project Manager and not to any other individual or department.

b. SFRTA, during any fiscal year, shall not expend money, incur any liability or enter into any contract which, by its terms, involves the expenditure of money in excess of the amounts budgeted as available for expenditure during such fiscal year. Any contract, verbal or written, made in violation of this subsection is null and void and no money may be paid on such contract.

c. Certification of Payment to Subcontractors. Prior to receipt of any progress (partial) payment, the Contractor shall certify that all subcontractors having an interest in the Contract have received their pro rata share, if any, of previous progress payments made to the Contractor for all Work completed and materials furnished in the previous period.

Contractor shall provide this certification in the form designated by SFRTA. SFRTA will not make any progress payments after the initial partial payment until the Contractor certifies that it has disbursed to all subcontractors having an interest in the Contract their pro rata shares, if any, of the payment it has previously received, unless the Contractor demonstrates good cause for not making any required payment and furnishes written notification of any such good cause to both SFRTA and the affected subcontractors. The Contractor shall obtain from any subcontractors entitled to a pro-rata share of a progress payment an executed sworn payment certification form, or other documentation permitted by the Federal Funding Supplement, and shall submit the form to SFRTA with each of the Contractor’s request for payment, with the exception of the first request for payment. The subcontractor’s failure to sign the payment certification form, or other documentation permitted by the Federal Funding Supplement, and forward the form, or other

Rev. 05/23/23 GTC- 5 of 51 documentation permitted by the Federal Funding Supplement, to the Contractor immediately upon receipt of payment is sufficient grounds for SFRTA to suspend any further payments until certification, or other documentation permitted by the Federal Funding Supplement, is submitted. The Contractor’s failure to submit the payment certification forms, other documentation permitted by the Federal Funding Supplement, covering all payments made to subcontractors, within 30 days after receiving progress payments, is sufficient grounds for SFRTA to suspend further payment until certifications, or other documentation permitted by the Federal Funding Supplement, are received. Within 30 days of the Contractor’s receipt of the progress payment or any other payments thereafter, except the final payment, the Contractor shall pay all subcontractors having an interest in the Contract their pro rata shares, if any, of the payment for all Work performed and materials furnished. SFRTA will honor an exception to the above when the Contractor demonstrates good cause for not making any required payment and furnishes written notification of any such good cause to both SFRTA and the affected subcontractors within said 30-day period. The Certificate for Payment forms are attached as exhibits to the Contract Documents.

(1) The Contractor shall submit one (1) original of a notarized Certificate of Disbursement of Previous Periodic Payment to Subcontractors with each application for payment except the first one submitted.

(2) The Contractor shall submit one (1) original of a notarized Subcontractor’s Certificate of Previous Payment, or other documentation permitted by the Federal Funding Supplement, with each application for payment except the first one submitted.

(3) The Contractor shall submit one (1) original of a Monthly Subcontractor Utilization Report with each application for payment.

(4) When informed that SFRTA requires additional substantiating information, submit one (1) copy, with cover letter, showing application number and date, for each submittal of data justifying the line item amounts in question.

d. An invoice or portion thereof may be rejected by SFRTA for any of the following reasons:

(1) The amount invoiced is inconsistent with the Agreement.

(2) The invoice or performance under the Agreement is in dispute or the Contractor, following a ten (10) day written notice of default and five (5) day period to cure, has failed to otherwise comply with the Agreement provisions.

(3) The item or Services have not been accepted, completed, or properly performed.

(4) The quantity of items delivered is less than the quantity ordered.

(5) The items, Work, or Services do not meet the quality requirements of the Contract.

Rev. 05/23/23 GTC- 6 of 51

(6) The Contractor has not submitted satisfactory documentation or other evidence reasonably required by the SFRTA Project Manager related to the invoice.

e. Contractor agrees to provide such records and accounts as may be necessary to record complete and correct entries as to hours expended and hourly billing rates, costs, and other expenses for which Contractor expects to be reimbursed.

f. Such books and records shall be available at all reasonable times for examination and audit by SFRTA, State, and Federal auditors during the term of this Contract and for a period of five (5) years thereafter. 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.

