HomeMy WebLinkAboutRE-BID ITB # 23-10-01 JOINT PROCUREMENT CENTRAL ISLAND
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net | Purchasing@sibfl.net
RE-BID INVITATION TO BID
NO. 23-10-01
JOINT PROCUREMENT
CITY OF SUNNY ISLES BEACH CENTRAL ISLAND DRAINAGE
IMPROVEMENTS & CITY OF NORTH MIAMI BEACH WATER
DISTRIBUTION SYSTEM WATERMAIN REPLACEMENTS
RELEASE DATE: FRIDAY, OCTOBER 13, 2023
THURSDAY, NOVEMBER 9, 2023 AT 11:00 AM AT
NON-MANDATORY PRE-BID MEETING:
ST
GOVERNMENT CENTER, 1 FLOOR CONFERENCE RM
18070 COLLINS AVE, SUNNY ISLES BEACH FL.
IT IS STRONGLY ENCOURAGED FOR BIDDERS
TO ATTEND THIS MEETING
NO LATER THAN FRIDAY, DECEMBER15, 2023 AT
ALL QUESTIONS DUE:
All questions will be answered via addendum
5:00 PM IN WRITING TO PURCHASING@SIBFL.NET.
posted to DemandStar.
NO LATER THAN TUESDAY, FEBRUARY 6, 2024AT
DUE DATE FOR BIDS:
11:00 AM
CITY OF SUNNY ISLES BEACH GOVERNMENT CENTER
OFFICE OF THE CITY CLERK
SUBMIT SEALED BID TO:
TH
18070 COLLINS AVENUE, 4 FLOOR
Envelope must clearly provide Contractor’s name,
SUNNY ISLES BEACH, FLORIDA 33160
phone # and contact information and must be
labeled with the ITB # and name.
ONLINE SUBMITTALS ARE NOT ACCEPTED.
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CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net | Purchasing@sibfl.net
TABLE OF CONTENTSPAGE NO.
LEGAL ADVERTISEMENT/ NOTICE TO FIRM 3
GENERAL TERMS & CONDITIONS4
SPECIAL TERMS & CONDITIONS 10
SCOPE OF WORK / TECHNICAL SPECIFICATIONS 27
BID FORMAT28
BID SUBMITTAL FORM31
AFFIDAVITS
NON-COLLUSIVE AFFIDAVIT
PUBLIC ENTITY CRIMES
EQUAL OPPORTUNITY / AFFIRMATIVE ACTION STATEMENT
CONFLICT OF INTEREST STATEMENT
DISPUTE DISCLOSURE FORM
ANTI-KICKBACK AFFIDAVIT
ANTI-BOYCOTT CERTIFICATION
PAYMENT AND PERFORMANCE BOND
E-VERIFY AFFIDAVIT
BUY AMERICA CERTIFICATION
BYRD ANTI-LOBBYING CERTIFICATION
EXHIBIT A -FEDERAL PROVISIONS RELATED TO GRANT FUNDS
EXHIBIT B1 – CITY OF SUNNY ISLES BEACH FDEP GRANT AGREEMENT 22FRP50
EXHIBIT B2 – CITY OF SUNNY ISLES BEACH LPA0391 FDEP GRANT AGREEMENT
EXHIBIT B3 –CITY OF SUNNY ISLES BEACH –AMERICAN RESCUE PLAN ACT
EXHIBIT B4 – CITY OF NORTH MIAMI BEACH WIFIA AGREEMENT
EXHIBITC–CRAIG TECHNICAL SPECIFICATIONS –CITY OF SUNNY ISLES BEACH
EXHIBITD – EAC TECHNICAL SPECIFICATIONS –CITY OF NORTH MIAMI BEACH
EXHIBIT E –BID PRICE SHEET FORM
EXHIBIT F – PREVAILING WAGE (DAVIS-BACON)– CONSTRUCTION TYPE – HIGHWAY
EXHIBIT G- AFFIRMATIVE ACTION REQUIREMENTS
EXHIBIT H –WORKFORCE COMMUNITY PLAN
EXHIBIT I –CITY OF SUNNY ISLES BEACH SAMPLE AGREEMENT
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CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net | Purchasing@sibfl.net
LEGAL ADVERTISEMENT
NOTICE TO BIDDER
NOTICE IS HEREBY GIVEN that the City of Sunny Isles Beach and the City of North Miami Beach are seeking sealed
Bids for the following work as specified
Re-Bid Invitation to Bid No. 23-10-01
Sunny Isles Beach Central Island Area Drainage Improvement and
North Miami Beach Distribution System Watermain Replacements
The specifications for this Invitation to Bid (ITB) are available from DemandStar by calling (800) 711-1712 or by
accessing their website at www.demandstar.com. Bidders who obtain the specifications from sources other than
DemandStar or the City of Sunny Isles Beach are cautioned that their Bid response package may be incomplete.
Addenda will be posted and disseminated by DemandStar prior to the submittal date to all Bidders who are listed
on the official list.
Sealed Bids will be received by the City Clerk no later than 11:00 AM ON TUESDAY, FEBRUARY 6, 2024 at the
Sunny Isles Beach Government Center located at 18070 Collins Avenue, 4th floor, Sunny Isles Beach, Florida,
33160. Bids received after this time will not be considered. The City is under no obligation to return Bids. Timely
submitted Bids will be opened publicly and names of firms read aloud at this time.
The envelope containing the sealed Bid must be clearly marked:
ITB # 23-10-01
Sunny Isles Beach Central Island Area Drainage Improvement and
North Miami Beach Distribution System Watermain Replacements
OPENING DATE AND TIME: 11:00 AM ON TUESDAY, FEBRUARY 6, 2024
The Owners, individually or collectively, reserve the right to reject any or all Bids, with or without cause, to
waive technical errors and informalities, and to accept the Bid, which best serves the interest of, and represents
the best value to, the respective Owner in conformity with the criteria set forth in Section 62-8 of the Code of
Ordinances of the City of Sunny Isles Beach and Chapter III of the City of North Miami Beach Code of Ordinance.
This bid is being solicited in accordance with the Procurement Requirements for Federal Grants, as
provided for in Title 2 Code of Federal Regulations (CFR) Part 200 as detailed in EXHIBIT A.
Cone of Silence: Potential and actual Bidders shall not solicit or otherwise communicate in any manner
whatsoever, directly or indirectly, with the City Commission, City Manager, or City staff, other than Purchasing
Division personnel, for either City, regarding this ITB from the time of the ITB initial release through the award.
The City of Sunny Isles Beach will host a non-mandatory pre-bid conference on THURSDAY, NOVEMBER 9, 2023
st
AT 11:00 AM at the Government Center 18070 Collins Avenue, 1 Floor Conference Room.
All questions regarding this ITB shall be directed in writing to Purchasing by FRIDAY, DECEMBER 15, 2023 AT
5:00 PM. Questions must be submitted via email to: Purchasing@sibfl.net.
Pursuant to Florida Statutes 119.071, sealed bids, proposals or replies by an agency pursuant to a competitive
solicitation are exempt from inspection until such time as the agency provides notice of an intended decision or
until thirty (30) days after the opening of the bids, proposals, or final replies, whichever is earlier.
Mauricio Betancur, CMC, City Clerk, City of Sunny Isles Beach
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CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net | Purchasing@sibfl.net
SECTION 1
INSTRUCTIONS TO BIDDER / GENERAL TERMS AND CONDITIONS
THESE INSTRUCTIONS ARE STANDARD FOR ALL BID COMMODITIES/SERVICES ISSUED BY THE CITY OF SUNNY ISLES BEACH. THE CITY OF SUNNY ISLES BEACH AND CITY OF NORTH MIAMI BEACH
MAY DELETE, SUPERSEDE OR MODIFY ANY OF THESE STANDARD INSTRUCTIONS FOR A PARTICULAR CONTRACT BY INDICATING SUCH CHANGE IN SPECIAL INSTRUCTIONS TO BIDDERS OR IN THE
BID SHEETS. ANY AND ALL SPECIAL CONDITIONS THAT MAY VARY FROM THE GENERAL CONDITI0NS SHALL HAVE PRECEDENCE. BIDDER AGREES THAT THE PROVISIONS INCLUDED WITHIN THIS
BID OR RFP SHALL PREVAIL OVER ANY CONFLICTING PROVISION WITHIN ANY STANDARD FORM CONTRACT OF THE BIDDER REGARDLESS OF ANY LANGUAGE IN BIDDER’S CONTRACT TO THE
CONTRARY.
1.1 CLARIFICATION/EXPLANATION/QUESTIONS: within this Request for Bid must be executed) and submitted in a sealed
envelope.
Any questions concerning the Bid Specifications or any required need for
clarification must be addressed to Purchasing at Purchasing@sibfl.netby
1.8 BID EXECUTION, SIGNATURES, ERASURE/CORRECTION:
the date mentioned above. Interpretations or clarifications considered
necessary by the City will be issued by addenda and posted/disseminated All Bids shall be signed in blue ink. All price quotes shall be typewritten or
by DemandStar (www.demandstar.com) to all parties listed on the official printed with ink. All corrections made by the Bidders prior to the opening
plan holders’ list as having received the Bid documents. Only questions must be initialed and dated by the Bidders. No changes or corrections will
answered by written addenda shall be binding. Oral interpretations or be allowed after Bids are opened. Bids must contain an original, manual
clarifications shall be without legal effect. No plea of ignorance or delay or signature of an authorized representative of the company.
required need of additional information shall exempt a Bidder from
submitting their Bid on the required date and time as publicly noted.1.9 WITHDRAWAL OF BIDS:
Bidders may withdraw Bids only by written request and shall forward the
1.2PLAN HOLDER’S LIST:
withdrawal request via “Certified U.S. Mail – Return Receipt Requested”
As a convenience to vendors, the City of Sunny Isles Beach has made prior to the Bid opening time. Negligence on the part of the Bidders in
available via internet lists of all plan holders for each Request for Proposal, preparing the Bid confers no right for the withdrawal of the Bid after it has
Request for Bid, and request for qualifications. The information is available been opened.
on-line at www.demandstar.com or by calling the Office of the City Clerk
at (305) 792-1703. 1.10BID OPENING:
Bids will be opened publicly at the time and place stated in the Notice to
1.3 ADDENDA TO SPECIFICATIONS:
Bidder. It is the responsibility of the Bidders to insure that the Bid reaches
If any addenda are issued after the initial specifications are released, the the Office of the City Clerk on or before the closing hour and date stated
City will post and disseminate the addenda through DemandStar. For on the Request for Bid. After the Bid opening, the contents of the Bid Form
those projects with separate plans, blue prints, or other materials that will be made public for the information of vendors and other interested
cannot be accessed through the internet, the Office of the City Clerk will parties who may be present either in person or by representative. Bids
make good faith effort to ensure that all registered Bidders (those who that are received after the Bid opening time will not be considered and will
have been registered as receiving a Bid package) receive the documents. not be returned.
It is the responsibility of the vendor prior to the submission of any Bid to
check the above website or contact the Office of the City Clerk at (305) 1.11 EVALUATION OF BIDS:
792-1703 to verify any addenda issued. The receipt of all addenda must
The City, at its sole discretion, reserves the right to inspect any/all Bidders
be acknowledged on the Bid Response Sheet.
facilities to determine their capability of meeting the requirements for the
Contract. Also, price, responsibility, and responsiveness of the Bidders, the
1.4SPECIAL ACCOMMODATIONS:
financial position, experience, staffing, equipment, materials, references,
Any person requiring a special accommodation at a Pre-Bid Conference or and past history of service to the City and/or with other units of state,
Bid/RFP/RFQ opening because of a disability should call the Office of the and/or local governments in Florida, or comparable private entities, will be
City Clerk at (305) 792-1703 at lease five (5) days prior to the Pre-Bid
taken into consideration in the Award of the Contract.
Conference or Bid/RFP/RFQ opening. If you are hearing or speech
impaired, please contact the Office of the City Clerk by calling the City of
Sunny Isles Beach using the Florida Relay Service which can be reached at 1.11.1Hold Harmless: All Bidders shall hold the City, it's officials
and employees harmless and covenant not to sue the City,
1(800) 955-8771 (TDD).
it's officials and employees in reference to their decisions to
reject, award, or not award a Bid, as applicable.
1.5 PUBLIC ENTITY CRIMES STATEMENT:
1.11.2 Cancellation: Failure on the part of the Bidders to comply
with the conditions, specifications, requirements, and
Pursuant to the provisions of paragraph (2) (a) of section 287.133, Florida
terms as determined by the City, shall be just cause for
statutes -"a person or affiliate who has been placed on the convicted
cancellation of the Award.
vendor list following a conviction for a public entity crime may notsubmit
1.11.3 Disputes: If any dispute concerning a question of fact arises
a Bid on a contract to provide anygoods or services to a public entity, may
under the Contract, other than termination for default or
not submit a Bid on a contract with a public entity for the construction or
convenience, the Contractor and the City department
repair of a public building or public work, may not submit Bids on leases of
responsible for the administration of the Contract shall
real property to a public entity, may not be awarded to perform work as a
make a good faith effort to resolve the dispute. If the
Contractor, supplier, sub-Contractor, or consultant under a contract with
dispute cannot be resolved by agreement, then the
any public entity, and may not transact business with any public entity in
department with the advice of the City Attorney shall
excess of the threshold amount provided in section 287.107, for category resolve the dispute and send a written copy of its decision
to the Contractor, which shall be binding on both parties.
two for a period of 36 months from the date of being placed on the
convicted vendor list”.
1.12 AGREEMENT:
1.6BID DEADLINE:
After the Bid award, the City will, at its option, prepare an Agreement
specifying the terms and conditions resulting from the award of this Bid.
Bids must be submitted no later than the time and date shown within this
The vendor will have ten (10) calendar days after notification of the award
document.
by the City to execute the Agreement and provide the required
Performance Bond.
1.7SEALED BID:
The Bidders who has the Contract awarded to them and who fails to
The entire Bid Response Package shall be placed in an opaque envelope
execute the Agreement and furnish the Performance Bond and Insurance
(with all items listed on the Bid checklist form and all other items required
Certificates within the specified time shall forfeit the Bid Security that
accompanied their Bid, and the Bid Security shall be retained as liquidated
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CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
damages by the City, and it is agreed that this sum is a fair estimate of the 1.21 COPYRIGHTS/PATENT RIGHTS:
amount of damages the City will sustain in case the Bidders fails to enter
into the Contract and furnish the Bonds as herein before provided. Bid Bidders warrants that there has been no violation of copyrights or patent
Security deposited in the form of a cashier’s check drawn on alocal bank rights in manufacturing, producing or selling of goods shipped or ordered,
in good standing shall be subject to the same requirements as a Bid Bond. as a result of this Bid. The seller agrees to indemnify City from any and all
The performance of the City of Sunny Isles Beach of any of its obligations liability, loss, or expense occasioned by any such violation.
under the agreement shall be subject to and contingent upon the
availability of funds lawfullyexpendable for the purposes of the agreement 1.22LOCAL BUSINESS TAX (OCCUPATIONAL LICENSE REGISTRATION):
for the current and any future periods provided for within the Bid
specifications. The Contractor shall be responsible for obtaining and maintaining
throughout the contract period his or her city and county local business
1.13 PAYMENTS: tax receipts. Each vendor submitting a Bid on this Request for Bid shall
include a copy of the company’s local business tax/occupational license(s)
Payment will be made after commodities/services have been received, with the Bid response. For information specific to City of Sunny Isles Beach
accepted, and properly invoiced as indicated in the contract and/or local business tax/occupational licenses, please call Code Enforcement &
purchase order. Invoices must bear the purchase order number.Licensing at (305) 792-1705. If the Contractor is operating under a
fictitious name as defined in Section 865.059, Florida Statutes, proof of
1.14BRAND NAMES:current registration with the Florida Secretary of State shall be submitted
with the Bid. A business formed by an attorney actively licensed to practice
If a brand name, make, of any "or equal" manufacturer trade name, or law in this state, by a person actively licensed by the Department of
vendor catalog is mentioned whether or not followed by the words Business and Professional Regulations or the Department of Health for the
"approved equal" it is for the purpose of establishing a grade or quality of purpose of practicing his or her licensed profession, or by any corporation,
material only. Vendor may offer equals with appropriate identification, partnership, or other commercial entity that is actively organized or
samples, and/or specifications on such item(s). The City shall be the sole registered with the Department of State shall submit a copy of the current
judge concerning the merits of items Bid as equals.licensing from the appropriate agency and/or proof of current active status
with the Division of Corporations of the State of Florida.
1.15 MATERIAL:
1.23 LIABILITY, INSURANCE, PERMITS AND LICENSES:
Material(s) delivered to the City under this Bid shall remain the property
of the seller until accepted to the satisfaction of the City. In the event Bidders shall assume the full duty, obligation, and expense of obtaining all
materials supplied to City are found to be defective or do not conform to necessary licenses, permits, inspections, and insurance required. The
specifications, the City reserves the right to return the product(s) to the Bidders shall be liable for any damages or loss to the City occasioned by
seller at the seller’s expense.negligence of the Bidders (or their agent) or any person the Bidders has
designated in the completion of their contract as a result of the Bid.
1.16SAMPLES:Contractor shall be required to furnish a copy of all licenses, certificates of
competency or other licensor requirements necessary to practice their
Samples of items, when required, must be furnished by the Bidders free of profession as required by Florida State Statute, Miami-Dade County, and
charge to the City. Each individual sample must be labeled with the
City of Sunny Isles Beach Code. Contractors shall include current Miami-
Bidders name and manufacturer's brand name and delivered by them Dade County Certificates of Competency. These documents shall be
within ten (10) calendar days of Bidders receipt of the “Notice to Proceed”, furnished to the City along with the Bid response. Failure to furnish these
unless schedule indicates a different time. If samples are requested documents or to have required licensor will be grounds for rejecting the
Bid.
subsequent to the Bid opening, they should be delivered within ten (10)
calendar days of the request. The City will not be responsible for returning
1.24 CERTIFICATE(S) OF INSURANCE:
samples.
Bidders shall furnish to the Office of the City Clerk, City of Sunny Isles
1.17 QUANTITY GUARANTY:
Beach, 18070 Collins Avenue, SunnyIsles Beach, Florida 33160,
No guaranty or warranty is given or implied by the City as to the total certificate(s) of insurance which indicate that insurance coverage has been
amount that may or may not be purchased from any resulting Contract or obtained from an insurance company authorized to do business in the
Award. These quantities are for Bid purposes only and will be used for State of Florida or otherwise secured in a manner satisfactory to the City,
tabulation and presentation of the Bid. The City reserves the right to for those coverage types and amounts listed in this document, in an
increase or decrease quantities as required, even significantly. The prices amount equal to 100% of the requirements and shall be presented to the
offered herein and the percentage rate of discount applies to other City prior to issuance of any Contract(s) or Award(s) Document(s). The City
representative items not listed in this Bid. of Sunny Isles Beach shall be named as "additional insured" with respect
to this coverage. The required certificates of insurance shall not only name
1.18 GOVERNMENTAL RESTRICTIONS ON MATERIALS: the types of policies provided, but shall also refer specifically to this Bid
and section. At the time of Bid submissionthe Bidders must submit
In the event any governmental restrictions may be imposed which would certificates of insurance as outlined in the General Conditions section. All
necessitate alteration of the material quality, workmanship, or required insurances shall name the City of Sunny Isles Beach as additional
performance of the items offered on this Bid prior to their delivery, it shall insured and such insurance shall be issued by companies authorized to
be the responsibility of the successful Bidders to notify the City at once, issue insurance in the State of Florida. It shall be the responsibility of the
indicating in their letter the specific regulation which required an Bidders and insurer to notify the City Manager of the City of Sunny Isles
alteration. The City of Sunny Isles Beach reserves the right to accept any Beach of cancellation, lapse, or material modification of any insurance
such alteration, including any price adjustments occasioned thereby, or to policies insuring the Bidders, which relate to the activities of suchvendor
cancel at no further expense to the City. and the City of Sunny Isles Beach. Such notification shall be in writing and
shall be submitted to the City finance support service director thirty (30)
1.19 SAFETY STANDARDS: days prior to cancellation of such policies. This requirement shall be
reflected on the certificate of insurance. Failure to fully and satisfactorily
The Bidders warrants that the product(s) supplied to the City conforms in
comply with the city's insurance and bonding requirements set forth
all respects to the standards set forth in the occupational safety and health herein will authorize the City Manager to implement a rescission of the Bid
act (OSHA) and its amendments. Bids must be accompanied by a materials award without further City Commission action. The Bidders hereby holds
data safety sheet (MSDS) when applicable.the City harmless and agrees to indemnify City and covenants not tosue
the City by virtue of such rescission.
1.20 WARRANTIES:
1.25 ASSIGNMENT:
Successful Bidders shall act as agent for the City in the follow-up and
compliance of all items under Warranty/Guaranty and complete all forms The Contractor shall not transfer or assign the performance required by
for Warranty/Guarantee coverage under this Contract. this Bid without prior written consent of the City Manager. Any award
issued pursuant to the Invitation for Bid and monies which may be due
5
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
hereunder are not assignable except with prior written approval of the City accordance with the law of the State of
Manager. Further, in the event that the majority ownership or control of Florida.
the Contractor changes hands subsequent to the award of this contract,
Contractor shall promptly notify City in writing (via United States Postal Change Order: A written order to the Contractor signed by
Service – Certified Mail, Return Receipt Requested) of such change in the City authorizing an addition, deletion or
ownership or control at least thirty (30) days prior to such change and City revision in the Work, or an adjustment in the
shall have the right to terminate the contract upon sixty (60) days written Contract Price or the Contract Time issued
notice, at City’s sole discretion.after execution of the Agreement.
1.26 HOLD HARMLESS/INDEMNIFICATION: City: City of Sunny Isles Beach, 18070 Collins
Avenue, Sunny Isles Beach, Florida 33160.
The Contractor shall indemnify, hold harmless, and defend the City of
Sunny Isles Beach, it's officers, agents and employees from and against any And
claims, demands or causes of action of whatsoever kind or nature arising
th
out of error, omission, negligent act, conduct, or misconduct of the City of North Miami Beach, 17011 NE 19
Contractor, their agents, servants or employees in the provision of goods Avenue, North Miami Beach, Florida 33162.
or the performance of services pursuant to this Bid and / or from any
procurement decision of the City including without limitation, awarding Contract Documents:Contract Documents shall include,
the Contract to the Contractor. Instructions to Bidders, Contractor's Bid, the
Bonds, the Notice of Award, the Agreement
1.27 NON-CONFORMANCE TO CONTRACT: between the City and Contractor as well as
any addenda thereto, these General
The City of Sunny Isles Beach may withhold acceptance of, or reject items
Conditions, Special Conditions, the Technical
which are found upon examination, not to meet the specification Specifications, Drawings and Modifications,
requirements. Upon written notification of rejection, items shall be Notice to Proceed, Request for Proposal,
removed within (5) calendar days by the vendor at their own expense and Insurance Certificates, Change Orders and
redelivered at their expense. Rejected goods left longer than thirty (30) Acknowledgment of Conformance with the
calendar days will be regarded as abandoned and the City shall have the City of Sunny Isles Beach.
right to dispose of them as its own property. Rejection for non-
conformance or failure to meet delivery schedules may result in the Contract Price: The total monies payable to the Contractor
Contractor being found in default.under the Contract Documents.
1.28 DEFAULT PROVISION: Contract Time: The number of calendar days stated in the
Agreement for the completion of the Work.
In case of default by the Bidders, the City of Sunny Isles Beach may procure
the articles or services from other sources and hold the Bidders
Contracting Officer: The individual who is authorized to sign the
responsible for any excess costs occasioned or incurred thereby. contract documents on behalf of the City’s
governing body.
1.29SECONDARY/OTHER VENDORS:
Contractor: The person, firm or corporation with whom
The City reserves the right in the event the primary vendor cannot provide the City has executed this Agreement.
an item(s) or service(s) in a timely manner as requested, to seek other
sources without violating the intent of the Contract.Day: A calendar day of twenty-four hours
measured from midnight to the next
1.30 DEFINITIONS:midnight.
Wherever used in these General Conditions or in the other Contract Field Order: A written order issued by the City which
Documents, the following terms shall have the meaning indicated which
clarifies or interprets the Contract
shall be applicable to both the singular and plural thereof:Documents or orders minor changes in the
Work.
Acceptance:Acceptance by the City of the Work as being
fully complete in accordance with the Modification: Modification means any one of the
Contract Documents subject to waiver of following: (a) a written amendment of the
claims.Contract Documents signed by both parties,
(b) a Change Order, (c) a written clarification
Agreement: The written Agreement between the City or interpretation if issued by the City, or (d)
and the Contractor covering the Work to be a written order for minor change or
performed, which includes the Contract alteration in the Work issued by the City. A
Documents. modification may only be issued after
execution of the Agreement.
Addenda: Written or graphic instruments issued prior
to the Bid Opening which modify or interpret Non-Compliant Work: Work performed by the Contractor that has
the Contract Documents, Drawings and been determined through City inspection to
Specifications, by addition, deletions, not meet the Performance Standards.
clarifications or corrections.
Notice of Award: The written notice by City to the apparent
Approved: Means approved by the City. successful Bidders stating that upon
compliance with the conditions precedent to
Bid: The offer of the Bidders submitted on the be fulfilled by him within the time specified,
prescribed form setting forth the prices for City will execute and deliver the Agreement
the Work to be performed.to him.
Bidder: Any person, firm or corporation submitting a Notice to Proceed: The written letter or directive issued by the
Bid for Work. City Manager or designee acknowledging
that all conditions precedent to award have
Bonds: Bid, performance bond and other been met and directing that the Contractor
instruments of security, furnished by the may begin Work.
Contractor and their surety in accordance
with the Contract Documents and in
6
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
Performance Standards: The desired results established for each type delivered in person to the individual or to a
of Work described in the ITB, necessary to be member of the firm or to an officer of the
deemed Satisfactory. corporation for whom it is intended, or to an
authorized representative or such individual,
Project: A task or series of tasks that the Contractor firm, or corporation, or if delivered at or sent
must complete in accordance with the by registered mail to the last business
Contract Documents. address known to them who gives the
notice. Unless otherwise stated in writing,
Project Manager: The individual(s) assigned by the City any notice to or demand upon the City under
Manager or designee to manage the project. this Contract shall be delivered to the City.
Quality Assurance: Those actions taken by
the City to assure Services meet the 1.31 BID AWARD:
Satisfactory Performance Standards
established by the Contract Documents. The City reserves the right to reject any and all Bids at its sole discretion.
Bids shall be awarded by the City after the City performs all necessary
Quality Control: Those actions taken by the Contractor to searches, inquiries, exploration, and analysis of the Bids. The Bid shall be
awarded to the lowest responsible and responsive Bidder whose Bid best
ensure the Contractor’s performance meets
the Performance Standards. serves the interests of and represents the best value to the City in
conformity with the criteria set forth in Section 62-8 of the City Code. No
Re-Work:Corrective Work performed by the Notice of Award will be given until the City has concluded any
Contractor, at no cost to the City, to meet investigation(s) as they deem necessary to establish the Bidder’s capability
the Performance Standards. to perform the Services as described in this RFP, ITB, RFQ or ITQ, as
substantiated by the required professional experience, client references,
Responsive Bidder: The Bidder whose Bid conforms in all technical knowledge and qualifications; and sufficient labor and
material respects to the terms and equipment to comply with the City’s established standards, as well as the
conditions included in the ITB. financial capability of the Bidder to perform the Work in accordance with
the Contract Documents to the satisfaction of the City within the time
Responsible Bidder: The Bidder who has the capability in all prescribed. The City reserves the right to reject the Bid of any Bidders on
respects to perform in full the contract the basis of these queries and investigations and who does not meet the
requirements, as stated in the ITB, and the City’s satisfaction, even though the firm may be the lowest dollars and
integrity and reliability that will assure good cents Bid. In analyzing Bids, the City will also take into consideration client
faith performance. references, past work experience and work product, proven ability to
satisfactorily perform. If the Contract is awarded, the City will issue the
Samples: Physical examples which illustrate materials, Notice of Award and give the successful Bidders a Contract for execution
equipment or workmanship and establish within ninety (90) days after opening of Bids. The City specifically reserves
standards by which the Work will be judged.the right to award the contract to a Bidder who is not necessarily the
lowest dollars and cents Bidders on the basis of the results of these queries
Satisfactory: Work performed by the Contractor that has and investigation(s).
been determined through City inspection to
meet the Performance Standards. 1.32 EXECUTION OF AGREEMENT:
At least four counterparts of the Agreement, the Performance Bond, the
Site(s): The location(s) where Work is to be
performed under this Contract.Certificates of Insurance and such other Documents as required by the
Contract Documents shall be executed and delivered by Contractor to the
Specifications: Those portions of the Contract Documents City within ten (10) calendar days of receipt of the Notice of Award.
consisting of written technical descriptions
of materials, equipment, construction 1.33LAWS AND REGULATIONS:
systems, standards and workmanship as
applied to the Work. The Contractor will give all notices and comply with all laws, ordinances,
rules and regulations applicable to the Work. If the Contractor observes
Statement of Services: The form furnished by the City which is to be that the Specifications are at variance therewith, they will give the City
used by the Contractor in requesting prompt written notice thereof, and any necessary changes shall be
progress payments. adjusted by an appropriate modification. If the Contractor performs any
Work knowing it to be contrary to such laws, ordinances, rules and
regulations, and without such notice to the City, they will bear all costs
Subcontractor: A person, firm, or corporation having a direct arising wherefrom.
Contract with Contractor, including one who
furnishes material, equipment or services 1.34TAXES:
necessary to perform the Work.
The City of Sunny Isles Beach and City of North Miami Beach are exempt
from sales tax imposed by the State and/or Federal Government. Florida
Supplier: Any person or organization who supplies
materials or equipment for the Work, Sales Tax Exemption No.from SIB,23-00-477131-54Cand from NMB,85-
including that fabricated to a special design, 2012740150C-3 appear on each purchase order. Exemption certificates
but who does not perform labor at the site. are available upon request.
Work: Any and all obligations, duties and 1.35DUTY TO DEFEND, INDEMNIFY AND SAVE HARMLESS:
responsibilities necessary to the successful
completion of the Project assigned to or In consideration of the separate sum of twenty-five dollars ($25.00) and
other valuable consideration, the Contractor shall defend, indemnify and
undertaken by Contractor under the
Contract Documents, including all labor, hold harmless the City, its officers, agents and employees, from or on
materials, equipment and other incidentals, account of any injuries or damages, received or sustained by any person or
and the furnishing thereof. persons during or on account of any operations connected with the Work
described in the Contract Documents, or by or in consequence of any
Written Notice: The term “Notice” as used herein shall mean negligence in connection with the same; or by use of any improper
materials or by or on account of any act or omission of the said Contractor
and include all written notices, demands,
instructions, claims, approvals and or his Sub-Contractor, agents, servants or employees. The Contractor will
defend, indemnify and hold harmless the City and their agents or
disapproval’s required to obtain compliance
with Contract requirements. Written notice employees from and against all claims, damages, losses and expenses
including attorneys' fees arising out of or resulting from the performance
shall be deemed to have been duly served if
7
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
of the Work, provided that any such claim damage, loss or expense (a) is 1.38.1 Whenever any provision of the Contract Documents
attributable to bodily injury, sickness, disease or death, or to injury to or requires the giving of written notice it shall be deemed to
destruction of tangible property (other than Work itself) including the loss have been validly given if delivered in person to the
of use resulting wherefrom and (b) is caused in whole or in part by any individual or to a member of the firm or to an officer of the
negligent act or omission of the Contractor, Sub-Contractor, anyone corporation for whom it is intended, or if delivered at or
directly or indirectly employed by any of them or anyone for whose acts sent by registered or certified mail, postage prepaid, to the
any of them may be liable, regardless of whether or not it is caused by a last business address known to them who gives the notice.
party indemnified hereunder. In the event that a court of competent
jurisdiction determines that Sec. 725.06 (2), F.S. is applicable to this Work, 1.38.2 The Contract Documents shall remain the property of the
then in lieu of the above provisions of this section the parties agree that City. The Contractor shall have the right to keep one record
Contractor shall indemnify, defend and hold harmless the City, their set of the Contract Documents upon completion of the
officers and employees, to the fullest extent authorized by Sec. 725.06 (2) Project.
F.S., which statutory provisions shall be deemed to be incorporated herein
by reference as if fully set forth herein. In the event that any action or 1.38.3 The duties and obligations imposed by these General
proceeding is brought against City by reason of any such claim or demand, Conditions, Special Conditions and Supplemental
Contractor, upon written notice from City shall defend such action or Conditions and the rights and remedies available
proceeding by counsel satisfactory to City. The indemnification provided hereunder, and, in particular but without limitation, the
above shall obligate Contractor to defend at its own expense or to provide warranties, guarantees and obligations imposed upon
for such defense, at City’s option, any and all claims of liability and all suits Contractor and those in the Special Conditions and the
and actions of every name and description that may be brought against rights and remedies available to the City, shall be in addition
City, excluding only those which allege that the injuries arose out of the to, and shall not be construed in any way as a limitation of,
sole negligence of City, which may result from the operations and activities any rights and remedies available by law, by special
under this Contract whether the Work be performed by Contractor, its guarantee or by other provisions of the Contract
Sub-Contractors, or by anyone directly or indirectly employed by either.Documents.
1.36 DECISIONS ON DISAGREEMENTS: 1.38.4 Should the City or the Contractor suffer injury or damage to
its person or property because of any error, omission, or act
The City will be the initial interpreter of the Technical Specifications. of the other or of any of their employees or agents or others
for whose acts they are legally liable, claim shall be made in
1.37 CITY MAY TERMINATE: writing to the other party within a reasonable time of the
first observance of such injury or damage.
If the Contractor is adjudged bankrupt or insolvent, or if they make a
general assignment for the benefit of their creditors, or if a trustee or 1.39 WAIVER OF JURY TRIAL:
receiver is appointed for the Contractor or for any of their property, or if
they file a petition to take advantage of any debtor’s act, or to reorganize City and Contractor knowingly, irrevocably voluntarily and intentionally
waive any right either may have to a trial by jury in State or Federal Court
under bankruptcy or similar laws, or if they repeatedly fails to supply
sufficient skilled workmen or suitable materials or equipment, or if they proceedings in respect to any action, proceeding, lawsuit or counterclaim
based upon the Contract Documents or the performance of the Work
repeatedly fail to make prompt payments to Sub-Contractors or for labor,
materials or equipment or they disregard laws, ordinances, rules, there under.
regulations or orders of any public body having jurisdiction, or if they
disregard the authority of the City, of if they otherwise violate any 1.40GOVERNING LAW:
provision of, the Contract Documents, then the City may, without
prejudice to any other right or remedy and after giving the Contractor and The Contract shall be construed in accordance with and governed by the
law of the State of Florida.
the surety ten (10) days written notice, terminate the services of the
Contractor and take possession of the Project and of all materials,
1.41 VENUE:
equipment, tools, construction equipment and machinery thereon owned
by the Contractor, and finish the Work by whatever method they may
Venue of any action to enforce the Contract Documents shall be in Miami-
deem expedient. In such case the Contractor shall not be entitled to
receive any further payment until the Work is finished. If the unpaid Dade County, Florida.
balance of the Contract Price exceeds the direct and indirect costs of
completing the Project, including compensation for additional professional 1.42ARBITRATION:
services, such excess shall be paid to the Contractor. If such costs exceed
such unpaid balance, the Contractor will pay the difference to the City. It is the intention of the parties that whenever possible, if a dispute or
Such costs incurred by the City will be determined by the City and controversy arises hereunder then such dispute or controversy shall be
incorporated in a Change Order. If after termination of the Contractor settled by arbitration in accordance with the procedures, rules and
under this Section, it is determined by a court of competent jurisdiction for regulations of the American Arbitration Association. The decision
any reason that the Contractor was not in default, the rights and rendered by the Arbitrator shall be final and binding upon the parties and
obligations of the City and the Contractor shall be the same as if the judgment upon the award rendered by the arbitrator may be entered in
termination had been issued pursuant to this document. any court having jurisdiction. Arbitration shall be held in Miami-Dade
County, Florida. All costs of arbitration and attorneys’ fees incurred by the
1.37.1 Where the Contractor’s services have been so terminated parties shall be paid by the non-prevailing party or, if neither party prevails
by the City said termination shall not affect any rights of the on the whole, each party shall be responsible for a portion ofthe costs of
City against the Contractor then existing or which may arbitration and their respective attorneys’ fees as may be determined by
thereafter accrue. Any retention or payment of moneys by the court on confirmation.
the City due the Contractor will not release the Contractor
from liability. 1.43 PROJECT RECORDS:
1.37.2 Upon immediate written notice to the Contractor, the City City shall have right to inspect and copy during regular business hours at
City’s expense, the books and records and accounts of Contractor which
may, without cause and without prejudice to any other
right or remedy, elect to terminate the Agreement. In such relate in any way to the Project, and to any claim for additional
case, the Contractor shall be paid for all Work executed and compensation made by Contractor, and to conduct an audit of the financial
accepted by the City as of the date of the termination. No and accounting records of Contractor which relate to the Project.
payment shall be made for profit for Work which has not Contractor shall retain and make available to City all such books and
been performed. records and accounts, financial or otherwise, which relate to the Project
and to any claim for a period of three years following final completion of
1.38 MISCELLANEOUS: the Project. During the Project and the three-year period following final
completion of the Project, Contractor shall provide City access to its books
Bidders acknowledge the following miscellaneous conditions: and records upon five days written notice.
8
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
1.44 SEVERABILITY:
If any provision of the Contract or the application thereof to any person or
situation shall to any extent, be held invalid or unenforceable, the
remainder of the Contract, and the application of such provisions to
persons or situations other than those as to which it shall have been held
invalid or unenforceable shall not be affected thereby, and shall continue
in full force and effect, and be enforced to the fullest extent permitted by
law.
1.45 INDEPENDENT CONTRACTOR:
The Contractor is an independent Contractor under the Contract. Services
provided by the Contractor shall be by employees of the Contractor and
subject to supervision by the Contractor, and not as officers, employees,
or agents of the City. Personnel policies, taxresponsibilities, social security
and health insurance, employee benefits, purchasing policies and other
similar administrative procedures, applicable to services rendered under
the Contract shall be those of the Contractor.
End of Section
9
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
Section 2
Special Terms and Conditions
2.1 INVITATION TO BID
2.1.1 PURPOSE
The City of Sunny Isles Beach (“SIB”) and the North Miami Beach Water (“NMB”) (individually
“City”, and collectively, “Cities”) are issuing a joint Invitation to Bid for two (2) projects in the area of 174th
Street to 183rd Street and Atlantic Avenue to North Bay Road: (1) SIB’s Central Island Area Pump Stations
and Drainage Improvements, and (2) NMB’s Watermain Replacements, as specified in Exhibit C and Exhibit
D, (individually, “Project”, and collectively “Projects”). The City of Sunny Isles Beach is the lead agency on
this procurement.
SIB and NMB wish to award the bid to a single Contractor to construct the Projects in conjunction with each
City, concurrently, to minimize the impacts to the residents of SIB and to realize potential cost savings by
combining the Projects.
SIB and NMB will each evaluate the bids and will award a contract to the Bidder who provides the lowest
bid for both of the Projects. Each City will enter into a separate contract for its portion of the Projects to
the awarded Contractor.
The successful Bidder (“Contractor”) will be expected to work with the Cities for decisions on the Projects,
and a Project Manager from each City will designate who will serve as the primary contact for change orders
and processing of invoices for each City. Joint construction progress meetings shall be held with the
Contractor to best coordinate the interest of the Projects.
The Contractor shall ensure smooth and efficient Project planning, staffing, communication updates, and
scheduling, through Project completion, as required by the scope of services herein contained. Bidders shall
include in their bid all required project labor, machinery, rentals, tools, travel, transportation, delivery,
materials, equipment, supplies, permits, and related incidentals necessary to meet, in its entirety, the ITB
requirements specified herein.
The budget for this project for the City of Sunny Isles beach is $20,000,000.
The estimated budget for this project for NMB Water is $4.4 million.
EAC Consultants and Craig A Smith & Associates are the City’s Consulting Engineer (“Engineer”), shall serve
as agents for the City in all matters pertaining to the work on this project. No changes in the work or extra
charges to the Contract are effective until recommended by the City Engineer and approved by the City in
the form of a written change order. These Engineers are precluded from bidding on this Project due to their
involvement in the creation of the scope of work.
2.1.2 FEDERAL AND STATE GRANT REQUIREMENTS
This bid is being solicited in accordance with the procurement requirements for federal grants, as provided
for in Title 2 Code of Federal Regulations (CFR) Part 200. The Bidder acknowledges that all or part of the
Projects described in this solicitation will be funded by Federal grant funds, and compliance with the terms
in Exhibit A is essential to any resulting agreement.
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 10
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
Therefore, theBidder agreesthat it shall fully comply with the terms and conditions set forth in Exhibit A
(Federal Provisions Related to Grant Funds) for work on the Project or Projects. The provisions in Exhibit A
are supplemental and in addition to all other provisions within this bid. In the event of any conflict between
the terms and conditions of Exhibit A and the terms and conditions of the remainder of the bid, the
conflicting terms and conditions of Exhibit A shall prevail.
In addition, for the SIB Project, all or a portion of the said Project will be funded by the State of Florida
Department of Environmental Projection (“FDEP”) Grant Agreement with SIB (Agreement No. 22FRP50 and
Agreement No, LPA0391), attached hereto as Exhibit B1 and B2, and incorporated herein by reference, in
addition to in addition to the American Rescue Plan Act, attached hereto as Exhibit B3 inclusive of all future
amendments and/or agreements entered into between SIB and FDEP governing the SIB Project. The Grant
Agreement includes compliance with all applicable laws, rules, regulations and requirements, including
those within Exhibit A and without limitation 40 U.S.C. § 3141-3144, 3146, and 3147 (relating to Davis-
Bacon Act requirements) and 33 U.S.C. § 3914 (relating to American iron and steel products). The Bidder
agrees to fully comply with the terms and conditions set forth in said Grant Agreement attached hereto as
Exhibit B, and to include pertinent provisions of said Grant Agreement into any subcontracts that it may
enter into relative to the SIB Project.
For the NMB Project, all of said Project is being partially funded through WIFIA and is subject to all the
requirements pertaining to thereof. Specifically, Article III of the agreement, attached hereto as Exhibit B2
and incorporated herein by references, requires compliance with all applicable laws, rules, regulations, and
requirements, including without limitation 40 U.S.C. § 3141-3144, 3146, and 3147 (relating to Davis-Bacon
Act requirements) and 33 U.S.C. § 3914 (relating to American iron and steel products).
If Bidder cannot adhere to or objects to any of the applicable requirements in all exhibits, Bidder’s response
may be deemed as non-responsive by either City or both Cities.
2.2 NON-MANDATORY PRE-BID MEETING
A non-mandatory pre-bid conference will be held on THURSDAY, NOVEMBER 9, 2023 at 11:00 AM at Sunny
Isles Beach Government Center located at 18070 Collins Avenue Sunny Isles Beach, FL 33160; First Floor
Conference Room to discuss the special conditions and specifications included within this solicitation.
Bidders are requested to bring this solicitation document to the conference, as additional copies may not
be available. It is strongly encouraged for interested bidders to attend.
No questions that will change the Scope of this ITB will be answered during the pre-bid meeting. Firms have
until the deadline indicated on page 1 to submit questions.
2.2.1 SITE EXAMINATION
Each Bidder may visit the site of the proposed work before submitting a Bid and shall fully familiarize
themselves with conditions relating to construction and labor so that he or she may fully understand the
facilities, difficulties and restrictions attending the execution of work under the Contract. It will be assumed
that the Bidder has investigated and is satisfied as to the conditions of work to be performed and materials
to be furnished and shall base Bid on their own opinion of the conditions likely to be encountered, and for
the bid price must assume all risk of variance, by whomsoever made in any computation or statement of
amounts or quantities necessary to fully complete the work in strict compliance with the Contract
Documents.
Each Bidder shall thoroughly examine and be familiar with the plans and specifications. The failure or
omission of any Bidder to receive or examine any form, instrument, addendum or other documents, or to
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 11
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
visit the site and acquaint themselves with conditions there existing, shall in no way relieve any Bidderfrom
any obligation with respect to their Bid or to the Contract. The submission of a Bid shall be taken as prima
facie evidence of compliance with this document.
