SUPPLEMENTAL CONDITIONS FOR FEMA

1. Access to Records (2 C.F.R. 200.337) The following access to records requirements apply to this Contract:

• The Contractor agrees to provide The City of Fort Myers, Lee County, the FEMA Administrator, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this Contract for the purposes of making audits, examinations, excerpts, and transcriptions.

• The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

• The Contractor agrees to provide the FEMA Administrator or his or her authorized representatives access to construction or other work sites pertaining to the work being completed under the Contract.

• In compliance with the Disaster Recovery Act of 2018, the City and the Contractor acknowledge and agree that no provision in this contract is intended to limit audits or internal reviews by the FEMA Administrator or the Comptroller General of the United States.

2. Buy America, Build America (BABA) for Infrastructure Projects Contractors and their subcontractors who apply or bid for an award for an infrastructure project subject to the domestic preference requirement in the Build America, Buy America Act shall file the required certification to the City with each bid or offer for an infrastructure project, unless a domestic preference requirement is waived by FEMA. Contractors and subcontractors certify that no federal financial assistance funding for infrastructure projects will be provided unless all the iron, steel, manufactured projects, and construction materials used in the project are produced in the United States. BABA, Pub. L. No. 117-58, §§ 70901-52. Contractors and subcontractors shall also disclose any use of federal financial assistance for infrastructure projects that does not ensure compliance with BABA domestic preference requirements. Such disclosures shall be forwarded to the recipient who, in turn, will forward the disclosures to FEMA, the federal agency; subrecipients will forward disclosures to the passthrough entity, who will, in turn, forward the disclosures to FEMA.

BABA certification form is required and included in the questionnaire section of the solicitation.

3. Buy Clean City encourages the use of environmentally friendly construction practices in the performance of this Contract. In particular, City encourages that the performance of this Contract includes considering the use of low-carbon materials which have substantially lower levels of embodied greenhouse-gas emissions associated with all relevant stages of production, use, and disposal, FEMA - 1 as compared to estimated industry averages of similar materials or products as demonstrated by their environmental product declaration.

4. Byrd Anti-Lobbying Amendment Provisions, 31 U.S.C. 1352 (as amended) Contractors who apply or bid for an award of $100,000 or more shall file the required certification found at APPENDIX A, 44 C.F.R. PART 18. Each tier certifies to the tier above that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C.

§ 1352. Each tier shall also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the federal agency.

5. Clean Air & Clean Water Act Compliance

5.1. Clean Air Act

• The Contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.

• The Contractor agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency and the appropriate Environmental Protection Agency Regional Office.

• The Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.

5.2. Federal Water Pollution Control Act

• The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1251 et seq.

• The Contractor agrees to report each violation to the City and understands and agrees that the City will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency and the appropriate Environmental Protection Agency Regional Office.

• The Contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with federal assistance provided by FEMA.

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6. Contract Work Hours and Safety Standards Act (CWHSSA) This provision applies to any contract in excess of $100,000 that may require or involve the employment of laborers or mechanics. This includes construction contracts and certain service contracts subject to the Service Contract Labor Standards.

Under the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 3701 et. seq.), the following shall apply:

• Overtime Compensation: Contractors and subcontractors shall not require or permit any laborer or mechanic to work more than forty (40) hours in any workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half (1.5) times the basic rate of pay for all hours worked over forty (40).

• Violation and Liability: In the event of a violation, the Contractor or subcontractor is liable to each affected employee for unpaid wages and to the federal government for liquidated damages. The amount of liquidated damages shall be computed at the rate specified in the applicable regulation (currently $33 per day per employee).

The contracting officer shall withhold or cause to be withheld from any monies payable on account of work performed by the Contractor or subcontractor, the amount of wages required to be paid and the amount of liquidated damages due.

The Contractor shall insert the substance of this clause in all subcontracts in excess of $100,000. The Contractor shall be responsible for compliance by any subcontractor or lower-tier subcontractor with the requirements set forth herein.

Any disputes arising under this provision shall be resolved in accordance with the Disputes clause of this contract.

7. Copyright The Contractor grants to the City, a paid-up, royalty-free, nonexclusive, irrevocable, worldwide license in data first produced in the performance of this contract to reproduce, publish, or otherwise use, including prepare derivative works, distribute copies to the public, and perform publicly and display publicly such data. For data required by the contract but not first produced in the performance of this contract, the Contractor will identify such data and grant to the City or acquires on its behalf a license of the same scope as for data first produced in the performance of this contract. Data, as used herein, shall include any work subject to copyright under 17 U.S.C. § 102, for example, any written reports or literary works, software and/or source code, music, choreography, pictures or images, graphics, sculptures, videos, motion pictures or other audiovisual works, sound and/or video recordings, and architectural works.