9. DELAY OF WORK

If the performance of all or any part of the Work is (i) delayed or interrupted by an act of the SFRTA Project Manager in the administration of this Contract, which act is not expressly or impliedly authorized by this Contract, or by his/her failure to act within the time specified, or (ii) delayed or interrupted due to an occurrence or cause beyond the reasonable control of, and without the fault or negligence of, Contractor, as specified in article 12.c, then an adjustment (excluding profit) may be made for any increase in the cost of performance of this Contract caused by such delay or interruption and the Contract shall be modified in writing accordingly. Adjustment may be made also in the delivery or performance dates and any other contractual provision affected by such delay or interruption. No adjustment shall be made under this article for any delay or interruption:

(1) To the extent that performance is delayed or interrupted solely due to the fault or negligence of the Contractor;

(2) For which an adjustment is provided or excluded under any other provision of this Contract; and/or

(3) If Contractor fails to notify SFRTA of such delay or interruption as soon as practical and/or fails to use reasonable commercial efforts to minimize the consequences of such delay or interruption.

10. STOP WORK ORDER

a) The SFRTA Project Manager may, at any time, by written order to the Contractor, require the Contractor to stop all, or any part of the Work called for by this Contract for a period of 90 days after the order is delivered to the Contractor, and for any further period to which the parties may agree. Any such order shall be specifically identified as a stop work order issued pursuant to this article. Upon receipt of such an order, the Contractor shall forthwith comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the Work covered by the order during the period of Work stoppage. Within a period of 90 days after a stop work order is delivered to the Contractor, or within any

Rev. 05/23/23 GTC- 7 of 51 extension of that period to which the parties shall have agreed, the SFRTA Project Manager shall either:

(1) Cancel the stop work order, or

(2) Terminate the Work covered by such order as provided in the TERMINATION FOR CONVENIENCE article of this Contract.

b) If a stop work order issued under this article is cancelled or the period of the order or any extension thereof expires, the Contractor shall resume the Work. An equitable adjustment may be made in the delivery schedule or Contract price, or both, and the Contract modified in writing accordingly, if:

(1) The stop work order results in an increase in the time required for, or in the Contractor's cost properly allocable to, the performance of any part of this Contract, and

(2) The Contractor submits a claim for such adjustment under article 11 within sixty

(60) days after the end of the period of work stoppage; provided that, if the Contracting Officer decides the facts justify such action, he may receive and act upon any such claim asserted at any time prior to final payment under this Contract.

c) If a stop work order is not cancelled and the Work covered by such order is terminated for the convenience of SFRTA, the reasonable costs resulting from the stop work order shall be allowed in arriving at the termination settlement.

11. 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 the 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 the Contractor shall be made in writing to the SFRTA Project Manager within five (5) business days after the first day of the Contractor is aware of the event giving rise to such Claim, or else the 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 SFRTA grants additional time in writing, or else the Contractor shall be deemed to have waived the Claim. All Claims shall be priced so as to compensate the Contractor for its actual and direct labor, material and equipment costs and extended general conditions expenses, together with markup, as set forth below.

The SFRTA Project Manager shall render a decision regarding any Claims within sixty (60) days of receipt of Contractor’s initial notice of Claim.

Rev. 05/23/23 GTC- 8 of 51

The 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.

12. TERMINATION FOR DEFAULT

A. Contractor Default.

The Contractor shall be considered in material default of the Contract Documents and such default shall be considered cause for SFRTA to terminate the Contract Documents, in whole or in part, as further set forth in this Section, if the Contractor: (1) fails to begin the Work under the Contract Documents within the time specified herein; or (2) fails to properly and timely perform the Work as directed by SFRTA; or (3) performs the Work unsuitably or neglects or refuses to remove materials or to correct or replace such Work as may be rejected as unacceptable or unsuitable; or (4) discontinues the prosecution of the Work contrary to the requirements of the Contract Documents; or (5) fails to resume Work which has been suspended within a reasonable time after being notified to do so; or (6) becomes insolvent or is declared bankrupt, or commits any act of bankruptcy; or (7) allows any final judgment to stand against it unsatisfied for more than ten (10) days, which is reasonably determined by SFRTA to be material in nature; or (8) makes an assignment for the benefit of creditors; or (9) fails to obey any applicable codes, laws, ordinances, rules or regulations with respect to the Work, which is reasonably determined by SFRTA to be material in nature; or (10) breaches any other material provision of the Contract Documents; or (11) fraudulent criminal or grossly negligent behavior.