No plea of ignorance of conditions that exist or that may hereafter exist, or of conditions or difficulties that
may be encountered in the execution of the work under this Contract, as a result of failure to make the
necessary examinations and investigations, will be accepted as an excuse for any failure or omission on the
part of the Contract to fulfill, in every detail, all of the requirements of Contract Documents, nor will they
be accepted as a basis on any claim whatsoever for extra compensation or for any extension of time.
Special Accommodations
Any person with a qualified disability requiring special accommodations at a pre-bid meeting, public
meeting, oral presentation and/or opening shall contact the Office of the City Clerk at (954) 457-1340, at
least five (5) working days prior to the event. If you are hearing or speech impaired, please contact this
office by using the Florida Relay Services which can be reached at 1 (800) 955-8771 (TDD).
2.3 MINIMUM QUALIFICATION REQUIREMENTS (MQRS):
In order to be considered responsive, Bidders shall, at a minimum, demonstrate compliance with the
requirements listed in this ITB. To be evaluated, all requested documentation and/or information shall be
provided in the bid to confirm that the Bidder has satisfied the criteria outlined in this document. Bidders
failing to meet these requirements may be deemed non-responsive.
The Bidder shall, at the time of Bid submittal, time of award, and throughout the duration of the Contract,
continue to meet the criteria requirements as stated in this document.
a) The Bidder must be licensed as an Underground Utilities Contractor and/or General Contractor
by State of Florida Department of Business and Professional Regulations.
License will be verified through the following link:
https://www.myfloridalicense.com/wl11.asp?mode=0&SID=
The name of the Bidder or its authorized agents per Sunbiz must match the name(s)
recorded on the license. Proposing firm must provide a copy of the applicable license(s)
with Bidder’s response.
b) The bidder must have an Active Unique Entity ID (UEI) # in SAM.gov at the time of award and
throughout the duration of the contract.
Need to get a UEI? Check out Guide to Getting a Unique Entity ID. Subrecipients
can get a UEI for free. For more help getting a UEI, visit Federal Service Desk
(FSD).
c) Bidder must have successfully completed three (3) or more projects, similar or greater in size,
scope and complexity to the specifications of the ITB, in the last ten (10) years in Florida, with at
least one (1) in Miami-Dade and/or Broward County.
d) Bidder shall provide three (3) reference letters for similar projects. Please note: The references
provided must be the same as the projects/contracts listed in Bidder’s response to MQR (b), above.
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 12
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
e)Bonding Capacity:Provide documentation of your firm’s total and single project bonding capacity
and the name and current financial rating (A.M. Best) of the surety company utilized by your firm,
with a surety company with an A.M. Best rating of AA or better.
2.4 METHOD OF AWARD
The ITB shall be awarded to the lowest responsive and responsible Bidder, as more particularly set forth
below. The term “lowest responsible and responsive Bidder” as used herein shall mean the Bidder whose
bid is the lowest of those Bidders possessing the skill, ability, and integrity necessary for the faithful
performance of the work, whose bid best serves the interests of and represents the best value to each City,
as determined by their respective City Commission and/or the City Manager. The Bidder will also be
evaluated with respect to whether and to the extent they are “responsible” based upon their quality control
plan, safety plan and proposed project schedule.
The bid may be subject to negotiation/value engineering.
SIB and NMB will each evaluate the bids and will award a contract to the combined lowest responsive and
responsible Bidder for both of the Projects. The Cities each reserve their right to reject any bid or part of a
bid that does not conform to the bidding requirements or to modify or waive all formalities and
technicalities in a bid, or to reject all bids.
The following terms shall apply to the award of the contract:
a. Each City will award a separate contract for its portion of the Projects to the selected Contractor
and shall be responsible for administering their own contract with respect to performing
inspections, approving pay applications, reviewing change orders, testing, permitting, as-built
review and certifications. However, both Cities will work together to ensure that there will be only
one mobilization for the Projects and that the Projects will be completed simultaneously.
b. The awarded Contractor will be required to furnish bonds and insurance to each individual City,
for their respective contracts.
2.5 NOTIFICATION TO BEGIN WORK SHALL BE GIVEN THROUGH A NOTICE TO PROCEED
The Contractor shall neither commence any work, nor enter a City work premise, until a written Notice to
Proceed (NTP) from the agency directing the Contractor to proceed with the work has been received by the
Contractor from the City Manager or designee; provided however, that such notification shall be
superseded by any emergency work that may be required in accordance with provisions included elsewhere
in this solicitation and resultant contract. In addition to the written NTP, the Contractor must supply the
City with the required insurance and bond documents.
The date of commencement of construction will be established during the Pre-Construction Conference,
which shall be held shortly after the award of contract and will be stated in the NTP. Immediately after the
NTP is issued and prior to actually commencing work, the Contractor agrees to deliver to the Engineer in a
form satisfactory to the Engineer, a Construction Progress Schedule. Showing dates of commencement and
completion for each and every subdivision of the project and a schedule of material delivery dates to be
incorporated into each phase of work as set forth in the specifications. Within five working days of the
receipt of said schedule, the Engineer shall meet with the Contractor for a joint review. The Contractor shall
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 13
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
submit six copies of the corrected schedule at thePreconstruction Meeting for review and approval. All
work must be completed within the Contract Term herein specified.
2.6 CONTRACT TERM
The Substantial Completion of the Projects shall occur no later than seven hundred thirty (730) calendar
days from date of issuance of all permits and notice to proceed, and Final Completion shall occur no later
than six hundred seventy (670) calendar days from date of issuance of all permits and notice(s) to proceed.
Time is of the essence.
For the purpose of this project, Final Completion shall be defined at that point after which the Director of
NMB Water/City engineer or their representative, have made and approved the Final Inspection and the
Punch List has been completed, and all deliverables have been provided to the City.
2.7 LIQUIDATED DAMAGES
Failure to complete all the work within the time specified above, including any extension granted in writing
by the City, shall obligate the Contractor to pay the City, as liquidated damages and not as a penalty, an
amount equal to Two-Thousand Dollars ($2,000) for each calendar day of delay in the completion of all
the work. If any liquidated damages are unpaid by the Contractor, the City shall be entitled to deduct these
unpaid liquidated damages from the monies due the Contractor.
Liquidated damages are fixed and agreed upon between the Parties, recognizing the impossibility of
precisely ascertaining the amount of damages that will be sustained by the City as a consequence of such
delay and both parties desiring to obviate any question of dispute concerning the amount of damages and
the cost and effect of the failure of the Contractor to complete the Work on time. Liquidated damages shall
apply separately to each portion of the Work for which a time of completion is given. Delays caused by or
resulting from entities, Contractors or subcontractors who are not affiliated with the Contractor shall not
give rise to a claim by Contractor for damages for increase in material and/or labor costs. Such entities,
Contractors and subcontractors include, but are not limited to, the City's Contractors and subcontractors,
Florida Power and Light Company, AT&T, TECO Gas and Breezeline.
2.8 PRICE
If a Bidder is awarded a contract under this solicitation, the price shall remain fixed and firm during the
contract term. Contractor shall be responsible for mobilization and demobilization of labor, permits,
materials and equipment. Payment for mobilization and demobilization will be included in the lump sum
price indicated in the ITB. Pricing shall include such amounts, as Bidder deems proper, for all labor,
materials, supplies, equipment, subcontractors, insurance, bonds, overhead, profit and any other costs to
provide the work as noted in this ITB.
2.9 PERFORMANCE AND PAYMENT BOND
The City of Sunny Isles Beach shall require the successful Bidder to furnish a Performance Bond and Payment
Bond in the amount of 100% of the contract price, with the City of Sunny Isles Beach as the Obligee, as
security for the faithful performance of the Contract and for the payment of all persons performing labor
or furnishing materials in connection herewith within ten (10) calendar days after issuance of the Notice of
Award by the City. The Performance and Payment Bond shall continue in effect through the contract term.
The bonds shall be with a surety company authorized to do business in the State of Florida and having been
in business with a record of successful continuous operation for at least five (5) years.
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 14
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
The Performance Bond shall guarantee all work and materials furnished under the Contract including losses
resulting from defects in the materials or improper performance of Work under the Contract that may
appear or be discovered during performance of the Work or during any applicable warranty period after
completion of all Work, and for latent defects, during the time periods set forth in section 95.11(3)(c),
Florida Statutes. The Payment Bond shall stay in effect until the time required by section 255.05, Florida
Statutes, for the making of claims under such Bond, or when all claimants submitting valid claims have been
paid, whichever is later.
2.10 INSURANCE
At all times during the term of the Contract, the Contractor, at its sole expense, shall maintain insurance
coverage of such types and with such terms and limits as described below. The Contractor further agrees
that if any part of the Work under the Contract is subcontracted, it will require its subcontractors to
maintain insurance coverage of such types and with such terms and limits as described below as a condition
of those subcontracts.
Comprehensive General Liability Insurance
2.10.1
Comprehensive General Liability with minimum limits of One Million Dollars ($1,000,000.00) each
occurrence for bodily injury, property damage and personal and advertising injury; (2) $2,000,000
general aggregate; (3) $1,000,000 products and completed operations; (4) contractual liability
coverage.
Provide: Additional Insured status and Primary and Non-Contributory status in favor of the City of
Sunny Isles Beach; Waiver of Subrogation.
Coverage must be offered in a form no more restrictive than the latest edition of the
Comprehensive General Liability policy, without restrictive endorsements, as filed by the Insurance
Services Office, and shall specifically include the following with minimum limits not less than those
required for Bodily Injury Liability and Property Damage Liability:
Premises and Operation;
Independent Contractors;
Products and/or Completed Operations Hazard;
Broad Form Property Damage;
Broad Form Contractual Coverage applicable to this specific Contract, including any hold
harmless and/or indemnification agreement.
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.
2.10.2 Business Automobile Liability
Business Automobile Liability with minimum limits of One Million Dollars ($1,000,000.00) per
occurrence combined single limit for Bodily Injury Liability and Property Damage Liability.
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:
Owned Vehicles;
Hired and Non-Owned Vehicles;
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 15
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
Employers’ Non-City ship.
Before starting the Work, the Bidder will file and make sure that all certificates of insurance
required by this document and by the Contract are in the City’s possession. These certificates shall
contain a provision that the coverage afforded under the policies will not be canceled or materially
changed until at least thirty (30) days prior written notice has been given to the City by certified
mail. The City shall be named as an additional insured on the above-referenced policies.
Provide: Additional Insured coverage on a Primary and Non-Contributory basis; Waiver of
Subrogation in favor of the City of Sunny Isles Beach.
2.10.3 Worker’s Compensation Insurance
Worker's Compensation Insurance for statutory obligations imposed by Worker's Compensation or
Occupational Disease Laws, including, where applicable, the United States Longshoremen's and
Harbor Worker's Act, the Federal Employers’ Liability Act and the Homes Act. Employer's Liability
Insurance shall be provided with a minimum of limits not less than: (1) $500,000 each accident for
bodily injury; (2) $500,000 each employee for bodily injury caused by disease; and (3) $500,000 bodily
injury caused by disease. Such policies shall cover all employees engaged in any Work under the
agreement. Bidder agrees to be responsible for the employment, conduct and control of its employees
and for any injury sustained by such employees in the course of their employment.
Provide: Waiver of Subrogation in favor of the City of Sunny Isles Beach and city of North Miami Beach.
2.10.4 Environmental Pollution Insurance
The Contractor shall carry an Environmental Pollution Insurance for pollution-related incidents,
including the cost of cleaning up a site after a pollution incident, with limits not less than $1,000,000
per occurrence with deductible not greater than $100,000.00. An additional Form or endorsement to
the Commercial General Liability Insurance to include an Environmental Pollution Insurance coverage
providing the specified coverage, is acceptable.
2.10.5 Cancellation and Re-Insurance
If any insurance should be cancelled or changed by the insurance company or should any insurance
expire during the period of this contract, the Consultant shall be responsible for securing other
acceptable insurance to provide the coverage specified in this section to maintain coverage during
the life of this Contract. All deductibles must be declared by the Bidder and must be approved by
the City. At the option of the City, either the Bidder shall eliminate or reduce such deductible or
the Bidder shall procure a Bond, in a form satisfactory to the City, covering the same.
2.10.6 Builder’s Risk insurance
Builder’s Risk insurance for all construction performed on the site to the full value of the contract.
City of North Miami Beach and City of Sunny Isles Beach must be shown as an additional insured
with respect to this coverage. The mailing address of City of North Miami Beach 17011 NE 19th
Avenue, Suite 315, North Miami Beach, Florida 33162, as the certificate holder, must appear on
the certificate of insurance.
2.10.7 Equipment Floater insurance
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 16
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
For the value of any equipment being stored on site for the duration of the project. City of North
Miami Beach and City of Sunny Isles Beach must be shown as an additional insured with respect
to this coverage. The mailing address of City of North Miami Beach 17011 NE 19th Avenue, Suite
315, North Miami Beach, Florida 33162, as the certificate holder, must appear on the certificate of
insurance.
2.10.8 Umbrella or Excess Insurance
Umbrella or Excess Insurance with the following limits – Combined Single Limit of five million
dollars ($5,000,000) and is excess/additional to applicable coverages above. The City of North
Miami Beach must be shown as an additional insured with respect to this coverage. The mailing
address of the City of North Miami Beach is 17011 NE 19th Avenue Second Floor, Risk
Management, North Miami Beach, Florida 33162, as the certificate holder, and must appear on
the certificate of insurance.
o Provide: Additional Insured coverage on a Primary and Non-Contributory basis; Waiver of
Subrogation in favor of the City of Sunny Isles Beach and the City of North Miami Beach.
NOTE: THE CITY OF SUNNY ISLES BEACH AND THE CITY OF NORTH MIAMI BEACH, AS APPLICABLE,
CONTRACT NUMBER AND TITLE MUST APPEAR ON EACH CERTIFICATE OF INSURANCE. THE CITY OF
SUNNY ISLES BEACH AND THE CITY OF NORTH MIAMI BEACH, MUST BE SHOWN AS AN ADDITIONAL
INSURED WITH RESPECT TO THIS COVERAGE.
2.11 INTERPRETATION OF PLANS AND DRAWINGS
On all drawings, the figured dimension shall govern in case of discrepancy between the scales and figures.
The Contractor shall take no advantage of any error or omission in the Drawings or of any discrepancy
between the Drawings and Specifications. The Engineer of Record shall make such interpretations as may
be deemed necessary for the fulfillment of the intent of the Drawings and Specifications as construed by
the Engineer, and his/her decision shall be final. If there is a discrepancy between plans and specifications,
the specifications govern.
2.12MATERIALS, INSPECTION, AND RESPONSIBILITY
The City shall have a right to inspect any material to be used in carrying out this contract. The City does not
assume any responsibility for the availability of any controlled materials or other materials and equipment
required under this contract. The Bidder shall be responsible for the contract quality and standards of all
materials, components or completed work finished under this contract for 12 months from the date of final
approved inspection and acceptance. Materials, components, or completed work not complying therewith
may be rejected by the City and shall be replaced by the Bidder at no cost to the City. Any materials or
components rejected shall be removed within a reasonable time from the premises at the entire expense
of the Bidder, after written notice has been mailed by the City to the Bidder that such materials or
components for work have been rejected.
2.13 LABOR REGULATIONS - DAVIS-BACON ACT
The Contractor shall fully comply with all laws and regulations concerning labor, work hours, wage rates,
labor conditions and related matters. Davis-Bacon Act is applicable to this solicitation, therefore the
proposer agrees to comply with all provisions of the Davis Bacon Act as amended (40 U.S.C. 3141-3148).
Bidders are required to pay wages to laborers and mechanics at a rate not less than the prevailing wages
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 17
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required
to pay wages not less than once a week. The decision to award a contract shall be conditioned upon the
acceptance of the wage determination.
Bidder must refer to Exhibit F.
LICENSES, PERMITS AND FEES
2.14
The Contractor shall obtain and pay for all licenses, permits and inspection fees required for this project;
and shall comply with all laws, ordinances, regulations and building code requirements applicable to the
work contemplated herein. Damages, penalties and or fines imposed on the City or the Contractor for
failure to obtain required licenses, permits or fines shall be borne by the Contractor. Contractor shall be
required to furnish a certified copy of all licenses, certificates of competency or other licensure
requirements necessary to practice his profession as required by Florida Statutes, Florida Building Code,
Miami-Dade County, or City of Sunny Isles Beach Code. These documents shall be furnished to the City along
with the Bid response. Failure to furnish these documents or to have required licensure will be grounds for
rejecting the Bid as non-responsive or otherwise. The successful Bidder shall comply with all federal, state
and local ordinances, regulations, rules and permits as well as any other laws that would apply to the
services being provided.
Bidder shall be responsible for ensuring it is in possession of all required City permits prior to
commencement of work, and maintaining permits throughout the contract award, as required. All costs
associated with obtaining required permits shall be the responsibility of the awarded Bidder(s).
2.15 SUB-CONTRACTORS:
If one or more subcontractors are to be used, the subcontractor must be clearly identified and noted in the
submittal when the bid is submitted. The City must approve any changes in the use of subcontractors in
advance and in writing. No such approval will be construed as making the City a party to such subcontract
or subjecting the City to liability of any kind to any subcontractor. No subcontractor will under any
circumstances relieve the Bidder of its liability and obligation under any resulting contract. Subcontractor
is subject to the same contractual conditions as is the Bidder.
The Engineer shall promptly notify the Contractor, in writing, if either the Owner or Engineer, after due
investigation, has reasonable objections to any subcontractor on said list and does not accept them. Failure
of the Owner or Engineer to make objection within three (3) weeks to any subcontractor on the list shall
constitute acceptance of such subcontractor. After acceptance, no subcontractor shall be changed without
written approval by the Owner and Engineer.
2.16 PAYMENTS
Each invoice or payment application must be accompanied by all supporting documentation and other
information reasonably requested by City, including, but not limited to a Partial Release of Lien or Final
Release of Lien as appropriate in the forms set forth in Chapter 713.20, Florida Statutes. Reference herein
to Chapter 713, Florida Statutes is for convenience, and shall not be construed as a waiver of sovereign
immunity or authority for imposition of liens against public property. Each progress payment shall be
reduced by five percent (5%) retainage. Subject to other requirements of the Contract Documents,
retainage shall be released after final completion of the Work and City’s receipt of acceptable reports and
other documentation including certification of payment to subcontractors, if any, and a Final Release of
Lien in the form set forth in Section 713.20, Florida Statutes.
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 18
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
A final payment invoice or application must be accompanied by written notice from Contractor that the
entire Work is completed. The City’s engineer of record will make a final inspection and notify Contractor
in writing with a punch list of all particulars in which this inspection reveals that the Work is incomplete or
defective. Contractor shall immediately take such measures as are necessary to complete the punch list and
remedy deficiencies. Contractor’s obligation to perform and complete the Work in strict accordance with
the Contract Documents shall be absolute. The City may refuse payment if (a) the Work is defective or
completed Work has been damaged requiring correction or replacement, (b) the City has been required to
correct defective Work or complete Work in accordance with the Contract Documents, or (c) because claims
have been made against the City on account of Contractor’s performance or furnishing of the Work or liens
or claims have been filed or asserted in connection with the Work or there are other items entitling the City
to a set-off against the amount due. No payment will be made for Work performed by the Contractor to
replace defective work; for work which is not shown or ordered in the Contract Documents; or additional
work performed by Contractor without prior written approval of City.
City of Sunny Isles Beach and NMB Water shall make payment to the CONTRACTOR within 30 days after
approval by the CITY ENGINEER of CONTRACTOR'S requisition for payment.
2.17 DIRECT PURCHASE
The cities are recognized by the State of Florida as being exempt from state sales tax and is therefore,
qualified for an exemption from Florida and all other state sales taxes on the purchase of tangible property
if certain criteria are met. The City may elect to realize savings of sales tax on selected material and
equipment needed for use in this Project. The City will include this direct purchase provision and the
Contractor agrees to administer it. See Rule 12A-1.094 and Section 212.08(6) Florida Statutes.
No additional compensation shall be added to the Agreement amount because of the service provided by
the Contractor in the purchase of the material or capital equipment in the name of the City. All sales and
use tax savings of purchase of property, materials, etc., shall be credited to the City and the amount of the
Agreement will be reduced in the full amount of savings which are affected by the omission of payment of
sales and use taxes.
2.18 TAXES
Contractor must pay all applicable sales, consumer, use, and other taxes required by law. Contractor is
responsible for reviewing the pertinent state statutes involving state taxes and complying with all
requirements.
2.19 LABOR, MATERIALS, AND EQUIPMENT SHALL BE SUPPLIED BY THE CONTRACTOR
The Contractor shall furnish the following, including but not limited to, all labor, material, equipment,
barricading, Maintenance of Traffic (MOT), adequate supervision, and coordination for satisfactory contract
performance. When not specifically identified in the technical specifications, such materials and equipment
shall be of a suitable type and grade for the purpose and meeting or exceeding all permit or industry
standard requirements. All material, workmanship, 100% design, testing and equipment shall be subject to
the inspection and approval of the City Manager or his designated representative for this project.
2.20 MATERIALS SHALL BE NEW AND WARRANTED AGAINST DEFECTS
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 19
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
The Contractorhereby acknowledges and agrees that all materials, except where recycled content is
specifically requested, supplied by the Bidder in conjunction with this solicitation and resultant contract
shall be new, warranted for their merchantability, and fit for a particular purpose. In the event any of the
materials supplied to the City by the Contractor are found to be defective or do not conform to
specifications: (1) the materials may be returned to the Contractor at the Contractor’s expense and the
contract cancelled or (2) the City may require the Contractor to replace the materials at the Contractor’s
expense. No provisions or allotments for delays or time extensions to the schedule as a result of
“defective”, unacceptable material, or reused material found shall be granted.
In the event that material is suspected by the City of being reused or not new in original packaging, the
material may be rejected. The Contractor shall remove such material and replace it at his/her cost and
within the original schedule. No provisions or allotments for delays or time extensions to the schedule as
a result of “defective”, unacceptable material, or reused material found shall be granted.
2.21 ACCIDENT PREVENTION AND BARRICADES
Contractor shall comply with City, State and Federal regulations and permit requirements for the placement
of the proper Traffic Control Devices. Barricades, cones, construction fencing, temporary construction
fencing per City regulations and other relevant requirements, shall be provided by the Contractor when
work is performed in areas traversed by persons, vehicular traffic or when deemed necessary by the City
Project Manager(s) at no extra cost to the City.
Precautions shall be exercised at all times for the protection of persons and property. All services performed
under this contract shall conform to all relevant regulations as prescribed in the current edition of the
Manual of Uniform Traffic Control Devices (MUTCD), the Florida Department of Transportation’s Design
Standards (DS) and OSHA during the course of such effort. Where requirements vary or conflict, the more
stringent shall apply. Any fines levied by the above-mentioned authorities for failure to comply with these
requirements shall be borne solely by the Contractor.
2.22 SAFETY MEASURES:
Contractor shall take all necessary precautions for the safety of employees and shall erect and properly
maintain at all times all necessary safeguards for the protection of the employees and the public.
Contractor to follow all OSHA Safety Standards. Danger signs warning against hazards created by his/ her
operation and work in progress must be posted.
All employees of the contractor shall be expected to wear safety glasses or goggles, appropriate clothing,
and hearing protection when and wherever applicable. The contractor shall use only equipment that is fully
operational and in safe operating order. Contractor shall be especially careful when servicing property when
pedestrians and/ or vehicles are in close proximity work shall cease until it is safe to proceed.
2.23 HOURS OF CONSTRUCTION
The Contractor shall minimize the impact of this project on the general public ensuring that all service
interruptions are kept to a minimum and providing temporary services, structures, and facilities as required.
The existing service to the residents and businesses may not be interrupted for more than 4 hours without
written permission from the City. The Contractor may perform work between the hours 7:00 AM and 7:00
PM Monday through Thursday and 7:00 AM – 5:00 PM on Fridays. Hours in the areas of the school may be
restricted during peak school traffic. Contractor shall consider school access for vehicles and pedestrians
when preparing MOT plans. Work outside these hours, on weekends, or holidays is prohibited without prior
permission from the applicable jurisdiction.
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 20
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
The Contractor is to maintain appropriate signage, guards, and flagmen for the purpose of safeguarding
the general public while work is ongoing. All work shall be completed in a safe and workmanlike manner
every day and the Contractor shall secure the site prior to leaving at the end of each and every day.
2.24 STAGING DELIVERY & STORAGE OF MATERIAL AND EQUIPMENT
All material must be F.O.B. destination. The Contractor is solely liable and responsible for the purchase,
delivery, and installation of all materials and equipment. The Contractor will make all arrangements for
delivery. Contractor will be solely liable for receiving, inspecting, accepting, and replacing any damaged
materials or equipment and filing any and all claim with suppliers or transporters. Contractor is responsible
for the protection of all materials and equipment from adverse weather conditions, damage, deterioration,
and theft until the Work has been accepted by the City.
Contractor is responsible for providing staging and storage area for construction. The City of Sunny Isles
Beach will allow staging and storage of materials within portions of the Right-of-Ways. The City of Sunny
Isles Beach is investigating a potential site at the St. Mary Magdalen Church, which will be confirmed at the
pre-bid meeting. If approved, the contractor will be responsible for coordinating this agreement directly
rd
party.
with the 3
2.25 PROTECTION OF PROPERTY
The Bidder shall take extra precaution to protect all property while removing and replacing materials and
equipment. Any damage done by the Bidder, whether it is necessary to the installation or accidental, shall
be corrected to its original or better state, and shall be corrected to the satisfaction of the respective
agency.
2.26 DAMAGE TO PUBLIC OR PRIVATE PROPERTY
Extreme care shall be taken by Contractor to safeguard all existing facilities, site amenities, utilities,
irrigation systems on or around the job site. Damage to public and/or private property shall be the
responsibility of the Contractor and shall be repaired and/or replaced by Contractor at no additional cost
to the City. The Contractor shall use all means to protect existing objects, structures and vegetation
designated to remain. In the event of damage, the Contractor shall immediately make all repairs,
replacements and dressings to damaged materials, to the approval of the City, at no additional cost to the
City.
2.27 CLEAN-UP
Bidder shall remove and dispose of any dirt or debris resulting from this project. All debris shall be disposed
of at an authorized dumping facility. Dump tickets shall be submitted to the City with each pay request.
Exposed metal shall be polished, glass shall be cleaned, surrounding structures or landscaping affected or
damaged during completion of this project shall be restored to an equal or better condition. Paint shall be
touched up if and where needed. Bidder's equipment and surplus material shall be removed from site.
2.28 CORRECTION OR REMOVAL OF DEFECTIVE WORK
If required by City, Contractor shall promptly, as directed and at its sole expense, either correct all defective
Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by City, remove
it from the site and replace it with non-defective Work. Contractor shall bear all direct, indirect, and
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 21
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
consequential costs of such correction or removal (including but not limited to fees and charges of
engineers, architects, attorneys and other professionals) made necessary thereby.
2.29 CHANGE ORDER
The Contract may only be amended by a Change Order approved by the City. Any increase or decrease in
the Contract Price or adjustment in the Contract Time shall be based on written notice by the Contractor
delivered promptly to the City (but in no event later than seven (7) days) after the acknowledgement or
occurrence of the event giving rise to the claim and stating the general nature of the claim. Within fourteen
(14) days thereafter, notice of the amount of the claim with all supporting data shall cover all amounts
(direct, indirect and consequential) to which the claimant is entitled as a result of the occurrence of said
event. All claims for adjustment in the Contract Price or Contract Time shall be determined by the City.
Contractor acknowledges and agrees that no claim for an adjustment in the Contract Price or Contract Time
will be valid or enforceable if not submitted in strict accordance with this paragraph.
The value of any Work covered by a Change Order or of any claim for an increase or decrease in the Contract
Price or Contract Time shall be determined by: 1) mutual acceptance of a lump sum (which may include an
allowance for overhead and profit) or 2) by application of unit prices contained in the Contract Documents
to the quantities of the items involved. The City shall decide, in its sole discretion, whether to issue and
agree to a Change Order, and verbal representations or instructions may not be relied upon by the
Contractor.
2.30 CITY ENGINEER
All communications and correspondence shall be directed to the City Engineer and appointed project
manager. The supervision of the execution of this Contract is vested in the Engineers, the Construction
Manager and their instructions shall be carried into effect promptly and efficiently. The Engineer shall in all
cases determine the amount, quality, fitness and acceptability of the work and materials to be paid for and
shall decide finally and conclusively all questions or differences of opinion that may arise as to the
interpretation of the Plans and Specifications or the fulfillment of the terms of the Contract. In the event of
such a question or difference of opinion, the decision of the Engineer is to be a condition precedent to the
Contractor’s right to receive any money for the work or the materials to which the question or difference
of opinion relates.
If the Contractor considers any work demanded of him/her to be outside the requirements of the Contract,
or if they consider any decision or ruling of the Engineer to be unfair, they shall immediately, upon such
work being demanded or ruling or decision being made, shall ask for written instructions or decisions from
the Construction Manager, whereupon they shall proceed without delay to perform the work or conform
to the decision or ruling. Beginning with the first day of this work, the Contractor and the Inspector shall fill
out daily Time and Material Records for the work. Such records shall be signed by both parties. This
documentation does not constitute acknowledgement for authorization to pay for this work. In the event
that a claim for this work is approved by the City subsequent to the commencement of the work an accurate
accounting of work shall be agreed upon by both parties upon completion of this work and will be paid for
as work as provided in the Specifications by Allowance Account if funds are available, or by an approved
Change Order by the Board of Commissioners.
2.31 WARRANTY SHALL BE SUPPLIED IN WRITTEN FORM
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 22
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
In addition to any manufacturer’s warranties, Contractor warrants and guarantees to the Citythat all
work will be in strict accordance with the Contract Documents and will not be defective. All defective
Work, whether or not in place, may be rejected, corrected,or accepted as provided below.
2.31.1 Correcting Defects Covered Under Warranty
The Contractor shall be responsible for promptly correcting any deficiency, at no cost to the City,
within seven (7) calendar days after the City notifies the Contractor of such deficiency in writing.
If the Contractor fails to satisfy the warranty within the period specified in the notice, the City may
(a) place the Contractor in default of its contract, and/or (b) procure the products or services from
another source and charge the Contractor for any additional costs that are incurred by the City for
this work or items; either through a credit memorandum or through invoicing.
2.31.2 Owner May Stop the Work
If the Work is defective or Contractor fails to supply sufficiently skilled workers or suitable
materials or equipment or fails to furnish or perform the Work in such a way that the completed
Work will strictly conform to the Contract Documents, City may order Contractor to stop the Work,
or any portion thereof, until the cause for such order has been eliminated. However, this right of
City to stop the Work shall not give rise to any duty on the part of City to exercise this right for the
benefit of Contractor or any other party.
2.32 ONE YEAR CORRECTION PERIOD
In the event any work is found to be defective within one year after the date of Final Completion, Contractor
shall promptly, without cost to the Cities and in accordance with their written instructions, either correct
such defective Work, or, if it has been rejected by the Cities, remove it from the site and replace it with
non-defective Work. If Contractor does not promptly comply with the terms of such instructions, or in an
emergency where delay would cause serious risk of loss or damage, City may have the defective Work
corrected or the rejected Work removed and replaced, and all direct, indirect, and consequential costs of
such removal and replacement (including but not limited to fees and charges of engineers, architects,
attorneys and other professionals) will be promptly paid by Contractor. Nothing in this ITB or the Contract
shall be construed as a limitation on any right or remedy for breach of the Contract or defects in the Work.
All rights set forth herein and, in the Contract, shall be deemed cumulative and in addition to any rights or
remedies which may be afforded by Florida law.
2.33 FRAUD AND MISREPRESENTATION
The Cities may terminate this Contract based on any attempt by the Contractor to meet its
contractual obligations with the Cities through fraud, misrepresentation, or material misstatement.
Should this occur, the Contractor will be responsible for all direct or indirect costs associated with
termination or cancellation of the Contract.
2.34 PUBLIC RECORDS LAW
The Cities are subject to Chapter 119, Florida Statutes, “Public Records Law.” No claim of confidentiality or
proprietary information in all or any portion of a response will be honored unless a specific exemption from
the Public Law exists and is cited in the response. An incorrectly claimed exemption does not disqualify the
firm, only the exemption claimed. Contractor acknowledges the public shall have access at all reasonable
times, to all documents and information pertaining to City’s contracts, subject to the provisions of Chapter
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 23
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to
disclosures under applicable law.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE SUCCESSFUL BIDDER’S DUTY TO
PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT CITY OF SUNNY ISLES BEACH 18070
COLLINS AVENUE, SUNNY ISLES BEACH, FL 33160. THE CITY CLERK’S OFFICE
MAY BE CONTACTED BY PHONE AT (305) 792-1703 OR VIA EMAIL AT
MBetancur@sibfl.net.
2.35 STATUTORY NOTICES RELATING TO UNAUTHORIZED EMPLOYMENT AND SUBCONTRACTS.
2.35.1 The State of Florida considers the employment by any City of unauthorized aliens a violation of
Section 274A(e) of the Immigration and Nationality Act. If the Contractor knowingly employs unauthorized
aliens, such violation shall be cause for unilateral cancellation of the Contract. The Contractor shall be
responsible for including this provision in all subcontracts issued as a result of the Contract.
2.35.2 Pursuant to Sections 287.133 and 287.134, F.S., the following restrictions apply to persons placed on
the convicted vendor list or the discriminatory vendor list:
i. Public Entity Crime. A person or an affiliate who has been placed on the convicted vendor
list following a conviction for public entity crime may not submit a bid on a contract to
provide any goods or services to a public entity, may not submit a bid on a contract with
a public entity for the construction or repair of a public building or public work, may not
submit bids on leases of real property to a public entity, may not be awarded or perform
work as a Contractor, 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, Florida Statutes, for CATEGORY TWO for
a period of thirty-six (36) months from the date of being placed on the convicted vendors
list.
ii. Discriminatory Vendors. An entity or affiliate who has been placed on the discriminatory
vendor list may not submit a bid, proposal, or reply on a contract to provide any goods or
services to a public entity; may not submit a bid, proposal, or reply on a contract with a
public entity for the construction or repair of a public building or public work; may not
submit bids, proposals, or replies on leases of real property to a public entity; may not be
awarded or perform work as a Contractor, supplier, subcontractor, or consultant under a
contract with any public entity; and may not transact business with any public entity.
iii. Antitrust Violator Vendors. A person or affiliate who has been placed on the antitrust
violator vendor list following a conviction or being held civilly liable for an antitrust
violation may not submit a bid, Proposal, or reply on any contract to provide any good or
services to a public entity, may not submit a bid, Proposal, or reply on any contract with
a public entity for the construction or repair of a public building or public work; may not
submit a bid, Proposal, or reply on leases of real property to a public entity; may not be
awarded or perform work as a Contractor, supplier, subcontractor, or consultant under a
contract with a public entity; and my not transact new business with a public entity,
pursuant to s. 287.137, F.S. The Florida Department of Management Services is
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 24
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
responsible for maintaining the antitrust violator list and is to post the list on its website
starting January 1, 2022. Questions regarding the antitrust violator vendor list may be
directed to the Florida Department of Management Services, State Purchasing Division,
at (850) 488-8440 or send email to purchasingcustomerservice@dms.myflorida.com.
iv. Notification. The Contractor shall notify the City if it or any of its suppliers, subcontractors,
or consultants have been placed on the convicted vendor list or the discriminatory vendor
list during the life of the Contract. The Florida Department of Management Services is
responsible for maintaining the discriminatory vendor list and posts the list on its website.
Questions regarding the discriminatory vendor list may be directed to the Florida
Department of Management Services, Office of Supplier Diversity, at (850) 487-0915.
2.36 SCRUTINIZED COMPANIES
2.34.1 Contractor certifies that it and its subcontractors are not on the Scrutinized Companies that Boycott
Israel List. Pursuant to Section 287.135, F.S., the City may immediately terminate the Contract at its sole
option if the Contractor or its subcontractors are found to have submitted a false certification; or if the
Contractor, or its subcontractors are placed on the Scrutinized Companies that Boycott Israel List or is
engaged in the boycott of Israel during the term of the Agreement.
2.34.2 If this Agreement is for more than one million dollars, the Contractor certifies that it and its
subcontractors are also not on the Scrutinized Companies with Activities in Sudan, Scrutinized Companies
with Activities in the Iran Petroleum Energy Sector List, or engaged with business operations in Cuba or
Syria as identified in Section 287.135, F.S. Pursuant to Section 287.135, F.S., the City may immediately
terminate the Contract at its sole option if the Contractor, its affiliates, or its subcontractors are found to
have submitted a false certification; or if the Contractor, its affiliates, or its subcontractors are placed on
the Scrutinized Companies that Boycott the Scrutinized Companies with Activities in Sudan List, or
Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or engaged with business
operations in Cuba or Syria during the term of the Agreement.
2.34.3 The Contractor agrees to observe the above requirements for applicable subcontracts entered into
for the performance of work under the Contract.
2.37 COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS.
The Contractor and all its agents shall comply with all federal, state, and local regulations, including, but
not limited to, nondiscrimination, wages, social security, workers’ compensation, licenses, and registration
requirements. The Contractor shall include this provision in all subcontracts issued as a result of the
Contract.
No person, on the grounds of race, creed, color, religion, national origin, age, gender, or disability, shall be
excluded from participation in; be denied the proceeds or benefits of; or be otherwise subjected to
discrimination in performance of the Agreement.
2.38 BUILD AMERICA, BUY AMERICA ACKNOWLEDGEMENT
The Bidder for this proposed contract must include in all contracts and purchase agreements for this project
the following contract language:
The Contractor hereby presents and warrants to and for the benefit of the Owner and State that: (a) the
Contractor has reviewed and understands all requirements of the Build America, Buy America Act
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 25
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
applicable to this project; (b) all of the products used in this project will be and/or have been produced in
the United States in a manner that complies with the Build America, Buy America Act, unless a waiver of
applicable requirement(s) is approved; and (c) the Contractor will provide any further verified information,
certification, or assurance of compliance with this acknowledgment, or information necessary to support a
valid waiver of the Build America, Buy America Act, as may be requested by the Owner or the State.
2.39 COMPLIANCE WITH FOREIGN ENTITY LAWS
A governmental entity may not knowingly enter into a contract with an entity which would give access to
an individual’s personal identifying information if:
(a) The entity is owned by the government of a foreign country of concern;
(b) The government of a foreign country of concern has a controlling interest in the entity; or
(c) The entity is organized under the laws of or has its principal place of business in a foreign country of
concern.
(3) Beginning July 1, 2025, a governmental entity may not extend or renew a contract with an entity listed
in paragraphs (2)(a)-(c) if the contract would give such entity access to an individual’s personal identifying
information.
(4)(a) Beginning January 1, 2024, a governmental entity may not accept a bid on, a proposal for, or a reply
to, or enter into, a contract with an entity which would grant the entity access to an individual’s personal
identifying information unless the entity provides the governmental entity with an affidavit signed by an
officer or representative of the entity under penalty of perjury attesting that the entity does not meet any
of the criteria in paragraphs (2)(a)-(c).
(b) Beginning July 1, 2025, when an entity extends or renews a contract with a governmental entity which
would grant the entity access to an individual’s personal identifying information, the entity must provide
the governmental entity with an affidavit signed by an officer or representative of the entity under penalty
of perjury attesting that the entity does not meet any of the criteria in paragraphs (2)(a)-(c).
END OF SECTION
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 26
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
Section 3
Scope of Services / Technical Specifications
3.1 SCOPE OF WORK
The City of Sunny Isles Beach is seeking to retain a qualified (“Contractor” or “Bidder”) capable of providing
all services specified in Exhibit C.
The City of North Miami Beach is seeking to retain a qualified (“Contractor” or “Bidder”) capable of
providing all services specified in Exhibit D.
3.2 REQUIREMENTS OF THE CONTRACTOR
Contractors interested in performing these services must exhibit considerable relevant experience with this
type of work and should emphasize both experience and capability of particular personnel who will actually
perform the work. All Architects, Engineers and General Contractors must be licensed by the State of Florida
and maintain certification as and be in good standing with the Department of Business and Professional
Regulations. Contractors should demonstrate that they have experience working with storm drainage and
water main facilities, preferably for government.
The project services shall include but not be limited to the following:
1. Contractor to supply drawings and calculations and obtain a building permit.
2. Providing as-built drawings, applicable product data and operational manuals to the City.
3. All necessary engineering shop drawings for permits.
4. The Contractor shall schedule regular progress meetings every week during the project.
5. Provide overall project management and coordination necessary to accomplish these tasks.
3.3 AS-BUILT RECORDS
A complete set of as-built records shall be kept by the Contractor at the job site. These records shall show
all items of construction and equipment which differ in size, shape, or location from those shown on the
Contract drawings, also any additional work, existing features or utilities revealed by construction work
which are not shown on the Contract drawings. These records shall be kept up to date daily. They may be
kept on a marked set of Contract drawings to be furnished the Contractor for this purpose, or in any other
form which is approved prior to the beginning of the work. They shall be available at all times during
construction for reference by the Engineer and shall be delivered to the Engineer prior to pre-final
inspection.
END OF SECTION
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 27
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
Section 4
Bid Format
4.0 FORMAT
Submittals shall be submitted in duplicate. Submit one (1) original, four (4) copies and two (2) electronic
copy of the submittal on USB Drive. All required signatures shall be manual, in blue ink of an authorized
representative who has the legal authority to bind the Contractor in contractual obligations. Each page of
the bid should state the name of the Contractor, the bid number, and the page number. The City reserves
the right to request additional data or material to support bid. All material submitted in response to the ITB
will become the property of the City.
LABEL EACH SECTION AS NUMBERED
The ITB must be in the following format at the time of submittal:
1. Company Information
In response to this Bid, all Contractors must provide the following:
Name of Agency/Company (including any "Doing Business As" names)
Company Location(s)
Internet Web Site Address (if any)
Details of Entity Business Structure (Corporation, Partnership, LLC)
Date Founded
Office address and telephone number, email address
List of any outstanding litigation that would threaten the viability of the firm or the
performance of this contract
Proof of insurance
Bidder must submit a copy of Florida Division of Corporations Sunbiz report with your
company registered as active.
W9
Bidder must submit their estimated project timeline within the contract period
mentioned above.
2. Qualifications
Bidder’s relevant experience, qualifications, and past performance. An explanation of why the
Contractor is the best qualified to perform the contract, include Underground Contractor’s
license. The Bidder must also provide their quality control plan, safety plan and proposed project
schedule.
3. Staffing
Relevant experience and qualifications of key personnel, including key personnel of
subcontractors, that will be assigned to this project and experience and qualifications of
subcontractors
• The size and experience of the company staff pool from which staff assigned to the
management contract can be drawn
The composition of the staff team that will be assigned to the contract, their function in
the company.
The name of the person who will be responsible for the coordination of work.
Each Bid must identify the name(s) and address(es) of all Subcontractors, suppliers and
other persons and organizations including those who are to furnish the principal items of
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 28
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
material and equipment. If requested by City after Bid Opening and before Award, the
successful Bidder shall submit to City additional detail on any or all Subcontractors or
Suppliers including without limitation, pertinent information regarding similar projects,
and other evidence of qualification for each such Subcontractor, Supplier, other persons,
or organization.
5. Financial Capability
Bidders(s) must submit audited financial statements for the past three (3) years, including an
income statement, a profit and loss statement, a balance sheet, and a cash flow statement. In lieu
of audited financial statements, Bidders may submit other evidence, acceptable to the City, of
financial responsibility. Such evidence may include but is not limited to letter(s) of credit with a
financial institution indicating the Bidder's line of credit and the level of financing the institution
will offer the Bidder for capital procurement or certified copy(ies) of federal income tax return(s),
and unaudited financial statements.
6. References
Each Bidder must submit contact information to three (3) references of Current and Past
Customers, preferably government agencies of which they have provided services similar in scope
and size of those described herein. No staff at the City of Sunny Isles Beach or City of North Miami
Beach shall be listed as a reference.
The City retains the right to request any additional information pertaining to the Contractor’s
ability, qualifications, and procedures used to accomplish all work under the contract as it deems
necessary to ensure safe and satisfactory work.