Upon or before the completion of this contract, the Contractor will deliver to the City data first produced in the performance of this contract and data required by the contract but not first produced in the performance of this contract in formats acceptable by the City.

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8. DHS Seal, Logo and Flags Contractor must obtain written permission from the City and the U.S. Department of Homeland Security (DHS) prior to using the DHS seals, logos, crests, or reproductions of flags, or likenesses of DHS agency officials. This includes use of DHS component (e.g., FEMA, CISA, etc.) seals, logos, crests, or reproductions of flags, or likenesses of component officials.

9. Domestic Preference for Procurement (2 C.F.R. § 200.322) (All FEMA recipients and subrecipients are required to include in all contracts and purchase orders for work or products a contract provision encouraging domestic preference for procurements).

The recipient or subrecipient should, to the greatest extent practicable and consistent with law, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all subawards, contracts, and purchase orders under Federal awards.

For purposes of this section:

• “Produced in the United States” means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.

• “Manufactured products” means items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.

Federal agencies providing Federal financial assistance for infrastructure projects must implement the Buy America preferences set forth in 2 CFR part 184.

10. Equal Employment Opportunity Federally assisted construction contract means any agreement or modification thereof between any applicant and a person for construction work which is paid for in whole or in part with funds obtained from the Government or borrowed on the credit of the Government pursuant to any Federal program involving a grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, or any application or modification thereof approved by the Government for a grant, contract, loan, insurance, or guarantee under which the applicant itself participates in the construction work.

The regulation also defines “construction work” as follows:

Construction work means the construction, rehabilitation, alteration, conversion, extension, demolition or repair of buildings, highways, or other changes or improvements to real property, including facilities providing utility services. The term also includes the supervision, inspection, and other onsite functions incidental to the actual construction.

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https://www.ecfr.gov/current/title-2/part-184

The regulation requires the language provided in 41 C.F.R. § 60-1.4(b) to be included in federally funded contracts. However, the regulation is largely based on Executive Order 11246, which has been revoked by Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025). Accordingly, the language below has been modified from the version at 41 C.F.R. § 60-1.4(b) to remove the requirements of Executive Order 11246.

During the performance of this Contract, the Contractor agrees to the following:

• The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.

• The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices of its nondiscrimination policy.

• The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor to perform work under the Contract, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

• The Contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Contractor’s legal duty to furnish information.

11. Rights to Inventions Made Under a Contract or Agreement.

If the Federal award meets the definition of “funding agreement” under 37 CFR § 401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, or research work under that “funding agreement,” the recipient or subrecipient must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.

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https://www.ecfr.gov/current/title-37/section-401.2#p-401.2(a) https://www.ecfr.gov/current/title-37/part-401

12. Program Fraud and False or Fraudulent Statements or Related Acts The Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies for False Claims and Statements) applies to the Contractor’s actions pertaining to this Contract.

13. Minimum Qualifications All Contractors and their Subcontractor/Subconsultants must be registered on SAM.gov to ensure eligibility and compliance. Registration on SAM.gov will be verified as part of the evaluation process.

14. Contracting with Small and Minority Businesses, Women's Business Enterprises, Veteran Owned Businesses and Labor Surplus Area Required under 2 C.F.R. § 200.321 for federally funded contracts.

• When possible, the Recipient or subrecipient should ensure that small businesses, minority businesses, women's business enterprises, veteran-owned businesses, and labor surplus area firms (See U.S. Department of Labor's list) are considered as set forth below.

• Such consideration means:

(1) These business types are included on solicitation lists;

(2) These business types are solicited whenever they are deemed eligible as potential sources;

(3) Dividing procurement transactions into separate procurements to permit maximum participation by these business types;

(4) Establishing delivery schedules (for example, the percentage of an order to be delivered by a given date of each month) that encourage participation by these business types;

(5) Utilizing organizations such as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and

(6) Requiring a Contractor under a Federal award to apply this section to subcontracts.

15. No Obligation by Federal Government The Federal Government is not a party to this Contract and is not subject to any obligations or liabilities to City, the Contractor, or any other party pertaining to any matter resulting from the Contract.

16. Remedies (Required for all contracts in excess of $250,000).

If any work performed by the Contractor fails to meet the requirements of the Contract, any other applicable standards, codes or laws, or otherwise breaches the Contract, the City may in its sole discretion:

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https://sam.gov/

• elect to have the Contractor re-perform or cause to be re-performed at Contractor’s sole expense, any of the work which failed to meet the requirements of the Contract;

• hire another Contractor to perform the work and deduct any additional costs incurred by City as a result of substituting Contractors from any amounts due to Contractor; or

• pursue and obtain any and all other available legal or equitable remedies.

This Section shall in no way be interpreted to limit City’s right to pursue and obtain any and all other available legal or equitable remedies against Contractor.