If SFRTA determines that the Contractor is in default under the Contract Documents, SFRTA shall notify the Contractor and its surety in writing of the Contractor's default(s).

If SFRTA determines that the Contractor has not remedied and cured the default(s) within thirty (30) calendar days following receipt by the Contractor of said written notice, then SFRTA, at its option, without releasing or waiving its rights and remedies against the Contractor's sureties and without prejudice to any other right or remedy it may be entitled to hereunder or by law, may terminate the Contractor's right to proceed under the Contract Documents, in whole or in part, and take possession of all or any portion of the Work and any materials, tools, equipment, and appliances of the Contractor, take assignments of any of the Contractor's subcontracts and purchase orders that SFRTA may designate, and complete all or any portion of the Contractor's Work by whatever means, method or agency which SFRTA, in its sole discretion, may choose. In the event of termination, Contractor shall cooperate with SFRTA in the retrieval of all information and documentation to be taken into SFRTA’s possession within seven (7) calendar days from notice of termination.

Rev. 05/23/23 GTC- 9 of 51

If SFRTA deems any of the foregoing remedies necessary, the Contractor agrees that it shall not be entitled to receive any further payments hereunder until after the Work is completed. All monies expended and all of the costs, losses, damages and extra expenses, including all management, administrative and other overhead and other direct and indirect expenses (including attorneys' fees) or damages incurred by SFRTA incident to such completion, shall be deducted from the unpaid balance of the Contract Documents Amount, and if such expenditures exceed the unpaid balance of the Contract Documents Amount, the Contractor agrees to pay promptly to SFRTA on demand the full amount of such excess, including costs of collection, attorney's fees (including appeals) and interest thereon at the maximum legal rate of interest until paid. If the unpaid balance of the Contract Documents Amount exceeds all such costs, expenditures and damages incurred by SFRTA to complete the Work, the Contractor shall be entitled to such unpaid excess portion. Any amounts to be paid to SFRTA by the Contractor pursuant to this Paragraph, the obligation for payment shall survive termination of the Contract Documents.

The liability of the Contractor hereunder shall extend to and include the full amount of any and all sums paid, expenses and losses incurred, damages sustained, and obligations assumed by SFRTA in good faith under the belief that such payments or assumptions were necessary or required, in completing the Work and providing labor, materials, equipment, supplies, and other items therefore or re-letting the Work, and in settlement, discharge or compromise of any claims, demands, suits, and judgments pertaining to or arising out of the Work hereunder.

If, after notice of termination of the Contractor's Notice to Proceed pursuant to this Section, it is determined for any reason that the Contractor was not in default, or that its default was excusable, or that SFRTA is not entitled to the remedies against the Contractor provided herein, then such termination shall be deemed a termination for SFRTA’s convenience and the Contractor's remedies against SFRTA shall be the same as and limited to those afforded the Contractor under Section 2.11 below.

B. SFRTA Default.

SFRTA shall be considered in material default of the Contract Documents and such default shall be considered cause for the Contractor to terminate the Contract Documents, as further set forth in this Section, if SFRTA: (1) fails to timely pay Contractor any uncontested amounts owed to the Contractor for Work performed when due; or (2) breaches any other material provision of the Contract Documents.