7. Corporate Standing and Authorized Signatory
Bidder must demonstrate that the company is in good standing and that the person signing this
submittal is an Authorized Signatory on behalf of the Bidder to sign bids, proposals, negotiate
and/or sign contracts, agreements, amendments, and related documents to which the Bidder will
be duly bound. The Bidder must provide a copy of the State Certificate of good standing listing the
officers of the company. If the signatory is not one of the officers listed on the State Certificate, the
Bidder must provide one of the following forms of evidence of Signatory Authority with its response:
a. A copy of firm’s Articles of Incorporation listing the approved signatories of the
corporation;
b. A copy of a resolution listing the members of staff as authorized signatories for the firm;
and
c. A letter from a corporate officer listing the members of staff that are authorized signatories
for the firm.
8. Litigation History
Contractor shall provide a summary of any litigation or arbitration that the Contractor, its parent
company, or its subsidiaries have been engaged in or are currently engaged in, during the past five
(5) years against or involving any public entity. The summary shall state the nature of the litigation
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 29
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
or arbitration, a brief description of the case, the outcome or projected outcome, and the
monetary amounts involved. The City may disqualify any Contractor it determines to be
excessively litigious.
9. Forms and Attachments
Enclosed Forms;
Bidder must complete, sign as required, and submit the Addenda and all forms
10. Exceptions
Contractor must list any exceptions taken to the terms and condition in this ITB.
END OF SECTION
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 30
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
BID FORM 1
DELIVER TO:
City of Sunny Isles Beach
OPENING: 11:00 A.M.
City Clerk
FEBRUARY, 6, 2024
18070 Collins Avenue
Sunny Isles Beach, FL 33160
PLEASE QUOTE PRICES, LESS TAXES, FOR THE
CITY OF SUNNY ISLES BEACH, FLORIDA
NOTE: City of Sunny Isles Beach and City of North Miami Beach are exempt from all taxes (Federal, State, and
Local). Bid price should be less all taxes. Tax Exemption Certificate furnished upon request.
Issued by: CITY OF SUNNY ISLES BEACHDate Issued: This Bid Submittal Consists of
JOINTLY WITH CITY OF 10/13/2023 Pages 30+
NORTH MIAMI BEACH
Sealed ITBs are subject to the Terms and Conditions of this ITB and the accompanying Bid Submittal. Such other
contract provisions, specifications, drawings or other data as are attached or incorporated by reference in the Bid
Submittal, will be received at the office of the City Clerk at the address shown above until the above stated time and
date, and at that time, publicly opened for furnishing the supplies or services described in the accompanying Bid
Submittal Requirement.
RE-BID ITB 23-10-01
CENTRAL ISLAND DRAINAGE IMPROVEMENTS & WATERMAIN REPLACEMENT PROJECT
A Bid Deposit in the amount of 10% of the total amount of the bid shall accompany all bids for each
agency.
City of North Miami Beach: The City allows bidders to submit bid security in the form of a certified check,
cashier's check, an irrevocable letter of credit or surety bond payable to the City of North Miami Beach,
Florida.
A Performance Bond in the amount of 100% of the total amount of the bid will be required upon
execution of the contract by the successful firm and City of Sunny Isles Beach
PROCUREMENT MANAGER:FIRM NAME:
GENESIS CUEVAS
________________________________________
RETURN ONE ELECTRONIC COPY (FLASHDRIVE) ONE ORIGINAL AND FOUR COPIES OF BID SUBMITTAL PAGES AND
AFFIDAVITS
FAILURE TO SIGN PAGE 32 OF SECTION 4 BID SUBMITTAL WILL RENDER YOUR BID NON-RESPONSIVE
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 31
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
Bid Title: ITB23-10-01RE-BID CENTRAL ISLAND DRAINAGE IMPROVEMENTS& WATERMAIN REPLACEMENT
PROJECT
THE UNDERSIGNED BIDDER PROPOSES AND AGREES, IF THIS BID IS ACCEPTED, TO ENTER INTO AN AGREEMENT
WITH THE CITY OF SUNNY ISLES BEACH AND/OR THE CITY OF NORTH MIAMI BEACH TO PERFORM AND FURNISH
ALL WORK AS SPECIFIED OR INDICATED IN THE CONTRACT DOCUMENTS FOR THE CONTRACT PRICE AND WITHIN
THE CONTRACT TIME INDICATED IN THIS BID AND IN ACCORDANCE WITH THE OTHER TERMS AND CONDITIONS
OF THE CONTRACT DOCUMENTS.
The Bidder accepts all of the terms and conditions of the ITB and Instructions to Bidders, including without limitation
those dealing with the disposition of Bid Security. This Bid will remain subject to acceptance for 90 days after the
day of Bid opening. The Bidder agrees to sign and submit the Agreement and other documents required by this RFP
within ten days after the date of the City’s Notice of Award.
IN SUBMITTING THIS ITB, THE BIDDER REPRESENTS, AS MORE FULLY SET FORTH IN THE AGREEMENT, THAT:
The Bidder has familiarized himself/herself with the nature and extent of the Contract Documents, Work, site,
locality, and all local conditions and Law and Regulations that in any manner may affect cost, progress,
performance, or furnishing of the Work.
The Bidder has given the City written notice of all conflicts, errors, discrepancies that it has discovered in the
Contract Documents and the written resolution thereof by City is acceptable to the Bidder.
This ITB is genuine and not made in the interest of or on behalf of any undisclosed person, firm or corporation
and is not submitted in conformity with any agreement or rules of any group, association, organization, or
corporation; the Bidder has not directly or indirectly induced or solicited any other Bidder to submit a false or
sham Bid; the Bidder has not solicited or induced any person, firm or corporation to refrain from Bidding; and
Bidder has not sought by collusion to obtain for itself any advantage over any other Bidders or over the City.
The Contractor understands and agrees that the Bid is for unit prices to furnish and install individual Work Items for
maintenance and/or repair work, complete in place. Estimates are provided for the purpose of Bid evaluation and
to establish unit prices for individual Work Items for maintenance and/or repair work to be contracted by the City
under individual Purchase Orders, based on the unit prices established under this Bid.
The City and the successful Bidder will establish completion times for each individual Work Item and the successful
Bidder agrees that the work will be completed within the time frames agreed upon and stipulated in the individual
Purchase Orders and/or Notice to Proceed.
Exact Legal Company Name: ______________________________________________________________________
Business Name (dba), if any: _______________________________________________________________________
Street Address: _________________________________________________________________________________
Mailing Address (if different): ________________________________________________________________________
Telephone No.: ___________________________________________________________
Fax No.: _________________________________________________________________
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 32
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
Email Address:____________________________________________________________
FEIN No.: ________________________________________________________________
*By signing this document, the Bidder agrees to all Terms
Authorized Signature: ______________________________________________________
Print Name: ______________________________________________________________
Title: ____________________________________________________________________
THE EXECUTION OF THIS FORM CONSTITUTES THE UNEQUIVOCAL OFFER OF BIDDER TO BE BOUND BY THE TERMS
OF ITS BID. FAILURE TO SIGN THIS SOLICITATION WHERE INDICATED ABOVE BY AN AUTHORIZED REPRESENTATIVE
SHALL RENDER THE BID NON-RESPONSIVE. THE CITY MAY, HOWEVER, IN ITS SOLE DISCRETION, ACCEPT ANY BID
THAT INCLUDES AN EXECUTED DOCUMENT WHICH UNEQUIVOCALLY BINDS THE BIDDER TO THE TERMS OF ITS
OFFER.
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 33
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
BID FORM 2
QUESTIONNAIRE
1. How many years has your organization been in business as an Underground Contractor?
2. List minimum of three (3) previous similar drainage projects, preferably from a public entity.
Include: Project Name, Owner, Project Address, Contact person, Phone, Contract Amount, Date of
Completion and Description of Work.
1.
2.
3.
3. Have you personally inspected the proposed work, are there any concerns that may impede your
performance on this project?
4. Will you subcontract any part of this work? If so, give details such as the subcontractor’s name,
address, phone number and type of work to be performed. Also, indicate the percentage of the total
work to be performed by the subcontractor.
5. Who is the project manager?
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 34
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
6. Are there any exceptions to any of the terms in this ITB, and outline what, if any, alternative is
being offered.
7. Each Bidder must submit a list of three (3) references of Current and Past Customers, preferably
government agencies of which they have provided services similar in scope and size of those
described herein:
8. What is your staffing plan? Ability to show that the firm is fully qualified to deliver Professional
Civil Engineering Services. Firm or individual must demonstrate to City staff its capabilities,
qualifications, licenses, financial stability, adequacy of professional personnel, past record,
references, experience and performance.
9. List current drainage construction projects that you are working on?
10. What is your estimated timeframe for the completion of this project?
CONTRACTOR MUST ATTACH LICENSES, SUCH AS GENERAL CONTRACTOR’S LICENSE, TRAININGS AND CERTIFICATIONS OF
CONTRACTOR AND SUBCONTRACTORS AND THE COMPANY’S CURRENT FINANCIAL STATEMENTS.
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 35
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
BID FORM 3
ADDENDA ACKNOWLEDGEMENT
INSTRUCTIONS: COMPLETE PART I OR PART II, WHICHEVER APPLIES
PART I:
LIST BELOW ARE THE DATES OF ISSUE FOR EACH ADDENDUM RECEIVED IN CONNECTION WITH THIS ITB
Addendum #1, Dated
Addendum #2, Dated
Addendum #3, Dated
Addendum #4, Dated
Addendum #5, Dated
Addendum #6, Dated
Addendum #7, Dated
Addendum #8, Dated
NO ADDENDUM WAS RECEIVED IN CONNECTION WITH THIS ITB
PART II:
FIRM NAME: ___________________________________________________________________________________
SIGNATURE: _____________________________________________________
TITLE: ______________________________________________
DATE: _______________________
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 36
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT A
FEDERALLY REQUIRED CONTRACT PROVISIONS
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 37
Exhibit“A”
This Exhibit is hereby incorporated by reference into the main solicitation.
FEDERAL PROVISION RELATED TO GRANT FUNDS THAT MAY BE USED TO FUND THE SERVICES
AND GOODS UNDER THIS SOLICATION
This solicitation is or may become fully or partially Federally Grant funded. To the extent
applicable, in accordance with Federal law, proposers shall comply with the clauses as
enumerated below. Proposer shall adhere to any and all other applicable Federal Laws.
Including, but not limited to, those set forth below, as well as those listed below, which are
incorporated herein by reference:
a.2 CFR. 25.110
b.2 CFR Part 170 (including Appendix A), 180, 200 (including Appendixes), and 3000
c.Executive Orders 12549 and 12689
d.41 CFR s. 60-1(a) and (d)
e.Consolidated Appropriations Act, 2021, Public Law 116-260 related to salary
limitations
These cited regulations are hereby incorporated and made part of this Solicitation as if fully set
forth herein. As stated above, this list is not all inclusive, any other requirement of law applicable
in accordance with the Federal, State or grant requirements are also applicable and hereby
incorporated into this Solicitation. If Proposer cannot adhere to or objects to any of the
applicable federal requirements, Proposers proposal may be deemed by the City as unresponsive.
The provisions in this exhibit are supplemental and in addition to all other provisions within the
Procurement. In the event of any conflict between the terms and conditions of this Attachment
and the terms and conditions of the remainder of the Procurement, the conflicting terms and
conditions of this Exhibit shall prevail. However, in the event of any conflict between the terms
and conditions of this Exhibit and the terms and conditions of any federal grant funding
document provided specific to the funds being used to contract services or goods under this
Procurement the conflicting terms and conditions of that document shall prevail.
Drug Free Workplace Requirements(Drug-Free Workplace Act of 1988 (41 U.S.C. § 701 et seq.),
2 CFR § 182): To the extent applicable, proposer must comply with Federal Drug Free workplace
requirements as Drug Free Workplace Act of 1988.
Conflict of Interest (2 CFR § 200.112): The proposer must disclose in writing any potential conflict
of interest to the City or pass-through entity in accordance with applicable Federal, County
and/or City policies.
Mandatory Disclosures (31 U.S.C. §§ 3799 – 3733): Proposer acknowledges that 31 U.S.C.
Chapter 38 (Administrative Remedies for False Claims and Statements) applies to the Proposer’s
actions pertaining to this solicitation. The Proposer must disclose in writing all violations of
Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the
Federal award.
Utilization of Minority and Women Firms (M/WBE) (2 CFR § 200.321): The Proposer must take
all necessary affirmative steps to assure that minority businesses, women’s business enterprises,
and labor surplus area firms are used when possible, in accordance with 2CFR 200.321. If
1
subcontracts are to be let, prime proposer will require compliance by all sub-contractors. Prior
to contract award, the proposer shall document efforts to utilize M/WBE firms including what
firms were solicited as suppliers and/or subcontractors as applicable and submit this information
with their bid submittal. Information regarding certified M/WBE firms can be obtained from:
Florida Department of Management Services (Office of Supplier Diversity)
Florida Department of Transportation
Minority Business Development Center in most large cities and
Local Government M/DBE programs in many large counties and cities
Equal Employment Opportunity (As per 2 CFR Part 200, Appendix II(C); 41 CFR § 61-1.4; 41 CFR
§ 61-4.3; Executive Order 11246as amended by Executive Order 11375): During the
performance of this Contract, the proposer agrees as follows: (1) The Proposer will not
discriminate against any employee or applicant for employment because of race, color, religion,
sex, or national origin. The Proposer will take affirmative action to ensure that applicants are
employed, and that employees are treated during employment, without regard to their race,
color, religion, sex, sexual orientation, gender identify, or national origin. Such action shall
include, but not be limited to, the following: employment, upgrading, demotion, or transfer;
recruitment or recruitment advertising; layoff, or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The Proposer agrees to post
in conspicuous places, available to employees and applicants for employment, notices to be
provided setting forth the provisions of this nondiscrimination clause; (2) The Proposer will, in all
solicitations or advertisements for employees placed by or on behalf of the Proposer, state that
all qualified applicants will receive considerations for employment without regard to race, color,
religion, sex, or national origin; (3) The Proposer will send to each labor union or representative
of workers with which it has a collective bargaining Contract or other contract or understanding,
a notice to be provided advising the said labor union or workers’ representatives of the
Proposer’s commitments under this section and shall post copies of the notice in conspicuous
places available to employees and applicants for employment; (4) The Proposerwill comply with
all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and
relevant orders of the Secretary of Labor; (5) The Proposer will furnish all information and reports
required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders
of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and
accounts by the administering agency and the Secretary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations, and orders.; (6) In the event of the Proposer’s
noncompliance with the nondiscrimination clauses of this contract or with any of the said rules,
regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in
part and the Proposermay be declared ineligible for further Government contracts or federally
assisted construction contracts in accordance with procedures authorized in Executive Order
11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked
as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of
the Secretary of Labor, or as otherwise provided by law.; (7) Proposer will include the portion of
the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through
(7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of
the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24,
1965, so that such provisions will be binding upon each subcontractor orvendor. The Proposer
will take such action with respect to any subcontract or purchase order as the administering
agency may direct as a means of enforcing such provisions, including sanctions for
2
noncompliance: Provided, however, that in the event a Proposer becomes involved in, or is
threatened with, litigation with a subcontractor or vendor as a result of such direction by the
administering agency the Proposermay request the United States to enter into such litigation to
protect the interests of the United States.
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL EMPLOYMENT
.
OPPORTUNITY (EXECUTIVE ORDER 11246)
SEE EXHIBIT H TO THE ITB FOR THE COMPLETE NOTICE
Davis-Bacon Act (40 U.S.C. §§ 3141-3144 and 3146-3148, as supplemented by 29 CFR Part 5): If
applicable to this solicitation, the proposer agrees to comply with all provisions of the Davis
Bacon Act as amended (40 U.S.C. 3141-3148). Proposers are required to pay wages to laborers
and mechanics at a rate not less than the prevailing wages specified in a wage determination
made by the Secretary of Labor. In addition, contractors must be required to pay wages not less
than once a week. If the grant award contains Davis Bacon provisions, the City will place a copy
of the current prevailing wage determination issued by the Department of Labor in the
solicitation document. The decision to award a contract shall be conditioned upon the
acceptance of the wage determination.
Copeland Anti Kick Back Act (40 U.S.C. § 3145 as supplemented by 29 CFR Part 3): If applicable
to this Solicitation, proposershall comply with all the requirements of 18 U.S.C. § 874, 40 U.S.C.
§ 3145, 29 CFR Part 3 which are incorporated by reference to this solicitation. Proposers are
prohibited from inducing by any means any person employed in the construction, completion or
repair of public work to give up any part of the compensation to which he or she is otherwise
entitled.
Contract Work Hours and Safety Standards Act (40 U.S.C. 3701–3708 as supplemented by 29
CFR Part5): Allcontracts awarded in excess of $100,000 that involve the employment of
mechanics or laborers must be in compliance with 40 U.S.C. 3702 and 3704, as supplemented by
Department of Labor regulations (29 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor
is required to compute the wages of every mechanic and laborer on the basis of a standard work
week of 40 hours. Work in excess of the standard work week is permissible provided that the
worker is compensated at a rate of not less than one and a half times the basic rate of pay for all
hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are
applicable to construction work and provide that no laborer or mechanic must be required to
work in surroundings or under working conditions which are unsanitary, hazardous or dangerous.
These requirements do not apply to the purchases of supplies or materials or articles ordinarily
available on the open market, or contracts for transportation or transmission of intelligence.
Clean Air Act (42 U.S.C. 7401–7671q.) and the Federal Water Pollution Control Act (33 U.S.C.
1251–1387, as amended): Proposer agrees to comply with all applicable standards, orders or
regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401–7671q) and the Federal Water
Pollution Control Act as amended (33 U.S.C. 1251–1387). Violations must be reported to the
Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
Debarment and Suspension (2 CFR part 180, Executive Orders 12549 and 12689): Proposer
certifies that it and its principals, if applicable, are not presently debarred or suspended by any
3
Federal department or agency from participating in this transaction. Proposer now agrees to
verify, to the extent applicable that for each lower tier subcontractor that exceeds $25,000 as a
“covered transaction” under the Services to be provided is not presently disbarred or otherwise
disqualified from participating in the federally assisted services. The proposer agrees to
accomplish this verification by: (1) Checking the System for Award Management at website:
http://www.sam.gov; (2) Collecting a certification statement similar to the Certification of
Offeror /Bidder Regarding Debarment, herein; (3) Inserting a clause or condition in the covered
transaction with the lower tier contract.
Byrd Anti-Lobbying Amendment (31 U.S.C. 1352): Proposer must file the required certification,
attached to the procurement. Each tier certifies to the tier above that it will not and has not used
Federal appropriated funds to pay any person or organization for influencing or attempting to
influence an officer or employee of any agency, a member of Congress, officer or employee of
Congress, or an employee of a member of Congress in connection with obtaining any Federal
contract, grant or any other award covered by 31 U.S.C. 1352. Each tier must also disclose any
lobbying with non-Federal funds that takes place in connection with obtaining any Federal award.
Such disclosures are forwarded from tier to tier up to the non-Federal award. The contractor
shall certify compliance.
Rights to Inventions Made Under a Contract or Agreement (37 CFR Part 401): Please contact
the City for further information related to the applicable standard patent rights clauses.
Procurement of Recovered Materials(2 CRF 200.323 and 40 CFR Part 247):Proposer must
comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act. The requirements of Section 6002 include procuring only items
designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that
contain the highest percentage of recovered materials practicable, consistent with maintaining a
satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the
value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid
waste management services in a manner that maximizes energy and resource recovery; and
establishing an affirmative procurement program for procurement of recovered materials
identified in the EPA guidelines.
Access to Records and Reports:Proposer will make available to the City’sgranting agency, the
granting agency’s Office of Inspector General, the Government Accountability Office, the
Comptroller General of the United States, State of Florida, the City, or any of their duly authorized
representatives any books, documents, papers or other records, including electronic records, of
the contractor that are pertinent to the City’s grant award, in order to make audits,
investigations, examinations, excerpts, transcripts, and copies of such documents. The right also
includes timely and reasonable access to the contractor’s personnel during normal business
hours for the purpose of interview and discussion related to such documents. This right of access
shall continue as long as records are retained.
Record Retention (2 CFR § 200.33):Proposer will retain of all required records pertinent to this
contract for a period of three years, beginning on a date as described in 2 C.F.R. §200.333 and
retained in compliance with 2 C.F.R. §200.333.
4
Federal Changes: Proposer shall comply with allapplicable Federal agency regulations, policies,
procedures and directives, including without limitation those listed directly or by reference, as
they may be amended or promulgated from time to time during the term of any awarded
contract.
Termination for Default (Breach or Cause): If Contractor does not deliver supplies in accordance
with the contract delivery schedule, or, if the contract is for services, the Contractor fails to
perform in the manner called for in the contract, or if the Contractor fails to comply with any
other provisions of the contract, the
City may terminate the contract for default. Termination shall be effected by serving a notice of
termination on the contractor setting forth the manner in which the Contractor is in default. The
contractor will only be paid the contract price for supplies delivered and accepted, or services
performed in accordance with the manner of performance set forth in the contract.
Termination for Convenience: AnyAwarded Contract may be terminated by the City in whole or
in part at any time, upon ten (10) days written notice. If the Contract is terminated before
performance is completed, the Contractorshall be paid only for that work satisfactorily
performed for which costs can be substantiated.
Safeguarding Personal Identifiable Information(2 CFR § 200.82):Proposers will take reasonable
measures to safeguard protected personally identifiable information and other information
designated as sensitive by the awarding agency or is considered sensitive consistent with
applicable Federal, state and/or local laws regarding privacy and obligations of confidentiality.
Prohibition On Utilization Of Cost Plus A Percentage Of Cost Contracts(2 CFR Part 200): The City
will not award contracts containing Federal funding on a cost-plus percentage of cost basis.
Energy Policy and Conservation Act (43 U.S.C. § 6201 and 2 CFR Part 200 Appendix II (H):
Proposer shall comply with mandatory standards and policies relating to energy efficiency,
stating in the state energy conservation plan issued in compliance with the Energy Policy and
Conservation act. (Pub. L. 94-163, 89 Stat. 871) \[53 FR 8078, 8087, Mar. 11, 1988, as amended
at 60 FR 19639, 19645, Apr. 19, 1995\].
Proposer will comply with the requirements of Section 106(g) of the Trafficking Victims
Protection Act (TVPA) of 2000, as amended (22 U.S.C. 7104) which prohibits Proposer from (1)
engaging in severe forms of trafficking in persons during the period of time that the resulting
contract is in effect; (2) procuring a commercial sex act during the period of time that the
resulting contract is in effect; or (3) using forced labor in the performance of the contracted
services under a resulting contract. A resulting contract may be unilaterally terminated
immediately by the Cityfor Consultant’s violating this provision, without penalty.
Domestic Preference For Procurements (2 CFR § 200.322): As appropriate and to the extent
consistent with law, to the greatest extent practicable when using federal funds for the services
provided in a resulting contract, shall provide a preference for the purchase, acquisition, or use
of goods and products or materials produced in the United States.
Buy America (Build America, Buy America Act (Public Law 117-58, 29 U.S.C. § 50101. Executive
Order 14005):All iron, steel, manufactured products and construction materials used under a
5
federally grant funded project must be produced in the United States. Additional requirements
may apply dependingon the Federal Granting Agency provisions, please check with the City for
further details. Proposers shall be required to submit a completed Buy America Certificate with
this procurement, an incomplete certificate may deem the proposers submittal non-responsive.
Prohibition On Certain Telecommunications And Video Surveillance Services Or Equipment (2
CFR § 200.216): Proposer and any subcontractors are prohibited to obligate or spend grant funds
to: (1) procure or obtain, (2) extend or renew a contract to procure or obtain; or (3) enter into
a contract to procure or obtain equipment, services, or systems that use covered
telecommunications equipment or services as a substantial or essential component of any
system, or as critical technology as part of any system. As described in Pub. L. 115-232, section
889, covered telecommunications equipment is telecommunications equipment produced by
Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
i. For the purpose of public safety, security of government facilities, physical security surveillance
of critical infrastructure, and other national security purposes, video surveillance and
telecommunications equipment produced by Hytera Communications Corporation, Hangzhou
Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or
affiliate of such entities). ii. Telecommunications or video surveillance services provided by such
entities or using such equipment. iii. Telecommunications or video surveillance equipment or
services produced or provided by an entity that the Secretary of Defense, in consultation with
the Director of the National Intelligence or the Director of the Federal Bureau of Investigation,
reasonably believes to be an entity owned or controlled by, or otherwise, connected to the
government of a covered foreign country.
Enhanced Whistleblower Protections (41 U.S.C. § 4712): An employee of Proposer and/or its
subcontractors may not be discharged, demoted, or otherwise discriminated against as a reprisal
for disclosing to a person or body described in 42 U.S.C. § 4712(a)(2) information that the
employee reasonably believes is evidence of gross mismanagement of a Federal contract or
grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant,
a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation
related to a Federal contract (including the competition for or negotiation of a contract) or grant.
Federal Funding Accountability and Transparency Act (FFATA)(2 CFR § 200.300; 2 CFR Part 170):
In accordance with FFATA, the Proposer shall, upon request, provide the City the names and total
compensation of the five most highly compensated officers of the entity, if the entity in the
preceding fiscal year received 80 percent or more of its annual gross revenues in federal awards,
received $25,000,000 or more in annual gross revenues from federal awards, and if the public
does not have access to information about the compensation of the senior executives of the
entity through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act
of 1934 or section 6104 of the Internal Revenue Code of 1986.
Federal Awardee Performance and Integrity Information System (FAPIIS)( The Duncan Hunter
National Defense Authorization Act of 2009 (Public Law 110-417 and 2 CFR Part 200 Appendix
XII)): The Proposershall update the information in the Federal Awardee Performance and
Integrity Information System (FAPIIS) on a semi-annual basis, throughout the life of this contract,
by posting the required information in the System for Award Management via
https://www.sam.gov.
6
Never Contract With The Enemy (2 CFR Part 183): Applicability: only to grant and cooperative
agreements in excess of $50,000 performed outside of the United States, Including U.S.
territories and are in support of a contingency operation in which members of the Armed Forces
are actively engaged in hostilities. Requirement: Proposer must exercise due diligence to ensure
that none of the funds, including supplies and services, received are provided directly or indirectly
(including through subawards or contracts) to a person or entity who is actively opposing the
United States or coalition forces involved in a contingency operation in which members of the
Armed Forces are actively engaged in hostilities, which must be completed through 2 CFR
180.300 prior to issuing a subcontract.
Federal Agency Seals, Logos and Flags: The Proposer shall not use any Federal Agency seal(s),
logos, crests, or reproductions offlags or likenesses of any federal agency officials without
specific federal agency pre-approval.
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 the non-Federal entity, contractor, or any
otherparty pertaining to any matter resulting from a resulting contract.
The _________________________________________\[insert name of the signator\] on
behalf of _________________________________ the Proposeris authorized to sign below and
confirm the proposer is fully able to comply with these requirements, federal terms and
conditions and has on made any inquiries and further examination of the law and requirements
as is necessary to comply.
DATE: SIGNATURE:
COMPANY: NAME:
ADDRESS:TITLE:
E-MAIL:
PHONE
NO.:
7
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT B-1
CITY OF SUNNY ISLES BEACH FDEP AGREEMENT
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 38
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Standard Grant Agreement
ThisAgreementis entered into between thePartiesnamed below, pursuant toSection 215.971,:
1.Project Title (Project):AgreementNumber:
Central Island Area Pump Stations and Drainage Improvements: 174th Street to 183rd Street and Atlantic Avenue to North Bay Road
22FRP50
2.Parties State of FloridaDepartment of Environmental Protection,
3900 Commonwealth Boulevard
(Department)
Tallahassee, Florida32399-3000
Grantee Name:Entity Type:
City of Sunny Isles Beach
Local Government
18070 Collins Avenue, Sunny Isles Beach, Florida 33160
Grantee Address:FEID:
65-0784647
(Grantee)
3.Agreement BeginDate:Date of Expiration:
9/30/2026
Upon Execution
Project Location(s):
4.Project Number:
FRP050
25.94262 / -80.12186
(If different from Agreement Number)
Project Description:
Installation of 2 stormwater pumping stations and an upgraded gravity stormwater collection system
to address existing flooding.
5.Total Amount of Funding:Funding Source?Award #sor Line Item Appropriations:Amount per Source(s):
152-D22$2,000,000.00
StateFederal
$2,000,000.00
StateFederal
Grantee Match$2,000,000.00
Total Amount of Funding+ Grantee Match,if any:$4,000,000.00
6.DepartmentÓs GrantManagerGranteeÓs GrantManager
Name:Lisa Widener Name:Audra Curts-Whann
or successoror successor
Address:Address:
Resilient Florida ProgramCity of Sunny Isles Beach
2600 Blair Stone Road, MS23518070 Collins Avenue
Tallahassee, Florida 32399Sunny Isles Beach, Florida 33160
Phone:850-245-8323 Phone:305-792-1956
Email:Lisa.Widener@FloridaDEP.gov Email:acurts@sibfl.net
7.The Parties agree to comply with the terms and conditions of the following attachments and exhibits which are hereby
incorporated by reference:
Attachment1:StandardTermsand ConditionsApplicable to AllGrant Agreements
Attachment 2:Special Terms and Conditions
GrantWorkPlan
Attachment 3:
Attachment 4: Public Records Requirements
Attachment 5: Special Audit Requirements
Attachment 6:Program-Specific Requirements
Attachment 7:Grant Award Terms (Federal)*Copy available athttps://facts.fldfs.com, in accordance with§215.985,F.S.
Attachment 8:Federal Regulations and Terms (Federal)
Additional Attachments (if necessary):
Exhibit A: Progress Report Form
Exhibit B: Property Reporting Form
Exhibit C: Payment Request Summary Form
Exhibit D:QualityAssuranceRequirementsforGrants
Exhibit E: Advance PaymentTerms and Interest Earned Memo
ExhibitF:FinalReportForm,ExhibitG:PhotographerReleaseForm,andExhibitH:ContractualServices
Additional Exhibits(if necessary):
Certification
22FRP50
DEP Agreement No.
Rev./0/18
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT B-2
CITY OF SUNNY ISLES BEACH LPA0391 FDEP AGREEMENT
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 39
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_______________________________________________
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
STANDARD TERMS AND CONDITIONS
APPLICABLE TO GRANT AGREEMENTS
ATTACHMENT 1
1. Entire Agreement.
This Grant Agreement, including any Attachments and Exhibits referred to herein and/or attached hereto (Agreement),
constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior
agreements, whether written or oral, with respect to such subject matter. Any terms and conditions included on
Grantee’s forms or invoices shall be null and void.
2. Grant Administration.
a. Order of Precedence. If there are conflicting provisions among the documents that make up the Agreement, the
order of precedence for interpretation of the Agreement is as follows:
i. Standard Grant Agreement
ii. Attachments other than Attachment 1, in numerical order as designated in the Standard Grant
Agreement
iii. Attachment 1, Standard Terms and Conditions
iv. The Exhibits in the order designated in the Standard Grant Agreement
b. All approvals, written or verbal, and other written communication among the parties, including all notices, shall
be obtained by or sent to the parties’ Grant Managers. All written communication shall be by electronic mail,
U.S. Mail, a courier delivery service, or delivered in person. Notices shall be considered delivered when reflected
by an electronic mail read receipt, a courier service delivery receipt, other mail service delivery receipt, or when
receipt is acknowledged by recipient. If the notice is delivered in multiple ways, the notice will be considered
delivered at the earliest delivery time.
c. If a different Grant Manager is designated by either party after execution of this Agreement, notice of the name
and contact information of the new Grant Manager will be submitted in writing to the other party and maintained
in the respective parties’ records. A change of Grant Manager does not require a formal amendment or change
order to the Agreement.
d. This Agreement may be amended, through a formal amendment or a change order, only by a written agreement
between both parties. A formal amendment to this Agreement is required for changes which cause any of the
following:
(1) an increase or decrease in the Agreement funding amount;
(2) a change in Grantee’s match requirements;
(3) a change in the expiration date of the Agreement; and/or
(4) changes to the cumulative amount of funding transfers between approved budget categories, as defined in
Attachment 3, Grant Work Plan, that exceeds or is expected to exceed twenty percent (20%) of the total budget
as last approved by Department.
A change order to this Agreement may be used when:
(1) task timelines within the current authorized Agreement period change;
(2) the cumulative transfer of funds between approved budget categories, as defined in Attachment 3, Grant Work
Plan, are less than twenty percent (20%) of the total budget as last approved by Department;
(3) changing the current funding source as stated in the Standard Grant Agreement; and/or
(4) fund transfers between budget categories for the purposes of meeting match requirements.
This Agreement may be amended to provide for additional services if additional funding is made available by the
Legislature.
e. All days in this Agreement are calendar days unless otherwise specified.
3. Agreement Duration.
The term of the Agreement shall begin and end on the dates indicated in the Standard Grant Agreement, unless
extended or terminated earlier in accordance with the applicable terms and conditions. The Grantee shall be eligible
for reimbursement for work performed on or after the date of execution through the expiration date of this Agreement,
unless otherwise specified in Attachment 2, Special Terms and Conditions. However, work performed prior to the
execution of this Agreement may be reimbursable or used for match purposes if permitted by the Special Terms and
Conditions.
Attachment 1
1 of 12
Rev. 11/14/2022
4. Deliverables.
The Grantee agrees to render the services or other units of deliverables as set forth in Attachment 3, Grant Work Plan.
The services or other units of deliverables shall be delivered in accordance with the schedule and at the pricing outlined
in the Grant Work Plan. Deliverables may be comprised of activities that must be completed prior to Department
making payment on that deliverable. The Grantee agrees to perform in accordance with the terms and conditions set
forth in this Agreement and all attachments and exhibits incorporated by the Standard Grant Agreement.
5. Performance Measures.
The Grantee warrants that: (1) the services will be performed by qualified personnel; (2) the services will be of the
kind and quality described in the Grant Work Plan; (3) the services will be performed in a professional and
workmanlike manner in accordance with industry standards and practices; (4) the services shall not and do not
knowingly infringe upon the intellectual property rights, or any other proprietary rights, of any third party; and (5) its
employees, subcontractors, and/or subgrantees shall comply with any security and safety requirements and processes,
if provided by Department, for work done at the Project Location(s). The Department reserves the right to investigate
or inspect at any time to determine whether the services or qualifications offered by Grantee meet the Agreement
requirements. Notwithstanding any provisions herein to the contrary, written acceptance of a particular deliverable
does not foreclose Department’s remedies in the event deficiencies in the deliverable cannot be readily measured at
the time of delivery.
6. Acceptance of Deliverables.
a. A
cceptance Process. All deliverables must be received and accepted in writing by Department’s Grant Manager
before payment. The Grantee shall work diligently to correct all deficiencies in the deliverable that remain
outstanding, within a reasonable time at Grantee’s expense. If Department’s Grant Manager does not accept the
deliverables within 30 days of receipt, they will be deemed rejected.
b. Rejection of Deliverables. The Department reserves the right to reject deliverables, as outlined in the Grant
Work Plan, as incomplete, inadequate, or unacceptable due, in whole or in part, to Grantee’s lack of satisfactory
performance under the terms of this Agreement. The Grantee’s efforts to correct the rejected deliverables will
be at Grantee’s sole expense. Failure to fulfill the applicable technical requirements or complete all tasks or
activities in accordance with the Grant Work Plan will result in rejection of the deliverable and the associated
invoice. Payment for the rejected deliverable will not be issued unless the rejected deliverable is made
acceptable to Department in accordance with the Agreement requirements. The Department, at its option, may
allow additional time within which Grantee may remedy the objections noted by Department. The Grantee’s
failure to make adequate or acceptable deliverables after a reasonable opportunity to do so shall constitute an
event of default.
7. Financial Consequences for Nonperformance.
a. Withholding Payment. In addition to the specific consequences explained in the Grant Work Plan and/or
Special Terms and Conditions, the State of Florida (State) reserves the right to withhold payment when the
Grantee has failed to perform/comply with provisions of this Agreement. None of the financial consequences
for nonperformance in this Agreement as more fully described in the Grant Work Plan shall be considered
penalties.
b. Invoice reduction
If Grantee does not meet a deadline for any deliverable, the Department will reduce the invoice by 1% for each
day the deadline is missed, unless an extension is approved in writing by the Department.
c. Corrective Action Plan. If Grantee fails to correct all the deficiencies in a rejected deliverable within the specified
timeframe, Department may, in its sole discretion, request that a proposed Corrective Action Plan (CAP) be
submitted by Grantee to Department. The Department requests that Grantee specify the outstanding deficiencies
in the CAP. All CAPs must be able to be implemented and performed in no more than sixty (60) calendar days.
i. The Grantee shall submit a CAP within ten (10) days of the date of the written request from
Department. The CAP shall be sent to the Department’s Grant Manager for review and approval.
Within ten (10) days of receipt of a CAP, Department shall notify Grantee in writing whether the
CAP proposed has been accepted. If the CAP is not accepted, Grantee shall have ten (10) days from
receipt of Department letter rejecting the proposal to submit a revised proposed CAP. Failure to
obtain Department approval of a CAP as specified above may result in Department’s termination of
this Agreement for cause as authorized in this Agreement.
ii. Upon Department’s notice of acceptance of a proposed CAP, Grantee shall have ten (10) days to
commence implementation of the accepted plan. Acceptance of the proposed CAP by Department
does not relieve Grantee of any of its obligations under the Agreement. In the event the CAP fails
to correct or eliminate performance deficiencies by Grantee, Department shall retain the right to
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require additional or further remedial steps, or to terminate this Agreement for failure to perform.
No actions approved by Department or steps taken by Grantee shall preclude Department from
subsequently asserting any deficiencies in performance. The Grantee shall continue to implement
the CAP until all deficiencies are corrected. Reports on the progress of the CAP will be made to
Department as requested by Department’s Grant Manager.
iii. Failure to respond to a Department request for a CAP or failure to correct a deficiency in the
performance of the Agreement as specified by Department may result in termination of the
Agreement.
8. Payment.
a. Payment Process.Subject to the terms and conditions established by the Agreement, the pricing per deliverable
established by the Grant Work Plan, and the billing procedures established by Department, Department agrees
to pay Grantee for services rendered in accordance with Section 215.422, Florida Statutes (F.S.).
b. Taxes. The Department is exempted from payment of State sales, use taxes and Federal excise taxes. The Grantee,
however, shall not be exempted from paying any taxes that it is subject to, including State sales and use taxes, or
for payment by Grantee to suppliers for taxes on materials used to fulfill its contractual obligations with
Department. The Grantee shall not use Department's exemption number in securing such materials. The Grantee
shall be responsible and liable for the payment of all its FICA/Social Security and other taxes resulting from this
Agreement.
c. Maximum Amount of Agreement. T
he maximum amount of compensation under this Agreement, without an
amendment, is described in the Standard Grant Agreement. Any additional funds necessary for the completion of
this Project are the responsibility of Grantee.
d. Reimbursement for Costs. The Grantee shall be paid on a cost reimbursement basis for all eligible Project costs
upon the completion, submittal, and approval of each deliverable identified in the Grant Work Plan.
Reimbursement shall be requested on Exhibit C, Payment Request Summary Form. To be eligible for
reimbursement, costs must be in compliance with laws, rules, and regulations applicable to expenditures of State
funds, including, but not limited to, the Reference Guide for State Expenditures, which can be accessed at the
following web address:
https://www.myfloridacfo.com/Division/AA/Manuals/documents/ReferenceGuideforStateExpenditures.pdf.
e. Invoice Detail. All charges for services rendered or for reimbursement of expenses authorized by Department
pursuant to the Grant Work Plan shall be submitted to Department in sufficient detail for a proper pre-audit and
post-audit to be performed. The Grantee shall only invoice Department for deliverables that are completed in
accordance with the Grant Work Plan.
f. Interim Payments. Interim payments may be made by Department, at its discretion, if the completion of
deliverables to date have first been accepted in writing by Department's Grant Manager.
g. Final Payment Request. A final payment request should be submitted to Department no later than sixty (60) days
following the expiration date of the Agreement to ensure the availability of funds for payment. However, all
work performed pursuant to the Grant Work Plan must be performed on or before the expiration date of the
Agreement.
e and obligation to pay under this Agreement is
h. Annual Appropriation Contingency. The State’s performanc
contingent upon an annual appropriation by the Legislature. This Agreement is not a commitment of future
appropriations. Authorization for continuation and completion of work and any associated payments may be
rescinded, with proper notice, at the discretion of Department if the Legislature reduces or eliminates
appropriations.
i. Interest Rates. All interest rates charged under the Agreement shall be calculated on the prevailing rate used by
the State Board of Administration. To obtain the applicable interest rate, please refer to:
www.myfloridacfo.com/Division/AA/Vendors/default.htm.
j. Refund of Payments to the Department. Any balance of unobligated funds that have been advanced or paid must
be refunded to Department. Any funds paid in excess of the amount to which Grantee or subgrantee is entitled
under the terms of the Agreement must be refunded to Department. If this Agreement is funded with federal funds
and the Department is required to refund the federal government, the Grantee shall refund the Department its
share of those funds.
9. Documentation Required for Cost Reimbursement Grant Agreements and Match.
If Cost Reimbursement or Match is authorized in Attachment 2, Special Terms and Conditions, the following
conditions apply. Supporting documentation must be provided to substantiate cost reimbursement or match
requirements for the following budget categories:
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a. Salary/Wages. Grantee shall list personnel involved, position classification, direct salary rates, and hours spent
on the Project in accordance with Attachment 3, Grant Work Plan in their documentation for reimbursement or
match requirements.
b. Overhead/Indirect/General and Administrative Costs. If Grantee is being reimbursed for or claiming match for
multipliers, all multipliers used (i.e., fringe benefits, overhead, indirect, and/or general and administrative rates)
shall be supported by audit. If Department determines that multipliers charged by Grantee exceeded the rates
supported by audit, Grantee shall be required to reimburse such funds to Department within thirty (30) days of
written notification. Interest shall be charged on the excessive rate.
c. Contractual Costs (Subcontractors). Match or reimbursement requests for payments to subcontractors must be
substantiated by copies of invoices with backup documentation identical to that required from Grantee.
Subcontracts which involve payments for direct salaries shall clearly identify the personnel involved, salary rate
per hour, and hours spent on the Project. All eligible multipliers used (i.e., fringe benefits, overhead, indirect,
and/or general and administrative rates) shall be supported by audit. If Department determines that multipliers
charged by any subcontractor exceeded the rates supported by audit, Grantee shall be required to reimburse such
funds to Department within thirty (30) days of written notification. Interest shall be charged on the excessive
rate. Nonconsumable and/or nonexpendable personal property or equipment costing $5,000 or more purchased
for the Project under a subcontract is subject to the requirements set forth in Chapters 273 and/or 274, F.S., and
Chapter 69I-72, Florida Administrative Code (F.A.C.) and/or Chapter 69I-73, F.A.C., as applicable. The Grantee
shall be responsible for maintaining appropriate property records for any subcontracts that include the purchase
of equipment as part of the delivery of services. The Grantee shall comply with this requirement and ensure its
subcontracts issued under this Agreement, if any, impose this requirement, in writing, on its subcontractors.
i. For fixed-price (vendor) subcontracts, the following provisions shall apply: The Grantee may
award, on a competitive basis, fixed-price subcontracts to consultants/contractors in performing the
work described in Attachment 3, Grant Work Plan. Invoices submitted to Department for fixed-
price subcontracted activities shall be supported with a copy of the subcontractor’s invoice and a
copy of the tabulation form for the competitive procurement process (e.g., Invitation to Bid, Request
for Proposals, or other similar competitive procurement document) resulting in the fixed-price
subcontract. The Grantee may request approval from Department to award a fixed-price subcontract
resulting from procurement methods other than those identified above. In this instance, Grantee shall
request the advance written approval from Department’s Grant Manager of the fixed price
negotiated by Grantee. The letter of request shall be supported by a detailed budget and Scope of
Services to be performed by the subcontractor. Upon receipt of Department Grant Manager’s
approval of the fixed-price amount, Grantee may proceed in finalizing the fixed-price subcontract.
ii. If the procurement is subject to the Consultant’s Competitive Negotiation Act under section
287.055, F.S. or the Brooks Act, Grantee must provide documentation clearly evidencing it has
complied with the statutory or federal requirements.
d. Travel.All requests for match or reimbursement of travel expenses shall be in accordance with Section 112.061,
F.S.