17. Assistance with Developing Specifications The Contractor acknowledges that federal regulations and procurement best practices prohibit conflicts of interest and unfair competitive advantages in the development of specifications, statements of work, or requests for proposals (RFPs). This clause ensures compliance with such requirements.

The Contractor certifies that: a) It did not assist in the development of the specifications, scope of work, or solicitation documents for this contract, unless authorized in advance and in writing by the City. b) If the Contractor provided such assistance, it is disqualified from participating in the competitive process or being awarded the contract, unless a written waiver is granted by the City in accordance with applicable federal and local procurement rules.

The Contractor agrees to comply with: a) Federal Procurement Standards: As set forth in 2 C.F.R. § 200.319 and 2 C.F.R. § 200.318(c)(1), which prohibit organizational conflicts of interest and unfair competitive practices. b) Local Procurement Ordinances and Policies: As applicable to the City of Fort Myers.

In rare circumstances, the City may engage a Contractor to develop specifications or assist in drafting solicitation documents if: a) The Contractor is not allowed to bid or participate in the subsequent competitive process, and b) Such engagement is documented and approved by the City in writing.

The Contractor must: a) Disclose any prior involvement in developing specifications or solicitation documents for this project. b) Submit a signed certification of compliance, stating that no conflicts of interest exist.

Failure to comply with this clause may result in a) Rejection of the Contractors proposal or bid. b) Termination of the contract for cause. c) Legal or administrative remedies, as applicable under federal or local law.

18. Suspension and Debarment Federal regulations restrict the City from contracting with parties that are debarred, suspended, or otherwise excluded from or ineligible for participation in Federal assistance programs and activities, where the contract is funded in whole or in part with federal funds. Accordingly, a contract or subcontract must not be made with any parties listed on the SAM Exclusions list. SAM Exclusions is the list maintained by the General Services Administration that contains the name of parties debarred, suspended, or otherwise excluded by agencies, as well as parties

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declared ineligible under certain statutory or regulatory authority. The Contractor can verify its status and the status of its principals, affiliates, and subcontractors at www.SAM.gov.

This Contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt.

3000. As such the Contractor is required to verify that none of the Contractor, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).

The Contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters.

This certification is a material representation of fact relied upon by the City. If it is later determined that the Contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt.

3000, subpart C, in addition to remedies available to the City, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.

19. Termination Required for all contracts and purchase orders.

19.1. For Convenience

This Contract may be terminated for convenience, in whole or in part, without cause, by either party upon 30 calendar days’ prior written notice to the other party. Upon such termination, the Contractor waives any claims for damages from the termination without cause including, without limitation, any and all consequential claims, and as the sole right and remedy of the Contractor, the City shall compensate the Contractor for all authorized work satisfactorily and responsibly completed through the termination date. In the event of termination by the Contractor without cause, the following shall apply: (1) all bonds shall remain fully in force to ensure the City’s ability to construct the project for the Contract amount; (2) the City shall have the right to, at its option, solicit bids for the completion of the unfinished portion of the work, or to negotiate with the number two bidder under the original solicitation; and (3) the Contractor and his surety shall be jointly and severally responsible for all costs over the original Contract amount incurred by the City in completion of the project, in addition to liquidated damages and construction costs, such costs may include engineering, advertising, and administrative expenses incurred with the solicitations of bids for the completion of the unfinished portion of the work. In the event of termination without cause by either party, the obligations of the Contractor and his surety with respect to the warranty and maintenance shall remain in full force and effect for the portion of the work completed by the Contractor and shall not expire until the expiration of the prescribed time period measured from the final acceptance of the project in its entirety. These clauses shall survive the termination of this Contract.

19.2. For Cause

City reserves the right to terminate this Contract immediately, in whole or in part, at its sole discretion, for the following reasons:

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• Lack of funding. Lack of, or reduction in, funding or resources in which instance, the City shall provide the Contractor ten (10) calendar days’ written notice of such termination or lack of funds;

• Non-Performance. The Contractor’s non-performance of the specifications of this Contract or non-compliance with the terms of this Contract shall be a basis for termination of the Contract by the City. Termination, in whole or in part, by the City under this Section may be made at the City’s option and without prejudice to any other remedy to which the City may be entitled to at law or in equity, or elsewhere under this Contract, by giving 30 calendar days’ written notice, with the understanding that all services being performed under this Contract shall cease upon the date specified in such notice. the City shall not pay for work, equipment, services or supplies that are unsatisfactory or unauthorized provided that “unsatisfactory” materials are in noncompliance with the terms herein. At the City’s sole discretion and with written notice by the City, the Contractor may be given a reasonable opportunity prior to termination to correct any deficiency in the work or services performed under this Contract. The City will consider a reasonable time to be 30 calendar days to cure any problems and/or deficiencies with the Contractor’s performance, such problems and/or deficiencies being determined by the City. Nothing herein, however, shall be construed as negating the basis for termination for nonperformance or shall in no way limit or waive the City’s right to terminate this Contract under any other provisions herein.