If the Contractor determines that the SFRTA is in default under these Contract Documents, the Contractor shall notify the SFRTA in writing of the SFRTA's default(s). If the Contractor determines that SFRTA has not remedied and cured the default(s) within thirty

(30) calendar days following receipt by SFRTA of said written notice, or if the breach cannot be reasonably cured within thirty (30) days, then at such time as reasonably necessary for SFRTA to cure the breach, provided SFRTA continues to proceed in good faith with its efforts to cure, then, upon SFRTA’s failure to cure, the Contractor, at its option, without releasing or waiving its rights and remedies against SFRTA, may terminate

Rev. 05/23/23 GTC- 10 of 51 the Contract Documents. In the event of termination, Contractor shall continue to comply with the provisions of the Contract Documents relating to public records and the claims management provisions for any claim that arises prior to the termination date.

13. TERMINATION FOR CONVENIENCE

a) The performance of Work under this Contract may be terminated by SFRTA in accordance with this article in whole, or from time to time in part, whenever the Contracting Officer shall determine that such termination is in the best interest of SFRTA. Any such termination shall be effected by delivery to the Contractor of a Notice of Termination specifying the extent to which performance of Work under the Contract is terminated, and the date upon which such termination becomes effective.

b) After receipt of a Notice of Termination, and except as otherwise directed by the Contracting Officer, the Contractor shall:

(1) Stop work under the Contract on the date and to the extent specified in the Notice of Termination;

(2) Place no further orders or subcontracts for materials, Services, or facilities, except as may be necessary for completion of such portion of the Work under the Contract which is not terminated;

(3) Terminate all orders and subcontracts to the extent that they relate to the performance of Work terminated by the Notice of Termination.

(4) Assign to SFRTA, in the manner, at the time, and to the extent directed by the Contracting Officer, all of the rights, title, and interests of the Contractor under the orders and subcontracts so terminated, in which case SFRTA shall have the right, in its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts;

(5) Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the Contracting Officer, to the extent he may require, which approval or ratification shall be final for all the purposes of this article;

(6) Transfer title to SFRTA and deliver in the manner, at the times, and to the extent, if any, directed by the Contracting Officer:

(a) the fabricated or unfabricated parts, Work in process, completed Work, Supplies, and other material produced as a part of, or acquired in connection with the performance of the Work terminated by the Notice of Termination, and

Rev. 05/23/23 GTC- 11 of 51

(b) the completed or partially completed plans, drawings, information and other property which, if the Contract had been completed, would have been required to be furnished to SFRTA;

(7) Use its best efforts to sell, in the manner, at the times, to the extent, and at the price or prices directed or authorized by the Contracting Officer, any property of the type referred to in paragraph 6. above; provided, however, that the Contractor

(a) shall not be required to extend credit to any purchaser, and

(b) may acquire any such property under the conditions prescribed by and at a price or prices approved by the Contracting Officer. And, provided further, that the proceeds of any such transfer or disposition shall be applied in reduction of any payments to be made by SFRTA to the Contractor under this Contract or shall otherwise be credited to the price or cost of the Work covered by the Contractor or paid in such other manner as the Contracting Officer may direct;

(8) Complete performance of such part of the Work as shall not have been terminated by the Notice of Termination; and

(9) Take such action as may be necessary, or as the Contracting Officer may direct, for the protection and preservation of the property related to this Contract which is in the possession of the Contractor and in which SFRTA has or may acquire an interest.

c) At any time after expiration of the plant clearance period, as defined in Subpart 45.6 of the Federal Acquisition Regulations (48 CFR 45.6), as the definition may be amended from time to time, and only as applicable to the Supplies provided, the Contractor may submit to the Contracting Officer a list, certified as to quantity and quality, of any or all items of termination inventory not previously disposed of, exclusive of items the disposition of which has been directed or authorized by the Contracting Officer, and may request SFRTA to remove such items or enter into a storage agreement covering them. Not later than 15 days thereafter, SFRTA will accept title to such items and remove them or enter into a storage agreement covering the same. Provided, that the list submitted shall be subject to verification by the Contracting Officer upon removal of the items or, if the items are stored, within 45 days from the date of submittal of the list and any necessary adjustment to correct the list as submitted shall be made prior to final settlement.