For the purposes of this Agreement, Equipment is defined as capital outlay costing
e. Direct Purchase Equipment.
$5,000 or more. Match or reimbursement for Grantee’s direct purchase of equipment is subject to specific
approval of Department, and does not include any equipment purchased under the delivery of services to be
completed by a subcontractor. Include copies of invoices or receipts to document purchases, and a properly
completed Exhibit B, Property Reporting Form.
f. Rental/Lease of Equipment. Match or reimbursement requests for rental/lease of equipment must include copies
of invoices or receipts to document charges.
g. Miscellaneous/Other Expenses. If miscellaneous or other expenses, such as materials, supplies, non-excluded
phone expenses, reproduction, or mailing, are reimbursable or available for match or reimbursement under the
terms of this Agreement, the documentation supporting these expenses must be itemized and include copies of
receipts or invoices. Additionally, independent of Grantee’s contract obligations to its subcontractor, Department
shall not reimburse any of the following types of charges: cell phone usage; attorney’s fees or court costs; civil
or administrative penalties; or handling fees, such as set percent overages associated with purchasing supplies or
equipment.
eimbursement for the costs associated with acquiring interest and/or rights to real property
h. Land Acquisition. R
(including access rights through ingress/egress easements, leases, license agreements, or other site access
agreements; and/or obtaining record title ownership of real property through purchase) must be supported by the
following, as applicable: Copies of Property Appraisals, Environmental Site Assessments, Surveys and Legal
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Descriptions, Boundary Maps, Acreage Certification, Title Search Reports, Title Insurance, Closing
Statements/Documents, Deeds, Leases, Easements, License Agreements, or other legal instrument documenting
acquired property interest and/or rights. If land acquisition costs are used to meet match requirements, Grantee
agrees that those funds shall not be used as match for any other Agreement supported by State or Federal funds.
10. Status Reports.
The Grantee shall submit status reports quarterly, unless otherwise specified in the Attachments, on Exhibit A,
Progress Report Form, to Department’s Grant Manager describing the work performed during the reporting
period, problems encountered, problem resolutions, scheduled updates, and proposed work for the next reporting
period. Quarterly status reports are due no later than twenty (20) days following the completion of the quarterly
reporting period. For the purposes of this reporting requirement, the quarterly reporting periods end on March
31, June 30, September 30 and December 31. The Department will review the required reports submitted by
Grantee within thirty (30) days.
11. Retainage.
The following provisions apply if Department withholds retainage under this Agreement:
a. The Department reserves the right to establish the amount and application of retainage on the work performed
under this Agreement up to the maximum percentage described in Attachment 2, Special Terms and Conditions.
Retainage may be withheld from each payment to Grantee pending satisfactory completion of work and approval
of all deliverables.
b. If Grantee fails to perform the requested work, or fails to perform the work in a satisfactory manner, Grantee shall
forfeit its right to payment of the retainage associated with the work. Failure to perform includes, but is not
limited to, failure to submit the required deliverables or failure to provide adequate documentation that the work
was actually performed. The Department shall provide written notification to Grantee of the failure to perform
that shall result in retainage forfeiture. If the Grantee does not correct the failure to perform within the timeframe
stated in Department’s notice, the retainage will be forfeited to Department.
c. No retainage shall be released or paid for incomplete work while this Agreement is suspended.
d. Except as otherwise provided above, Grantee shall be paid the retainage associated with the work, provided
Grantee has completed the work and submits an invoice for retainage held in accordance with the invoicing
procedures under this Agreement.
12. Insurance.
a. Insurance Requirements for Sub-Grantees and/or Subcontractors. The Grantee shall require its sub-grantees
and/or subcontractors, if any, to maintain insurance coverage of such types and with such terms and limits as
described in this Agreement. The Grantee shall require all its sub-grantees and/or subcontractors, if any, to
make compliance with the insurance requirements of this Agreement a condition of all contracts that are related
to this Agreement. Sub-grantees and/or subcontractors must provide proof of insurance upon request.
b. Deductibles. The Department shall be exempt from, and in no way liable for, any sums of money representing a
deductible in any insurance policy. The payment of such deductible shall be the sole responsibility of the
Grantee providing such insurance.
c. Proof of Insurance. Upon execution of this Agreement, Grantee shall provide Department documentation
demonstrating the existence and amount for each type of applicable insurance coverage prior to performance of
any work under this Agreement. Upon receipt of written request from Department, Grantee shall furnish
Department with proof of applicable insurance coverage by standard form certificates of insurance, a self-
insured authorization, or other certification of self-insurance.
d. Duty to Maintain Coverage. In the event that any applicable coverage is cancelled by the insurer for any
reason, or if Grantee cannot get adequate coverage, Grantee shall immediately notify Department of such
cancellation and shall obtain adequate replacement coverage conforming to the requirements herein and provide
proof of such replacement coverage within ten (10) days after the cancellation of coverage.
e. Insurance Trust. If the Grantee’s insurance is provided through an insurance trust, the Grantee shall instead add
the Department of Environmental Protection, its employees, and officers as an additional covered party
everywhere the Agreement requires them to be added as an additional insured.
13. Termination.
ermination for Convenience. When it is in the State’s best interest, Department may, at its sole discretion,
a. T
terminate the Agreement in whole or in part by giving 30 days’ written notice to Grantee. The Department shall
notify Grantee of the termination for convenience with instructions as to the effective date of termination or the
specific stage of work at which the Agreement is to be terminated. The Grantee must submit all invoices for
work to be paid under this Agreement within thirty (30) days of the effective date of termination. The
Department shall not pay any invoices received after thirty (30) days of the effective date of termination.
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b. Termination for Cause. The Department may terminate this Agreement if any of the events of default described
in the Events of Default provisions below occur or in the event that Granteefails to fulfill any of its other
obligations under this Agreement. If, after termination, it is determined that Grantee was not in default, or that
the default was excusable, the rights and obligations of the parties shall be the same as if the termination had
been issued for the convenience of Department. The rights and remedies of Department in this clause are in
addition to any other rights and remedies provided by law or under this Agreement.
c. Grantee Obligations upon Notice of Termination. A
fter receipt of a notice of termination or partial termination
unless as otherwise directed by Department, Grantee shall not furnish any service or deliverable on the date, and
to the extent specified, in the notice. However, Grantee shall continue work on any portion of the Agreement
not terminated. If the Agreement is terminated before performance is completed, Grantee shall be paid only for
that work satisfactorily performed for which costs can be substantiated. The Grantee shall not be entitled to
recover any cancellation charges or lost profits.
d. Continuation of Prepaid Services. If Department has paid for any services prior to the expiration, cancellation,
or termination of the Agreement, Grantee shall continue to provide Department with those services for which it
has already been paid or, at Department’s discretion, Grantee shall provide a refund for services that have been
paid for but not rendered.
If services provided
e. Transition of Services Upon Termination, Expiration, or Cancellation of the Agreement.
under the Agreement are being transitioned to another provider(s), Grantee shall assist in the smooth transition
of Agreement services to the subsequent provider(s). This requirement is at a minimum an affirmative
obligation to cooperate with the new provider(s), however additional requirements may be outlined in the Grant
Work Plan. The Grantee shall not perform any services after Agreement expiration or termination, except as
necessary to complete the transition or continued portion of the Agreement, if any.
14. Notice of Default.
If Grantee defaults in the performance of any covenant or obligation contained in the Agreement, including, any of
the events of default, Department shall provide notice to Grantee and an opportunity to cure that is reasonable under
the circumstances. This notice shall state the nature of the failure to perform and provide a time certain for correcting
the failure. The notice will also provide that, should the Grantee fail to perform within the time provided, Grantee will
be found in default, and Department may terminate the Agreement effective as of the date of receipt of the default
notice.
15. Events of Default.
Provided such failure is not the fault of Department or outside the reasonable control of Grantee, the following non-
exclusive list of events, acts, or omissions, shall constitute events of default:
a. The commitment of any material breach of this Agreement by Grantee, including failure to timely deliver a
material deliverable, failure to perform the minimal level of services required for a deliverable, discontinuance of
the performance of the work, failure to resume work that has been discontinued within a reasonable time after
notice to do so, or abandonment of the Agreement;
b. The commitment of any material misrepresentation or omission in any materials, or discovery by the Department
of such, made by the Grantee in this Agreement or in its application for funding;
c. Failure to submit any of the reports required by this Agreement or having submitted any report with incorrect,
incomplete, or insufficient information;
d. Failure to honor any term of the Agreement;
e. Failure to abide by any statutory, regulatory, or licensing requirement, including an entry of an order revoking
the certificate of authority granted to the Grantee by a state or other licensing authority;
f. Failure to pay any and all entities, individuals, and furnishing labor or materials, or failure to make payment to
any other entities as required by this Agreement;
g. Employment of an unauthorized alien in the performance of the work, in violation of Section 274 (A) of the
Immigration and Nationality Act;
h. Failure to maintain the insurance required by this Agreement;
i. One or more of the following circumstances, uncorrected for more than thirty (30) days unless, within the
specified 30-day period, Grantee (including its receiver or trustee in bankruptcy) provides to Department adequate
assurances, reasonably acceptable to Department, of its continuing ability and willingness to fulfill its obligations
under the Agreement:
i. Entry of an order for relief under Title 11 of the United States Code;
ii. The making by Grantee of a general assignment for the benefit of creditors;
iii. The appointment of a general receiver or trustee in bankruptcy of Grantee’s business or property;
and/or
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iv. An action by Grantee under any state insolvency or similar law for the purpose of its bankruptcy,
reorganization, or liquidation.
16. Suspension of Work.
The Department may, in its sole discretion, suspend any or all activities under the Agreement, at any time, when it is
in the best interest of the State to do so. The Department shall provide Grantee written notice outlining the particulars
of suspension. Examples of reasons for suspension include, but are not limited to, budgetary constraints, declaration
of emergency, or other such circumstances. After receiving a suspension notice, Grantee shall comply with the notice.
Within 90 days, or any longer period agreed to by the parties, Department shall either: (1) issue a notice authorizing
resumption of work, at which time activity shall resume; or (2) terminate the Agreement. If the Agreement is
terminated after 30 days of suspension, the notice of suspension shall be deemed to satisfy the thirty (30) days’ notice
required for a notice of termination for convenience. Suspension of work shall not entitle Grantee to any additional
compensation.
17. Force Majeure.
The Grantee shall not be responsible for delay resulting from its failure to perform if neither the fault nor the negligence
of Grantee or its employees or agents contributed to the delay and the delay is due directly to acts of God, wars, acts
of public enemies, strikes, fires, floods, or other similar cause wholly beyond Grantee’s control, or for any of the
foregoing that affect subcontractors or suppliers if no alternate source of supply is available to Grantee. In case of
any delay Grantee believes is excusable, Grantee shall notify Department in writing of the delay or potential delay
and describe the cause of the delay either (1) within ten days after the cause that creates or will create the delay first
arose, if Grantee could reasonably foresee that a delay could occur as a result; or (2) if delay is not reasonably
foreseeable, within five days after the date Grantee first had reason to believe that a delay could result. THE
FOREGOING SHALL CONSTITUTE THE GRANTEE’S SOLE REMEDY OR EXCUSE WITH RESPECT
TO DELAY. Providing notice in strict accordance with this paragraph is a condition precedent to such remedy. No
claim for damages, other than for an extension of time, shall be asserted against Department. The Grantee shall not be
entitled to an increase in the Agreement price or payment of any kind from Department for direct, indirect,
consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or
inefficiency, arising because of delay, disruption, interference, or hindrance from any cause whatsoever. If
performance is suspended or delayed, in whole or in part, due to any of the causes described in this paragraph, after
the causes have ceased to exist Grantee shall perform at no increased cost, unless Department determines, in its sole
discretion, that the delay will significantly impair the value of the Agreement to Department, in which case Department
may: (1) accept allocated performance or deliveries from Grantee, provided that Grantee grants preferential treatment
to Department with respect to products subjected to allocation; (2) contract with other sources (without recourse to
and by Grantee for the related costs and expenses) to replace all or part of the products or services that are the subject
of the delay, which purchases may be deducted from the Agreement quantity; or (3) terminate Agreement in whole or
in part.
18. Indemnification.
a. The Grantee shall be fully liable for the actions of its agents, employees, partners, or subcontractors and shall
fully indemnify, defend, and hold harmless Department and its officers, agents, and employees, from suits,
actions, damages, and costs of every name and description arising from or relating to:
i. personal injury and damage to real or personal tangible property alleged to be caused in whole or in
part by Grantee, its agents, employees, partners, or subcontractors; provided, however, that Grantee
shall not indemnify for that portion of any loss or damages proximately caused by the negligent act
or omission of Department;
ii. the Grantee’s breach of this Agreement or the negligent acts or omissions of Grantee.
b. The Grantee’s obligations under the preceding paragraph with respect to any legal action are contingent upon
Department giving Grantee: (1) written notice of any action or threatened action; (2) the opportunity to take over
and settle or defend any such action at Grantee’s sole expense; and (3) assistance in defending the action at
Grantee’s sole expense. The Grantee shall not be liable for any cost, expense, or compromise incurred or made
by Department in any legal action without Grantee’s prior written consent, which shall not be unreasonably
withheld.
c. Notwithstanding sections a. and b. above, the following is the sole indemnification provision that applies to
Grantees that are governmental entities: Each party hereto agrees that it shall be solely responsible for the
negligent or wrongful acts of its employees and agents. However, nothing contained herein shall constitute a
waiver by either party of its sovereign immunity or the provisions of Section 768.28, F.S. Further, nothing herein
shall be construed as consent by a state agency or subdivision of the State to be sued by third parties in any matter
arising out of any contract or this Agreement.
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d. No provision in this Agreement shall require Department to hold harmless or indemnify Grantee, insure or assume
liability for Grantee’s negligence, waive Department’s sovereign immunity under the laws of Florida, or
otherwise impose liability on Department for which it would not otherwise be responsible. Any provision,
implication or suggestion to the contrary is null and void.
19. Limitation of Liability.
The Department’s liability for any claim arising from this Agreement is limited to compensatory damages in an amount
no greater than the sum of the unpaid balance of compensation due for goods or services rendered pursuant to and in
compliance with the terms of the Agreement. Such liability is further limited to a cap of $100,000.
20. Remedies.
Nothing in this Agreement shall be construed to make Grantee liable for force majeure events. Nothing in this
Agreement, including financial consequences for nonperformance, shall limit Department’s right to pursue its
remedies for other types of damages under the Agreement, at law or in equity. The Department may, in addition to
other remedies available to it, at law or in equity and upon notice to Grantee, retain such monies from amounts due
Grantee as may be necessary to satisfy any claim for damages, penalties, costs and the like asserted by or against it.
21. Waiver.
The delay or failure by Department to exercise or enforce any of its rights under this Agreement shall not constitute
or be deemed a waiver of Department’s right thereafter to enforce those rights, nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the exercise of any other right.
22. Statutory Notices Relating to Unauthorized Employment and Subcontracts.
a. The Department shall consider the employment by any Grantee of unauthorized aliens a violation of Section
274A(e) of the Immigration and Nationality Act. If Grantee/subcontractor knowingly employs unauthorized
aliens, such violation shall be cause for unilateral cancellation of this Agreement. The Grantee shall be responsible
for including this provision in all subcontracts with private organizations issued as a result of this Agreement.
b. Pursuant to Sections 287.133, 287.134, and 287.137 F.S., the following restrictions apply to persons placed on
the convicted vendor list, discriminatory vendor list, or the antitrust violator vendor list:
i. P
ublic Entity Crime. 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, proposal, or reply on a contract
to provide any goods or services to a public entity; may not submit a bid, proposal, or reply on a
contract with a public entity for the construction or repair of a public building or public work; may
not submit bids, proposals, or replies on leases of real property to a public entity; may not be awarded
or perform work as a Grantee, 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, F.S., for CATEGORY TWO for a period of 36 months following the
date of being placed on the convicted vendor list.
ii. Discriminatory Vendors. An entity or affiliate who has been placed on the discriminatory vendor
list may not submit a bid, proposal, or reply on a contract to provide any goods or services to a
public entity; may not submit a bid, proposal, or reply on a contract with a public entity for the
construction or repair of a public building or public work; may not submit bids, proposals, or replies
on leases of real property to a public entity; may not be awarded or perform work as a contractor,
supplier, subcontractor, or consultant under a contract with any public entity; and may not transact
business with any public entity.
person or an affiliate who has been placed on the antitrust violator
iii. Antitrust Violator Vendors. A
vendor list following a conviction or being held civilly liable for an antitrust violation may not
submit a bid, proposal, or reply on any contract to provide any good or services to a public entity;
may not submit a bid, proposal, or reply on any contract with a public entity for the construction or
repair of a public building or public work; may not submit a bid, proposal, or reply on leases of real
property to a public entity; may not be awarded or perform work as a Grantee, supplier,
subcontractor, or consultant under a contract with a public entity; and may not transact new business
with a public entity.
iv. Notification. The Grantee shall notify Department if it or any of its suppliers, subcontractors, or
consultants have been placed on the convicted vendor list, the discriminatory vendor list, or antitrust
violator vendor list during the life of the Agreement. The Florida Department of Management
Services is responsible for maintaining the discriminatory vendor list and the antitrust violator
vendor list and posts the list on its website. Questions regarding the discriminatory vendor list or
antitrust violator vendor list may be directed to the Florida Department of Management Services,
Office of Supplier Diversity, at (850) 487-0915.
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23. Compliance with Federal, State and Local Laws.
a. The Grantee and all its agents shall comply with all federal, state and local regulations, including, but not limited
to, nondiscrimination, wages, social security, workers’ compensation, licenses, and registration requirements.
The Grantee shall include this provision in all subcontracts issued as a result of this Agreement.
b. No person, on the grounds of race, creed, color, religion, national origin, age, gender, or disability, shall be
excluded from participation in; be denied the proceeds or benefits of; or be otherwise subjected to discrimination
in performance of this Agreement.
c. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.
d. Any dispute concerning performance of the Agreement shall be processed as described herein. Jurisdiction for
any damages arising under the terms of the Agreement will be in the courts of the State, and venue will be in the
Second Judicial Circuit, in and for Leon County. Except as otherwise provided by law, the parties agree to be
responsible for their own attorney fees incurred in connection with disputes arising under the terms of this
Agreement.
24. Build America, Buy America Act (BABA) - Infrastructure Projects with Federal Funding.
This provision does not apply to Agreements that are wholly funded by Coronavirus State and Local
Fiscal Recovery Funds under the American Rescue Plan Act. Also, this provision does not apply where
there is a valid waiver in place. However, the provision may apply to funds expended before the waiver
or after expiration of the waiver.
If applicable, Recipients or Subrecipients of an award of Federal financial assistance from a program for
infrastructure are required to comply with the Build America, Buy America Act (BABA), including the
following provisions:
a. All iron and steel used in the project are produced in the United States--this means all manufacturing processes,
from the initial melting stage through the application of coatings, occurred in the United States;
b. All manufactured products used in the project are produced in the United States-this means the manufactured
product was manufactured in the United States; and the cost of the components of the manufactured product
that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all
components of the manufactured product, unless another standard for determining the minimum amount of
domestic content of the manufactured product has been established under applicable law or regulation; and
c. All construction materials are manufactured in the United States-this means that all manufacturing processes for
the construction material occurred in the United States.
The Buy America preference only applies to articles, materials, and supplies that are consumed in, incorporated
into, or affixed to an infrastructure project. As such, it does not apply to tools, equipment, and supplies, such as
temporary scaffolding, brought to the construction site and removed at or before the completion of the
infrastructure project. Nor does a Buy America preference apply to equipment and furnishings, such as movable
chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project but
are not an integral part of the structure or permanently affixed to the infrastructure project.
25. Scrutinized Companies.
a. Grantee certifies that it is not on the Scrutinized Companies that Boycott Israel List or engaged in a boycott of
Israel. Pursuant to Section 287.135, F.S., the Department may immediately terminate this Agreement at its sole
option if the Grantee is found to have submitted a false certification; or if the Grantee is placed on the Scrutinized
Companies that Boycott Israel List or is engaged in the boycott of Israel during the term of the Agreement.
b. If this Agreement is for more than one million dollars, the Grantee certifies that it is also not on the Scrutinized
Companies with Activities in Sudan, Scrutinized Companies with Activities in the Iran Petroleum Energy Sector
List, or engaged with business operations in Cuba or Syria as identified in Section 287.135, F.S. Pursuant to
Section 287.135, F.S., the Department may immediately terminate this Agreement at its sole option if the Grantee
is found to have submitted a false certification; or if the Grantee is placed on the Scrutinized Companies with
Activities in Sudan List, or Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or
engaged with business operations in Cuba or Syria during the term of the Agreement.
c. As provided in Subsection 287.135(8), F.S., if federal law ceases to authorize these contracting prohibitions then
they shall become inoperative.
26. Lobbying and Integrity.
The Grantee agrees that no funds received by it under this Agreement will be expended for the purpose of lobbying
the Legislature or a State agency pursuant to Section 216.347, F.S., except that pursuant to the requirements of Section
Attachment 1
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287.058(6), F.S., during the term of any executed agreement between Grantee and the State, Grantee may lobby the
executive or legislative branch concerning the scope of services, performance, term, or compensation regarding that
agreement. The Grantee shall comply with Sections 11.062 and 216.347, F.S.
27. Record Keeping.
The Grantee shall maintain books, records and documents directly pertinent to performance under this Agreement in
accordance with United States generally accepted accounting principles (US GAAP) consistently applied. The
Department, the State, or their authorized representatives shall have access to such records for audit purposes during
the term of this Agreement and for five (5) years following the completion date or termination of the Agreement. In
the event that any work is subcontracted, Grantee shall similarly require each subcontractor to maintain and allow
access to such records for audit purposes. Upon request of Department’s Inspector General, or other authorized
State official, Grantee shall provide any type of information the Inspector General deems relevant to Grantee’s
integrity or responsibility. Such information may include, but shall not be limited to, Grantee’s business or financial
records, documents, or files of any type or form that refer to or relate to Agreement. The Grantee shall retain such
records for the longer of: (1) three years after the expiration of the Agreement; or (2) the period required by the
General Records Schedules maintained by the Florida Department of State (available at:
).
http://dos.myflorida.com/library-archives/records-management/general-records-schedules/
28. Audits.
a. Inspector General. The Grantee understands its duty, pursuant to Section 20.055(5), F.S., to cooperate with the
inspector general in any investigation, audit, inspection, review, or hearing. The Grantee will comply with this
duty and ensure that its sub-grantees and/or subcontractors issued under this Agreement, if any, impose this
requirement, in writing, on its sub-grantees and/or subcontractors, respectively.
b. Physical Access and Inspection. Department personnel shall be given access to and may observe and inspect
work being performed under this Agreement, with reasonable notice and during normal business hours, including
by any of the following methods:
i. Grantee shall provide access to any location or facility on which Grantee is performing work, or
storing or staging equipment, materials or documents;
ii. Grantee shall permit inspection of any facility, equipment, practices, or operations required in
performance of any work pursuant to this Agreement; and,
iii. Grantee shall allow and facilitate sampling and monitoring of any substances, soils, materials or
parameters at any location reasonable or necessary to assure compliance with any work or legal
requirements pursuant to this Agreement.
c. Special Audit Requirements. The Grantee shall comply with the applicable provisions contained in Attachment
5, Special Audit Requirements. Each amendment that authorizes a funding increase or decrease shall include an
updated copy of Exhibit 1, to Attachment 5. If Department fails to provide an updated copy of Exhibit 1 to include
in each amendment that authorizes a funding increase or decrease, Grantee shall request one from the
Department’s Grants Manager. The Grantee shall consider the type of financial assistance (federal and/or state)
identified in Attachment 5, Exhibit 1 and determine whether the terms of Federal and/or Florida Single Audit Act
Requirements may further apply to lower tier transactions that may be a result of this Agreement. For federal
financial assistance, Grantee shall utilize the guidance provided under 2 CFR §200.331 for determining whether
the relationship represents that of a subrecipient or vendor. For State financial assistance, Grantee shall utilize the
form entitled “Checklist for Nonstate Organizations Recipient/Subrecipient vs Vendor Determination” (form
number DFS-A2-NS) that can be found under the “Links/Forms” section appearing at the following website:
https:\\\\apps.fldfs.com\\fsaa.
d. Proof of Transactions. In addition to documentation provided to support cost reimbursement as described herein,
Department may periodically request additional proof of a transaction to evaluate the appropriateness of costs to
the Agreement pursuant to State guidelines (including cost allocation guidelines) and federal, if applicable.
Allowable costs and uniform administrative requirements for federal programs can be found under 2 CFR
200. The Department may also request a cost allocation plan in support of its multipliers (overhead, indirect,
general administrative costs, and fringe benefits). The Grantee must provide the additional proof within thirty
(30) days of such request.
he accounting systems for all Grantees must ensure that these funds are not
e. No Commingling of Funds. T
commingled with funds from other agencies. Funds from each agency must be accounted for separately. Grantees
are prohibited from commingling funds on either a program-by-program or a project-by-project basis. Funds
specifically budgeted and/or received for one project may not be used to support another project. Where a
Grantee's, or subrecipient's, accounting system cannot comply with this requirement, Grantee, or subrecipient,
shall establish a system to provide adequate fund accountability for each project it has been awarded.
Attachment 1
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i. If Department finds that these funds have been commingled, Department shall have the right to
demand a refund, either in whole or in part, of the funds provided to Grantee under this Agreement
for non-compliance with the material terms of this Agreement. The Grantee, upon such written
notification from Department shall refund, and shall forthwith pay to Department, the amount of
money demanded by Department. Interest on any refund shall be calculated based on the prevailing
rate used by the State Board of Administration. Interest shall be calculated from the date(s) the
original payment(s) are received from Department by Grantee to the date repayment is made by
Grantee to Department.
ii. In the event that the Grantee recovers costs, incurred under this Agreement and reimbursed by
Department, from another source(s), Grantee shall reimburse Department for all recovered funds
originally provided under this Agreement and interest shall be charged for those recovered costs as
calculated on from the date(s) the payment(s) are recovered by Grantee to the date repayment is
made to Department.
iii. Notwithstanding the requirements of this section, the above restrictions on commingling funds do
not apply to agreements where payments are made purely on a cost reimbursement basis.
29. Conflict of Interest.
The Grantee covenants that it presently has no interest and shall not acquire any interest which would conflict in any
manner or degree with the performance of services required.
30. Independent Contractor.
The Grantee is an independent contractor and is not an employee or agent of Department.
31. Subcontracting.
a. Unless otherwise specified in the Special Terms and Conditions, all services contracted for are to be performed
solely by Grantee.
b. The Department may, for cause, require the replacement of any Grantee employee, subcontractor, or agent. For
cause, includes, but is not limited to, technical or training qualifications, quality of work, change in security status,
or non-compliance with an applicable Department policy or other requirement.
c. The Department may, for cause, deny access to Department’s secure information or any facility by any Grantee
employee, subcontractor, or agent.
d. The Department’s actions under paragraphs b. or c. shall not relieve Grantee of its obligation to perform all work
in compliance with the Agreement. The Grantee shall be responsible for the payment of all monies due under any
subcontract. The Department shall not be liable to any subcontractor for any expenses or liabilities incurred under
any subcontract and Grantee shall be solely liable to the subcontractor for all expenses and liabilities incurred
under any subcontract.
e. The Department will not deny Grantee’s employees, subcontractors, or agents access to meetings within the
Department’s facilities, unless the basis of Department’s denial is safety or security considerations.
f. The Department supports diversity in its procurement program and requests that all subcontracting opportunities
afforded by this Agreement embrace diversity enthusiastically. The award of subcontracts should reflect the full
diversity of the citizens of the State. A list of minority-owned firms that could be offered subcontracting
opportunities may be obtained by contacting the Office of Supplier Diversity at (850) 487-0915.
g. The Grantee shall not be liable for any excess costs for a failure to perform, if the failure to perform is caused by
the default of a subcontractor at any tier, and if the cause of the default is completely beyond the control of both
Grantee and the subcontractor(s), and without the fault or negligence of either, unless the subcontracted products
or services were obtainable from other sources in sufficient time for Grantee to meet the required delivery
schedule.
32. Guarantee of Parent Company.
If Grantee is a subsidiary of another corporation or other business entity, Grantee asserts that its parent company will
guarantee all of the obligations of Grantee for purposes of fulfilling the obligations of Agreement. In the event Grantee
is sold during the period the Agreement is in effect, Grantee agrees that it will be a requirement of sale that the new
parent company guarantee all of the obligations of Grantee.
33. Survival.
The respective obligations of the parties, which by their nature would continue beyond the termination or expiration
of this Agreement, including without limitation, the obligations regarding confidentiality, proprietary interests, and
public records, shall survive termination, cancellation, or expiration of this Agreement.
34. Third Parties.
The Department shall not be deemed to assume any liability for the acts, failures to act or negligence of Grantee, its
agents, servants, and employees, nor shall Grantee disclaim its own negligence to Department or any third party. This
Attachment 1
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Agreement does not and is not intended to confer any rights or remedies upon any person other than the parties. If
Department consents to a subcontract, Grantee will specifically disclose that this Agreement does not create any third-
party rights. Further, no third parties shall rely upon any of the rights and obligations created under this Agreement.
35. Severability.
If a court of competent jurisdiction deems any term or condition herein void or unenforceable, the other provisions
are severable to that void provision, and shall remain in full force and effect.
36. Grantee’s Employees, Subcontractors and Agents.
All Grantee employees, subcontractors, or agents performing work under the Agreement shall be properly trained
technicians who meet or exceed any specified training qualifications. Upon request, Grantee shall furnish a copy of
technical certification or other proof of qualification. All employees, subcontractors, or agents performing work under
Agreement must comply with all security and administrative requirements of Department and shall comply with all
controlling laws and regulations relevant to the services they are providing under the Agreement.
37. Assignment.
The Grantee shall not sell, assign, or transfer any of its rights, duties, or obligations under the Agreement, or under
any purchase order issued pursuant to the Agreement, without the prior written consent of Department. In the event
of any assignment, Grantee remains secondarily liable for performance of the Agreement, unless Department expressly
waives such secondary liability. The Department may assign the Agreement with prior written notice to Grantee of its
intent to do so.
38. Compensation Report.
If this Agreement is a sole-source, public-private agreement or if the Grantee, through this agreement with the State,
annually receive 50% or more of their budget from the State or from a combination of State and Federal funds, the
Grantee shall provide an annual report, including the most recent IRS Form 990, detailing the total compensation for
the entities' executive leadership teams. Total compensation shall include salary, bonuses, cashed-in leave, cash
equivalents, severance pay, retirement benefits, deferred compensation, real-property gifts, and any other payout.
The Grantee must also inform the Department of any changes in total executive compensation between the annual
reports. All compensation reports must indicate what percent of compensation comes directly from the State or
Federal allocations to the Grantee.
39. Execution in Counterparts and Authority to Sign.
This Agreement, any amendments, and/or change orders related to the Agreement, may be executed in counterparts,
each of which shall be an original and all of which shall constitute the same instrument. In accordance with the
Electronic Signature Act of 1996, electronic signatures, including facsimile transmissions, may be used and shall have
the same force and effect as a written signature. Each person signing this Agreement warrants that he or she is duly
authorized to do so and to bind the respective party to the Agreement.
Attachment 1
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STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Special Terms and Conditions
AGREEMENT NO. LPA0391
ATTACHMENT 2
These Special Terms and Conditions shall be read together with general terms outlined in the Standard Terms and
Conditions, Attachment 1. Where in conflict, these more specific terms shall apply.
1. Scope of Work.
The Project funded under this Agreement is Sunny Isles Beach Central Island Drainage Project. The Project is
defined in more detail in Attachment 3, Grant Work Plan.
2. Duration.
a. Reimbursement Period. The reimbursement period for this Agreement begins on July 1, 2022 and ends at the
expiration of the Agreement.
b. Extensions. There are extensions available for this Project.
c. Service Periods. Additional service periods are not authorized under this Agreement.
3. Payment Provisions.
a. Compensation. This is a cost reimbursement Agreement. The Grantee shall be compensated under this
Agreement as described in Attachment 3.
b. Invoicing. Invoicing will occur as indicated in Attachment 3.
c. Advance Pay. Advance Pay is not authorized under this Agreement.
4. Cost Eligible for Reimbursement or Matching Requirements.
Reimbursement for costs or availability for costs to meet matching requirements shall be limited to the following
budget categories, as defined in the Reference Guide for State Expenditures, as indicated:
Reimbursement Match Category
Salaries/Wages
Overhead/Indirect/General and Administrative Costs:
a. Fringe Benefits, N/A.
b. Indirect Costs, N/A.
Contractual (Subcontractors)
Travel, in accordance with Section 112, F.S.
Equipment
Rental/Lease of Equipment
Miscellaneous/Other Expenses
Land Acquisition
5. Equipment Purchase.
No Equipment purchases shall be funded under this Agreement.
6. Land Acquisition.
There will be no Land Acquisitions funded under this Agreement.
7. Match Requirements
There is no match required on the part of the Grantee under this Agreement.
8. Insurance Requirements
Attachment 2
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Required Coverage. At all times during the Agreement the Grantee, at its sole expense, shall maintain insurance
coverage of such types and with such terms and limits described below. The limits of coverage under each policy
maintained by the Grantee shall not be interpreted as limiting the Grantee’s liability and obligations under the
Agreement. All insurance policies shall be through insurers licensed and authorized to issue policies in Florida, or
alternatively, Grantee may provide coverage through a self-insurance program established and operating under the
laws of Florida. Additional insurance requirements for this Agreement may be required elsewhere in this
Agreement, however the minimum insurance requirements applicable to this Agreement are:
a. Commercial General Liability Insurance.
The Grantee shall provide adequate commercial general liability insurance coverage and hold such liability
insurance at all times during the Agreement. The Department, its employees, and officers shall be named
as an additional insured on any general liability policies. The minimum limits shall be $250,000 for each
occurrence and $500,000 policy aggregate.
b. Commercial Automobile Insurance.
If the Grantee’s duties include the use of a commercial vehicle, the Grantee shall maintain automobile
liability, bodily injury, and property damage coverage. Insuring clauses for both bodily injury and property
damage shall provide coverage on an occurrence basis. The Department, its employees, and officers shall
be named as an additional insured on any automobile insurance policy. The minimum limits shall be as
follows:
$200,000/300,000 Automobile Liability for Company-Owned Vehicles, if applicable
$200,000/300,000 Hired and Non-owned Automobile Liability Coverage
c. Workers’ Compensation and Employer’s Liability Coverage.
The Grantee shall provide workers’ compensation, in accordance with Chapter 440, F.S. and employer
liability coverage with minimum limits of $100,000 per accident, $100,000 per person, and $500,000
policy aggregate. Such policies shall cover all employees engaged in any work under the Grant.
d. Other Insurance. None.
9. Quality Assurance Requirements.
There are no special Quality Assurance requirements under this Agreement.
10. Retainage.
No retainage is required under this Agreement.
11. Subcontracting.
The Grantee may subcontract work under this Agreement without the prior written consent of the Department’s
Grant Manager except for certain fixed-price subcontracts pursuant to this Agreement, which require prior approval.
The Grantee shall submit a copy of the executed subcontract to the Department prior to submitting any invoices for
subcontracted work. Regardless of any subcontract, the Grantee is ultimately responsible for all work to be
performed under this Agreement.
12. State-owned Land.
The work will not be performed on State-owned land.
13. Office of Policy and Budget Reporting.
The Grantee will identify the expected return on investment for this project and provide this information to the
Governor’s Office of Policy and Budget (OPB) within three months of execution of this Agreement. For each full
calendar quarter thereafter, the Grantee will provide quarterly update reports directly to OPB, no later than 20 days
after the end of each quarter, documenting the positive return on investment to the state that results from the
Grantee’s project and its use of funds provided under this Agreement. Quarterly reports will continue until the
Grantee is instructed by OPB that no further reports are needed, or until the end of this Agreement, whichever
occurs first. All reports shall be submitted electronically to OPB at env.roi@laspbs.state.fl.us, and a copy shall also
be submitted to the Department at legislativeaffairs@floridaDEP.gov.
14. Common Carrier.
a. Applicable to contracts with a common carrier – firm/person/corporation that as a regular business
transports people or commodities from place to place. If applicable, Contractor must also fill out and
return PUR 1808 before contract execution\] If Contractor is a common carrier pursuant to section
Attachment 2
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Rev. 10/11/2022
908.111(1)(a), Florida Statutes, the Department will terminate this contract immediately if Contractor is
found to be in violation of the law or the attestation in PUR 1808.
b. Applicable to solicitations for a common carrier – Before contract execution, the winning Contractor(s)
must fill out and return PUR 1808, and attest that it is not willfully providing any service in furtherance of
transporting a person into this state knowing that the person unlawfully present in the United States
according to the terms of the federal Immigration and Nationality Act, 8 U.S.C. ss. 1101 et seq. The
Department will terminate a contract immediately if Contractor is found to be in violation of the law or the
attestation in PUR 1808
15. Additional Terms.
None.
Attachment 2
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ATTACHMENT 3
GRANT WORK PLAN
PROJECT TITLE: Sunny Isles Beach Central Island Drainage Project
PROJECT LOCATION: The Project will be located in the City of Sunny Isles Beach within Miami-Dade
County; Lat/Long (25.9457, -80.1212).
PROJECT BACKGROUND: The purpose of the Sunny Isles Beach Central Island Drainage Project is to
minimize flooding in the area of the city which spans from 174th street to 183rd street. This area experiences
severe flooding due to king tides, heavy rainfall, and storm surges. To address major flooding in this area,
the City will install two underground stormwater pump stations with an upgraded gravity stormwater
collection system. The installation of the two pump stations will eliminate the flooding from 174th Street
to 183rd Street and Atlantic Avenue to North Bay Road. The pumps will have the capability of monitoring
high tides and operating to eliminate the tide impact on city roads. The elimination of flooding will prevent
road closures for emergency vehicles, damage to city roads, loss of work, damage to residents’ vehicles and
properties, and stormwater pollution.
PROJECT DESCRIPTION: The City of Sunny Isles Beach (Grantee) will install approximately two
stormwater pumping stations with an upgraded gravity stormwater collection system between 174th Street
to 183rd Street to eliminate flooding.
TASKS: All documentation should be submitted electronically unless otherwise indicated.
Task #1: Construction
Deliverables: The Grantee will construct an upgraded gravity stormwater collection system to include the
installation of approximately two stormwater pumping stations in accordance with the construction contract
documents.
Documentation: The Grantee will submit 1) a copy of the final design; 2) a signed acceptance of the
completed work to date, as provided in the Grantee’s Certification of Payment Request; and 3) a signed
Engineer’s Certification of Payment Request.
Performance Standard: The Department’s Grant Manager will review the documentation to verify that
the deliverables have been completed as described above. Upon review and written acceptance by the
Department’s Grant Manager, the Grantee may proceed with payment request submittal.
Payment Request Schedule: The Grantee may submit a payment request for cost reimbursement no more
frequently than monthly.
PROJECT TIMELINE & BUDGET DETAIL: The tasks must be completed by, and all documentation
received by, the corresponding task end date. Cost reimbursable grant funding must not exceed the budget
amounts as indicated below.
Task Grant Task Start Task End
Task Title Budget Category
No. Amount Date Date
1 Construction Contractual Services $400,000 07/01/2022 9/30/2026
Total: $400,000
DEP Agreement No. LPA0391, Attachment 3, Page 1 of 1
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Public Records Requirements
Attachment 4
1.Public Records.
a.If the Agreement exceeds $35,000.00, and if Grantee is acting on behalf of Department in its performance of services
under the Agreement, Grantee must allow public access to all documents, papers, letters, or other material, regardless
of the physical form, characteristics, or means of transmission, made or received by Granteein conjunction with the
Agreement (Public Records), unless the Public Records are exempt from section 24(a) of Article I of the Florida
Constitution or section 119.07(1), F.S.
b.The Department may unilaterally terminate the Agreement if Grantee refuses to allow public access to Public Records
as required by law.
2.Additional Public Records Duties of Section 119.0701, F.S., If Applicable.
For the purposes of this paragraph, the term “contract” means the “Agreement.” If Grantee is a “contractor” as
defined in section 119.0701(1)(a), F.S., the following provisions apply and the contractor shall:
a.Keep and maintain Public Records required by Department to perform the service.
b.Upon request, provide Department with a copy of requested Public Records or allow the Public Records to be
inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, F.S., or
as otherwise provided by law.
c.A contractor who fails to provide the Public Records to Department within a reasonable time may be subject to
penalties under section 119.10, F.S.
d.Ensure that Public Records that are exempt or confidential and exempt from Public Records disclosure requirements
are not disclosed except as authorized by law for the duration of the contract term and following completion of the
contract if the contractor does not transfer the Public Records to Department.
e.Upon completion of the contract, transfer, at no cost, to Department all Public Records in possession of the contractor
or keep and maintain Public Records required by Department to perform the service. If the contractor transfers all
Public Records to Department upon completion of the contract, the contractor shall destroy any duplicate Public
Records that are exempt or confidential and exempt from Public Records disclosure requirements. If the contractor
keeps and maintains Public Records upon completion of the contract, the contractor shall meet all applicable
requirements for retaining Public Records. All Public Records stored electronically must be provided to Department,
upon request from Department’s custodian of Public Records, in a format specified by Department as compatible with
the information technology systems of Department. These formatting requirements are satisfied by using the data
formats as authorized in the contract or Microsoft Word, Outlook, Adobe, or Excel, and any software formats the
contractor is authorized to access.
f.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, F.S., TO THE CONTRACTOR’S DUTY TO PROVIDE PUBLIC
RECORDS RELATING TO THE CONTRACT, CONTACT THE DEPARTMENT’S
CUSTODIAN OF PUBLIC RECORDS AT:
Telephone: (850) 245-2118
Email: public.services@floridadep.gov
Mailing Address: Department of EnvironmentalProtection
ATTN: Office of Ombudsman and Public Services
Public Records Request
3900 Commonwealth Boulevard, MS 49
Tallahassee, Florida 32399
Attachment 4
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Rev. 4/27/2018
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Special Audit Requirements
(State and Federal Financial Assistance)
Attachment 5
The administration of resources awarded by the Department of Environmental Protection (which may be referred to
as the "Department", "DEP", "FDEP" or "Grantor", or other name in the agreement) to the recipient (which may be
referred to as the "Recipient", "Grantee" or other name in the agreement) may be subject to audits and/or monitoring
by the Department of Environmental Protection, as described in this attachment.
MONITORING
In addition to reviews of audits conducted in accordance with 2 CFR Part 200, Subpart F-Audit Requirements, and
Section 215.97, F.S., as revised (see “AUDITS” below), monitoring procedures may include, but not be limited to,
on-site visits by DEP Department staff, limited scope audits as defined by 2 CFR 200.425, or other procedures. By
entering into this Agreement, the recipient agrees to comply and cooperate with any monitoring procedures/processes
deemed appropriate by the Department of Environmental Protection. In the event the Department of Environmental
Protection determines that a limited scope audit of the recipient is appropriate, the recipient agrees to comply with any
additional instructions provided by the Department to the recipient regarding such audit. The recipient further agrees
to comply and cooperate with any inspections, reviews, investigations, or audits deemed necessary by the Chief
Financial Officer (CFO) or Auditor General.
AUDITS
PART I: FEDERALLY FUNDED
This part is applicable if the recipient is a State or local government or a non-profit organization as defined in 2 CFR
§200.330
1. A recipient that expends $750,000 or more in Federal awards in its fiscal year, must have a single or program-
specific audit conducted in accordance with the provisions of 2 CFR Part 200, Subpart F. EXHIBIT 1 to this
Attachment indicates Federal funds awarded through the Department of Environmental Protection by this
Agreement. In determining the federal awards expended in its fiscal year, the recipient shall consider all
sources of federal awards, including federal resources received from the Department of Environmental
Protection. The determination of amounts of federal awards expended should be in accordance with the
guidelines established in 2 CFR 200.502-503. An audit of the recipient conducted by the Auditor General in
accordance with the provisions of 2 CFR Part 200.514 will meet the requirements of this part.