• The Contractor’s improper, misuse, or inept performance of services under this Contract;

• The Contractor’s failure to comply with the terms and provisions of this Contract;

• The Contractor’s submission of invoices, data, statements, or reports that are incorrect, incomplete, or false in any way;

• In the City‘s sole discretion, if termination is necessary to protect the health and safety of clients;

• If the Contractor becomes or is declared insolvent or bankrupt, or is the subject of any proceedings relating to its liquidation or insolvency or for the appointment of a receiver or similar officer for it, has a receiver of its assets or property appointed or makes an assignment for the benefit of all or substantially all of its creditors, institutes or causes to be instituted any proceeding in bankruptcy or reorganization or rearrangement of its affairs, enters into an agreement for the composition, extension, or adjustment of all or substantially all of its obligations, or has a material change in its key employees; or

• The Contractor’s inability to perform under this Contract due to judicial order, injunction, or any other court proceeding.

In the event of termination, the City may take possession of the premises and all materials, tools, and appliances thereon and finish the work by whatever method it may deem

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expedient. In such cases, the Contractor shall only be entitled to receive payment for work satisfactorily completed prior to the termination date, subject to any setoffs due to the City in completing the Project and for reimbursement of damages incurred. The City may take possession of and use any materials, plant, tools, equipment, and property of any kind furnished by Contractor to complete the work. If the expense incurred by the City to finish the work exceeds the unpaid balance on this Contract, the Contractor shall pay the difference to the City. The expenses incurred by the City as herein provided, and the damage incurred through the Contractor’s default, shall be certified by the Project Manager. The Contractor shall be responsible for both liquidated damages attributable to delay and for excess completion costs. The liability of the Contractor and its surety or sureties for such damages and costs is joint and several. The obligations of the Contractor and his surety with respect to the warranty and maintenance shall remain in full force and effect for the portion of the Work completed by the Contractor and shall not expire until the expiration of the prescribed time period measured from the final acceptance of the project in its entirety. These clauses shall survive the termination of this Contract. If the City makes a determination pursuant to this Contract to hold the Contractor in default and terminate the Contract for cause and it is subsequently determined that any such determination was improper, unwarranted, or wrongful, then any such termination shall be deemed for all purposes as a termination for convenience, without cause, as described in subsection 1. The Contractor agrees that it shall be entitled to no damages, allowances, or expenses of any kind other than as provided in this Contract in connection with such termination, and does expressly waive, in the event of termination, any and all claims for consequential damages, loss of bonding capacity, destruction of business, unabsorbed home office overhead, lost profit, and the like.

20. Disaster/Emergency

20.1. Public Emergency or Exigency

When referring to procurement activity, "Federal" defines both emergency and exigency as situations that demand immediate aid or action. The differences between the two situations are outlined as:

• Emergency There is a threat to life, public health or safety, improved property, or some other form of dangerous situation that requires immediate action to alleviate the threat. Emergency conditions are generally shorter-lived than exigency circumstances.

• Exigency There is a need to avoid, prevent, or alleviate serious harm or injury, financial or otherwise, to the recipient or subrecipient, and use of competitive procurement proposals would prevent the urgent action required to address the situation. Thus, a noncompetitive procurement may be appropriate.

20.2. State of Emergency

The emergency clause, earlier in this document, will go in effect after the Florida Governor, Lee County Board of County Commissioners, and the Fort Myers City Council declare a state of emergency. The terms and conditions stated in this section will remain in effect until the state of emergency is lifted by the Fort Myers City Council.

If awarded a contract, Contractor will be subject to the 2 C.F.R. Part 200, Appendix II Guidelines as stated in this solicitation.

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20.3. Emergency Support

It is hereby made a part of this Solicitation that before, during and after a public emergency, disaster, hurricane, flood, pandemic, or other acts of God, that the City shall be provided goods and services on a first priority basis. It is vital and imperative that the citizens of the City are protected from any emergency situation which threatens public health and safety, as determined by the City agrees to provide, rent, sell, or lease all goods and services required by the City on a first priority basis. Goods/services will be delivered to various locations throughout the City as defined by the purchase order/ work order. The City expects to pay a fair and reasonable price for all goods and services acquired before, during and after a disaster, emergency or hurricane. Contractor shall furnish a twenty-four (24) hour phone number in the event of such an emergency.

20.4. Initiating Services when a Major Disaster is Imminent

When a major disaster event is anticipated to impact the City, Contractor will reach out to the City at least 48 hours in advance of the anticipated event to confirm that the Contractor is prepared to proceed.

20.5. Materials

The City will not pay a mark-up for materials.

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