d) After receipt of a Notice of Termination, the Contractor shall submit to the Contracting Officer its termination claim, in the form and with certification prescribed by the Contracting Officer. Such claims shall be submitted promptly, but in no event later than thirty (30) days from the effective date of termination, unless one or more extensions in writing are granted by the Contracting Officer upon request of the Contractor made in writing within such thirty-day period or authorized extension thereof. However, if the Contracting Officer determines that the facts justify such action, he/she may receive and act upon any such termination claim at any time after such thirty-day period or any

Rev. 05/23/23 GTC- 12 of 51 extension thereof. Upon failure of the Contractor to submit its termination claim within the time allowed, the Contracting Officer may, subject to any review required by the contracting agency's procedures in effect as of the date of execution of this Contract, determine, on the basis of information available to him/her, the amount, if any, due the Contractor by reason of the termination and shall thereupon pay to the Contractor the amount so determined The Contractor shall be entitled to claim incurred payments, expenses or costs related to any completed Work, Work in progress, procured materials, or purchase commitments, and all costs associated with any orders cancelled due such termination, which the Contractor could not mitigate through commercially reasonable efforts.

e) Subject to the provisions of paragraph d., and subject to any review required by the contracting agency's procedures in effect as of the date of execution of this Contract, the Contractor and the Contracting Officer may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or partial termination of Work pursuant to this article, which amount or amounts may include a reasonable allowance for profit on Work done. Provided, that such agreed amount or amounts, exclusive of settlement costs, shall not exceed the total Contract price as reduced by the amount of payments otherwise made and as further reduced by the Contract price of Work not terminated. The Contract shall be amended accordingly, and the Contractor shall be paid the agreed amount. Nothing in paragraph f. of this article, prescribing the amount to be paid to the Contractor in the event of failure of the Contractor and the Contracting Officer to agree upon the whole amount to be paid to the Contractor by reason of the termination of Work pursuant to this article, shall be deemed to limit, restrict, or otherwise determine or affect the amount or amounts which may be agreed upon to be paid to the Contractor pursuant to this paragraph e.

f) In the event of the failure of the Contractor and the Contracting Officer to agree as provided in paragraph e. upon the whole amount to be paid the Contractor by reason of the termination of Work pursuant to this article, the Contracting Officer shall, subject to any review required by the contracting agency's procedures in effect as of the date of execution of this Contract, determine, on the basis of information available to him/her, the amount if any, due the Contractor by reason of the termination and shall pay to the Contractor the amounts determined as follows:

(1) For completed Supplies accepted by SFRTA [or sold or acquired as provided in paragraph b. (7) above] and not theretofore paid for, a sum equivalent to the aggregate price for such Supplies computed in accordance with the price or prices specified in the Contract, appropriately adjusted for any saving of freight or other charges;

(2) The total of:

(a) The costs incurred in the performance of the Work terminated, including initial costs and preparatory expense allocable thereto, but exclusive of any

Rev. 05/23/23 GTC- 13 of 51 costs attributable to Supplies paid or to be paid for under paragraph f. (1) hereof;

(b) The cost of settling and paying claims arising out of the termination of Work under subcontracts or orders, as provided in paragraph b. (5) above, which are properly chargeable to the terminated portion of the Contract (exclusive of amounts paid or payable on account of Supplies or materials delivered or Services furnished by subcontractors or vendors prior to the effective date of the Notice of Termination, which amounts shall be included in the costs payable under (a) above); and

(c) A sum, as profit on (a), above, determined by the Contracting Officer pursuant to Section 49.202 of the Federal Acquisition Regulations (48 CFR 49.202), in effect as of the date of execution of this Contract, to be fair and reasonable.