2. For the audit requirements addressed in Part I, paragraph 1, the recipient shall fulfill the requirements relative
to auditee responsibilities as provided in 2 CFR 200.508-512.
3. A recipient that expends less than $750,000 in federal awards in its fiscal year is not required to have an audit
conducted in accordance with the provisions of 2 CFR Part 200, Subpart F-Audit Requirements. If the
recipient expends less than $750,000 in federal awards in its fiscal year and elects to have an audit conducted
in accordance with the provisions of 2 CFR 200, Subpart F-Audit Requirements, the cost of the audit must
be paid from non-federal resources (i.e., the cost of such an audit must be paid from recipient resources
obtained from other federal entities.
4. The recipient may access information regarding the Catalog of Federal Domestic Assistance (CFDA) via the
internet at https://sam.gov/content/assistance-listings.
Attachment 5
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BGS-DEP 55-215 revised 11/8/2022
PART II: STATE FUNDED
This part is applicable if the recipient is a nonstate entity as defined by Section 215.97(2), Florida Statutes.
1. In the event that the recipient expends a total amount of state financial assistance equal to or in excess of
$750,000 in any fiscal year of such recipient (for fiscal years ending June 30, 2017, and thereafter), the
recipient must have a State single or project-specific audit for such fiscal year in accordance with Section
215.97, F.S.; Rule Chapter 69I-5, F.A.C., State Financial Assistance; and Chapters 10.550 (local
governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General.
EXHIBIT 1 to this form lists the state financial assistance awarded through the Department of Environmental
Protection by this agreement. In determining the state financial assistance expended in its fiscal year, the
recipient shall consider all sources of state financial assistance, including state financial assistance received
from the Department of Environmental Protection, other state agencies, and other nonstate entities. State
financial assistance does not include federal direct or pass-through awards and resources received by a
nonstate entity for Federal program matching requirements.
2. In connection with the audit requirements addressed in Part II, paragraph 1; the recipient shall ensure that the
audit complies with the requirements of Section 215.97(8), Florida Statutes. This includes submission of a
financial reporting package as defined by Section 215.97(2), Florida Statutes, and Chapters 10.550 (local
governmental entities) or 10.650 (nonprofit and for-profit organizations), Rules of the Auditor General.
3. If the recipient expends less than $750,000 in state financial assistance in its fiscal year (for fiscal year ending
June 30, 2017, and thereafter), an audit conducted in accordance with the provisions of Section 215.97,
Florida Statutes, is not required. In the event that the recipient expends less than $750,000 in state financial
assistance in its fiscal year, and elects to have an audit conducted in accordance with the provisions of Section
215.97, Florida Statutes, the cost of the audit must be paid from the non-state entity’s resources (i.e., the cost
of such an audit must be paid from the recipient’s resources obtained from other than State entities).
4. For information regarding the Florida Catalog of State Financial Assistance (CSFA), a recipient should access
fo
the Florida Single Audit Act website located at https://apps.fldfs.com/fsaar assistance. In addition to the
above websites, the following websites may be accessed for information: Legislature's Website at
http://www.leg.state.fl.us/Welcome/index.cfm, State of Florida’s website at http://www.myflorida.com/,
Department of Financial Services’ Website at http://www.fldfs.com/and the Auditor General's Website at
http://www.myflorida.com/audgen/.
PART III: OTHER AUDIT REQUIREMENTS
(NOTE: This part would be used to specify any additional audit requirements imposed by the State awarding entity
that are solely a matter of that State awarding entity’s policy (i.e., the audit is not required by Federal or State laws
and is not in conflict with other Federal or State audit requirements). Pursuant to Section 215.97(8), Florida Statutes,
State agencies may conduct or arrange for audits of State financial assistance that are in addition to audits conducted
in accordance with Section 215.97, Florida Statutes. In such an event, the State awarding agency must arrange for
funding the full cost of such additional audits.)
PART IV: REPORT SUBMISSION
1. Copies of reporting packages for audits conducted in accordance with 2 CFR Part 200, Subpart F-Audit
Requirements, and required by PART I of this form shall be submitted, when required by 2 CFR 200.512, by
or on behalf of the recipient directly to the Federal Audit Clearinghouse (FAC) as provided in 2 CFR 200.36
and 200.512
A. The Federal Audit Clearinghouse designated in 2 CFR §200.501(a) (the number of copies required by
2 CFR §200.501(a) should be submitted to the Federal Audit Clearinghouse), at the following address:
Attachment 5
2 of 6
BGS-DEP 55-215 revised 11/8/2022
By Mail:
Federal Audit Clearinghouse
Bureau of the Census
1201 East 10th Street
Jeffersonville, IN 47132
Submissions of the Single Audit reporting package for fiscal periods ending on or after January 1,
2008, must be submitted using the Federal Clearinghouse’s Internet Data Entry System which can
be found at http://harvester.census.gov/facweb/
2. Copies of financial reporting packages required by PART II of this Attachmentshall be submitted by or on
behalf of the recipient directly to each of the following:
A. The Department of Environmental Protection at one of the following addresses:
By Mail:
Audit Director
Florida Department of Environmental Protection
Office of Inspector General, MS 40
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Electronically:
FDEPSingleAudit@dep.state.fl.us
B. The Auditor General’s Office at the following address:
Auditor General
Local Government Audits/342
Claude Pepper Building, Room 401
111 West Madison Street
Tallahassee, Florida 32399-1450
The Auditor General’s website (http://flauditor.gov/) provides instructions for filing an
electronic copy of a financial reporting package.
3. Copies of reports or management letters required by PART III of this Attachment shall be submitted by or
on behalf of the recipient directly to the Department of Environmental Protection at one of the following
addresses:
By Mail:
Audit Director
Florida Department of Environmental Protection
Office of Inspector General, MS 40
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Electronically:
FDEPSingleAudit@dep.state.fl.us
4. Any reports, management letters, or other information required to be submitted to the Department of
Environmental Protection pursuant to this Agreement shall be submitted timely in accordance with 2 CFR
200.512, section 215.97, F.S., and Chapters 10.550 (local governmental entities) or 10.650 (nonprofit and
for-profit organizations), Rules of the Auditor General, as applicable.
Attachment 5
3 of 6
BGS-DEP 55-215 revised 11/8/2022
5. Recipients, when submitting financial reporting packages to the Department of Environmental Protection for
audits done in accordance with 2 CFR 200, Subpart F-Audit Requirements, or Chapters 10.550 (local
governmental entities) and 10.650 (non and for-profit organizations), Rules of the Auditor General, should
indicate the date and the reporting package was delivered to the recipient correspondence accompanying the
reporting package.
PART V: RECORD RETENTION
The recipient shall retain sufficient records demonstrating its compliance with the terms of the award and this
Agreement for a period of five (5) years from the date the audit report is issued, and shall allow the Department of
Environmental Protection, or its designee, Chief Financial Officer, or Auditor General access to such records upon
request. The recipient shall ensure that audit working papers are made available to the Department of Environmental
Protection, or its designee, Chief Financial Officer, or Auditor General upon request for a period of three (3) years
from the date the audit report is issued, unless extended in writing by the Department of Environmental Protection.
Attachment 5
4 of 6
BGS-DEP 55-215 revised 11/8/2022
State State
rogram
CategoryCategory
Appropriation Appropriation
$$
Funding AmountFunding Amount
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CFDA TitleCFDA Title
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Exhibit 1
6
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EXHIBIT
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CFDACFDA
NumberNumber
i.e.:(eligibility requirement for recipients of the resources)i.e.: (eligibility requirement for recipients of the resources)
i.e.: (what services of purposes resources must be used for)i.e.: (what services of purposes resources must be used for)
Federal AgencyFederal Agency
awarded to the recipient represent more than one federal program, provide the same information shown below for each federal p
First Compliance requirement: Second Compliance requirement: Etc.Etc.First Compliance requirement: Second Compliance requirement: Etc.Etc.
sources
re
the resources awarded to the recipient represent more than one federal program, list applicable compliance requirements for each federal program in
-215
f
B
AA
B
Federal Federal Federal Federal
DEP 55
ProgramProgramProgramProgram
-
Federal Resources Awarded to the Recipient Pursuant to this Agreement Consist of t
FUNDS AWARDED TO THE RECIPIENT PURSUANT TO THIS AGREEMENT CONSIST OF THE FOLLOWING: Note: If the and show total federal resources awarded Note: Othe same manner as shown below:
BGSRevised 7/2019
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ecipient is clearly indicated
R
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ral Domestic Assistance (CFDA)
) listed under this category.
Funding AmountFunding AmountFunding AmountFunding Amount
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below for each state project and show
Resources for Federal Programs:
https://apps.fldfs.com/fsaa/searchCatalog.aspx
Total Award
1665A
Matching
. Any match required by the
LI
oror
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https://apps.fldfs.com/fsaa/state_project_compliance.aspx
\[
CSFA TitleCSFA Title
ork
Projects
CFDA TitleCFDA Title
Funding Source DescriptionFunding Source Description
Grant W
Exhibit 1
6
Statewide Water Quality Restoration
of
6
Agreement’s
CSFACSFA
37.039
Attachment 5,
NumberNumber
sources, there may be more than one grouping (i.e. 1, 2, 3, etc
12
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-
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CFDACFDA
-
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Fiscal YearFiscal Year
\] and/or the Florida Catalog of State Financial Assistance (CSFA) \[
ent Pursuant to this Agreement Consist of the Following Resources Subject to Section 215.97, F.S
listings
-
Department of
Federal AgencyFederal Agency
awarded to the recipient represent more than one state project, provide the same information shown
State Awarding Agency State Awarding Agency
Environmental Protection
.
resources
BB
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DEP 55
-
State Resources Awarded to the Recipient Pursuant to this Agreement Consist of the Following State Resources Awarded to the Recipi Subject to change by Change Order.Subject to change
by Change Order.
https://sam.gov/content/assistance
Note: If the resources awarded to the recipient for matching represent more than one federal program, provide the same information shown below for each federal program and show total
state resources awarded for matching. Note: If the total state financial assistance awarded that is subject to section 215.97, F.S. Note: List applicable compliance requirement in the
same manner as illustrated above for federal resources. For matching resources provided by the Department for DEP for federal programs, the requirements might be similar to the requirements
for the applicable federal programs. Alsorequirements pertain to different amount for the non For each program identified above, the recipient shall comply with the program requirements
described in the Catalog of Fede\[State Projects Compliance Supplement (Part Four: State Projects Compliance Supplementservices/purposes for which the funds are to be used are included
in the in the 12BGSRevised 7/2019
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Exhibit A
Progress Report Form
DEP Agreement No.: LPA0391
Project Title:
Grantee Name:
Grantee’s Grant Manager:
Reporting Period: Select Quarter -Select Year
Provide the following information for all tasks identified in the Grant Work Plan:
Summarize the work completed within each task for the reporting period, provide an update on the estimated
completion date for each task, and identify any anticipated delays or problems encountered. Use the format
provided below and use as many pages as necessary to cover all tasks. Each quarterly progress report is due
no later than twenty (20) days following the completion of the quarterly reporting period.
Task 1: Construction
Progress for this reporting period:
Identify delays or problems encountered:
Completion Status for Tasks
Indicate the completion status for the following tasks, if included in the Grant Work Plan. For construction,
the estimated completion percentage should represent the work being funded under this Agreement.
Design (Plans/Submittal): 30% , 60% , 90% , 100%
Permitting (Completed): Yes , No
Construction (Estimated): %
This report is submitted in accordance with the reporting requirements of the above DEP Agreement number
and accurately reflects the activities associated with the project.
Signature of Grantee’s Grant Manager Date
(Original Ink or Digital Timestamp)
Exhibit A, Page 1 of 1
Rev. 2/3/22
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Exhibit C
Payment Request Summary Form
The Payment Request Summary Form for this grant can be found on our website at this link:
https://floridadep.gov/wra/wra/documents/payment-request-summary-form
Please use the most current form found on the website, linked above, for each payment request.
Exhibit C, Page 1 of 1
Rev. 12/02/19
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT B-3
CITY OF SUNNY ISLES BEACH ARPA AGREEMENT
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 40
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT B-4
CITY OF NORTH MIAMI BEACH WIFIA LOAN AGREEMENT
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 41
EXECUTION VERSION
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
WIFIA LOAN AGREEMENT
For Up to $44,204,486
With
CITY OF NORTH MIAMI BEACH, FLORIDA
For the
NORWOOD WATER TREATMENT PLANT UPGRADE AND
TRANSMISSION MAIN IMPROVEMENTS AND
REPLACEMENTS PROJECT
(WIFIA – N18118FL)
Dated as of June 25, 2020
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION ....................................................................................... 2
Section 1.Definitions......................................................................................................................................... 2
Section 2.Interpretation ................................................................................................................................... 16
ARTICLE II THE WIFIA LOAN ........................................................................................................................... 17
Section 3.WIFIA Loan Amount ...................................................................................................................... 17
Section 4.Disbursement Conditions ................................................................................................................ 18
Section 5.Term ................................................................................................................................................ 19
Section 6.Interest Rate .................................................................................................................................... 19
Section 7.Security and Priority; Flow of Funds. ............................................................................................. 19
Section 8.Payment of Principal and Interest ................................................................................................... 20
Section 9.Prepayment ..................................................................................................................................... 21
Section 10.Fees and Expenses .......................................................................................................................... 22
ARTICLE III CONDITIONS PRECEDENT ........................................................................................................ 24
Section 11.Conditions Precedent ...................................................................................................................... 24
ARTICLE IV REPRESENTATIONS AND WARRANTIES............................................................................... 29
Section 12.Representations and Warranties of Borrower ................................................................................. 29
Section 13.Representations and Warranties of WIFIA Lender ......................................................................... 35
ARTICLE V COVENANTS .................................................................................................................................... 35
Section 14.Affirmative Covenants .................................................................................................................... 35
Section 15.Negative Covenants ........................................................................................................................ 42
Section 16.Reporting Requirements ................................................................................................................. 45
ARTICLE VI EVENTS OF DEFAULT ................................................................................................................. 50
Section 17.Events of Default and Remedies ..................................................................................................... 50
ARTICLE VII MISCELLANEOUS ....................................................................................................................... 53
Section 18.Disclaimer of Warranty ................................................................................................................... 53
Section 19.No Personal Recourse ..................................................................................................................... 53
Section 20.No Third Party Rights ..................................................................................................................... 54
Section 21.Borrower’s Authorized Representative ........................................................................................... 54
Section 22.WIFIA Lender’s Authorized Representative .................................................................................. 54
Section 23.Servicer ........................................................................................................................................... 54
Section 24.Amendments and Waivers .............................................................................................................. 54
Section 25.Governing Law ............................................................................................................................... 54
Section 26.Severability ..................................................................................................................................... 54
Section 27.Successors and Assigns ................................................................................................................... 55
Section 28.Remedies Not Exclusive ................................................................................................................. 55
Section 29.Delay or Omission Not Waiver ....................................................................................................... 55
Section 30.Counterparts .................................................................................................................................... 55
Section 31.Notices ............................................................................................................................................ 55
Section 32.Indemnification ............................................................................................................................... 56
Section 33.Sale of WIFIA Loan ........................................................................................................................ 57
Section 34.Effectiveness ................................................................................................................................... 57
Section 35.Termination ..................................................................................................................................... 57
Section 36.Integration ....................................................................................................................................... 57
Section 37.Truth-In-Bonding and Disclosure Statement .................................................................................. 57
i
SCHEDULE I – Project Budget
SCHEDULE II – Construction Schedule
SCHEDULE III – Existing Indebtedness
SCHEDULE IV – Project Description
SCHEDULE V – WIFIA Payment Instructions
SCHEDULE VI – Flow of Funds
SCHEDULE VII – Rate Covenant
SCHEDULE VIII – Additional Bonds Test
SCHEDULE 12(f) – Litigation
SCHEDULE 12(n) – Principal Project Contracts
EXHIBIT A – Form of WIFIA Bond
EXHIBIT B – Anticipated WIFIA Loan Disbursement Schedule
EXHIBIT C– Form of Non-Debarment Certificate
EXHIBIT D – Requisition Procedures
EXHIBIT E – Form of Non-Lobbying Certificate
EXHIBIT F – WIFIA Debt Service
EXHIBIT G-1 – Opinions Required from Counsel to Borrower
EXHIBIT G-2 – Opinions Required from Bond Counsel
EXHIBIT H – \[Reserved\]
EXHIBIT I – Form of Closing Certificate
EXHIBIT J – Form of Certificate of Substantial Completion
EXHIBIT K – Form of Quarterly Report
EXHIBIT L – Form of Public Benefits Report
ii
WIFIA LOAN AGREEMENT
THIS WIFIA LOAN AGREEMENT (this “Agreement”), dated as of June 25, 2020, is
by and between the CITY OF NORTH MIAMI BEACH, FLORIDA, a municipality duly
created and validly existing under the laws of the State of Florida (the “State”), with an address at
17011 NE 19th Avenue, North Miami Beach, FL 33162-3111 (the “Borrower”), and the UNITED
STATES ENVIRONMENTAL PROTECTION AGENCY, an agency of the United States of
America, acting by and through the Administrator of the Environmental Protection Agency (the
“Administrator”), with an address at 1200 Pennsylvania Avenue NW, Washington, DC 20460
(the “WIFIA Lender”).
RECITALS:
WHEREAS, the Congress of the United States of America enacted the Water Infrastructure
Finance and Innovation Act, as amended by Section 1445 of the Fixing America’s Surface
Transportation Act of 2015, as further amended by Section 5008 of the Water Infrastructure
Improvements For the Nation Act of 2016 and by Section 4201 of America’s Water Infrastructure
Act of 2018 (collectively, as the same may be amended from time to time, the “Act” or “WIFIA”),
which is codified as 33 U.S.C. §§ 3901–3914;
WHEREAS, the Act authorizes the WIFIA Lender to enter into agreements to provide
financial assistance with one or more eligible entities to make secured loans with appropriate
security features to finance a portion of the eligible costs of projects eligible for assistance;
WHEREAS, the Borrower has requested that the WIFIA Lender make the WIFIA Loan (as
defined herein) in a principal amount not to exceed $44,204,486 to be used to pay a portion of the
Eligible Project Costs (as defined herein) related to the Project (as defined herein) pursuant to the
application for WIFIA financial assistance dated December 9, 2019 (the “Application”);
WHEREAS, as of the date hereof, the Administrator has approved WIFIA financial
assistance for the Project to be provided in the form of the WIFIA Loan, subject to the terms and
conditions contained herein;
WHEREAS, based on the Application and the representations, warranties and covenants
set forth herein, the WIFIA Lender proposes to make funding available to the Borrower through
the purchase of the WIFIA Bond (as defined herein), upon the terms and conditions set forth
herein;
WHEREAS, the Borrower agrees to repay any amount due pursuant to this Agreement and
the WIFIA Bond in accordance with the terms and provisions hereof and of the WIFIA Bond; and
WHEREAS, the WIFIA Lender has entered into this Agreement in reliance upon, among
other things, the information and representations of the Borrower set forth in the Application and
the supporting information provided by the Borrower.
NOW, THEREFORE, the premises being as stated above, and for good and valuable
consideration, the receipt and sufficiency of which are acknowledged to be adequate, and intending
to be legally bound hereby, it is hereby mutually agreed by and between the Borrower and the
WIFIA Lender as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.Definitions. Unless the context otherwise requires, capitalized terms used
in this Agreement shall have the meanings set forth below in this Section 1 or as otherwise defined
in this Agreement. Any term used in this Agreement that is defined by reference to any other
agreement shall continue to have the meaning specified in such agreement, whether or not such
agreement remains in effect.
“Acceptable Credit Rating” means, with respect to any Person, the rating of its unsecured,
senior long-term indebtedness (or, if such Person has no such rating, then its issuer rating or
corporate credit rating) is no lower than (a) at the time such Person executes, delivers or issues a
Qualified Hedge, a Credit Facility, or a repurchase agreement, ‘A+’, ‘A1’ or the equivalent rating
from each Nationally Recognized Rating Agency that provides a rating on such Person’s
unsecured, senior long-term indebtedness or that provides an issuer rating or corporate credit rating
for such Person, as applicable; and (b) at any time thereafter, ‘A’, ‘A2’ or the equivalent rating
from each Nationally Recognized Rating Agency that provides a rating on such Person’s
unsecured, senior long-term indebtedness or that provides an issuer rating or corporate credit rating
for such Person, as applicable.
“Act” means the Act as defined in the recitals hereto.
“Additional Bonds” has the meaning provided in the Master Resolution.
“Additional Principal Project Contracts” means (a) any contract, agreement, letter of
intent, understanding or instrument listed in Part B of Schedule 12(n) (Principal Project
Contracts) and (b) any other contract, agreement, letter of intent, understanding or instrument
entered into by (or on behalf of) the Borrower after the Effective Date with respect to the Project,
in the case of this clause (b), (i) pursuant to which the Borrower has payment obligations in excess
of $4,000,000 in the aggregate or (ii) the termination of which could reasonably be expected to
have a Material Adverse Effect, but excluding, in the case of this clause (b), any (A) insurance
policies or documents pertaining to the Borrower’s self-insurance program (as applicable),
(B) Governmental Approvals and (C) agreements, documents and instruments (1) providing for,
governing or evidencing any Permitted Debt and any related Permitted Lien for such Permitted
Debt or (2) entered into to consummate any Permitted Investment.
“Additional Subordinated Obligations” means any Subordinated Obligations permitted
under Section 15(a) (Negative Covenants – Indebtedness) and under the Master Resolution, which
Subordinated Obligations are issued or incurred after the Effective Date.
“Administrator” has the meaning provided in the preamble hereto.
“Agreement” has the meaning provided in the preamble hereto.
2
“Anticipated WIFIA Loan Disbursement Schedule” means the schedule set forth in
Exhibit B (Anticipated WIFIA Loan Disbursement Schedule), reflecting the anticipated
disbursement of proceeds of the WIFIA Loan, as such schedule may be amended from time to time
pursuant to Section 4(c) (Disbursement Conditions).
“Anti-Corruption Laws” means all laws, rules and regulations of any jurisdiction from
time to time concerning or relating to bribery or corruption.
“Anti-Money Laundering Laws” means all U.S. and other applicable laws, rules and
regulations of any jurisdiction from time to time concerning or related to anti-money laundering,
including but not limited to those contained in the Bank Secrecy Act and the Patriot Act.
“Application” has the meaning provided in the recitals hereto.
“Bank Secrecy Act” means the Bank Secrecy Act of 1970, as amended, and the regulations
promulgated thereunder.
“Bankruptcy Related Event” means, with respect to any Person, (a) an involuntary
proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of such Person or any of its debts, or of a substantial part
of the assets thereof, under any Insolvency Laws, or (ii) the appointment of a receiver, trustee,
liquidator, custodian, sequestrator, conservator or similar official for such Person or for a
substantial part of the assets thereof and, in any case referred to in the foregoing subclauses (i) and
(ii), such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree
approving or ordering any of the foregoing shall be entered; (b) such person shall (i) apply for or
consent to the appointment of a receiver, trustee, liquidator, custodian, sequestrator, conservator
or similar official therefor or for a substantial part of the assets thereof, (ii) generally not be paying
its debts as they become due unless such debts are the subject of a bona fide dispute, or become
unable to pay its debts generally as they become due, (iii) solely with respect to the Borrower, fail
to make a payment of WIFIA Debt Service in accordance with the provisions of Section 8
(Payment of Principal and Interest) and such failure is not cured within thirty (30) days following
notification by the WIFIA Lender of failure to make such payment, (iv) make a general assignment
for the benefit of creditors, (v) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition with respect to it described in clause (a) of this
definition, (vi) commence a voluntary proceeding under any Insolvency Law, or file a voluntary
petition seeking liquidation, reorganization, an arrangement with creditors or an order for relief,
in each case under any Insolvency Law, (vii) file an answer admitting the material allegations of a
petition filed against it in any proceeding referred to in the foregoing subclauses (i) through (v),
inclusive, of this clause (b), or (viii) take any action for the purpose of effecting any of the
foregoing, including seeking approval or legislative enactment by any Governmental Authority to
authorize commencement of a voluntary proceeding under any Insolvency Law; (c) solely with
respect to the Borrower, (i) any Person shall commence a process pursuant to which all or a
substantial part of the Pledged Funds may be sold or otherwise disposed of in a public or private
sale or disposition pursuant to a foreclosure of the Liens thereon securing the Bonds, or (ii) any
Person shall commence a process pursuant to which all or a substantial part of the Pledged Funds
may be sold or otherwise disposed of pursuant to a sale or disposition of such Pledged Funds in
lieu of foreclosure; or (d) solely with respect to the Borrower, any receiver, trustee, liquidator,
3
custodian, sequestrator, conservator or similar official shall transfer, pursuant to directions issued
by or on behalf of the Bondholders, funds on deposit in any of the System Accounts upon the
occurrence and during the continuation of an Event of Default under this Agreement or an event
of default under the Bond Authorization Documents for application to the prepayment or
repayment of any principal amount of the Bonds other than in accordance with the provisions of
the Master Resolution.
“Base Case Financial Model” means a financial model prepared by the Borrower
forecasting the capital costs of the System (including the Project) and the rates, revenues, operating
expenses and major maintenance requirements of the System for time periods through the Final
Maturity Date and based upon assumptions and methodology provided by the Borrower and
acceptable to the WIFIA Lender as of the Effective Date, which model shall be provided to the
WIFIA Lender as a fully functional Microsoft Excel – based financial model or such other format
requested by the WIFIA Lender.
“Bond” has the meaning provided in the Master Resolution.
“Bond Authorization Documents” means the Master Resolution, each Supplemental
Resolution, each ordinance enacted by the City Commission for the purpose of authorizing Bonds
or other Obligations and each other agreement, instrument and document executed and delivered
pursuant to or in connection with any of the foregoing, including all loan agreements evidencing
SRF Loans and the FDEP Consent.
“Bondholder” has the meaning provided in the Master Resolution.
“Borrower” has the meaning provided in the preamble hereto.
“Borrower Fiscal Year” means (a) as of the Effective Date, a fiscal year of the Borrower
commencing on October 1 of any calendar year and ending on September 30 of the immediately
succeeding calendar year or (b) such other fiscal year as the Borrower may hereafter adopt after
giving thirty (30) days’ prior written notice to the WIFIA Lender in accordance with Section 15(f)
(Negative Covenants – Fiscal Year).
“Borrower’s Authorized Representative” means any Person who shall be designated as
such pursuant to Section 21 (Borrower’s Authorized Representative).
“Business Day” means any day other than a Saturday, a Sunday or a day on which offices
of the Government or the State are authorized to be closed or on which commercial banks are
authorized or required by law, regulation or executive order to be closed in New York, New York,
or in North Miami Beach, Florida.
“City Commission” means the City Commission of the Borrower, formerly known as the
City Council.
“Closing Certificate” has the meaning provided in Section 11(a)(viii) (Conditions
Precedent – Conditions Precedent to Effectiveness).
“Congress” means the Congress of the United States of America.
4
“Construction Period” means the period from the Effective Date through the Substantial
Completion Date.
“Construction Period Servicing Fee” has the meaning set forth in Section 10(a)(ii) (Fees
and Expenses – Fees).
“Construction Schedule” means (a) the initial schedule or schedules on which the
construction timetables for the Project are set forth, attached as Schedule II (Construction
Schedule), and (b) any updates thereto included in the periodic reports submitted to the WIFIA
Lender pursuant to Section 16(d) (Reporting Requirements – Construction Reporting) most
recently approved by the WIFIA Lender.
“Consulting Engineers” has the meaning provided in the Master Resolution.
“Control” means, when used with respect to any particular Person, the possession, directly
or indirectly, of the power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or partnership or other ownership
interests, by contract or otherwise, and the terms “Controlling” and “Controlled by” have
meanings correlative to the foregoing.
“CPI” means the Consumer Price Index for All Urban Consumers (CPI-U) for the U.S.
City Average for All Items, 1982-84=100 (not seasonally adjusted) or its successor, published by
the Bureau of Labor Statistics and located at https://www.bls.gov/news.release/cpi.t01.htm.
“Credit Facility” means any letter of credit, standby bond purchase agreement, line of
credit, policy of bond insurance, surety bond, guarantee or similar instrument, or any agreement
relating to the reimbursement of any payment thereunder (or any combination of the foregoing),
which is obtained by the Borrower and is issued by a financial institution, insurance provider or
other Person and which provides security or liquidity in respect of any Permitted Debt.
“Credit Facility Provider” means, with respect to any Credit Facility, the issuer or
provider of such Credit Facility.
“Debt Service Fund” has the meaning provided in the Master Resolution.
“Debt Service Payment Commencement Date” means February 1, 2021.
“Default” means any event or condition that, with the giving of any notice, the passage of
time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to the sum of (a) the WIFIA Interest Rate plus
(b) 200 basis points.
“Development Default” means (a) the Borrower abandons work or fails, in the reasonable
judgment of the WIFIA Lender, to diligently prosecute the work related to the Project or (b) the
Borrower fails to achieve Substantial Completion of the Project by August 1, 2026.
“Dollars” and “$” means the lawful currency of the United States of America.
5
“Effective Date” means the date of this Agreement.
“Eligible Project Costs” means amounts in the Project Budget approved by the WIFIA
Lender, which are paid by or for the account of the Borrower in connection with the Project
(including, as applicable, Project expenditures incurred prior to the receipt of WIFIA credit
assistance), which shall arise from the following:
(a)development-phase activities, including planning, feasibility analysis
(including any related analysis necessary to carry out an eligible project), revenue
forecasting, environmental review, permitting, preliminary engineering and design work
and other preconstruction activities;
(b)construction, reconstruction, rehabilitation, and replacement activities;
(c)the acquisition of real property or an interest in real property (including
water rights, land relating to the Project and improvements to land), environmental
mitigation (including acquisitions pursuant to Section 3905(8) of Title 33 of the United
States Code), construction contingencies, and acquisition of equipment; or
(d)capitalized interest (with respect to Obligations other than the WIFIA
Loan) necessary to meet market requirements, reasonably required reserve funds, capital
issuance expenses, and other carrying costs during construction;
provided, that Eligible Project Costs must be consistent with all other applicable federal
law, including the Act.
“Eligible Project Costs Documentation” has the meaning provided in Section 1 of
Exhibit D (Requisition Procedures).
“EMMA” means the Electronic Municipal Market Access system as described in 1934 Act
Release No. 59062 and maintained by the Municipal Securities Rulemaking Board established
pursuant to Section 15B(b)1 of the Securities Exchange Act of 1934, as amended, and its
successors.
“Environmental Laws” has the meaning provided in Section 12(p) (Representations and
Warranties of Borrower – Environmental Matters).
“EPA” means the United States Environmental Protection Agency.
“Event of Default” has the meaning provided in Section 17(a) (Events of Default and
Remedies).
“Event of Loss” means any event or series of events that causes any portion of the System
to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever, including
through a casualty, a failure of title, or any loss of such property through eminent domain.
6
“Existing Indebtedness” means Obligations of the Borrower that have been issued or
incurred prior to the Effective Date, as listed and described in Schedule III (Existing
Indebtedness).
“Existing Principal Project Contract” means each contract of the Borrower set forth in
Part A of Schedule 12(n) (Principal Project Contracts).
“Existing SRF Loans” means the Subordinated Obligations of the Borrower incurred
pursuant to the State revolving fund loan agreements entered into prior to the Effective Date by
and among the Borrower and the FDEP, as listed and described in Schedule III (Existing
Indebtedness).
“FDEP” means the Florida Department of Environmental Protection.
“FDEP Consent” means the written consent, executed by the FDEP and in form and
substance satisfactory to the WIFIA Lender, establishing (a) FDEP consent to the Borrower
entering into the WIFIA Loan and issuing the WIFIA Bond, (b) FDEP consent that the WIFIA
Bond is secured by a Lien on the Pledged Funds on a parity with all other Outstanding Bonds and
senior to any Lien of the State in respect of Pledged Funds or System Revenues, and (c) FDEP
acknowledgement and agreement that the Existing SRF Loans are Subordinated Obligations
subject to the flow of funds set forth in Section 404 of the Master Resolution.
“Federal Fiscal Year” means the fiscal year of the Government, which is the twelve (12)
month period that ends on September 30 of the specified calendar year and begins on October 1 of
the preceding calendar year.
“Final Disbursement Date” means the earliest of (a) the date on which the WIFIA Loan
has been disbursed in full; (b) the last anticipated date of disbursement set forth in the then-current
Anticipated WIFIA Loan Disbursement Schedule; (c) the date on which the Borrower has certified
to the WIFIA Lender that it will not request any further disbursements under the WIFIA Loan; (d)
the date on which the WIFIA Lender terminates its obligations relating to disbursements of any
undisbursed amounts of the WIFIA Loan in accordance with Section 17 (Events of Default and
Remedies); and (e)the date that is one (1) year after the Substantial Completion Date.
“Final Maturity Date” means the earlier of (a) August 1, 2060 (or such earlier date as is
set forth in an updated Exhibit F (WIFIA Debt Service) pursuant to Section 8(e) (Payment of
Principal and Interest – Adjustments to Loan Amortization Schedule)); and (b) the Payment Date
immediately preceding the date that is thirty-five (35) years following the Substantial Completion
Date.
“Financial Statements” has the meaning provided in Section 12(t) (Representations and
Warranties of Borrower – Financial Statements).
“GAAP” means generally accepted accounting principles for U.S. state and local
governments, as established by the Government Accounting Standards Board (or any successor
entity with responsibility for establishing accounting rules for governmental entities), in effect
from time to time in the United States of America.
7
“Government” means the United States of America and its departments and agencies.
“Governmental Approvals” means all authorizations, consents, approvals, waivers,
exceptions, variances, filings, permits, orders, licenses, exemptions and declarations of or with any
Governmental Authority.
“Governmental Authority” means any federal, state, provincial, county, city, town,
village, municipal or other government or governmental department, commission, council, court,
board, bureau, agency, authority or instrumentality (whether executive, legislative, judicial,
administrative or regulatory), of or within the United States of America or its territories or
possessions, including the State and its counties and municipalities, and their respective courts,
agencies, instrumentalities and regulatory bodies, or any entity that acts “on behalf of” any of the
foregoing, whether as an agency or authority of such body.
“Hedging Agreement” means (a) the ISDA Master Agreement(s) and any related credit
support annex, schedules and confirmations, to be entered into by the Borrower and a Hedging
Bank, (b) any other agreement entered into, or to be entered into, by the Borrower and a Hedging
Bank for a Hedging Transaction, and (c) any other documentation directly relating to the
foregoing.
“Hedging Bank” means any Qualified Hedge Provider that becomes a party to a Hedging
Agreement and its permitted successors (to the extent such successors are also Qualified Hedge
Providers).
“Hedging Obligations” means, collectively, the payment of (a) all scheduled amounts
payable to the Hedging Banks by the Borrower under the Hedging Agreements (including interest
accruing after the date of any filing by the Borrower of any petition in bankruptcy or the
commencement of any bankruptcy, insolvency or similar proceeding with respect to the
Borrower), net of all scheduled amounts payable to the Borrower by such Hedging Banks, and (b)
all other indebtedness, fees, indemnities and other amounts payable by the Borrower to the
Hedging Banks under such Hedging Agreements, net of all other indebtedness, fees, indemnities
and other amounts payable by the Hedging Banks to the Borrower under such Hedging
Agreements; provided, that Hedging Obligations shall not include Hedging Termination
Obligations. For the avoidance of doubt, all calculations of such amounts payable under the
Hedging Agreements shall be made in accordance with the terms of the applicable Hedging
Agreements.
“Hedging Termination Obligations” means the aggregate amount payable to the Hedging
Banks by the Borrower upon the early termination of all or a portion of the Hedging Agreements,
net of all amounts payable to the Borrower by such Hedging Banks upon such early termination.
For the avoidance of doubt, all calculations of such amounts payable under the Hedging
Agreements shall be made in accordance with the terms of the applicable Hedging Agreements.
“Hedging Transaction” means any interest rate protection agreement, interest rate swap
transaction, interest rate “cap” transaction, interest rate future, interest rate option or other similar
interest rate hedging arrangement commonly used in loan transactions to hedge against interest
rate increases (and not for any speculative purpose).
8
“Indemnitee” has the meaning provided in Section 32 (Indemnification).
“Insolvency Laws” means the United States Bankruptcy Code, 11 U.S.C. § 101 et seq., as
from time to time amended and in effect, and any state bankruptcy, insolvency, receivership,
conservatorship or similar law now or hereafter in effect.
“Interest Only Period” means the period commencing on the Debt Service Payment
Commencement Date and ending on February 1, 2031 (or on such earlier date as all amounts due
or to become due to the WIFIA Lender hereunder have been irrevocably paid in full in cash).
“Interest Payment Date” means each February 1 and August 1, commencing on the Debt
Service Payment Commencement Date.
“Investment Grade Rating” means a public rating no lower than ‘BBB-’, ‘Baa3’, ‘bbb-’,
‘BBB (low)’, or higher, from a Nationally Recognized Rating Agency.
“ISDA Master Agreement” means a master agreement, entered into by the Borrower and
a Hedging Bank, in the form published by the International Swaps and Derivatives Association,
Inc.
“Lien” means any mortgage, pledge, hypothecation, assignment, mandatory deposit
arrangement, encumbrance, attachment, lien (statutory or other), charge or other security interest,
or preference, priority or other security agreement or preferential arrangement of any kind or nature
whatsoever, including any sale-leaseback arrangement, any conditional sale or other title retention
agreement, any financing lease having substantially the same effect as any of the foregoing, and
the filing of any financing statement or similar instrument under the UCC or any other applicable
law.
“Loan Amortization Schedule” means the Loan Amortization Schedule reflected in the
applicable column of Exhibit F (WIFIA Debt Service), as amended from time to time in
accordance with Section 8(e) (Payment of Principal and Interest – Adjustments to Loan
Amortization Schedule).
“Loss Proceeds” means any proceeds of builders’ risk or casualty insurance (other than
any proceeds from any policy of business interruption insurance insuring against loss of revenues
upon the occurrence of certain casualties or events covered by such policy of insurance) or
proceeds of eminent domain proceedings resulting from any Event of Loss.
“Master Resolution” means that certain Resolution No. R2002-34 adopted by the City
Commission on July 16, 2002, as amended by Resolution No. R2012-90 adopted by the City
Commission on December 10, 2012, and as the foregoing may be further amended and
supplemented from time to time subject to the terms and conditions of the Master Resolution and
this Agreement.
“Material Adverse Effect” means a material adverse effect on (a) the System, the Project
or the System Revenues, (b) the business, operations, properties, condition (financial or otherwise)
or prospects of the Borrower, (c) the legality, validity or enforceability of any material provision
of any Bond Authorization Document or WIFIA Loan Document, (d) the ability of the Borrower
9
to enter into, perform or comply with any of its material obligations under any Bond Authorization
Document or WIFIA Loan Document, (e) the validity, enforceability or priority of the Liens
provided under the Bond Authorization Documents on the Pledged Funds in favor of the
Bondholders or (f) the WIFIA Lender’s rights or remedies available under any WIFIA Loan
Document.
“Nationally Recognized Rating Agency” means any nationally recognized statistical
rating organization identified as such by the Securities and Exchange Commission.
“NEPA” means the National Environmental Policy Act of 1969, as amended, and any
successor statute of similar import, and regulations thereunder, in each case as in effect from time
to time.
“NEPA Determination” means the Categorical Exclusion for the Project issued by EPA
on April 29, 2020 in accordance with NEPA.
“Net Loss Proceeds” means Loss Proceeds after excluding any proceeds of delay-in-start-
up insurance and proceeds covering liability of the Borrower to third parties.
“Net Revenues” has the meaning set forth in the Master Resolution.
“Non-Debarment Certificate” means a certificate, signed by the Borrower’s Authorized
Representative, as to the absence of debarment, suspension or voluntary exclusion from
participation in Government contracts, procurement and non-procurement matters with respect to
the Borrower and its principals (as defined in 2 C.F.R. § 180.995 and supplemented by 2 C.F.R.
1532.995), substantially in the form attached hereto as Exhibit C (Form of Non-Debarment
Certificate).
“Non-Lobbying Certificate” means a certificate, signed by the Borrower’s Authorized
Representative, with respect to the prohibition on the use of appropriated funds for lobbying
pursuant to 49 C.F.R. § 20.100(b), substantially in the form attached hereto as Exhibit E (Form of
Non-Lobbying Certificate).
“Obligations” means any indebtedness or other obligation of any kind of the Borrower
that is secured by a pledge of and lien on all or a portion of the System Revenues, including the
Bonds and Subordinated Obligations.
“OFAC” means the Office of Foreign Assets Control of the United States Department of
the Treasury.
“Operating Expenses” has the meaning set forth in the Master Resolution.
“Operating Period Servicing Fee” has the meaning set forth in Section 10(a)(iii) (Fees
and Expenses – Fees).
“Operation and Maintenance Contract” means the Existing Principal Project Contract
identified as item A.1. in Schedule 12(n) (Principal Project Contracts).
10
“Operation and Maintenance Fund” has the meaning provided in the Master Resolution.
“Organizational Documents” means: (a) the constitutional and statutory provisions that
are the basis for the existence and authority of the Borrower, including any enabling statutes,
ordinances or public charters and any other organic laws establishing the Borrower and (b) the
resolutions, bylaws, code of regulations, operating procedures or other organizational documents
(including any amendments, modifications or supplements thereto) of or adopted by the Borrower
by which the Borrower, its powers, operations or procedures or its securities, bonds, notes or other
obligations are governed or from which such powers are derived.
“Outstanding” has the meaning provided in the Master Resolution.
“Outstanding WIFIA Loan Balance” means the sum of (i) the aggregate principal
amount of the WIFIA Loan drawn by the Borrower minus (ii) the aggregate principal amount of
the WIFIA Loan repaid by the Borrower, as determined in accordance with Section 8(e) (Payment
of Principal and Interest – Adjustments to Loan Amortization Schedule).
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, and all regulations
promulgated thereunder.
“Payment Date” means each Interest Payment Date and each Principal Payment Date.
“Payment Default” has the meaning provided in Section 17(a)(i) (Events of Default and
Remedies – Payment Default).
“Permitted Debt” means:
(a)Existing Indebtedness;
(b)the WIFIA Loan;
(c)Additional Bonds that satisfy the requirements of Section 15(a) (Negative
Covenants – Indebtedness) and the Master Resolution;
(d)Additional Subordinated Obligations that satisfy the requirements of
Section 15(a) (Negative Covenants – Indebtedness) and the Master Resolution; and
(e)indebtedness incurred in respect of Qualified Hedges.
“Permitted Hedging Termination” means the early termination, in whole or in part, of
any Qualified Hedge (a) at the request of the Borrower as a result of a determination by the
Borrower that such (or any part of such) Qualified Hedge is no longer necessary or required under
the terms of this Agreement, (b) pursuant to the terms of any Hedging Agreement evidencing such
Qualified Hedge that provides for the notional amount of such Qualified Hedge to amortize or
otherwise be reduced from time to time or (c) as may be permitted pursuant to Section 14(k)(iii)
(Affirmative Covenants – Variable Interest Rate Obligations).
11
“Permitted Investments” means, with respect to the System Accounts, any Authorized
Investment (as defined in the Master Resolution) meeting the requirements of Section 14(h)(iii)
(Affirmative Covenants – System Accounts; Permitted Investments).
“Permitted Liens” means:
(a)Liens imposed pursuant to the WIFIA Loan Documents in respect of the
WIFIA Loan;
(b)Liens imposed pursuant to the Bond Authorization Documents in respect
of Permitted Debt;
(c)Liens imposed by law, including Liens for taxes that are not yet due or are
being contested in compliance with Section 14(j) (Affirmative Covenants – Material
Obligations);
(d)carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and
other like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than thirty (30) days or are being contested in
compliance with Section 14(j) (Affirmative Covenants – Material Obligations);
(e)pledges and deposits made in the ordinary course of business in compliance
with workers’ compensation, unemployment insurance, and other social security laws or
regulations;
(f)deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;
(g)judgment Liens in respect of judgments that do not constitute an Event of
Default under Section 17(a)(vi) (Events of Default and Remedies – Material Adverse
Judgment); and
(h)easements, zoning restrictions, rights-of-way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business that, in any
case, do not secure any monetary obligations and do not materially detract from the value
of the affected property or interfere with the ordinary conduct of business of the Borrower.