Provided, however, that if it appears that the Contractor would have sustained a loss on the entire Contract had it been completed, no profit shall be included or allowed under this subparagraph (d) and an appropriate adjustment shall be made reducing the amount of the settlement to reflect the indicated rate of loss; and

(3) The reasonable costs of settlement, including accounting, legal, clerical, and other expenses reasonably necessary for the preparation of settlement claims and supporting data with respect to the terminated portion of the Contract and for the termination and settlement of subcontracts thereunder, together with reasonable storage, transportation, and other costs incurred in connection with the protection or disposition of property allocable to this Contract.

(4) The total sum to be paid to the Contractor under (1) and (2) of this paragraph f.

shall not exceed the total Contract price as reduced by the amount of payments otherwise made and as further reduced by the Contract price of Work not terminated. Except for normal spoilage, and except to the extent that SFRTA shall have otherwise expressly assumed the risk of loss, there shall be excluded from the amounts payable to the Contractor as provided in f. (1) and (2) (a) above, the fair value, as determined by the Contracting Officer, of property which is destroyed, lost, stolen, or damaged so as to become undeliverable to SFRTA, or to a buyer pursuant to paragraph b. (7).

g) Costs claimed, agreed to, or determined pursuant to paragraphs d., e. and f. of this article shall be in accordance with the applicable contract cost principles and procedures in Subpart 31.1 of the Federal Acquisition Regulations (48 CFR 31.1) in effect on the date of this Contract.

h) The Contractor shall have the right to appeal, under the CLAIMS AND DISPUTES article of this Contract from any determination made by the Contracting Officer under paragraph

d. or f. above, except that, if the Contractor has failed to submit its claim within the time provided in paragraph d. above and has failed to request extension of such time, it shall

Rev. 05/23/23 GTC- 14 of 51 have no such right of appeal. In any case where the Contracting Officer has made a determination of the amount due under paragraph d. or f. above, SFRTA shall pay to the Contractor the following:

(1) if there is no right of appeal hereunder or if no timely appeal has been taken, the amount so determined by the Contracting Officer; or

(2) if an appeal has been taken, the amount finally determined on such appeal.

i) In arriving at the amount due the Contractor under this article there shall be deducted:

(1) all unliquidated advance or other payments on account theretofore made to the Contractor, applicable to the terminated portion of this Contract;

(2) any quantified claim which SFRTA may have against the Contractor in connection with this Contract; and

(3) the agreed price for, or the proceeds of sale of, any materials, Supplies, or other things acquired by the Contractor or sold, pursuant to the provisions of this article, and not otherwise recovered by or credited to SFRTA.

j) If the termination hereunder be partial, prior to the settlement of the terminated portion of this Contract, the Contractor may file with the Contracting Officer a request in writing for an equitable adjustment of the price or prices specified in the Contract relating to the continued portion of the Contract (the portion not terminated by the Notice of Termination), and such equitable adjustment as may be agreed upon shall be made in such price or prices.

k) SFRTA may from time to time, under such terms and conditions as it may prescribe, make partial payments and payments on account against costs incurred by the Contractor in connection with the terminated portion of this Contract whenever in the opinion of the Contracting Officer the aggregate of such payments shall be within the amount to which the Contractor will be entitled hereunder. If the total of such payments is in excess of the amount finally agreed or determined to be due under this article, such excess shall be payable by the Contractor to SFRTA upon demand, together with interest computed at the rate of six percent per annum for the period from the date such excess payment is received by the Contractor to the date on which such excess is repaid to SFRTA; provided, however, that no interest shall be charged with respect to any such excess payment attributable to a reduction in the Contractor's claim by reason of retention or other disposition of termination inventory until 10 days after the date of such retention or disposition, or such later date as determined by the Contracting Officer by reasons of the circumstances.

l) Unless otherwise provided for in this Contract, or by applicable statute, the Contractor, from the effective date of termination and for a period of three years after final settlement under this Contract, shall preserve and make available to SFRTA at all reasonable times at the office of the Contractor but without direct charge to SFRTA, all its books, records, Rev. 05/23/23 GTC- 15 of 51 documents, and other evidence bearing on the costs and expenses of the Contractor under this Contract and relating to the Work terminated hereunder, or, to the extent approved by the Contracting Officer, photographs, micro photographs, or other authentic reproductions thereof.