“Person” means and includes an individual, a general or limited partnership, a joint
venture, a corporation, a limited liability company, a trust, an unincorporated organization and any
Governmental Authority.
“Pledged Funds” has the meaning provided in the Master Resolution.
“Principal Payment Date” means each August 1, commencing on August 1, 2031.
“Principal Project Contracts” means the Existing Principal Project Contracts and the
Additional Principal Project Contracts.
12
“Principal Project Party” means any Person (other than the Borrower) party to a Principal
Project Contract.
“Project” means Phase IIA, Phase IIB, Phase IIC, and Phase III of the Borrower’s
Norwood Water Treatment Plant Upgrade and Transmission Main Improvements and
Replacements Project, as more particularly described in Schedule IV (Project Description).
“Project Budget” means the budget for the Project attached to this Agreement as
Schedule I (Project Budget)showing a summary of Total Project Costs with a breakdown of all
Eligible Project Costs and the estimated sources and uses of funds for the Project.
“Projected Substantial Completion Date” means August 1, 2025, as such date may be
adjusted in accordance with Section 16(d) (Reporting Requirements – Construction Reporting).
“Public Benefits Report” has the meaning provided in Section 16(e) (Reporting
Requirements – Public Benefits Report).
“Qualified Hedge” means, to the extent from time to time permitted by law, with respect
to Permitted Debt any Hedging Transaction entered into with a Qualified Hedge Provider and
meeting the requirements of Section 14(k) (Affirmative Covenants – Variable Interest Rate
Obligations).
“Qualified Hedge Provider” means any bank or trust company, or an affiliate thereof,
authorized to engage in the banking business that is organized under or licensed as a branch or
agency under the laws of the United States of America or any state thereof, that has an Acceptable
Credit Rating.
“Rate Covenant” has the meaning set forth in Section 14(a) (Affirmative Covenants – Rate
Covenant).
“Rate Stabilization Fund” has the meaning provided in the Master Resolution.
“Related Documents” means the Bond Authorization Documents, the WIFIA Loan
Documents, and the Principal Project Contracts.
“Renewal and Replacement Fund” has the meaning provided in the Master Resolution.
“Requisition” has the meaning provided in Section 4(a) (Disbursement Conditions).
“Reserve Fund” has the meaning provided in the Master Resolution.
“Revenue Fund” has the meaning provided in the Master Resolution.
“Sanctioned Country” means, at any time, a country or territory which is itself the subject
or target of any Sanctions.
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related
list of designated Persons maintained by OFAC or the U.S. Department of State, (b) any Person
13
operating, organized or resident in a Sanctioned Country, or (c) any Person owned or Controlled
by any such Person or Persons.
“Sanctions” means economic or financial sanctions or trade embargoes imposed,
administered, or enforced from time to time by the Government, including those administered by
OFAC or the U.S. Department of State.
“Servicer” means such entity or entities as the WIFIA Lender shall designate from time to
time to perform, or assist the WIFIA Lender in performing, certain duties hereunder.
“Servicing Fee” means the Servicing Set-Up Fee and any Construction Period Servicing
Fee or Operating Period Servicing Fee.
“Servicing Set-Up Fee” has the meaning set forth in Section 10(a)(i) (Fees and Expenses
– Fees).
“SRF Loans” means the Existing SRF Loans and, to the extent permitted under Section
15(a) (Negative Covenants – Indebtedness) and under the Master Resolution, any Obligations
incurred after the Effective Date by the Borrower pursuant to loan agreements under the State’s
revolving fund programs for clean water or drinking water.
“State” has the meaning provided in the preamble hereto.
“Subordinated Indebtedness Fund” means the Subordinated Indebtedness Fund
established by the Borrower pursuant to Section 4.04 of the Master Resolution.
“Subordinated Obligations” means Subordinated Indebtedness (as defined in the Master
Resolution); provided that any such Obligation is fully subordinated to the WIFIA Loan and the
WIFIA Bond in priority of payment (as to both principal and interest), voting and priority of
security interest in the Pledged Funds, including with respect to payment from revenues and
reserves and payment upon default or acceleration of any such Obligation.
“Substantial Completion” means, with respect to the Project, the stage at which the
Project is able to perform the functions for which the Project is designed.
“Substantial Completion Date” means the date on which the Borrower certifies to the
WIFIA Lender, with evidence satisfactory to the WIFIA Lender, that Substantial Completion has
occurred.
“Supplemental Resolution” has the meaning provided in the Master Resolution.
“System” has the meaning provided in the Master Resolution.
“System Accounts” means the Revenue Fund, the Operation and Maintenance Fund, the
Debt Service Fund, the WIFIA Debt Service Account, the Reserve Fund, the Renewal and
Replacement Fund, the Rate Stabilization Fund, and the Subordinated Indebtedness Fund.
“System Revenues” means “Gross Revenues”, as defined in the Master Resolution.
14
“Tender Option Obligations” means any Obligation which by its terms may be tendered
by and at the option of the holder thereof for payment prior to the stated maturity or redemption
date thereof to either the Borrower, a tender agent or a remarketing agent.
“Total Project Costs” means (a) the costs paid or incurred or to be paid or incurred by the
Borrower in connection with or incidental to the acquisition, design, construction and equipping
of the Project, including legal, administrative, engineering, planning, design, insurance and
financing (including costs of issuance); (b) amounts, if any, required by the Bond Authorization
Documents or the WIFIA Loan Documents to be paid into any fund or account upon the incurrence
of the WIFIA Loan, any Additional Bonds, or any Subordinated Obligations, in each case in
respect of the Project; (c) payments when due (whether at the maturity of principal, the due date
of interest, or upon optional prepayment) during the Construction Period in respect of any
indebtedness of the Borrower, in each case in connection with the Project (other than the WIFIA
Loan); and (d) costs of equipment and supplies and initial working capital and reserves required
by the Borrower for the commencement of operation of the Project, including general
administrative expenses and overhead of the Borrower.
“Uncontrollable Force” means any cause beyond the control of the Borrower, including:
(a) a hurricane, tornado, flood or similar occurrence, landslide, earthquake, fire or other casualty,
strike or labor disturbance, freight embargo, act of a public enemy, explosion, war, blockade,
terrorist act, insurrection, riot, general arrest or restraint of government and people, civil
disturbance or similar occurrence, sabotage, or act of God (provided, that the Borrower shall not
be required to settle any strike or labor disturbance in which it may be involved) or (b) the order
or judgment of any federal, state or local court, administrative agency or governmental officer or
body, if it is not also the result of willful or negligent action or a lack of reasonable diligence of
the Borrower and the Borrower does not Control the administrative agency or governmental officer
or body; provided, that the diligent contest in good faith of any such order or judgment shall not
constitute or be construed as a willful or negligent action or a lack of reasonable diligence of the
Borrower.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code, as in
effect from time to time in the State.
“Updated Financial Model” means the Base Case Financial Model, updated in
accordance with Section 16(a) (Reporting Requirements – Updated Financial Model).
“Variable Interest Rate” means a variable interest rate to be borne by any Permitted Debt.
The method of computing such variable interest rate shall be specified in the Supplemental
Resolution pursuant to which such Permitted Debt is incurred. Such Supplemental Resolution
shall also specify either (a) the particular period or periods of time for which each value of such
variable interest rate shall remain in effect or (b) the time or times upon which any change in such
variable interest rate shall become effective.
“Variable Interest Rate Obligations” means Permitted Debt which bears a Variable
Interest Rate but does not include any Permitted Debt for which the interest rate has been fixed
during the remainder of the term thereof to maturity.
15
“WIFIA” has the meaning provided in the recitals hereto.
“WIFIA Bond” means the Bond delivered by the Borrower in substantially the form of
Exhibit A (Form of WIFIA Bond).
“WIFIA Debt Service” means with respect to any Payment Date occurring on or after the
Debt Service Payment Commencement Date, the principal portion of the Outstanding WIFIA Loan
Balance and any interest payable thereon (including interest accruing after the date of any filing
by the Borrower of any petition in bankruptcy or the commencement of any bankruptcy,
insolvency or similar proceeding with respect to the Borrower), in each case, (a) as set forth on
Exhibit F (WIFIA Debt Service) and (b) due and payable on such Payment Date in accordance
with the provisions of Section 8(a) (Payment of Principal and Interest – Payment of WIFIA Debt
Service).
“WIFIA Debt Service Account” means the account established for the benefit of the
WIFIA Lender in accordance with the terms of the WIFIA Supplemental Resolution and Section
7(e) (Security and Priority; Flow of Funds).
“WIFIA Interest Rate” has the meaning provided in Section 6 (Interest Rate).
“WIFIA Lender” has the meaning provided in the preamble hereto.
“WIFIA Lender’s Authorized Representative” means the Administrator and any other
Person who shall be designated as such pursuant to Section 22 (WIFIA Lender’s Authorized
Representative).
“WIFIA Loan” means the secured loan made by the WIFIA Lender to the Borrower on
the terms and conditions set forth herein, pursuant to the Act, in a principal amount not to exceed
$44,204,486, to be used in respect of Eligible Project Costs paid or incurred by the Borrower.
“WIFIA Loan Documents” means this Agreement, the WIFIA Bond, the WIFIA
Supplemental Resolution, the Master Resolution and all other Bond Authorization Documents
relating to the WIFIA Loan.
“WIFIA Supplemental Resolution” means that certain Supplemental Resolution adopted
by the City Commission on June 16, 2020.
Section 2.Interpretation.
(a) Unless the context shall otherwise require, the words “hereto,” “herein,” “hereof”
and other words of similar import refer to this Agreement as a whole.
(b) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders and vice versa.
(c) Words importing the singular number shall include the plural number and vice
versa unless the context shall otherwise require.
16
(d) The words “include,” “includes” and “including” shall be deemed to be followed
by the phrase “without limitation.”
(e) Whenever the Borrower’s knowledge is implicated in this Agreement or the phrase
“to the Borrower’s knowledge” or a similar phrase is used in this Agreement, the Borrower’s
knowledge or such phrase(s) shall be interpreted to mean to the best of the Borrower’s knowledge
after reasonable and diligent inquiry. Unless the context shall otherwise require, references to any
Person shall be deemed to include such Person’s successors and permitted assigns.
(f) Unless the context shall otherwise require, references to preambles, recitals,
sections, subsections, clauses, schedules, exhibits, appendices and provisions are to the applicable
preambles, recitals, sections, subsections, clauses, schedules, exhibits, appendices and provisions
of this Agreement.
(g) The schedules and exhibits to this Agreement, and the appendices and schedules to
such exhibits, are hereby incorporated by reference and made an integral part of this Agreement.
(h) The headings or titles of this Agreement and its sections, schedules or exhibits, as
well as any table of contents, are for convenience of reference only and shall not define or limit its
provisions.
(i) Unless the context shall otherwise require, all references to any resolution, contract,
agreement, lease or other document shall be deemed to include any amendments or supplements
to, or modifications or restatements or replacements of, such documents that are approved from
time to time in accordance with the terms thereof and hereof.
(j) Every request, order, demand, application, appointment, notice, statement,
certificate, consent or similar communication or action hereunder by any party shall, unless
otherwise specifically provided, be delivered in writing in accordance with Section 31 (Notices)
and signed by a duly authorized representative of such party.
(k) References to “disbursements of WIFIA Loan proceeds” or similar phrasing shall
be construed as meaning the same thing as “paying the purchase price of the WIFIA Bond”.
(l) Whenever this Agreement requires a change in principal amount, interest rate or
amortization schedule of the WIFIA Loan, it is intended that such change be reflected in the WIFIA
Bond. Whenever there is a prepayment of the WIFIA Loan, it is intended that such prepayment be
implemented through a prepayment of the WIFIA Bond.
ARTICLE II
THE WIFIA LOAN
Section 3.WIFIA Loan Amount. The principal amount of the WIFIA Loan shall not
exceed $44,204,486. WIFIA Loan proceeds available to be drawn shall be disbursed from time to
time in accordance with Section 4 (Disbursement Conditions) and Section 11(b) (Conditions
Precedent – Conditions Precedent to Disbursements).
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Section 4.Disbursement Conditions.
(a)WIFIA Loan proceeds shall be disbursed solely in respect of Eligible
Project Costs paid or incurred and approved for payment by or on behalf of the Borrower in
connection with the Project. If the Borrower intends to utilize the WIFIA Loan proceeds to make
progress payments for Project construction work performed under the Principal Project Contracts,
the Borrower shall demonstrate to the satisfaction of the WIFIA Lender that such progress
payments are commensurate with the value of the work that has been completed. Each
disbursement of the WIFIA Loan shall be made pursuant to a requisition and certification (a
“Requisition”) in the form set forth in Appendix One (Form of Requisition) to Exhibit D
(Requisition Procedures), along with all documentation and other information required thereby,
submitted by the Borrower to, and approved by, the WIFIA Lender, all in accordance with the
procedures of Exhibit D (Requisition Procedures)and subject to the requirements of this Section
4 and the conditions set forth in Section 11(b) (Conditions Precedent – Conditions Precedent to
Disbursements); provided, that no disbursements of WIFIA Loan proceeds shall be made after the
Final Disbursement Date.
(b)The Borrower shall deliver copies of each Requisition to the WIFIA Lender
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on or before the first (1) Business Day of each month for which a disbursement is requested. If
the WIFIA Lender shall expressly approve a Requisition or shall not expressly deny a Requisition,
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disbursements of funds shall be made on the fifteenth (15) day of the month for which a
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disbursement has been requested, or on the next succeeding Business Day if such fifteenth (15)
day is not a Business Day. Express WIFIA Lender approval or denial shall be substantially in the
form annexed hereto as Appendix Two (\[Approval/Disapproval\] of the WIFIA Lender) to
Exhibit D (Requisition Procedures). In no event shall disbursements be made more than once
each month.
(c)At the time of any disbursement, the sum of all prior disbursements of
WIFIA Loan proceeds and the disbursement then to be made shall not exceed the cumulative
disbursements through the end of the then-current Federal Fiscal Year set forth in the Anticipated
WIFIA Loan Disbursement Schedule, as the same may be amended from time to time in
accordance with the terms of this Agreement. Subject to this Section 4, any scheduled
disbursement (as reflected in the Anticipated WIFIA Loan Disbursement Schedule) that remains
undrawn at the end of any Federal Fiscal Year shall automatically roll forward to be available in
the succeeding Federal Fiscal Year, having the effect of automatically updating the Anticipated
WIFIA Loan Disbursement Schedule without need for the WIFIA Lender’s approval. The
Borrower may also amend the Anticipated WIFIA Loan Disbursement Schedule by submitting a
revised version thereof to the WIFIA Lender no later than thirty (30) days prior to the proposed
effective date of such amendment, together with a detailed explanation of the reasons for such
revisions. Such revised Anticipated WIFIA Loan Disbursement Schedule shall become effective
upon the WIFIA Lender’s approval thereof, which approval shall be granted or withheld in the
WIFIA Lender’s sole discretion.
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Section 5.Term. The term of the WIFIA Loan shall extend from the Effective Date to
the Final Maturity Date or to such earlier date as all amounts due or to become due to the WIFIA
Lender hereunder have been irrevocably paid in full in immediately available funds.
Section 6.Interest Rate. The interest rate with respect to the Outstanding WIFIA Loan
Balance (the “WIFIA Interest Rate”) shall be one and thirty-six one hundredths percent (1.36%)
per annum. Interest will accrue and be computed on the Outstanding WIFIA Loan Balance (as
well as on any past due interest) from time to time on the basis of a three hundred sixty (360) day
year of twelve (12) thirty (30) day months; provided, that, upon the occurrence of an Event of
Default, the Borrower shall pay interest on the Outstanding WIFIA Loan Balance at the Default
Rate, (a) in the case of any Payment Default, from (and including) its due date to (but excluding)
the date of actual payment and (b) in the case of any other Event of Default, from (and including)
the date of such occurrence to (but excluding) the earlier of the date on which (i) such Event of
Default has been cured (if applicable) in accordance with the terms of this Agreement and (ii) the
Outstanding WIFIA Loan Balance has been irrevocably paid in full in immediately available
funds. For the avoidance of doubt, interest on the WIFIA Loan (and the corresponding WIFIA
Bond) shall accrue and be payable only on those amounts for which a Requisition has been
submitted and funds (or such portion of funds as have been approved by WIFIA Lender) have been
made available to the Borrower for use on the Project in accordance with Section 4 (Disbursement
Conditions).
Section 7.Security and Priority; Flow of Funds.
(a)As security for the WIFIA Loan, and concurrently with the issuance and
delivery of this Agreement, the Borrower shall pledge, assign and grant to the WIFIA Lender for
its benefit, Liens on the Pledged Funds in accordance with the provisions of the Master Resolution
and the WIFIA Supplemental Resolution and shall deliver to the WIFIA Lender, as the registered
owner, the WIFIA Bond. The WIFIA Loan shall be secured by the Liens on the Pledged Funds
on a parity with all other Bonds and senior to all Subordinated Obligations.The WIFIA Bond shall
be a Bond under the Master Resolution, entitled to all of the benefits of a Bond under the Master
Resolution.
(b)Except (i) for Permitted Liens, or (ii) to the extent otherwise provided in
Section 7(a), the Pledged Funds will be free and clear of any pledge, Lien, charge or encumbrance
thereon or with respect thereto, of equal rank with or senior to the pledge of the Borrower created
under the Bond Authorization Documents, and all organizational, regulatory or other necessary
action on the part of the Borrower with respect to the foregoing has been duly and validly taken.
(c)The Borrower shall not use System Revenues to make any payments or
satisfy any obligations other than in accordance with the provisions of this Section 7, Section 15(d)
(Negative Covenants – Restricted Payments and Transfers) and the Bond Authorization
Documents and shall not apply any portion of the System Revenues in contravention of this
Agreement or the Bond Authorization Documents.
(d)All System Revenues shall be deposited into the Revenue Fund. Amounts
deposited in the Revenue Fund shall be applied on a monthly basis in the order of priority
described, and in accordance with the requirements specified, in Section 4.04 of the Master
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Resolution, which, as of the Effective Date, is set forth in Schedule VI (Flow of Funds) for
reference.
(e)Pursuant to the WIFIA Supplemental Resolution, the Borrower shall
establish the WIFIA Debt Service Account as a subaccount of the Debt Service Fund for the
payment of all WIFIA Debt Service (the “WIFIA Debt Service Account”). The Borrower shall
maintain the WIFIA Debt Service Account throughout the term of the WIFIA Loan. The WIFIA
Debt Service Account shall be subject to Section 4.08 of the Master Resolution; provided that, if
at any time the Borrower creates an account separate from the Revenue Fund for the payment of
debt service in respect of any other Bond or any SRF Loan (excluding the Reserve Account or any
subaccount thereof), the Borrower shall also establish the WIFIA Debt Service Account as a
separate account with a bank or trust company, having a combined capital and unimpaired surplus
of not less than $50,000,000, authorized to transact commercial banking or savings and loan
business in the State, and insured by the Federal Deposit Insurance Corporation, which separate
account shall be used solely for the accumulation of monthly deposits of WIFIA Debt Service in
accordance with Section 4.04 of the Master Resolution and for payments of WIFIA Debt Service
in accordance with the WIFIA Loan Documents.
Section 8.Payment of Principal and Interest.
(a)Payment of WIFIA Debt Service.
(i)During the Interest Only Period, the WIFIA Debt Service payable
by the Borrower shall consist of one hundred percent (100%) of the amount of interest then
due and payable on the Outstanding WIFIA Loan Balance, and no payment of principal
will be due and payable. Such payments shall be made in accordance with Section 8(d)
(Payment of Principal and Interest – Manner of Payment).
(ii)On each Payment Date occurring after the Interest Only Period, the
Borrower shall pay WIFIA Debt Service by making (A) semi-annual payments of interest,
on each Interest Payment Date, (B) annual payments of principal, on each Principal
Payment Date, and (C) payments of any other amounts on each other date on which
payment thereof is required to be made hereunder (including the Final Maturity Date and
any other date on which payment is otherwise due); provided, that if any such date is not a
Business Day, payment shall be made on the next Business Day following such date.
Payments of WIFIA Debt Service shall be made in the amounts and on the Payment Dates
as set forth in Exhibit F (WIFIA Debt Service), as the same may be revised pursuant to
Section 8(e) (Payment of Principal and Interest – Adjustments to Loan Amortization
Schedule).
(iii)Notwithstanding anything herein to the contrary, the Outstanding
WIFIA Loan Balance and any accrued interest thereon shall be due and payable in full on
the Final Maturity Date.
(b)\[Reserved\]
(c)WIFIA Bond. As evidence of the Borrower’s obligation to repay the WIFIA
Loan, the Borrower shall issue and deliver to the WIFIA Lender, on or prior to the Effective Date,
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the WIFIA Bond substantially in the form of Exhibit A (Form of WIFIA Bond), having a maximum
principal amount of $44,204,486, bearing interest at the WIFIA Interest Rate and having principal
and interest payable on the same dates set forth herein. Any payment in respect of the WIFIA Bond
shall be treated as a payment in respect of the WIFIA Loan and any prepayment of principal in
respect of the WIFIA Loan shall be treated as a redemption in respect of the WIFIA Bond.
(d)Manner of Payment. Payments under this Agreement (as evidenced by the
WIFIA Bond, which payments shall not be duplicative) shall be made by wire transfer on or before
each Payment Date in Dollars and in immediately available funds (without counterclaim, offset or
deduction) in accordance with the payment instructions set forth in ScheduleV (WIFIA Payment
Instructions), as may be modified in writing from time to time by the WIFIA Lender.
(e)Adjustments to Loan Amortization Schedule.
(i)The Outstanding WIFIA Loan Balance will be (A) increased on
each occasion on which the WIFIA Lender disburses loan proceeds hereunder, by the
amount of such disbursement of loan proceeds, and (B) decreased upon each payment or
prepayment of the Outstanding WIFIA Loan Balance, by the amount of principal so paid.
The WIFIA Lender may in its discretion at any time and from time to time, or when so
requested by the Borrower, advise the Borrower by written notice of the amount of the
Outstanding WIFIA Loan Balance as of the date of such notice, and its determination of
such amount in any such notice shall be deemed conclusive absent manifest error.
(ii)The WIFIA Lender is hereby authorized to modify the Loan
Amortization Schedule included in Exhibit F (WIFIA Debt Service) from time to time, in
accordance with the principles set forth below in this Section 8(e), to reflect (A) any change
to the Outstanding WIFIA Loan Balance, (B) any change to the date and amount of any
principal or interest due and payable or to become due and payable by the Borrower under
this Agreement, and (C) such other information as the WIFIA Lender may determine is
necessary for administering the WIFIA Loan and this Agreement. Any calculations
described above shall be rounded up to the nearest whole cent. Any adjustments or
revisions to the Loan Amortization Schedule as a result of changes in the Outstanding
WIFIA Loan Balance shall be applied to reduce future payments due on the WIFIA Bond
in inverse order of maturity, other than prepayments which shall be applied in accordance
with Section 9(c) (Prepayment – General Prepayment Instructions). Absent manifest
error, the WIFIA Lender’s determination of such matters as set forth on Exhibit F (WIFIA
Debt Service) shall be conclusive evidence thereof; provided, however, that neither the
failure to make any such recordation nor any error in such recordation shall affect in any
manner the Borrower’s obligations hereunder or under any other WIFIA Loan Document.
The WIFIA Lender shall provide the Borrower with a copy of Exhibit F (WIFIA Debt
Service) as revised, but no failure to provide or delay in providing the Borrower with such
copy shall affect any of the obligations of the Borrower under this Agreement or the other
WIFIA Loan Documents.
Section 9.Prepayment.
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(a)Optional Prepayments. The Borrower may prepay the WIFIA Loan in
whole or in part (and, if in part, the amounts thereof to be prepaid shall be determined by the
Borrower; provided, however, that such prepayments shall be in principal amounts of $1,000,000
or any integral multiple of $1.00 in excess thereof), from time to time, but not more than annually,
without penalty or premium, by paying to the WIFIA Lender such principal amount of the WIFIA
Loan to be prepaid, together with the unpaid interest accrued on the amount of principal so prepaid
to the date of such prepayment, which shall be a Payment Date unless otherwise agreed by the
WIFIA Lender. Each prepayment of the WIFIA Loan pursuant to this Section 9(a) shall be made
on such Payment Date and in such principal amount as shall be specified by the Borrower in a
written notice delivered to the WIFIA Lender not less than ten (10) days or more than thirty (30)
days prior to the date set for prepayment, unless otherwise agreed by the WIFIA Lender. At any
time between delivery of such written notice and the applicable optional prepayment, the Borrower
may, without penalty or premium, rescind its announced optional prepayment by further written
notice to the WIFIA Lender. Anything in this Section 9(a) to the contrary notwithstanding, the
failure by the Borrower to make any optional prepayment shall not constitute a breach or default
under this Agreement.
(b)Borrower’s Certificate. Each prepayment pursuant to this Section 9 shall
be effected pursuant to the WIFIA Supplemental Resolution and accompanied by a certificate
signed by the Borrower’s Authorized Representative identifying the provision of this Agreement
pursuant to which such prepayment is being made and containing a calculation in reasonable detail
of the amount of such prepayment.
(c)General Prepayment Instructions. Upon the WIFIA Lender’s receipt of
confirmation that payment in full of the entire Outstanding WIFIA Loan Balance and any unpaid
interest, fees and expenses with respect thereto has occurred as a result of an optional prepayment,
the WIFIA Lender shall surrender the WIFIA Bond to the Borrower or its representative at the
principal office of the WIFIA Lender. If the Borrower prepays only part of the unpaid balance of
principal of the WIFIA Loan, the WIFIA Lender may make a notation on Exhibit F (WIFIA Debt
Service) indicating the amount of principal of and interest on the WIFIA Loan then being prepaid.
Absent manifest error, the WIFIA Lender’s determination of such matters as set forth on Exhibit
F (WIFIA Debt Service)shall be conclusive evidence thereof; provided, however, that neither the
failure to make any such recordation nor any error in such recordation shall affect in any manner
the Borrower’s obligations hereunder or under any other WIFIA Loan Document. All such partial
prepayments of principal shall be applied to reduce future payments due on the WIFIA Loan in
inverse order of maturity. If such funds have not been so paid on the prepayment date, such
principal amount of the WIFIA Loan shall continue to bear interest until payment thereof at the
rate provided for in Section 6 (Interest Rate).
Section 10.Fees and Expenses.
(a)Fees. The Borrower shall pay to the WIFIA Lender:
(i)a servicing set-up fee equal to $10,410.00 (the “Servicing Set-Up
Fee”), which shall be due and payable within thirty (30) days after receipt of an invoice
from the WIFIA Lender with respect thereto (or, if earlier, the first disbursement date of
the WIFIA Loan);
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(ii)an annual construction period servicing fee equal to $10,410.00 (the
“Construction Period Servicing Fee”), which shall accrue on the first Business Day of
the then-current Federal Fiscal Year and shall be due and payable on or prior to each
November 15 during the Construction Period (including the Federal Fiscal Year during
which the Substantial Completion Date occurs); provided, that the initial Construction
Period Servicing Fee shall be due and payable within thirty (30) days after receipt of an
invoice from the WIFIA Lender with respect thereto (or, if earlier, the first disbursement
date of the WIFIA Loan), in a pro-rated amount equal to $2,600.00; and
(iii)an annual operating period servicing fee equal to $7,810.00 (the
“Operating Period Servicing Fee”), which shall accrue on the first Business Day of the
then-current Federal Fiscal Year and shall be due and payable on or prior to each November
15, beginning with the first November 15 following the end of the Federal Fiscal Year
during which the Substantial Completion Date occurs, until (and including) the Final
Maturity Date; provided, that the Operating Period Servicing Fee due and payable with
respect to the Federal Fiscal Year during which the Final Maturity Date occurs shall be
equal to the pro-rata monthly portion of the then applicable Operating Period Servicing Fee
multiplied by the number of partial or whole months remaining between October 1 and the
Final Maturity Date.
(b)The amount of each Construction Period Servicing Fee (other than the initial
Construction Period Servicing Fee) and each Operating Period Servicing Fee shall be adjusted in
proportion to the percentage change in CPI for the calendar year immediately preceding the
calendar year during which such fee is due. The WIFIA Lender shall notify the Borrower of the
amount of each such fee at least thirty (30) days before payment is due, which determination shall
be conclusive absent manifest error.
(c)Expenses. The Borrower agrees, whether or not the transactions hereby
contemplated shall be consummated, to reimburse the WIFIA Lender on demand from time to
time, within thirty (30) days after receipt of any invoice from the WIFIA Lender, for any and all
fees, costs, charges, and expenses incurred by it (including the fees, costs, and expenses of its legal
counsel, financial advisors, auditors and other consultants and advisors) in connection with the
negotiation, preparation, execution, delivery, and performance of this Agreement and the other
WIFIA Loan Documents and the transactions hereby and thereby contemplated, including
attorneys’, and engineers’ fees and professional costs, including all such fees, costs, and expenses
incurred as a result of or in connection with (i) the enforcement of or attempt to enforce, or the
protection or preservation of any right or claim under, the Pledged Funds or any provision of this
Agreement or any of the other WIFIA Loan Documents or the rights of the WIFIA Lender
thereunder; (ii) any amendment, modification, waiver, or consent with respect to this Agreement
or any other Related Document; and (iii) any work-out, restructuring, or similar arrangement of
the obligations of the Borrower under this Agreement or the other WIFIA Loan Documents,
including during the pendency of any Event of Default.
(d)The obligations of the Borrower under this Section 10 shall survive the
payment or prepayment in full or transfer of the WIFIA Bond, the enforcement of any provision
of this Agreement or the other WIFIA Loan Documents, any such amendments, waivers or
consents, any Event of Default, and any such workout, restructuring, or similar arrangement.
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ARTICLE III
CONDITIONS PRECEDENT
Section 11.Conditions Precedent.
(a)Conditions Precedent to Effectiveness. Notwithstanding anything in this
Agreement to the contrary, this Agreement shall not become effective until each of the following
conditions precedent has been satisfied or waived in writing by the WIFIA Lender in its sole
discretion:
(i)The Borrower shall have duly executed and delivered to the WIFIA
Lender this Agreement, the WIFIA Bond, and the WIFIA Supplemental Resolution, each
in form and substance satisfactory to the WIFIA Lender.
(ii)The Borrower shall have delivered to the WIFIA Lender complete
and fully executed copies of each Bond Authorization Document, together with any
amendments, waivers or modifications thereto, that has been entered into on or prior to the
Effective Date, along with a certification in the Closing Certificate that each such document
is complete, fully executed and in full force and effect, and that all conditions contained in
such documents that are necessary to the closing of the WIFIA transactions contemplated
hereby have been fulfilled.
(iii)The Borrower shall have delivered to the WIFIA Lender complete
and fully executed copies of each Existing Principal Project Contract, together with any
amendments, waivers or modifications thereto, along with a certification in the Closing
Certificate that each such document is complete, fully executed and in full force and effect.
(iv)The Borrower shall have delivered to the WIFIA Lender (A) a copy
of its Organizational Documents, as in effect on the Effective Date, along with a
certification in the Closing Certificate that such Organizational Documents are in full force
and effect, and (B) other than the Bond Authorization Documents, any further instruments
and documents (including any resolutions, ordinances, and supplements) as are necessary
for the Borrower to execute and deliver, and to perform its obligations under, the WIFIA
Loan Documents to which it is a party and to consummate and implement the transactions
contemplated by the WIFIA Loan Documents.
(v)Counsel to the Borrower shall have rendered to the WIFIA Lender
legal opinions satisfactory to the WIFIA Lender in its sole discretion (including those
opinions set forth on Exhibit G-1 (Opinions Required from Counsel to Borrower) and
bond counsel to the Borrower shall have rendered to the WIFIA Lender legal opinions
satisfactory to the WIFIA Lender in its sole discretion (including those opinions set forth
on Exhibit G-2 (Opinions Required from Bond Counsel)).
(vi)The Borrower shall have delivered to the WIFIA Lender the Non-
Debarment Certificate.
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(vii)The Borrower shall have delivered to the WIFIA Lender the Non-
Lobbying Certificate.
(viii)The Borrower shall have delivered to the WIFIA Lender a
certificate, signed by the Borrower’s Authorized Representative, substantially in the form
attached hereto as Exhibit I (Form of Closing Certificate) (the “Closing Certificate”)
(A) designating the Borrower’s Authorized Representative, (B) confirming such person’s
position and incumbency, and (C) certifying as to the satisfaction of the following
conditions precedent:
(1)the aggregate of all funds committed to the development and
construction of the Project as set forth in the Base Case Financial Model
and in the Project Budget are sufficient to carry out the Project, pay all Total
Project Costs anticipated for the Project and achieve Substantial
Completion by the Projected Substantial Completion Date;
(2)the Borrower has obtained all Governmental Approvals
necessary (x) as of the Effective Date in connection with the Project and
(y) to execute and deliver, and perform its obligations under the WIFIA
Loan Documents, and all such Governmental Approvals are final, non-
appealable, and in full force and effect (and are not subject to any notice of
violation, breach, or revocation);
(3)as of the Effective Date, (x) the maximum principal amount
of the WIFIA Loan, together with the amount of any other credit assistance
provided under the Act to the Borrower, does not exceed forty-nine percent
(49%) of reasonably anticipated Eligible Project Costs and (y) the total
federal assistance provided to the Project, including the maximum principal
amount of the WIFIA Loan, does not exceed eighty percent (80%) of Total
Project Costs;
(4)the Borrower is in compliance with NEPA and any
applicable federal, state or local environmental review and approval
requirements with respect to the Project, and, if requested by the WIFIA
Lender, has provided evidence satisfactory to the WIFIA Lender of such
compliance;
(5)the Borrower has developed, and identified adequate
revenues to implement, a plan for operating, maintaining and repairing the
Project during its useful life;
(6)the Borrower has (x) obtained a Federal Employer
Identification Number, (y) obtained a Data Universal Numbering System
number, and (z) registered with, and obtained confirmation of active
registration status from, the federal System for Award Management
(www.SAM.gov);
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(7)the Borrower has obtained a CUSIP number for the WIFIA
Loan for purposes of monitoring through EMMA;
(8)the representations and warranties of the Borrower set forth
in the WIFIA Loan Agreement and in each other Related Document to
which the Borrower is a party are true and correct on and as of the date
hereof, except to the extent that such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties were true and correct as of such earlier date; and
(9)no Material Adverse Effect, or any event or condition that
could reasonably be expected to have a Material Adverse Effect, has
occurred or arisen since December 9, 2019.
(ix)The Borrower shall have provided evidence to the WIFIA Lender’s
satisfaction, no more than thirty (30) days prior to the Effective Date, of the assignment by
at least two (2) Nationally Recognized Rating Agencies of a public Investment Grade
Rating to the Bonds then Outstanding and any Additional Bonds (including the WIFIA
Bond) proposed to be issued for the Project, along with a certification in the Closing
Certificate that no such rating has been reduced, withdrawn or suspended as of the Effective
Date.
(x)The Borrower shall have delivered to the WIFIA Lender a Base Case
Financial Model in form and substance acceptable to the WIFIA Lender, along with a
certification in the Closing Certificate that such Base Case Financial Model
(A) demonstrates that projected System Revenues are sufficient to meet the Loan
Amortization Schedule; (B) demonstrates compliance with the Rate Covenant for each
Borrower Fiscal Year through the Final Maturity Date; (C) reflects principal amortization
and interest payment schedules acceptable to the WIFIA Lender; and (D) demonstrates that
the Borrower has developed, and identified adequate revenues to implement, a plan for
operating, maintaining and repairing the Project over the useful life of the Project.
(xi)The Borrower shall have delivered to the WIFIA Lender
(A) (1) certificates of insurance or (2) if the Borrower is self-insured, a certificate of the
Borrower’s risk management department pertaining to the Borrower’s self-insurance
program, along with a certification in the Closing Certificate that such insurance certificate
is true and correct and demonstrates compliance with the requirements of Section 14(f)
(Affirmative Covenants – Insurance) and (B) at the WIFIA Lender’s request, copies of such
insurance policies and/or, if applicable, documents pertaining to the Borrower’s self-
insurance program.
(xii)No later than thirty (30) days prior to the Effective Date, the
Borrower shall have delivered to the WIFIA Lender the Public Benefits Report.
(xiii)The Borrower shall have provided the WIFIA Lender records of any
Eligible Project Costs incurred prior to the Effective Date, in form and substance
satisfactory to the WIFIA Lender.
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(xiv)The Borrower shall have paid in full all invoices delivered by the
WIFIA Lender to the Borrower as of the Effective Date for the fees and expenses of the
WIFIA Lender’s counsel and financial advisors and any auditors or other consultants
retained by the WIFIA Lender for the purposes hereof.
(xv)The Borrower shall have provided to the WIFIA Lender certified,
complete and fully executed copies of each performance security instrument (if any)
delivered to or by the Borrower pursuant to any Principal Project Contract as of the
Effective Date, each of which performance security instruments shall be (A) in compliance
with the requirements for such performance security pursuant to the applicable Principal
Project Contract and (B) in full force and effect.
(xvi)The Borrower shall have delivered such other agreements,
documents, instruments, opinions and other items required by the WIFIA Lender, all in
form and substance satisfactory to the WIFIA Lender.
(b)Conditions Precedent to Disbursements. Notwithstanding anything in this
Agreement to the contrary, the WIFIA Lender shall have no obligation to make any disbursement
of WIFIA Loan proceeds to the Borrower (including the initial disbursement hereunder) until each
of the following conditions precedent has been satisfied or waived in writing by the WIFIA Lender
in its sole discretion:
(i)The Borrower shall have provided to the WIFIA Lender evidence
satisfactory to the WIFIA Lender that (A) the aggregate amount of all disbursements of the
WIFIA Loan (including the requested disbursement) shall not exceed (1) the amount of the
WIFIA Loan, (2) the amount of Eligible Project Costs paid or incurred by the Borrower,
and (3) the cumulative disbursements through the end of the current Federal Fiscal Year as
set forth in the Anticipated WIFIA Loan Disbursement Schedule; (B) the Borrower has
sufficient available funds committed to the Project, which together with funds that remain
available and not yet drawn under the WIFIA Loan, will be sufficient to pay the reasonably
anticipated remaining Total Project Costs; and (C) the total federal assistance provided to
the Project, including the maximum principal amount of the WIFIA Loan, does not exceed
eighty percent (80%) of Total Project Costs.
(ii)To the extent required as of the date of the requested disbursement
pursuant to Section 16(a) (Reporting Requirements – Updated Financial Model), the
Borrower shall have provided an Updated Financial Model.
(iii)The Borrower shall have delivered to the WIFIA Lender a
Requisition that complies with the provisions of Section 4 (Disbursement Conditions)
(including satisfactory Eligible Project Costs Documentation relating to such Requisition),
and the WIFIA Lender shall have approved (or be deemed to have approved in accordance
with Section 4(b) (Disbursement Conditions)) such Requisition. The Borrower’s
Authorized Representative shall also certify in such Requisition that:
(A)all Governmental Approvals necessary as of the time of
such disbursement for the development, construction, operation and
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maintenance of the Project have been issued and are in full force and effect
(and are not subject to any notice of violation, breach or revocation);
(B)each of the insurance policies obtained by the Borrower and
by any applicable Principal Project Party in satisfaction of the requirements
in Section 14(f) (Affirmative Covenants – Insurance) is in full force and
effect, and no notice of termination thereof has been issued by the
applicable insurance provider;
(C)at the time of, and immediately after giving effect to, any
disbursement of WIFIA Loan proceeds then currently requested, (1) no
Default or Event of Default hereunder shall have occurred and be
continuing; (2) no event of default or default that, with the giving of notice
or the passage of time or both, would constitute an event of default, in each
case, under any other Related Document, shall have occurred and be
continuing; and (3) no Material Adverse Effect, or any event or condition
that could reasonably be expected to result in a Material Adverse Effect,
shall have occurred since the Effective Date;
(D)(1) the Borrower, and each of its contractors and
subcontractors at all tiers with respect to the Project, has complied with all
applicable laws, rules, regulations and requirements, including without
limitation 40 U.S.C. §§ 3141–3144, 3146, and 3147 (relating to Davis-
Bacon Act requirements) (and regulations relating thereto) and 33 U.S.C.
§ 3914 (relating to American iron and steel products); and (2) supporting
documentation, such as certified payroll records and certifications for all
iron and steel products used for the Project, are being maintained and are
available for review upon request by the WIFIA Lender; and
(E)the representations and warranties of the Borrower set forth
in this Agreement (including Section 12 (Representations and Warranties
of Borrower)) and in each other Related Document shall be true and correct
as of each date on which any disbursement of the WIFIA Loan is made,
except to the extent such representations and warranties expressly relate to
an earlier date (in which case, such representations and warranties shall be
true and correct as of such earlier date).
(iv)No Material Adverse Effect, or any event or condition that could
reasonably be expected to result in a Material Adverse Effect, shall have occurred since the
Effective Date.
(v)To the extent not previously delivered to the WIFIA Lender, the
Borrower shall have delivered to the WIFIA Lender copies of any Bond Authorization
Documents (including any amendment, waiver, modification or supplement thereto)
entered into after the Effective Date, along with a certification in the Requisition that each
such document is complete, fully executed and in full force and effect.
28
(vi)To the extent not previously delivered to the WIFIA Lender, the
Borrower shall have provided copies of any Principal Project Contracts (including any
amendment, modification or supplement thereto) entered into after the Effective Date,
along with a certification in the Requisition that each such document is complete, fully
executed and in full force and effect.
(vii)The Borrower shall have paid in full (A) any outstanding Servicing
Fees due and payable under Section 10 (Fees and Expenses) and (B)all invoices received
from the WIFIA Lender as of the date of disbursement of the WIFIA Loan and delivered
by the WIFIA Lender to the Borrower, for the fees and expenses of the WIFIA Lender’s
counsel and financial advisors and any auditors or other consultants retained by the WIFIA
Lender for the purposes hereof.
(viii)To the extent not previously delivered to the WIFIA Lender, the
Borrower shall have provided to the WIFIA Lender certified, complete and fully executed
copies of each performance security instrument (if any) delivered to or by the Borrower
pursuant to any Principal Project Contract as of the date of disbursement of the WIFIA
Loan, each of which performance security instruments shall be (A) in compliance with the
requirements for such performance security pursuant to the applicable Principal Project
Contract and (B) in full force and effect.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 12.Representations and Warranties of Borrower. The Borrower hereby
represents and warrants that, as of the Effective Date and, as to each of the representations and
warranties below other than those contained in Section 12(b) (Representations and Warranties of
Borrower – Officers’ Authorization), the first sentence of Section 12(f) (Representations and
Warranties of Borrower – Litigation), Section 12(k) (Representations and Warranties of Borrower
– Credit Ratings), and the first sentence of Section 12(n) (Representations and Warranties of
Borrower – Principal Project Contracts),as of each date on which any disbursement of the WIFIA
Loan is requested or made:
(a)Organization; Power and Authority. The Borrower is a municipality duly
organized and validly existing under its Organizational Documents and the laws of the State, has
full legal right, power and authority to do business in the State and to enter into the Related
Documents then in existence, to execute and deliver this Agreement and the WIFIA Bond, and to
carry out and consummate all transactions contemplated hereby and thereby and has duly
authorized the execution, delivery and performance of this Agreement, the WIFIA Bond, and the
other Related Documents.
(b)Officers’ Authorization. As of the Effective Date, the officers of the
Borrower executing (or that previously executed) the Related Documents, and any certifications
or instruments related thereto, to which the Borrower is a party are (or were at the time of such
execution) duly and properly in office and fully authorized to execute the same.
29
(c)Due Execution; Enforceability. Each of the Related Documents in effect as
of any date on which this representation and warranty is made, and to which the Borrower is a
party has been duly authorized, executed and delivered by the Borrower and constitutes the legal,
valid and binding agreement of the Borrower enforceable against the Borrower in accordance with
its terms, except as such enforceability (i) may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of creditors generally and (ii) is
subject to general principles of equity (regardless of whether enforceability is considered in equity
or at law).