14. FEDERAL, STATE AND LOCAL TAXES

a. Except as may be otherwise provided in this Contract, the Contract price includes all applicable Federal, State, and Local taxes and duties.

b. Nevertheless, with respect to any Federal excise tax or duty on the transactions or property covered by this Contract, if a statute, court decision, written ruling, or regulation takes effect after the Bid date, and:

(1) Results in the Contractor being required to pay or bear the burden of any such Federal excise tax or duty or increase in the rate thereof which would not otherwise have been payable on such transactions or property, the Contract price shall be increased by the amount of such tax or duty or rate increase, provided the Contractor warrants in writing that no amount for such newly imposed Federal excise tax or duty or rate increase was included in the Contract price as a contingency reserve or otherwise; or

(2) Results in the Contractor not being required to pay or bear the burden of, or in its obtaining a refund or drawback of, any such Federal excise tax or duty which would otherwise have been payable on such transactions or property or which was the basis of an increase in the Contract price, the Contract price shall be decreased by the amount of the relief, refund, or drawback, or that amount shall be paid to SFRTA, as directed by the Contracting Officer. The Contract price shall be similarly decreased if the Contractor, through its fault or negligence or its failure to follow instructions of the Contracting Officer, is required to pay or bear the burden of, or does not obtain a refund or drawback of, any such Federal excise tax or duty

c. Paragraph b. above shall not be applicable to social security taxes or to any other employment tax.

d. No adjustment of less than $100 shall be made in the Contract price pursuant to paragraph

b. above.

e. As used in paragraph b. above, the term Bid Date means the date set for bid opening. As to additional Supplies or Services procured by Modification to this Contract, the term Contract Modification Date means the date of such Modification.

f. Unless there does not exist any reasonable basis to sustain an exemption, SFRTA upon the request of the Contractor shall, without further liability, furnish evidence appropriate to establish exemption from any Federal, State or Local tax; provided that evidence appropriate to

Rev. 05/23/23 GTC- 16 of 51 establish exemption from any Federal excise tax or duty which may give rise to either an increase or decrease in the Contract price will be furnished only at the discretion of SFRTA.

g. Sales to the SFRTA are exempt from sales tax pursuant to Chapter 212, Florida Statutes, Consumer’s Certificate of Exemption Certificate No. 85-8012700504C-2.

h. The Contractor shall promptly notify the SFRTA Project Manager of matters which will result in either an increase or decrease in the Contract price and shall take action with respect thereto as directed by the Contracting Officer.

15. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT-OVERTIME

COMPENSATION

This Contract, to the extent that it is of a character specified in the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), is subject to the following provisions and to all other applicable provisions and exceptions of such Act and the regulations of the Secretary of Labor thereunder.

a) Overtime requirements: No Contractor or subcontractor contracting for any part of the Contract Work which may require or involve the employment of laborers, mechanics, apprentices, trainees, watchmen, and guards shall require or permit any laborer, mechanic, apprentice, trainee, watchman, or guard in any workweek in which he is employed on such Work to work in excess of 40 hours in such work week on Work subject to the provisions of the Contract Work Hours and Safety Standards Act unless such laborer, mechanic, apprentice, trainee, watchman, or guard receives compensation at a rate not less than one and one-half times his basic rate of pay for all such hours worked in excess of 40 hours in such work week.

b) Violation: liability for unpaid wages: liquidated damages. In the event of any violation of the provisions of paragraph a., the Contractor and any subcontractor responsible therefore shall be liable to any affected employee for his unpaid wages. In addition, such Contractor and subcontractor shall be liable to SFRTA for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer, mechanic, apprentice, trainee, watchman, or guard employed in violation of the provision of paragraph a. in the sum of $10 for each calendar day on which such employee was required or permitted to be employed on such Work in excess of his standard work week of 40 hours without payment of the overtime wages required by paragraph a.

c) Withholding for unpaid wages and liquidated damages: The Contracting Officer may withhold from the Contractor, from any monies payable on account of Work…