(d)Non-Contravention. The execution and delivery of the Related Documents
to which the Borrower is a party, the consummation of the transactions contemplated by the
Related Documents, and the fulfillment of or compliance with the terms and conditions of all of
the Related Documents, will not (i) conflict with the Borrower’s Organizational Documents, (ii)
conflict in any material respect with, or constitute a violation, breach or default (whether
immediately or after notice or the passage of time or both) by the Borrower of or under, any
applicable law, administrative rule or regulation, any applicable court or administrative decree or
order, or any indenture, mortgage, deed of trust, loan agreement, lease, contract or other agreement
or instrument to which the Borrower is a party or by which it or its properties or assets are otherwise
subject or bound, or (iii) result in the creation or imposition of any prohibited Lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of the Borrower.
(e)Consents and Approvals. No consent or approval of any trustee, holder of
any indebtedness of the Borrower or any other Person, and no consent, permission, authorization,
order or license of, or filing or registration with, any Governmental Authority is necessary in
connection with (i) the execution and delivery by the Borrower of the Related Documents, except
as have been obtained or made and as are in full force and effect, or (ii) (A) the consummation of
any transaction contemplated by any Related Documents or (B) the fulfillment of or compliance
by the Borrower with the terms and conditions of any of the Related Documents, except as have
been obtained or made and as are in full force and effect or as are ministerial in nature and can
reasonably be expected to be obtained or made in the ordinary course on commercially reasonable
terms and conditions when needed.
(f)Litigation. Except as set forth in Schedule 12(f) (Litigation), as of the
Effective Date, there is no action suit, proceeding or, to the knowledge of the Borrower, any inquiry
or investigation, in any case before or by any court or other Governmental Authority pending or,
to the knowledge of the Borrower, threatened against or affecting the System (including the
Project) or the ability of the Borrower to execute, deliver and perform its obligations under the
Related Documents. As of the Effective Date and as of each other date on which the
representations and warranties herein are made or confirmed, there is no action, suit, proceeding
or, to the knowledge of the Borrower, any inquiry or investigation before or by any court or other
Governmental Authority pending, or to the knowledge of the Borrower, threatened against or
affecting the System (including the Project), the Borrower or the assets, properties or operations
of the Borrower, that in any case could reasonably be expected to result in a Material Adverse
Effect. To the Borrower’s knowledge, there are no actions of the type described above pending
or, threatened against or affecting any of the Principal Project Parties, except for matters arising
after the Effective Date that could not reasonably be expected to (i) result in a Material Adverse
Effect or (ii) adversely affect the Borrower’s ability to receive System Revenues in amounts
30
sufficient to meet the financial projections contained in the Base Case Financial Model (or any
Updated Financial Model, to the extent any Updated Financial Model has been approved by the
WIFIA Lender). The Borrower is not in default (and no event has occurred and is continuing that,
with the giving of notice or the passage of time or both, could constitute a default) with respect to
any Governmental Approval, which default could reasonably be expected to result in a Material
Adverse Effect.
(g)Security Interests. (i) The Bond Authorization Documents and Chapter 166,
Part II, Florida Statutes, establish, and (ii) the Borrower has taken all necessary action to pledge,
assign, and grant, in each case in favor of the WIFIA Lender, legal, valid, binding and enforceable
Liens on the Pledged Funds purported to be created, pledged, assigned, and granted pursuant to
and in accordance with the Bond Authorization Documents, irrespective of whether any Person
has notice of the pledge and without the need for any physical delivery, recordation, filing, or
further act. Such Liens are in full force and effect and are not subordinate or junior to any other
Liens in respect of the Pledged Funds, and not pari passu with any Obligations other than the
Bonds. The Borrower is not in breach of any covenants set forth in Section 14(b) (Affirmative
Covenants – Securing Liens) or in the Bond Authorization Documents with respect to the matters
described in Section 14(b) (Affirmative Covenants – Securing Liens). As of the Effective Date and
as of each other date this representation and warranty is made, (x) all documents and instruments
have been recorded or filed for record in such manner and in such places as are required and all
other action as is necessary or desirable has been taken to establish a legal, valid, binding, and
enforceable Lien on the Pledged Funds in favor of the WIFIA Lender and all other Bondholders
to the extent contemplated by the Bond Authorization Documents, and (y) all taxes and filing fees
that are due and payable in connection with the execution, delivery or recordation of any Bond
Authorization Documents or any instruments, certificates or financing statements in connection
with the foregoing, have been paid. Neither the attachment, validity, enforceability nor priority of
the security interest in the Pledged Funds granted pursuant to the Bond Authorization Documents
is governed by Article 9 of the UCC.
(h)No Debarment. The Borrower has fully complied with its verification
obligations under 2 C.F.R. § 180.320 and confirms, based on such verification, that, to its
knowledge, neither the Borrower nor any of its principals (as defined in 2 C.F.R. § 180.995 and
supplemented by 2 C.F.R § 1532.995) is debarred, suspended or voluntarily excluded from
participation in Government contracts, procurement or non-procurement matters or delinquent on
a Government debt as more fully set forth in the certificate delivered pursuant to Section 11(a)(vi)
(Conditions Precedent – Conditions Precedent to Effectiveness).
(i)Accuracy of Representations and Warranties. The representations,
warranties and certifications of the Borrower set forth in this Agreement and the other Related
Documents are true, correct, and complete, except to the extent such representations and warranties
expressly relate to an earlier date (in which case, such representations and warranties shall be true,
correct, and complete as of such earlier date).
(j)Compliance with Laws.
(i)The Borrower, and each of its contractors and subcontractors at all
tiers with respect to the Project, has complied with all applicable laws, rules, regulations
31
and requirements, including without limitation 40 U.S.C. §§ 3141–3144, 3146, and 3147
(relating to Davis-Bacon Act requirements) (and regulations relating thereto) and 33 U.S.C.
§ 3914 (relating to American iron and steel products).
(ii)To ensure such compliance, the Borrower has included in all
contracts with respect to the Project (A) the contract clauses relating to the Davis-Bacon
Act requirements that are set forth in the Code of Federal Regulations, Title 29 Part 5.5
and (B) requirements that its contractor(s) (1) shall comply with all applicable laws, rules,
regulations, and requirements set forth in this Section 12(j) and follow applicable federal
guidance and (2) incorporate in all subcontracts (and cause all subcontractors to include in
lower tier subcontracts) such terms and conditions as are required to be incorporated therein
by any applicable laws, rules, regulations and requirements set forth in this Section 12(j)
(including without limitation with respect to the Davis-Bacon Act requirements).
(iii)No notices of violation of any applicable law have been issued,
entered or received by the Borrower or, to the Borrower’s knowledge and solely in respect
of the Project or any Principal Project Contract, any Principal Project Party, other than, in
each case, notices of violations that are immaterial.
(iv)None of the Borrower nor, to the knowledge of the Borrower, any
Principal Project Party, is (A) a Sanctioned Person or (B) in violation of or, since the date
that is five (5) years prior to the Effective Date, has violated: (1) any applicable Anti-
Money Laundering Laws; (2) any applicable Sanctions; (3) any applicable Anti-Corruption
Laws; or (4) any applicable anti-drug trafficking, anti-terrorism, or anti-corruption laws,
civil or criminal. There are no pending or, to the knowledge of the Borrower, threatened
claims or investigations by any Governmental Authority against, or any internal
investigations conducted by, the Borrower or any Principal Project Party, with respect to
any possible or alleged violations of any Sanctions, Anti-Money Laundering Laws, Anti-
Corruption Laws, or any anti-drug trafficking or anti-terrorism laws. No use of proceeds
of the WIFIA Loan or any other transaction contemplated by this Agreement or any other
Related Document will violate any applicable Sanctions, Anti-Money Laundering Laws,
or Anti-Corruption Laws, or any applicable anti-drug trafficking or anti-terrorism laws.
(k)Credit Ratings. The WIFIA Loan and the Bonds then Outstanding have
received a public Investment Grade Rating from at least two (2) Nationally Recognized Rating
Agencies, written evidence of such ratings has been provided to the WIFIA Lender prior to the
Effective Date, and no such rating has been reduced, withdrawn or suspended as of the Effective
Date.
(l)No Defaults. No Default or Event of Default, and no default or event of
default by the Borrower under any other Related Document (excluding Principal Project
Contracts), has occurred and is continuing.
(m)Governmental Approvals. All Governmental Approvals required as of the
Effective Date and any subsequent date on which this representation is made (or deemed made)
for the undertaking and completion by the Borrower of the Project, and for the operation and
management thereof, have been obtained or effected and are in full force and effect and there is no
32
basis for, nor proceeding that is pending or threatened that could reasonably be expected to result
in, the revocation of any such Governmental Approval.
(n)Principal Project Contracts. Attached as Schedule 12(n) (Principal Project
Contracts) is a list of the Existing Principal Project Contracts and all Additional Principal Project
Contracts that are expected to be entered into. With respect to each Principal Project Contract
executed as of any date on which this representation and warranty is made, (x) it is in full force
and effect, (y) all conditions precedent to the obligations of the respective parties under each such
Principal Project Contract have been satisfied and (z) the Borrower has delivered to the WIFIA
Lender a fully executed, complete and correct copy of each such Principal Project Contract,
including any amendments or modifications thereto and any related credit support instruments or
side letters. No event has occurred that gives the Borrower or, to the Borrower’s knowledge, any
Principal Project Party, the right to terminate any such Principal Project Contract. The Borrower
is not in breach of any material term in or in default under any of such Principal Project Contracts,
and to the knowledge of the Borrower no party to any of such agreements or contracts is in breach
of any material term therein or in default thereunder.
(o)Information. The information furnished by, or on behalf of, the Borrower
to the WIFIA Lender, when taken as a whole, is true and correct in all material respects (other than
for projections and other forward-looking statements contained in the Base Case Financial Model
and any Updated Financial Model which have been made in good faith and based on reasonable
assumptions) and does not contain any untrue statement of a material fact or omit to state any
material fact necessary to make the statements contained therein not misleading as of the date
made or furnished.
(p)Environmental Matters. Each of the Borrower and, to the Borrower’s
knowledge, each Principal Project Party, is in compliance with all laws applicable to the System
(including the Project) relating to (i) air emissions, (ii) discharges to surface water or ground water,
(iii) noise emissions, (iv) solid or liquid waste disposal, (v) the use, generation, storage,
transportation or disposal of toxic or hazardous substances or wastes, (vi) biological resources
(such as threatened and endangered species), and (vii) other environmental, health or safety
matters, including all laws applicable to the System (including the Project) (collectively, the
“Environmental Laws”). All Governmental Approvals for the Project relating to Environmental
Laws have been, or, when required, will be, obtained and are (or, as applicable, will be) in full
force and effect. The Borrower has not received any written communication or notice, whether
from a Governmental Authority, employee, citizens group, or any other Person, that alleges that
the Borrower is not in full compliance with all Environmental Laws and Governmental Approvals
relating thereto in connection with the Project and, to the Borrower’s knowledge, there are no
circumstances that may prevent or interfere with full compliance in the future by the Borrower
with any such Environmental Law or Governmental Approval. The Borrower has provided to the
WIFIA Lender all material assessments, reports, results of investigations or audits, and other
material information in the possession of or reasonably available to the Borrower regarding the
Borrower’s or the Project’s compliance with (A) Environmental Laws and (B) Governmental
Approvals that are required for the Project and relate to Environmental Laws.
(q)Sufficient Rights. The Borrower possesses either valid legal and beneficial
title to, leasehold title in, or other valid legal rights with respect to the real property relating to the
33
System (including the Project), in each case as is necessary and sufficient as of the date this
representation is made for the construction, operation, maintenance and repair of the System
(including the Project). As of any date on which this representation and warranty is made, the
Principal Project Contracts then in effect and the Governmental Approvals that have been obtained
and are then in full force and effect create rights in the Borrower sufficient to enable the Borrower
to own, construct, operate, maintain and repair the Project and to perform its obligations under the
Principal Project Contracts to which it is a party.
(r)Insurance. The Borrower is in compliance with all insurance obligations
required under each Principal Project Contract and the other Related Documents as of the date on
which this representation and warranty is made. To the extent the Borrower self-insures, the
Borrower’s self-insurance program is actuarially sound and the Borrower has received an opinion
from an accredited actuary within the last twelve (12) months, which opinion confirms that the
Borrower’s self-insurance program is actuarially sound.
(s)No Liens. Except for Permitted Liens, the Borrower has not created, and is
not under any obligation to create, and has not entered into any transaction or agreement that would
result in the imposition of, any Lien on the Pledged Funds, the System, the Project, the System
Revenues, or the properties or assets in relation to the Project.
(t)Financial Statements. Each income statement, balance sheet and statement
of operations and cash flows (collectively, “Financial Statements”) delivered to the WIFIA
Lender pursuant to Section 16(b) (Reporting Requirements –Annual Financial Statements) has
been prepared in accordance with GAAP and presents fairly, in all material respects, the financial
condition of the Borrower as of the respective dates of the balance sheets included therein and the
results of operations of the Borrower for the respective periods covered by the statements of
income included therein. Except as reflected in such Financial Statements, there are no liabilities
or obligations of the Borrower of any nature whatsoever for the period to which such Financial
Statements relate that are required to be disclosed in accordance with GAAP.
(u)\[Reserved\]
(v)Taxes. The Borrower is not required to file tax returns with any
Governmental Authority.
(w)Sufficient Funds. The amount of the WIFIA Loan, when combined with all
other funds committed for the development and construction of the Project as set forth under the
various sources of funds in the Base Case Financial Model and the Project Budget will be sufficient
to carry out the Project, pay all Total Project Costs anticipated for the development and
construction of the Project and achieve Substantial Completion by the Projected Substantial
Completion Date.
(x)Sovereign Immunity. The Borrower either has no immunity from the
jurisdiction of any court of competent jurisdiction or from any legal process therein which could
be asserted in any action to enforce the obligations of the Borrower under any of the Related
Documents to which it is a party or the transactions contemplated hereby or thereby, including the
obligations of the Borrower hereunder and thereunder, or, to the extent that the Borrower has such
34
immunity, the Borrower has waived such immunity pursuant to Section 14(o) (Affirmative
Covenants – Immunity).
(y)Patriot Act. The Borrower is not required to establish an anti-money
laundering compliance program pursuant to the Patriot Act.
(z)No Federal Debt. The Borrower has no delinquent federal debt (including
tax liabilities but excluding any delinquencies that have been resolved with the appropriate federal
agency in accordance with the standards of the Debt Collection Improvement Act of 1996).
Section 13.Representations and Warranties of WIFIA Lender. The WIFIA Lender
represents and warrants that:
(a)Power and Authority. The WIFIA Lender has all requisite power and
authority to make the WIFIA Loan and to perform all transactions contemplated by the WIFIA
Loan Documents to which it is a party.
(b)Due Execution; Enforceability. The WIFIA Loan Documents to which it is
a party have been duly authorized, executed and delivered by the WIFIA Lender, and are legally
valid and binding agreements of the WIFIA Lender, enforceable in accordance with their terms.
(c)Officers’ Authorization. The officers of the WIFIA Lender executing each
of the WIFIA Loan Documents to which the WIFIA Lender is a party are duly and properly in
office and fully authorized to execute the same on behalf of the WIFIA Lender.
ARTICLE V
COVENANTS
Section 14.Affirmative Covenants. The Borrower covenants and agrees as follows
until the date the WIFIA Bond and the obligations of the Borrower under this Agreement (other
than contingent indemnity obligations) are irrevocably paid in full in immediately available funds,
unless the WIFIA Lender waives compliance in writing:
(a)Rate Covenant.
(i)The Borrower shall fix, establish, maintain, and collect rates, fees,
and charges for the System in accordance with the first paragraph of Section 5.04 of the
Master Resolution (the “Rate Covenant”), which requirements are hereby incorporated
herein and a copy of such paragraph, as of the Effective Date, is set forth as Part A of
Schedule VII (Rate Covenant) attached hereto.
(ii)If the Borrower fails to comply with the Rate Covenant, it shall
comply with the requirements set forth in the second paragraph of Section 5.04 of the
Master Resolution which requirements are hereby incorporated herein and a copy of such
paragraph, as of the Effective Date, is set forth as Part B of Schedule VII (Rate Covenant)
attached hereto.
35
(b)Securing Liens. The Borrower shall at any and all times, to the extent
permitted by law, pass, make, do, execute, acknowledge and deliver, all and every such further
resolutions, acts, deeds, conveyances, assignments, transfers and assurances as may be necessary
or desirable in connection with assuring, conveying, granting, assigning, securing and confirming
the Liens on the Pledged Funds (whether now existing or hereafter arising) granted to the WIFIA
Lender for its benefit pursuant to the Bond Authorization Documents, or intended so to be granted
pursuant to the Bond Authorization Documents, or which the Borrower may become bound to
grant, and the Borrower shall at all times maintain the Pledged Funds free and clear of any pledge,
Lien, charge or encumbrance thereon or with respect thereto that has priority over, or equal rank
with, the Liens created by the Bond Authorization Documents, other than as permitted by this
Agreement, and all organizational, regulatory or other necessary action on the part of the Borrower
to that end shall be duly and validly taken at all times. The Borrower shall at all times, to the
extent permitted by law, defend, preserve and protect the Liens on the Pledged Funds granted
pursuant to the Bond Authorization Documents and for the benefit of the WIFIA Lender under the
Bond Authorization Documents against all claims and demands of all Persons whomsoever,
subject to Permitted Liens.
(c)Use of Proceeds. The Borrower shall use the proceeds of the WIFIA Loan
for purposes permitted by applicable law and as otherwise permitted under this Agreement and the
other Related Documents.
(d)Prosecution of Work; Verification Requirements.
(i)The Borrower shall diligently prosecute the work relating to the
Project and complete the Project in accordance with the Construction Schedule, the
Governmental Approvals in connection with the Project, and the highest standards of the
Borrower’s industry.
(ii)The Borrower shall ensure that each Principal Project Party
complies with all applicable laws and legal or contractual requirements with respect to any
performance security instrument delivered by such Principal Project Party to the Borrower
and shall ensure that any letter of credit provided pursuant to any Principal Project Contract
meets the requirements therefor set forth in such Principal Project Contract.
(iii)The Borrower shall comply with Subpart C of 2 C.F.R. Part 180, as
supplemented by Subpart C of 2 C.F.R. Part 1532 (relating to debarment), including the
verification requirements set forth in 2 C.F.R. §§ 180.300 and 180.320, and shall include
in its contracts with respect to the Project similar terms or requirements for compliance.
(e)Operations and Maintenance.
(i)The Borrower shall (A) operate and maintain the System (including
the Project) (1) in a reasonable and prudent manner and (2) substantially in accordance
with the Updated Financial Model most recently approved by the WIFIA Lender (except
as necessary to prevent or mitigate immediate threats to human health and safety or to
prevent or mitigate physical damage to material portions of the System, including the
Project) and (B) maintain the System (including the Project) in good repair, working order
36
and condition and in accordance with the requirements of all applicable laws and each
applicable Related Document. The Borrower shall at all times do or cause to be done all
things necessary to obtain, preserve, renew, extend and keep in full force and effect the
Governmental Approvals and any other rights, licenses, franchises, and authorizations
material to the conduct of its business.
(ii)The Borrower shall notify the WIFIA Lender eighteen (18) months
prior to the expiration of the Operation and Maintenance Contract, which notice shall
indicate the Borrower’s then-current plan for the performance of operations and
maintenance of the System following expiration of the Operation and Maintenance
Contract. The Borrower shall thereafter keep the WIFIA Lender regularly informed as to
(A) any change in its plan for the performance of such operations and maintenance and (B)
its progress toward the procurement of any replacement contract, including quarterly
reports concerning the conduct of any procurement, its negotiations with potential
contractors and any other information reasonably requested by the WIFIA Lender.
(iii)If the Borrower elects to self-perform any operations and
maintenance work in respect of the System within the scope of the Operation and
Maintenance Contract, the Borrower shall provide the WIFIA Lender with advance written
notice detailing its reasons for the change in its approach, along with its plan of self-
performance and supporting analysis from the Consulting Engineers. The Borrower shall,
at all times during the term of the WIFIA Loan, provide for the performance of operations
and maintenance of the System through the Operation and Maintenance Contract, a
replacement contract meeting the requirements of clause (iv) this Section 14(e), pursuant
to a plan of self-performance endorsed by the Consulting Engineers, or a combination of
both, in accordance with this Section 14(e).
(iv)Any contract entered into by the Borrower in replacement of the
Operation and Maintenance Contract shall be: (A) entered into with another counterparty
that (1) is of similar or greater creditworthiness (including credit support), technical
capability and relevant experience as the counterparty being replaced was at the time the
Operation and Maintenance Contract was originally executed (or otherwise reasonably
acceptable to the WIFIA Lender), (2) is not, at the time of such replacement, suspended or
debarred or subject to a proceeding to suspend or debar from bidding, proposing or
contracting with any federal or state department or agency, and (3) is not, at the time of
such replacement, in violation of any applicable laws; (B) on terms and conditions,
including scope of services, that have been endorsed in writing by the Consulting
Engineers; and (C) effective as of the date of termination of the Operation and Maintenance
Contract.
(f)Insurance.
(i)The Borrower shall at all times procure and maintain or cause to be
maintained insurance on the System and the construction of the Project, with responsible
insurers, or as part of a reasonable system of self-insurance that is adequately funded, in
such amounts and against such risks (including damage to or destruction of the System) as
are customarily maintained with respect to works and properties of like character against
37
accident to, loss of, or damage to such works or properties. The Borrower shall cause each
Principal Project Party to obtain and maintain builders risk and casualty and liability
insurance in accordance with the requirements of the applicable Principal Project Contract.
(ii)The Borrower shall (by self-insuring or maintaining with
responsible insurers or by a combination thereof) provide for workers’ compensation
insurance for Borrower’s workers and insurance against public liability and property
damage to the System (including the Project) to the extent reasonably necessary to protect
the Borrower and the WIFIA Lender.
(iii)Promptly upon request by the WIFIA Lender, the Borrower shall
deliver to the WIFIA Lender copies of any underlying insurance policies obtained by or on
behalf of the Borrower in respect of the Project. All such policies shall be available at all
reasonable times for inspection by the WIFIA Lender, its agents and representatives.
(iv)The Borrower shall comply with the insurance requirements of the
Bond Authorization Documents and shall deliver to the WIFIA Lender within thirty (30)
days after receipt thereof any certifications or opinions provided to the Borrower pursuant
to the Bond Authorization Documents with respect to the Borrower’s program of insurance
or self-insurance.
(g)Maintain Legal Structure. The Borrower shall maintain its existence as a
municipality organized and existing under its Organizational Documents and the laws of the State.
(h)System Accounts; Permitted Investments.
(i)The Borrower shall maintain the Revenue Fund and all other System
Accounts, and shall apply System Revenues, in accordance with the terms hereof and the
Master Resolution. All System Revenues received shall be deposited into the Revenue
Fund when and as received in trust for the benefit of the Bondholders, subject to the
application of System Revenues to Operating Expenses.
(ii)Operating Expenses in respect of the administration of the System
and the System Accounts shall not exceed the amount reasonably and properly allocated to
actual administration costs in respect of the System and System Accounts in accordance
with GAAP. Operating Expenses in respect of the Operation and Maintenance Contract
shall not include amounts attributable to Repair and Replacement Expenses or Capital
Expenditures, as each such term is defined in the Operation and Maintenance Contract.
Such amounts shall be payable from System Revenues only from the Renewal and
Replacement Fund.
(iii)Amounts on deposit in the System Accounts shall be held
uninvested or invested in Authorized Investments (as defined in the Master Resolution) in
accordance with all requirements of State law applicable to the Borrower in respect of the
investment of public funds. Permitted Investments must mature or be redeemable at the
election of the holder at such times as may be necessary to ensure that funds will be
available within the applicable account to be applied towards the purpose for which the
applicable account has been established.
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(i)Compliance with Laws.
(i)The Borrower shall, and shall require its contractors and
subcontractors at all tiers with respect to the Project, to comply with all applicable laws,
rules, regulations and requirements, including without limitation 40 U.S.C. §§ 3141–3144,
3146, and 3147 (relating to Davis-Bacon Act requirements) (and regulations relating
thereto) and 33 U.S.C. § 3914 (relating to American iron and steel products).
(ii)To ensure such compliance, the Borrower shall include in all
contracts with respect to the Project (A) the contract clauses relating to the Davis-Bacon
Act requirements that are set forth in the Code of Federal Regulations, Title 29 Part 5.5
and (B) requirements that its contractor(s) (1) shall comply with all applicable laws, rules,
regulations, and requirements set forth in this Section 14(i) and follow applicable federal
guidance and (2) incorporate in all subcontracts (and cause all subcontractors to include in
lower tier subcontracts) such terms and conditions as are required to be incorporated therein
by any applicable laws, rules, regulations and requirements set forth in this Section 14(i)
(including without limitation with respect to the Davis-Bacon Act requirements).
(j)Material Obligations. The Borrower shall pay its material obligations
promptly and in accordance with their terms and pay and discharge promptly all taxes, assessments
and governmental charges or levies imposed upon it or upon the System Revenues or other assets
of the System, before the same shall become delinquent or in default, as well as all lawful and
material claims for labor, materials and supplies or other claims which, if unpaid, might give rise
to a Lien upon such properties or any part thereof or on the System Revenues or the Pledged Funds;
provided, however, that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy, claim or Lien so long as the validity or amount thereof shall be
contested by the Borrower in good faith by appropriate proceedings and so long as the Borrower
shall have set aside adequate reserves with respect thereto in accordance with and to the extent
required by GAAP, applied on a consistent basis.
(k)Variable Interest Rate Obligations.
(i)As a condition to the issuance of any Additional Bonds that are to
bear interest at a Variable Interest Rate, to the extent that such issuance would cause the
principal amount of all Outstanding Variable Interest Rate Obligations to exceed twenty
percent (20%) of the principal amount of all Outstanding Bonds, the Borrower shall enter
into a Qualified Hedge with respect to such Additional Bonds, with an aggregate stated
notional amount of at least ninety-eight percent (98%) and not more than one hundred two
percent (102%) of the aggregate principal amount of such Additional Bonds projected to
be Outstanding, and shall maintain such Qualified Hedge in place until (and such Qualified
Hedge shall not have a stated maturity or termination date earlier than) the earliest to occur
of (i) the date on which such Additional Bonds no longer bear interest at a Variable Interest
Rate, (ii) the date on which the aggregate principal amount of all Outstanding Variable
Interest Rate Obligations no longer exceeds twenty percent (20%) of the aggregate
principal amount of all Outstanding Bonds, (iii) the date such Additional Bonds have been
repaid in full in cash and (iv) the Final Maturity Date. Each such Qualified Hedge shall
39
have a payment profile that is reasonably consistent with the expected draw and repayment
schedule of such Additional Bonds.
(ii)Each Qualified Hedge required under this Section 14(k) shall
provide for a fixed interest rate resulting in fixed payment amounts payable by the
Borrower to the Qualified Hedge Provider. The Borrower’s obligations to pay Hedging
Obligations and Hedging Termination Obligations shall be from the sources and in the
priority specified in the Master Resolution. The Borrower shall ensure that, as of the date
following the termination date of any Qualified Hedge required under this Section 14(k)
that for any reason terminates before the earliest to occur of (A) the maturity date of the
Variable Interest Rate Obligations subject to such Qualified Hedge, (B) the date on which
the aggregate principal amount of all Outstanding Variable Interest Rate Obligations no
longer exceeds twenty percent (20%) of the aggregate principal amount of all Outstanding
Bonds and (C) the Final Maturity Date, then (1) a new Qualified Hedge is in full force and
effect commencing no later than the termination date of the Qualified Hedge that is
terminating or (2) the Variable Interest Rate Obligations have been converted to a fixed
rate, in each case in accordance with this Agreement and the Bond Authorization
Documents.
(iii)The Borrower shall neither terminate (other than Permitted Hedging
Terminations), transfer, nor consent to any transfer (other than to a Qualified Hedge
Provider) of any existing Qualified Hedge without the WIFIA Lender’s prior written
consent as long as the Borrower is required to maintain a Qualified Hedge pursuant to this
Agreement.
(iv)With respect to any Qualified Hedge required under this Section
14(k), if at any time a Hedging Bank no longer satisfies the requirements for a Qualified
Hedge Provider, the Borrower shall, within ten (10) days (or such lesser number of days
required by the applicable Hedging Agreement, including any credit support annex thereto)
of the date on which such Hedging Bank failed to qualify as a Qualified Hedge Provider,
either (A) cash collateralize the mark-to-market value of the Hedging Termination
Obligations (in accordance with the credit support annex or similar requirements of the
applicable Hedging Agreement) or provide a guarantee for such amount from an entity
with an Acceptable Credit Rating, or (B) cause such disqualified Hedging Bank to be
replaced by a Qualified Hedge Provider, whether by means of a transfer of the disqualified
Hedging Bank’s Hedging Agreement to a Qualified Hedge Provider or by means of a
termination of such disqualified Hedging Bank’s Hedging Agreement and replacement
thereof by a Hedging Agreement with a Qualified Hedge Provider on terms and conditions
that satisfy the requirements of this Section 14(k); provided, that if the disqualified
Hedging Bank’s highest credit rating from any Nationally Recognized Rating Agency is
less than ‘A-’, ‘A3’ or the equivalent, clause (A) shall not apply and the Borrower shall be
required to cause such disqualified Hedging Bank to be replaced by a Qualified Hedge
Provider pursuant to clause (B).
(l)SAM Registration. The Borrower shall (i) obtain and maintain through the
Final Disbursement Date an active registration status with the federal System for Award
Management (www.SAM.gov) (or any successor system or registry) prior to the Effective Date
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and provide such registration information to the WIFIA Lender and (ii) within sixty (60) days prior
to each anniversary of the Effective Date until the Final Disbursement Date, provide to the WIFIA
Lender evidence of such active registration status with no active exclusions reflected in such
registration.
(m)DUNS Number. The Borrower shall (i) obtain and maintain from Dun &
Bradstreet (or a successor entity) a Data Universal Numbering System Number (a “DUNS
Number”) prior to the Effective Date and provide such number to the WIFIA Lender and (ii)
within sixty (60) days prior to each anniversary of the Effective Date, provide to the WIFIA Lender
evidence of the continuing effectiveness of such DUNS Number, in each case until the Final
Maturity Date or to such earlier date as all amounts due or to become due to the WIFIA Lender
under this Agreement have been irrevocably paid in full in immediately available funds.
(n)Events of Loss; Loss Proceeds. If an Event of Loss shall occur with respect
to the System (including the Project) or any part thereof, the Borrower shall (i) diligently pursue
all of its rights to compensation against all relevant insurers, reinsurers and Governmental
Authorities, as applicable, in respect of such Event of Loss and (ii) apply all Net Loss Proceeds in
respect of such Event of Loss to repair, reconstruct, and/or replace the portion of the System in
respect of which the applicable Loss Proceeds were received. The Borrower shall begin such
repair, reconstruction or replacement promptly after such damage or destruction shall occur, and
shall continue and properly complete such repair, reconstruction or replacement as expeditiously
as possible, and shall pay out of such Loss Proceeds all costs and expenses in connection with such
repair, reconstruction or replacement so that the same shall be completed and the System shall be
free and clear of all claims and Liens. If such Net Loss Proceeds exceed the costs of such repair,
reconstruction or replacement, then the excess Net Loss Proceeds shall be deposited in the Revenue
Fund and be available for other proper uses of funds deposited in the Revenue Fund. If such Net
Loss Proceeds are insufficient to enable the Borrower to restore or replace the damaged portions
of the System, the Borrower shall provide additional funds for that purpose.
(o)Immunity. To the fullest extent permitted by applicable law, the Borrower
agrees that it will not assert any immunity (and hereby waives any such immunity) it may have as
a governmental entity from lawsuits, other actions and claims, and any judgments with respect to
the enforcement of any of the obligations of the Borrower under this Agreement or any other
WIFIA Loan Document.
(p)Accounting and Audit Procedures.
(i)The Borrower shall establish fiscal controls and accounting
procedures sufficient to assure proper accounting for all (A) System Revenues, operating
expenses, capital expenses, depreciation, reserves, debt issued and outstanding and debt
payments and (B) Project-related costs, WIFIA Loan requisitions submitted, WIFIA Loan
proceeds received, payments made by the Borrower with regard to the Project, other
sources of funding for the Project (including amounts paid from such sources for Project
costs so that audits may be performed to ensure compliance with and enforcement of this
Agreement). The Borrower shall use accounting, audit and fiscal procedures conforming
to GAAP, including, with respect to the WIFIA Loan, accounting of principal and interest
41
payments, disbursements, prepayments and calculation of interest and principal amounts
Outstanding.
(ii)The Borrower shall have a single or program-specific audit
conducted in accordance with 2 C.F.R. Part 200 Subpart F and 31 U.S.C. § 7502 for 2020
and annually thereafter, except to the extent biennial audits are permitted for the Borrower
pursuant to 2 C.F.R. § 200.504 and 31 U.S.C. § 7502(b). Upon reasonable notice, the
Borrower shall cooperate fully in the conduct of any periodic or compliance audits
conducted by the WIFIA Lender, or designees thereof, pursuant to 40 C.F.R. Part 35, 31
U.S.C. § 7503(b), or 31 U.S.C. § 6503(h) and shall provide full access to any books,
documents, papers or other records that are pertinent to the Project or the WIFIA Loan, to
the WIFIA Lender, or the designee thereof, for any such project or programmatic audit.
(q)Access; Records.
(i)So long as the WIFIA Loan or any portion thereof shall remain
outstanding and until five (5) years after the WIFIA Loan shall have been paid in full, the
WIFIA Lender shall have the right, upon reasonable prior notice, to visit and inspect any
portion of the Project, to examine books of account and records of the Borrower relating
to the Project, to make copies and extracts therefrom at the Borrower’s expense, and to
discuss the Borrower’s affairs, finances and accounts relating to the Project with, and to be
advised as to the same by, its officers and employees and its independent public
accountants (and by this provision the Borrower irrevocably authorizes its independent
public accountants to discuss with the WIFIA Lender the affairs, finances and accounts of
the Borrower, whether or not any representative of the Borrower is present, it being
understood that nothing contained in this Section 14(q) is intended to confer any right to
exclude any such representative from such discussions), all at such reasonable times and
intervals as the WIFIA Lender may request. The Borrower agrees to pay all out-of-pocket
expenses incurred by the WIFIA Lender in connection with the WIFIA Lender’s exercise
of its rights under this Section 14(q) at any time when an Event of Default shall have
occurred and be continuing.
(ii)The Borrower shall maintain and retain all files relating to the
Project and the WIFIA Loan until five (5) years after the later of the date on which (A) all
rights and duties under this Agreement and under the WIFIA Bond (including payments)
have been fulfilled and any required audits have been performed and (B) any litigation
relating to the Project, the WIFIA Loan or this Agreement is finally resolved or, if the
WIFIA Lender has reasonable cause to extend such date, a date to be mutually agreed upon
by the WIFIA Lender and the Borrower. The Borrower shall provide to the WIFIA Lender
in a timely manner all records and documentation relating to the Project that the WIFIA
Lender may reasonably request from time to time.
Section 15.Negative Covenants. The Borrower covenants and agrees as follows until
the date the WIFIA Bond and the obligations of the Borrower under this Agreement (other than
contingent indemnity obligations) are irrevocably paid in full in immediately available funds,
unless the WIFIA Lender waives compliance in writing:
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(a)Indebtedness.
(i)Except for Permitted Debt, the Borrower shall not without the prior
written consent of the WIFIA Lender issue or incur any Obligation or indebtedness of any
kind that is payable from, secured or supported by the System Revenues; provided, that the
Borrower shall not incur any Obligation or indebtedness of any kind payable from, secured
or supported by the System Revenues, including Permitted Debt, without the prior written
consent of the WIFIA Lender, while an Event of Default has occurred and is continuing.
(ii)The Borrower may not create, incur or suffer to exist (A) any
Obligations the payments of which are senior or prior in right to the payment by the
Borrower of the Bonds, (B) any Obligations relating to the Project that are secured by a
Lien on any assets or property of the Borrower other than the Pledged Funds, or (C) without
the prior written consent of the WIFIA Lender, any Obligations for purposes other than
financing costs related to the System or refunding Permitted Debt.
(iii)The Borrower shall not issue or incur any Additional Bonds except
in accordance with all requirements and conditions set forth in Section 6.02 of the Master
Resolution. Such requirements and conditions are hereby incorporated herein and a copy
of such requirements and conditions, as of the Effective Date, is attached hereto as
Schedule VIII (Additional Bonds Test).
(iv)The Borrower shall not provide for the accession of Subordinated
Indebtedness (as defined in the Master Resolution) to the status of parity with the Bonds
pursuant to Section 6.04 of the Master Resolution without the prior written consent of the
WIFIA Lender.
(v)The Borrower shall not create, incur or suffer to exist any Obligation
that is subordinate to the WIFIA Bond or other Bonds, including any Subordinated
Indebtedness (as defined in the Master Resolution), without the prior written consent of the
WIFIA Lender, unless such indebtedness satisfies the requirements under the definition of
“Subordinated Obligations” hereunder.
(vi)Upon the incurrence of Additional Bonds or Subordinated
Obligations, the Borrower shall provide to the WIFIA Lender a certificate signed by the
Borrower’s Authorized Representative, (A) specifying the closing date with respect to such
Additional Bonds or Subordinated Obligations, as applicable, and (B) confirming that the
incurrence of such Additional Bonds or Subordinated Obligations, as applicable, satisfies
the requirements set forth in this Section 15(a) and the Master Resolution.
(vii)To the extent any Permitted Debt consists of Tender Option
Obligations, the Borrower must maintain a Credit Facility with a Credit Facility Provider
that has an Acceptable Credit Rating and that will pay any amounts payable by the
Borrower in respect of such Tender Option Obligations.
(b)No Lien Extinguishment or Adverse Amendments. The Borrower shall not,
and shall not permit any Person to, without the prior written consent of the WIFIA Lender,
(i) extinguish the Rate Covenant; (ii) extinguish or impair the Liens on the Pledged Funds or any
43
dedicated source of repayment of the WIFIA Loan or any other Obligations (the proceeds of which
are applied to fund Total Project Costs), in each case granted pursuant to the Master Resolution,
(iii) amend, modify, replace or supplement any Related Document or permit a waiver of any
provision thereof in a manner that could adversely affect the WIFIA Lender or could reasonably
be expected to result in a Material Adverse Effect, or (iv) terminate, assign or replace any Related
Document (other than the replacement of any Principal Project Contract permitted under Section
17(a)(xi) (Events of Default and Remedies – Default Under Principal Project Contracts) in a
manner that could adversely affect the WIFIA Lender or could reasonably be expected to have a
Material Adverse Effect.
(c)No Prohibited Liens. Except for Permitted Liens, the Borrower shall not
create, incur, assume or permit to exist any Lien on the Project, the Pledged Funds, the System
Revenues, or the Borrower’s respective rights therein.
(d)Restricted Payments and Transfers. Notwithstanding the provisions of the
Master Resolution permitting the use of moneys in certain System Accounts for any lawful
purpose, in the event and during the continuance of a Payment Default or a failure of compliance
with the Rate Covenant, the Borrower shall not permit System Revenues or other assets of the
System, or any funds in the System Accounts or any other accounts held under the Master
Resolution, or in any other fund or account held by or on behalf of the Borrower in respect of the
System, to be paid or transferred or otherwise applied for purposes other than ownership, operation
or maintenance of the System. Such restriction shall no longer apply if the Borrower cures the
underlying Payment Default in the case of a Payment Default or reestablishes compliance with the
Rate Covenant in the case of failure of compliance with the Rate Covenant.
(e)No Prohibited Sale, Lease or Assignment. The Borrower shall not sell, lease
or assign its rights in and to the System, a substantial portion of the assets included in the System,
or its rights and obligations under any Principal Project Contract, in each case unless such sale,
lease or assignment (i) could not reasonably be expected to have a Material Adverse Effect and
(ii) is made by the Borrower in the ordinary course of business.
(f)Fiscal Year. The Borrower shall not at any time adopt any fiscal year other
than the Borrower Fiscal Year, except with thirty (30) days’ prior written notice to the WIFIA
Lender.
(g)Mergers and Acquisitions. The Borrower shall not, and shall not agree to,
reorganize, consolidate with or merge into another Person unless (i) such reorganization, merger
or consolidation is with or into another entity established by State law and such reorganization,
merger or consolidation is mandated by State law, and in each case, does not adversely affect or
impair to any extent or in any manner (A) the System Revenues or other elements of the Pledged
Funds or (B) the availability of the System Revenues for the payment and security of the
obligations of the Borrower under this Agreement; and (ii) the Borrower provides to the WIFIA
Lender, no later than sixty (60) days prior to the date of reorganization, consolidation or merger,
prior written notice of such reorganization, consolidation or merger and the agreements and
documents authorizing the reorganization, consolidation or merger, satisfactory in form and
substance to the WIFIA Lender. In addition, the Borrower shall provide all information concerning
44
such reorganization, consolidation or merger as shall have been reasonably requested by the
WIFIA Lender.
(h)No Defeasance. Notwithstanding anything to the contrary in any Bond
Authorization Document or document related thereto, the WIFIA Loan shall not be subject to
defeasance and no amounts in respect of the WIFIA Loan shall be considered or deemed to have
been paid until the WIFIA Lender shall have received irrevocable payment in immediately
available funds in accordance with the requirements for payment set forth in this Agreement.
(i)Hedging. Other than interest rate hedging transactions expressly permitted
hereunder, the Borrower shall not enter into any swap or hedging transaction in connection with
the System or the System Revenues, including inflation indexed swap transactions, “cap” or
“collar” transactions, futures, or any other hedging transaction in connection with the System or
the System Revenues without the prior written consent of the WIFIA Lender.
Section 16.Reporting Requirements.
(a)Updated Financial Model.
(i)The Borrower shall provide to the WIFIA Lender not later than
ninety (90) days after the beginning of each Borrower Fiscal Year, an updated Base Case
Financial Model reflecting the then-current and the projected conditions for a period not
less than the next five (5) succeeding Borrower Fiscal Years.
(ii)The Updated Financial Model shall demonstrate to the satisfaction
of the WIFIA Lender that the Borrower has developed and identified adequate revenues to
implement a plan for operating, maintaining and repairing the Project over its useful life,
and shall include: (A) the Borrower’s capital improvement plan, major maintenance plan,
projected rates and charges, projected debt outstanding and annual debt service, and
projected Operating Expenses; (B) evidence of compliance with the Rate Covenant for the
most recent Borrower Fiscal Year and the projected Rate Covenant coverages through the
next five (5) succeeding Borrower Fiscal Years; (C) a written narrative identifying any
material changes to the underlying assumptions from the previous Updated Financial
Model and (D) a certificate signed by the Borrower’s Authorized Representative, certifying
that (1) the Updated Financial Model, including the assumptions and supporting
documentation, as of its date, is accurate and reasonable to the best of the Borrower’s
knowledge and belief, (2) the annual projected Net Revenues will be sufficient to meet the
Loan Amortization Schedule and to satisfy the Rate Covenant through the Final Maturity
Date, and (3) the Borrower is in compliance with its obligations in respect of the Rate
Covenant pursuant to Section 14(a) (Affirmative Covenants – Rate Covenant).
(iii)The Borrower represents and warrants that the Updated Financial
Model reflects the Borrower’s reasonable expectations, using assumptions that the
Borrower believes to be reasonable, of the System’s expected operations, including capital
costs, capital spending schedule, rates and revenues or charges (if applicable), System
Revenues, Operating Expenses, major maintenance costs, financing structure and other
45
scheduling, cost and financing elements required to be included in the Base Case Financial
Model.
(b)Annual Financial Statements. The Borrower shall deliver to the WIFIA
Lender, as soon as available, but no later than one hundred eighty (180) days after the end of each
Borrower Fiscal Year:
(i)a copy of the audited income statement and balance sheet of the
Borrower as of the end of such Borrower Fiscal Year and the related audited statements of
operations and of cash flow of the Borrower for such Borrower Fiscal Year, (A) setting
forth in each case in comparative form the figures for the previous fiscal year, (B) certified
without qualification or exception, or qualification as to the scope of the audit, by an
independent public accounting firm selected by the Borrower and (C) which shall be
complete and correct in all material respects and shall be prepared in reasonable detail and
in accordance with GAAP applied consistently throughout the periods reflected therein
(except, with respect to the annual financial statements, for changes approved or required
by the independent public accountants certifying such statements and disclosed therein);
and
(ii)together with each delivery of such annual audited financial
statements, a certificate signed by the chief executive officer or chief financial officer of
the Borrower or the Borrower’s Authorized Representative, stating whether or not, to the
Borrower’s knowledge, during the annual period covered by such financial statements,
there occurred any Default or Event of Default and, if any such Default or Event of Default
shall have occurred during such period, the nature of such Default or Event of Default and
the actions that the Borrower has taken or intends to take in respect thereof.
(c)Final Design Specifications. The Borrower shall deliver to the WIFIA
Lender, no later than thirty (30) days prior to (i) any bid advertisement related to the Project, a
copy of the final specifications relating to the development and construction of the Project, and
(ii) any notice to proceed for the Project, a copy of the executed construction contract related to
such notice to proceed and the final Project specifications.
(d)Construction Reporting. The WIFIA Lender shall have the right in its sole
discretion to monitor (or direct its agents to monitor) the development of the Project, including
environmental compliance, design, and construction of the Project. The Borrower shall be
responsible for administering construction oversight of the Project in accordance with applicable
federal, state and local governmental requirements. The Borrower agrees to cooperate in good faith
with the WIFIA Lender in the conduct of such monitoring by promptly providing the WIFIA
Lender with such reports, documentation or other information as shall be requested by the WIFIA
Lender or its agents, including any independent engineer reports, documentation or information.
During the period through Substantial Completion of the Project, the Borrower shall furnish to the
WIFIA Lender, on a quarterly basis, a report on the status of the Project, substantially in the form
of Exhibit K (Form of Quarterly Report). The report shall be executed by the Borrower’s
Authorized Representative and, for any quarter, shall be delivered to the WIFIA Lender within
thirty (30) days of the following quarter (or if such day is not a Business Day, on the next following
Business Day). If the then-current projection for the Substantial Completion Date is a date later
46
than the Projected Substantial Completion Date, the Borrower shall provide in such report a
description in reasonable detail to the reasonable satisfaction of the WIFIA Lender of the reasons
for such projected delay, an estimate of the impact of such delay on the capital and operating costs
of the System (if any), and that the new date could not reasonably be expected to result in a Material
Adverse Effect. The Projected Substantial Completion Date shall automatically be adjusted to the
date specified by the Borrower in its report unless the WIFIA Lender objects to the adjustment in
writing to the Borrower within sixty (60) days following receipt of the Borrower’s report on the
basis that the Borrower’s report does not demonstrate the matters specified in this Section 16(d).
(e)Public Benefits Report. The Borrower shall deliver to the WIFIA Lender a
report, in the form of Exhibit L (Form of Public Benefits Report) (the “Public Benefits Report”),
(i) no later than thirty (30) days prior to the Effective Date, (ii) within ninety (90) days following
th
the Substantial Completion Date and (iii) within ninety (90) days following the fifth (5)
anniversary of the Substantial Completion Date. The Borrower agrees that information described
under this Section 16(e) may be made publicly available by the WIFIA Lender at its discretion.
(f)Modifications to Total Project Costs. For the period through the Substantial
Completion Date, the Borrower shall provide the WIFIA Lender with written notification at least
thirty (30) days prior to instituting any increase or decrease to the aggregate Total Project Costs in
an amount equal to or greater than ten percent (10%), which notification shall set forth the nature
of the proposed increase or decrease and an estimate of the impact of such increase or decrease on
the capital costs and operating costs of the System. The Borrower’s notice shall demonstrate that
the proposed increase or decrease is consistent with the provisions of this Agreement, is necessary
or beneficial to the Project, does not materially impair the WIFIA Lender’s security or the
Borrower’s ability to comply with its obligations under the Related Documents (including any
financial ratios or covenants included therein), and could not reasonably be expected to result in a
Material Adverse Effect.
(g)Operations and Maintenance. The WIFIA Lender shall have the right, in its
sole discretion, to monitor (or direct its agents to monitor) the Project’s operations and, as the
WIFIA Lender may request from time to time, to receive reporting on the operation and
management of the Project, and copies of any contracts relating to the operation and maintenance
of the Project. The Borrower agrees to cooperate in good faith with the WIFIA Lender in the
conduct of such monitoring by promptly providing the WIFIA Lender with such reports,
documentation, or other information requested by the WIFIA Lender. The WIFIA Lender has the
right, in its sole discretion, to retain such consultants or advisors, to carry out the provisions of this
Section 16(g). On or prior to the Substantial Completion Date, the Borrower shall deliver to the
WIFIA Lender an operations and maintenance manual with respect to the Project, in form and
substance reasonably acceptable to the WIFIA Lender.
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(h)Notices.
(i)The Borrower shall, within fifteen (15) days after the Borrower
learns of the occurrence, give the WIFIA Lender notice of any of the following events or
receipt of any of the following notices, as applicable, setting forth details of such event:
(A)Substantial Completion: the occurrence of Substantial
Completion, such notice to be provided in the form set forth in Exhibit J (Form of Certificate of
Substantial Completion);
(B)Defaults; Events of Default: any Default or Event of
Default;
(C)Litigation: (1) the filing of any litigation, suit or action, or
the commencement of any proceeding, against the Borrower before any arbitrator, Governmental
Authority, alternative dispute resolution body, or other neutral third-party, or the receipt by the
Borrower in writing of any threat of litigation, suit, action, or proceeding, or of any written claim
against the Borrower that, in each case, could reasonably be expected to have a Material Adverse
Effect, and any material changes in the status of such litigation, suit, action or claim, and (2) any
judgments against the Borrower with award amounts in excess of $4,000,000, either individually
or in the aggregate;
(D)Delayed Governmental Approvals: any failure to receive or
delay in receiving any Governmental Approval or making any required filing, notice, recordation
or other demonstration to or with a Governmental Authority, in each case to the extent such failure
or delay will or could reasonably be expected to result in a delay to any major milestone date
(including the Projected Substantial Completion Date) set forth in the Construction Schedule,
together with a written explanation of the reasons for such failure or delay and the Borrower’s
plans to remedy or mitigate the effects of such failure or delay;
(E)Environmental Notices: any material notice of violation or
material change in finding under any Environmental Law related to the Project or any material
changes to the NEPA Determination;
(F)Amendments: any material amendment of any Related
Document, subject to Section 16(j) (Reporting Requirements – Amendments); provided that, if
applicable, such notice can be accomplished through the posting of the relevant document on
EMMA;
(G)Related Document Defaults: any material breach or default
or event of default on the part of the Borrower or any other party under any Related Document;
provided that such notice can be accomplished through the posting of the relevant documents on
EMMA;
(H)Uncontrollable Force: the occurrence of any Uncontrollable
Force that could reasonably be expected to materially and adversely affect the Project;
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(I)Ratings Changes: any change in the rating assigned to the
WIFIA Loan, any other Bonds or any Subordinated Obligations, in each case by any Nationally
Recognized Rating Agency that has provided a public rating on such indebtedness, and any
notices, reports or other written materials (other than those that are ministerial in nature) received
from any such rating agencies; provided, that such notice can be accomplished through the posting
of the relevant documents on EMMA;
(J)2 C.F.R. § 180.350 Notices: any notification required
pursuant to 2 C.F.R. § 180.350, whether attributable to a failure by the Borrower to disclose
information previously required to have been disclosed or due to the Borrower or any of its
principals meeting any of the criteria set forth in 2 C.F.R. § 180.335;
(K)Additional Principal Project Contracts: the execution of any
Additional Principal Project Contract, which notice shall include copies of any such contracts
(together with any related contracts, side letters or other understandings);
(L)Issuance of Obligations: the issuance or incurrence of any
Obligation, which notice shall include copies of any final issuing instrument (together with any
continuing disclosure documents, ordinances, official statement, certifications or cash flow
projections in connection therewith), prepared in connection with the incurrence of any Permitted
Debt; provided that such notice can be accomplished through the posting of the relevant documents
on EMMA;
(M)Cancellation of Insurance: the receipt of any notice of
intended cancellation of any policy of insurance required to be maintained pursuant to Section
14(f) (Affirmative Covenants – Insurance); and
(N)Other Adverse Events: the occurrence of any other event or
condition, including without limitation any notice of breach from a contract counterparty or any
holder of any Obligations, that could reasonably be expected to result in a Material Adverse Effect
or have a material and adverse effect on the Project.
(ii)Within thirty (30) calendar days after the Borrower learns of the
occurrence of an event specified in clause (i) above (other than sub-clauses (A) (Substantial
Completion), (F) (Amendments), (I) (Ratings Changes) (in the case of a ratings upgrade),
(K) (Additional Principal Project Contracts), or (L) (Issuance of Obligations), the
Borrower’s Authorized Representative shall provide a statement to the WIFIA Lender
setting forth the actions the Borrower proposes to take with respect thereto. The Borrower
shall also provide the WIFIA Lender with any further information reasonably requested by
the WIFIA Lender from time to time concerning the matters described in clause (i) above.
(i)Requested Information. The Borrower shall, at any time while the WIFIA
Loan remains outstanding, promptly deliver to the WIFIA Lender such additional information
regarding the business, financial, legal or organizational affairs of the Borrower or regarding the
Project or the System Revenues as the WIFIA Lender may from time to time reasonably request.
(j)Amendments. The Borrower shall furnish to the WIFIA Lender, except as
otherwise agreed by the WIFIA Lender in writing, copies of (1) any proposed amendments to the
49
provisions or definitions of the Master Resolution included in Schedule VI (Flow of Funds),
Schedule VII (Rate Covenant), Schedule VIII (Additional Bonds Test)or referenced in Section
1 (Definitions) at least thirty (30) days prior to the effective date thereof and (2) copies of fully
executed amendments of any Related Document within ten (10) days following execution thereof.
ARTICLE VI
EVENTS OF DEFAULT
Section 17.Events of Default and Remedies.
(a)An “Event of Default” shall exist under this Agreement if any of the
following occurs:
(i)Payment Default. The Borrower shall fail to pay any part of the
principal amount of or interest on the WIFIA Loan (including WIFIA Debt Service
required to have been paid pursuant to the provisions of Section 8 (Payment of Principal
and Interest)) when and as the payment thereof shall be required under this Agreement or
the WIFIA Bond or on the Final Maturity Date (each such failure, a “Payment Default”).
(ii)Covenant Default. The Borrower shall fail to observe or perform
any covenant, agreement or obligation of the Borrower under this Agreement, the WIFIA
Bond or any other WIFIA Loan Document (other than in the case of any Payment Default,
any Development Default or any failure to comply with the Rate Covenant), and such
failure shall not be cured within thirty (30) days after the earlier to occur of (A) receipt by
the Borrower from the WIFIA Lender of written notice thereof or (B) the Borrower’s
knowledge of such failure; provided, however, that if such failure is capable of cure but
cannot reasonably be cured within such thirty (30) day cure period, then no Event of
Default shall be deemed to have occurred or be continuing under this Section 17(a)(ii), and
such thirty (30) day cure period shall be extended by up to one hundred fifty (150)
additional days, if and so long as (x) within such thirty (30) day cure period the Borrower
shall commence actions reasonably designed to cure such failure and shall diligently pursue
such actions until such failure is cured and (y) such failure is cured within one hundred
eighty (180) days of the date specified in either (A) or (B) above, as applicable.
(iii)Misrepresentation Default. Any of the representations, warranties
or certifications of the Borrower made in or delivered pursuant to the WIFIA Loan
Documents (or in any certificates delivered by the Borrower in connection with the WIFIA
Loan Documents) shall prove to have been false or misleading in any material respect when
made or deemed made (or any representation and warranty that is subject to a materiality
qualifier shall prove to have been false or misleading in any respect); provided, that no
Event of Default shall be deemed to have occurred under this Section 17(a)(iii) if and so
long as (A) such misrepresentation is not intentional, (B) such misrepresentation is not a
misrepresentation in respect of Section 12(h) (Representations and Warranties of
Borrower – No Debarment), Section 12(j) (Representations and Warranties of Borrower
– Compliance with Laws), or Section 12(y) (Representation and Warranties of Borrower
– Patriot Act), (C) in the reasonable determination of the WIFIA Lender, such
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misrepresentation has not had, and would not reasonably be expected to result in, a Material
Adverse Effect, (D) in the reasonable determination of the WIFIA Lender, the underlying
issue giving rise to the misrepresentation is capable of being cured and (E) the underlying
issue giving rise to the misrepresentation is cured by the Borrower within thirty (30) days
from the date on which the Borrower first became aware (or reasonably should have
become aware) of such misrepresentation.
(iv)Acceleration of Bonds. Any acceleration shall occur of the maturity
of any Bond, or any such Bond shall not be paid in full upon the final maturity thereof.
(v)Cross Default with Other Financing Documents. Any default shall
occur in respect of the performance of any covenant, agreement or obligation of the
Borrower under the Related Documents (other than the Principal Project Contracts), and
such default shall be continuing after the giving of any applicable notice and the expiration
of any applicable grace period specified in the Related Documents (other than the Principal
Project Contracts) (as the case may be) with respect to such default, and the Borrower shall
have failed to cure such default or to obtain an effective written waiver thereof in
accordance with the terms thereof.
(vi)Material Adverse Judgment. Any final, non-appealable judgment
related to the System Revenues, the System or the Project shall be entered against the
Borrower which has a Material Adverse Effect.
(vii)Occurrence of a Bankruptcy Related Event. A Bankruptcy Related
Event shall occur (A) with respect to the Borrower or (B) with respect to the Principal
Project Party in respect of the Operation and Maintenance Contract; provided that no Event
of Default shall occur under this clause (vii) with respect to such Principal Project Party if
within 90 days after the occurrence of such Bankruptcy Related Event the Operation and
Maintenance Contract is replaced by the Borrower in accordance with Section 14(e)
(Operations and Maintenance).
(viii)Invalidity of WIFIA Loan Documents. (A) Any WIFIA Loan
Document ceases to be in full force and effect (other than as a result of the termination
thereof in accordance with its terms) or becomes void, voidable, illegal or unenforceable,
or the Borrower contests in any manner the validity or enforceability of any WIFIA Loan
Document to which it is a party or denies it has any further liability under any WIFIA Loan
Document to which it is a party, or purports to revoke, terminate or rescind any WIFIA
Loan Document to which it is a party; (B) any Bond Authorization Document ceases (other
than as expressly permitted thereunder) to be effective or to grant a valid and binding
security interest on any material portion of the Pledged Funds other than as a result of
actions or a failure to act by, and within the control of, the Bondholders, and with the
priority purported to be created thereby; or (C) any event occurs that results in the material
impairment in the perfection or priority of the WIFIA Lender’s security interest in the
Pledged Funds or in the value of such Pledged Funds.
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(ix)Failure to Satisfy Rate Covenant. Notwithstanding anything to the
contrary in the Master Resolution, the Borrower fails to satisfy the Rate Covenant for two
(2) consecutive Borrower Fiscal Years.
(x)Development Default. A Development Default shall occur.
(xi)Default Under Principal Project Contracts. The Borrower shall
default in the timely performance of any covenant, agreement or obligation under any
Principal Project Contract or any Principal Project Contract shall be terminated prior to its
scheduled expiration (unless in any case such default or termination could not reasonably
be expected to have a Material Adverse Effect), and the Borrower shall have failed to cure
such default or to obtain an effective written waiver or revocation thereof prior to the
expiration of the applicable grace period specified in any such Principal Project Contract,
or to obtain an effective revocation of such termination (as the case may be); provided,
however, that no Event of Default shall be deemed to have occurred or be continuing under
this Section 17(a)(xi) if, in the case of any termination of a Principal Project Contract, the
Borrower either (A) replaces such Principal Project Contract with a replacement agreement
effective as of the termination date of such Principal Project Contract and entered into with
another counterparty that (1) is of similar or greater creditworthiness (including credit
support), technical capability and relevant experience as the counterparty being replaced
was at the time the applicable Principal Project Contract was originally executed (or
otherwise reasonably acceptable to the WIFIA Lender), (2) is not, at the time of such
replacement, suspended or debarred or subject to a proceeding to suspend or debar from
bidding, proposing or contracting with any federal or state department or agency, and (3) is
not, at the time of such replacement, in violation of any applicable laws, or (B) elects to
self-perform the work within the scope of such Principal Project Contract and the
Borrower’s plan of self-performance is endorsed in writing by the Consulting Engineers as
of the date of termination of such Principal Project Contract.
(xii)Cessation of System Operations. Following the Substantial
Completion Date, operation of the System shall cease for a continuous period of not less
than one hundred eighty (180) days unless (A) such cessation of operations shall occur by
reason of an Uncontrollable Force that is not due to the fault of the Borrower (and which
the Borrower could not reasonably have avoided or mitigated) or (B) the Borrower shall
either be self-insured in an amount sufficient to cover, or shall have in force an insurance
policy or policies under which the Borrower is entitled to recover amounts sufficient to pay
(and may use such amounts to pay), debt service for all Obligations (including WIFIA Debt
Service) and costs and expenses of the Borrower during such cessation of operations.
(b)Upon the occurrence of any Bankruptcy Related Event with respect to the
Borrower, all obligations of the WIFIA Lender hereunder with respect to the disbursement of any
undisbursed amounts of the WIFIA Loan shall automatically be deemed terminated. Following
the occurrence of a Bankruptcy Related Event, the WIFIA Lender shall have the right to inspect
any and all records related to transfers of funds to and from the System Accounts, and the Borrower
shall deliver to the WIFIA Lender (or give the WIFIA Lender access to) any such records as the
WIFIA Lender may request so as to permit the WIFIA Lender to determine that the Borrower is
treating the WIFIA Loan as a Bond in all respects, including in respect of priority of payments.
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(c)Upon the occurrence of any Event of Default, the WIFIA Lender, by written
notice to the Borrower, may exercise any or all of the following remedies:
(i)the WIFIA Lender may suspend or terminate all of its obligations
hereunder with respect to the disbursement of any undisbursed amounts of the WIFIA
Loan;
(ii)the WIFIA Lender may apply the Default Rate provisions of Section
6 (Interest Rate);
(iii)the WIFIA Lender may suspend or debar the Borrower from further
participation in any Government program administered by the WIFIA Lender and to notify
other departments and agencies of such default;
(iv)the WIFIA Lender may notify the financial market credit rating
agencies and potential creditors of the occurrence of such an Event of Default; and/or
(v)the WIFIA Lender shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of any sums due and unpaid
hereunder or under the WIFIA Bond or the other WIFIA Loan Documents, and may
prosecute any such judgment or final decree against the Borrower and collect in the manner
provided by law out of the property of the Borrower the moneys adjudged or decreed to be
payable, and the WIFIA Lender shall have all of the rights and remedies of a creditor and
may take such other actions at law or in equity as may appear necessary or desirable to
collect all amounts payable by Borrower under this Agreement, the WIFIA Bond or the
other WIFIA Loan Documents then due and thereafter to become due, or to enforce
performance and observance of any obligation, agreement or covenant of the Borrower
under this Agreement, the WIFIA Bond or the other WIFIA Loan Documents.
(d)No action taken pursuant to this Section 17 shall relieve Borrower from its
obligations pursuant to this Agreement, the WIFIA Bond or the other WIFIA Loan Documents, all
of which shall survive any such action.
ARTICLE VII
MISCELLANEOUS
Section 18.Disclaimer of Warranty. The WIFIA Lender makes no warranty or
representation, either express or implied, as to the value, design, condition, merchantability or
fitness for a particular purpose or fitness for use of the Project or any portion thereof or any other
warranty with respect thereto. In no event shall the WIFIA Lender be liable for any incidental,
indirect, special or consequential damages incidental to or arising out of this Agreement, the
System, or the Project or the existence, furnishing, functioning or use of the Project or any item or
products or services provided for in this Agreement.
Section 19.No Personal Recourse. No official, employee or agent of the WIFIA Lender
or the Borrower or any Person executing this Agreement or any of the other WIFIA Loan
53
Documents shall be personally liable on this Agreement or such other WIFIA Loan Documents by
reason of the issuance, delivery or execution hereof or thereof.
Section 20.No Third Party Rights. The parties hereby agree that this Agreement creates
no third party rights against the Borrower, the Government, or the WIFIA Lender, solely by virtue
of the WIFIA Loan, and the Borrower agrees to indemnify and hold the WIFIA Lender, the
Servicer (if any), the Administrator, and the Government harmless, to the extent permitted by law
and in accordance with Section 32 (Indemnification), from any lawsuit or claim arising in law or
equity solely by reason of the WIFIA Loan, and that no third party creditor of the Borrower shall
have any right against the WIFIA Lender with respect to the WIFIA Loan made pursuant to this
Agreement.
Section 21.Borrower’s Authorized Representative. The Borrower shall at all times
have appointed a Borrower’s Authorized Representative by designating such Person or Persons
from time to time to act on the Borrower’s behalf pursuant to a written certificate furnished to the
WIFIA Lender and the Servicer, if any, containing the specimen signature or signatures of such
Person or Persons and signed by the Borrower.
Section 22.WIFIA Lender’s Authorized Representative. The WIFIA Lender hereby
appoints the Director of the WIFIA Program, whose notice details are set forth below in Section
31 (Notices), to serve as the WIFIA Lender’s Authorized Representative under this Agreement
until such time as a successor or successors shall have been appointed. Thereafter, the successor
in office shall serve as the WIFIA Lender’s Authorized Representative. The WIFIA Lender shall
provide notice to the Borrower within a reasonable time period following the succession.
Section 23.Servicer. The WIFIA Lender may from time to time designate another
entity or entities to perform, or assist the WIFIA Lender in performing, the duties of the Servicer
or specified duties of the WIFIA Lender under this Agreement and the WIFIA Bond. The WIFIA
Lender shall give the Borrower written notice of the appointment of any successor or additional
Servicer and shall enumerate the duties or any change in duties to be performed by any Servicer.
Any references in this Agreement to the WIFIA Lender shall be deemed to be a reference to the
Servicer with respect to any duties which the WIFIA Lender shall have delegated to such Servicer.
The WIFIA Lender may at any time assume the duties of any Servicer under this Agreement and
the WIFIA Bond. The Borrower shall cooperate and respond to any reasonable request of the
Servicer for information, documentation or other items reasonably necessary for the performance
by the Servicer of its duties hereunder.
Section 24.Amendments and Waivers. No amendment, modification, termination, or
waiver of any provision of this Agreement shall in any event be effective without the written
consent of each of the parties hereto.
Section 25.Governing Law. This Agreement shall be governed by the federal laws of
the United States of America if and to the extent such federal laws are applicable and the internal
laws of the State, if and to the extent such federal laws are not applicable.
Section 26.Severability. In case any provision in or obligation under this Agreement
shall be invalid, illegal, or unenforceable in any jurisdiction, the validity, legality and
54
enforceability of the remaining provisions or obligations, or of such provision or obligation in any
other jurisdiction, shall not in any way be affected or impaired thereby.
Section 27.Successors and Assigns. This Agreement shall be binding upon the parties
hereto and their respective permitted successors and assigns and shall inure to the benefit of the
parties hereto and their permitted successors and assigns. Neither the Borrower’s rights or
obligations hereunder nor any interest therein may be assigned or delegated by the Borrower
without the prior written consent of the WIFIA Lender.
Section 28.Remedies Not Exclusive. No remedy conferred herein or reserved to the
WIFIA Lender is intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
Section 29.Delay or Omission Not Waiver. No delay or omission of the WIFIA Lender
to exercise any right or remedy provided hereunder upon a default of the Borrower (except a delay
or omission pursuant to a written waiver) shall impair any such right or remedy or constitute a
waiver of any such default or acquiescence therein. Every right and remedy given by this
Agreement or by law to the WIFIA Lender may be exercised from time to time, and as often as
may be deemed expedient by the WIFIA Lender.
Section 30.Counterparts. This Agreement and any amendments, waivers, consents or
supplements hereto or in connection herewith may be executed in any number of counterparts and
by the different parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall constitute one and
the same instrument; signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are physically attached to the same
document. Electronic delivery of an executed counterpart of a signature page of this Agreement or
any document or instrument delivered in connection herewith in accordance with Section 31
(Notices) shall be effective as delivery of an original executed counterpart of this Agreement or
such other document or instrument, as applicable.
Section 31.Notices. Notices hereunder shall be (a) in writing, (b) effective as provided
below and (c) given by (i) nationally recognized courier service, (ii) hand delivery, or (iii) email,
in each case to:
If to WIFIA Lender: Environmental Protection Agency
WJC-W 6201A
1200 Pennsylvania Avenue NW
Washington, D.C. 20460
Attention: WIFIA Director
Email: WIFIA_Portfolio@epa.gov
55
If to Borrower: City of North Miami Beach
th
17011 NE 19 Avenue
North Miami Beach, FL 33162
Attention: Finance Director
Email: finance@citynmb.com
Unless otherwise instructed by the WIFIA Lender’s Authorized Representative, all notices to the
WIFIA Lender should be made by email to the email address noted above for the WIFIA Lender.
Notices required to be provided herein shall be provided to such different addresses or to such
further parties as may be designated from time to time by a Borrower’s Authorized Representative,
with respect to notices to the Borrower, or by the WIFIA Lender’s Authorized Representative,
with respect to notices to the WIFIA Lender or the Servicer. Each such notice, request or
communication shall be effective (x) if delivered by hand or by nationally recognized courier
service, when delivered at the address specified in this Section 31 (or in accordance with the latest
unrevoked written direction from the receiving party) and (y) if given by email, when such email
is delivered to the address specified in this Section 31 (or in accordance with the latest unrevoked
written direction from the receiving party); provided, that notices received on a day that is not a
Business Day or after 5:00 p.m. Eastern Time on a Business Day will be deemed to be effective
on the next Business Day.
Section 32.Indemnification. The Borrower shall, to the extent permitted by law,
indemnify the WIFIA Lender and any official, employee, agent or representative of the WIFIA
Lender (each such Person being herein referred to as an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities, fines, penalties, costs
and expenses (including the fees, charges and disbursements of any counsel for any Indemnitee
and the costs of environmental remediation), whether known, unknown, contingent or otherwise,
incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of
(a) the execution, delivery and performance of this Agreement or any of the other Related
Documents, (b) the WIFIA Loan or the use of the proceeds thereof, or (c) the violation of any law,
rule, regulation, order, decree, judgment or administrative decision relating to the environment,
the preservation or reclamation of natural resources, the management, release or threatened release
of any hazardous material or to health and safety matters; in each case arising out of or in direct
relation to the Project; provided, that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities, fines, penalties, costs or related expenses
are determined by a court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Indemnitee. In case any action
or proceeding is brought against an Indemnitee by reason of any claim with respect to which such
Indemnitee is entitled to indemnification hereunder, the Borrower shall be entitled, at its expense,
to participate in the defense thereof; provided, that such Indemnitee has the right to retain its own
counsel, at the Borrower’s expense, and such participation by the Borrower in the defense thereof
shall not release the Borrower of any liability that it may have to such Indemnitee. Any Indemnitee
against whom any indemnity claim contemplated in this Section 32 is made shall be entitled, after
consultation with the Borrower and upon consultation with legal counsel wherein such Indemnitee
is advised that such indemnity claim is meritorious, to compromise or settle any such indemnity
claim. Any such compromise or settlement shall be binding upon the Borrower for purposes of
this Section 32. Nothing herein shall be construed as a waiver of any legal immunity that may be
available to any Indemnitee. To the extent permitted by applicable law, neither the Borrower nor
56
the WIFIA Lender shall assert, and each of the Borrower and the WIFIA Lender hereby waives,
any claim against any Indemnitee or the Borrower, respectively, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any of the other Related
Documents, the other transactions contemplated hereby and thereby, the WIFIA Loan or the use
of the proceeds thereof, provided, that nothing in this sentence shall limit the Borrower’s indemnity
obligations to the extent such damages are included in any third party claim in connection with
which an Indemnitee is entitled to indemnification hereunder. All amounts due to any Indemnitee
under this Section 32 shall be payable promptly upon demand therefor. The obligations of the
Borrower under this Section 32 shall survive the payment or prepayment in full or transfer of the
WIFIA Bond, the enforcement of any provision of this Agreement or the other Related Documents,
any amendments, waivers (other than amendments or waivers in writing with respect to this
Section 32) or consents in respect hereof or thereof, any Event of Default, and any workout,
restructuring or similar arrangement of the obligations of the Borrower hereunder or thereunder.
Section 33.Sale of WIFIA Loan. The WIFIA Lender shall not sell the WIFIA Loan at
any time prior to the Substantial Completion Date. After such date, the WIFIA Lender may sell
the WIFIA Loan to another entity or reoffer the WIFIA Loan into the capital markets only in
accordance with the provisions of this Section 33. Such sale or reoffering shall be on such terms
as the WIFIA Lender shall deem advisable. However, in making such sale or reoffering the WIFIA
Lender shall not change the terms and conditions of the WIFIA Loan without the prior written
consent of the Borrower in accordance with Section 24 (Amendments and Waivers). The WIFIA
Lender shall provide, at least sixty (60) days prior to any sale or reoffering of the WIFIA Loan,
written notice to the Borrower of the WIFIA Lender’s intention to consummate such a sale or
reoffering; provided, however, that no such notice shall be required during the continuation of any
Event of Default. The provision of any notice pursuant to this Section 33 shall not (x) obligate the
WIFIA Lender to sell nor (y) provide the Borrower with any rights or remedies in the event the
WIFIA Lender, for any reason, does not sell the WIFIA Loan.
Section 34.Effectiveness. This Agreement shall be effective on the Effective Date.
Section 35.Termination. This Agreement shall terminate upon the irrevocable payment
in full in immediately available funds by the Borrower of the Outstanding WIFIA Loan Balance,
together with all accrued interest, fees and expenses with respect thereto; provided, however, that
the indemnification requirements of Section 32 (Indemnification), the access and record keeping
requirements of Section 14(q) (Affirmative Covenants – Access; Records) and the payment
requirements of Section 10 (Fees and Expenses) shall survive the termination of this Agreement
as provided in such Sections.
Section 36.Integration. This Agreement constitutes the entire contract between the
parties relating to the subject matter hereof and supersedes any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof.
Section 37.Truth-In-Bonding and Disclosure Statement. Pursuant to the applicable
provisions of Section 218.385, Florida Statutes, as amended, certain information in respect to the
issuance of the WIFIA Bond, including all disclosure information required by the Borrower, is as
follows:
57
(a)An itemized list setting forth the nature and estimated amounts of expenses
to be incurred by the WIFIA Lender and paid for by the Borrower in connection with the WIFIA
Loan and the issuance of the WIFIA Bond is set forth as follows. Fees and expenses of consultants
and advisors to the WIFIA Lender are estimated to be $200,000. None of such fees and expenses
are being charged to the Borrower as part of an underwriting spread, if any, set forth in the
following sentence, but instead are being paid directly by the WIFIA Lender and will be
reimbursed by the Borrower pursuant to Section 10(c) (Fees and Expenses – Expenses). The
underwriting spread to be paid by the Borrower to the WIFIA Lender will be zero Dollars ($0).
(b)The Borrower’s responsibilities for the fees and expenses of the WIFIA
Lender, including the Servicing Fees, are as set forth in Section 10 (Fees and Expenses).
(c)No “finder” as that term is defined in Section 218.386(1)(a), Florida
Statutes, as amended, has entered into an understanding with the WIFIA Lender, or to the
knowledge of the WIFIA Lender, with the Borrower, for any paid or promised compensation or
valuable consideration, directly or indirectly, expressly or implied, to act solely as an intermediary
between the Borrower and the WIFIA Lender or to exercise or attempt to exercise any influence
to effect any transaction in connection with the WIFIA Loan.
(d)No other fee, bonus or other compensation is estimated to be paid by the
WIFIA Lender in connection with the WIFIA Loan to any person not regularly employed or
retained by the WIFIA Lender (including any “finder,” as defined in Section 218.386(l)(a), Florida
Statutes, as amended), except as specifically enumerated as expenses to be incurred and paid by
the WIFIA Lender as set forth in clause (a) above.
(e)The Borrower is issuing the WIFIA Bond for the purpose of financing the
cost of certain capital improvements to the System, as more particularly described herein. The
WIFIA Loan is a drawdown loan and therefore, due to the varying timing of the draws, it is
impossible to determine the total interest to be paid on the WIFIA Bond. However, assuming the
full amount of the WIFIA Loan, in the maximum principal amount of $44,204,486, is drawn in
accordance with the Anticipated WIFIA Loan Disbursement Schedule and assuming that the
WIFIA Bond is outstanding through August 1, 2060, at the WIFIA Interest Rate of 1.36%, total
interest paid over the life of the WIFIA Bond is estimated to be approximately $14,777,588.29.
(f)The WIFIA Bond will be payable solely from the Pledged Funds. The
issuance of the WIFIA Bond, based on the assumptions described in clause (e) above, will result
in a maximum of approximately $1,804,317.58 of Pledged Funds not being available to the
Borrower to finance the other services of the Borrower each year until the Final Maturity Date.
(g)The name and address of the WIFIA Lender are set forth in Section 31
(Notices).
58
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, acting by and through
the Administrator of the Environmental Protection
Agency
By: ______________________________
Name: Andrew R. Wheeler
Title: Administrator
\[Signature page to City of North Miami Beach –Norwood Water Treatment Plant Upgrade and Transmission
Main Improvements and Replacements Project– WIFIA Loan Agreement\]
SCHEDULE I
PROJECT BUDGET
SOURCES OF FUNDS ESTIMATED DOLLAR VALUE
($ USD)
1. WIFIA Loan $44,204,486
2. Revenue Bonds $46,008,750
3. SRF Loan $0
4. Borrower Cash $0
Total Sources of Funds $90,213, 236
USES OF FUNDSESTIMATED COST ($ USD)
1. Construction $70,215,000
2. Design $6,108,000
3. Planning $542,000
4. Total Capital Costs
$76,865,000
5. Project Management/Contract Costs $13,050,000
6. Estimated Credit Processing Fee $298,236
Total Uses of Funds $90,213,236
Total Eligible Project Costs $90,213,236
Total Project Costs $90,213,236
SCHEDULE I-1
SCHEDULE II
CONSTRUCTION SCHEDULE
WIFIA Project Preconstruction Design Construction Substantial
Element Activities Start Start Completion
Phases IIA, IIB and IIC October 2019 May 2020 September May 2024
of WIFIA Project 2021
Phase III of WIFIA October 2019 July 2020 April 2021 August 2025
Project
SCHEDULE II-1
SCHEDULE III
EXISTING INDEBTEDNESS
A. Outstanding Revenue Bonds
Agreement/Series Outstanding
1
Principal
Series 2020A Water Revenue Bonds, issued pursuant to the Master
1.
$40,030,000
Resolution, dated January 17, 2020, maturing on August 1, 2040
Series 2020B Taxable Water Revenue Bonds, issued pursuant to the
2.
Master Resolution, dated January 17, 2020, maturing on August 1, $39,945,000
2032
Series 2012 Water Revenue Refunding Bonds, issued pursuant to the
3.
$8,547,500
Master Resolution, dated August 1, 2013, maturing on August 1, 2032
B. Existing SRF Loans
Agreement/Series Outstanding
2
Principal
State Revolving Fund Loan Agreement, secured by revenues pledged
1.
from the System Revenues less Operating Expenses and Obligations of
$8,700,763
the System, dated April 15, 2016, maturing on October 15, 2035, for an
aggregate principal amount not to exceed $10,343,267 (DW130130)
State Revolving Fund Loan Agreement, secured by revenues pledged
2.
from the System Revenues less Operating Expenses and Obligations of
$4,608,420
the System, dated October 15, 2012, maturing on April 15, 2032, for an
aggregate principal amount not to exceed $9,575,484 (DW130103)
State Revolving Fund Loan Agreement, secured by revenues pledged
3.
from the System Revenues less Operating Expenses and Obligations of
$265,142
the System, dated February 15, 2011, maturing on August 15, 2031, for
an aggregate principal amount not to exceed $450,226 (DW130102)
1
As of Effective Date
2
As of Effective Date
SCHEDULE III-1
SCHEDULE IV
PROJECT DESCRIPTION
The City of North Miami Beach (the “City”) is conducting upgrades to the water main distribution
system across its service area as well as to its existing treatment and auxiliary systems at the
Norwood Water Treatment Plant. The WIFIA Project is part of the City’s five-year capital
improvement program that aims to replace aging infrastructure and improve redundancy in plant
operations as well as reduce pressure losses and main breaks throughout the distribution system.
The WIFIA Project includes the following components:
Phase IIA – Construction of new Floridan Well and Rehabilitation of Existing
Biscayne Well. This project will provide the necessary volume of raw water at the
Norwood Water Treatment Plant’s membrane facility to maintain finished water
production while the lime softening plant is under construction (Phase IIC). The new
Floridan well will have a production capacity of approximately 2,000 gallons per minute
and will connect to the existing raw water main. The Biscayne Well #1 will be rehabilitated
to restore its original production capacity of approximately 4,000 gallons per minute. The
Biscayne Well #1 will serve as backup water supply to two of the City’s off-site production
wells, which are not currently equipped with emergency electrical generators. This
rehabilitated well will be capable of serving the lime softening plant and membrane
treatment plant, which are parallel water treatment processes accounting for the finished
water at the Norwood Water Treatment Plant.
Phase IIB – Reliability Improvements of Norwood Water Treatment Plant
Operations. This project will improve the reliability of the plant’s treatment processes
and auxiliary systems in order to temporarily shut down the lime softening facility for
rehabilitation (Phase IIC). The City will rehabilitate and improve operations of several
chemical feed systems, the membrane degasification system, the Master Sewage Lift
Station, a high service pump station (HSPS No. 1), control room, laboratory facility,
maintenance and storage warehouse, among other auxiliary facilities. The City also plans
to demolish decommissioned structures, including the Phase I VOC Removal System, and
upgrade the plant’s electrical distribution system and the heating, ventilation, and air
conditioning system.
Phase IIC – Rehabilitation of Norwood’s Lime Softening Plant. This project will
rehabilitate the existing lime softening plant to extend the life and reliability of the plant to
treat 15 million gallons per day of raw water. The rehabilitation will involve improvements
to the filter beds, clear wells, backwash system, clarifiers, and appurtenances. It will also
involve an upgrade to the plant’s electrical system. In combination with the current
expansion at the membrane treatment plant to 25.6 million gallons per day, the City will
be able to meet its projected 2030 production demand of 35 million gallons per day. The
expansion of the membrane treatment plant is outside the scope of the WIFIA project.
SCHEDULE IV-1
Phase III – Transmission Main Improvements and Replacements – Improving
Pressure. This project will address sections of the water transmission and distribution
system that need to be replaced or expanded in capacity to reduce pressure loss events,
meet compliance with firefighting flow, and to replace aged infrastructure. It will also
improve operations at the Operations Center pump station to better maintain pressure
throughout the distribution system. The City has already identified two areas for water
main rehabilitation in the Eastern Shores and Honey Hill neighborhoods, involving 14,000
linear feet and 8,700 linear feet of pipe replacement, respectively. Further, the City has
investigated ten out of approximately fourteen aerial pipe bridge crossings, most of them
over canals, and have identified three crossings that require replacement of pipes and piers
due to severe deterioration. As the City continues evaluating its hydraulic models and
condition assessment reports for each segment of pipeline, it will identify priority areas for
pipe replacement within the distribution system. The City plans to issue design-bid-build
contracts for this project.
SCHEDULE IV-2
SCHEDULE V
WIFIA PAYMENT INSTRUCTIONS
Acceptable Methods for WIFIA Payments to EPA
Option 1 PAY.GOV
Use of Pay.gov to make payments to EPA is the preferred electronic payment method. In Pay.gov, users can track
their payments to EPA and schedule recurring or automatic payments. Although it is not mandatory to register for a
user id to access and use Pay.Gov, registration is recommended to have access to all Pay.gov system functionality.
Access the Pay.gov system by going to https://www.pay.gov and search for WIFIA or click on the
following hyperlink to directly launch the WIFIA Loan Collection & Fees Form.
Provide the following information on your payment to ensure proper credit:
Remitter's contact phone number
Company/Organization Name as it appears on EPA document
Complete address, including city, state, zip code
Project Name
Loan Number: this is EPA WIFIA Loan number, NOT the remitter's number
From the “Payment Type” drop down menu select the type from the Fee Notice letter
Other Description: please note the reference number from the Fee Notice letter
Send an email to OCFO-OC-ACAD-WIFIA@epa.gov and wifia_portfolio@epa.gov informing that a
payment has been made.
Option 2 FEDWIRE
Wire transfers made through FedWire are an alternative electronic wire transfer initiated between the borrower and
its organization’s financial institution (bank) and EPA. FedWire is typically used to initiate financial institution
(bank) generated “same day” electronic payments.
Borrowers must work within the processing guidelines established by their bank, which may include processing
cutoffs, transaction fees, and other bank requirements.
Banks that do not maintain an account at a Federal Reserve Bank (FRB) must use the services of correspondent
banks that do have an FRB account. To process a payment using FedWire please:
Send FedWire deposits as early as possible and no later than 5 p.m. ET on the desired EPA receipt date
Review the FedWire form Instructions provided in Attachment 1 and complete the form. It is very
important that all relevant details identified in the instructions are accurate.
Send an email to OCFO-OC-ACAD-WIFIA@epa.gov and wifia_portfolio@epa.gov informing that a
payment has been made.
Option 3 CHECK PAYMENTS (Not allowed for payment of Principal or Interest)
Send checks to:
USPS Mailing Address Courier Address (e.g., FEDEX, UPS)
Laura Collier Courier Address
USEPA Headquarters Laura Collier
William Jefferson Clinton Building Ronald Reagan Building
1200 Pennsylvania Avenue, N. W. 1300 Pennsylvania Ave., N.W.
Mail Code: 2733R Rm # 81164
Washington, DC 20460 Washington, DC 20004
Provide the following information on your check payment to ensure proper credit please:
Company/remitter's name (borrower name as it appears on EPA document)
Complete address, including city, state, zip
Remitter's point of contact person and phone number
EPA WIFIA Loan # (NOT the remitter's number)
Payment Type/Reason for payment from the Fee Notice letter
SCHEDULE V-1
Reference number from the Fee Notice letter.
Send an email to OCFO-OC-ACAD-WIFIA@epa.govand wifia_portfolio@epa.gov informing that a
payment has been submitted.
NOTES:
1.When checks are provided as payment, you authorize the EPA to use information from your check to make
When the EPA uses information from your check to make an electronic fund transfer, funds may be
withdrawn from your account as soon as the same day we receive your payment, and you will not receive
your check back from your financial institution.
2.As of the Effective Date, EPA is temporarily unable to accept paper checks due to the COVID-19 response.
Prior to sending any paper check, contact EPA to determine whether paper checks are acceptable for
payment at the time.
Attachment 1 – FedWire Payment Form and Instructions
U.S. Environmental Protection Agency
FUNDS TRANSFER DEPOSIT
INSTRUCTIONS: Explicit completion and routing instructions are locatedon the reverse of this
PC
form. It is requested that prudent care be taken to ensure that all information is provided in the
TO TYPE
requested format. Failure to provide the information in the requested format may cause a delay in
021030004 10
the notification of the funds transfer to EPA.
FROMCLREFAMOUNT
$
SENDER
RECEIVER
TREAS NYC/(68010099)EPA
THIRD PARTY INFORMATION
The above FedWire form presented to your bank (who will initiate and transmit the FedWire payment) MUST contain all
details below: *
TO (ABA) 021030004
TYPE 10
RECEIVER TREAS NYC/(68010099)EPA
THIRD PARTY To ensure proper credit please include the following information on your payment:
INFORMATION
Company/remitter's name (borrower name as it appears on EPA document)
Complete address, including city, state, zip code
Remitter's point of contact person and phone number
EPA WIFIA Loan # (NOT the remitter's number)
Payment Type/Reason for payment from the Fee Notice letter
Reference number from the Fee Notice letter
Shaded Areas Those items that are shaded on the Form are to be entered by the bank on the funds transfer message.
(Depending on the Federal Reserve District, some items may not be required.)
*Important: Failure to initiate the FedWire electronic wire transaction properly with the above fields included, will result in
For questions about payments to EPA please contact EPA's Office of the Controller:
Phone: 202-564-7593. Voicemails can be left when calling outside business hours
Email: OCFO-OC-ACAD-WIFIA@epa.gov
For questions about the WIFIA program:
Email: wifia@epa.gov
SCHEDULE V-2
SCHEDULE VI
FLOW OF FUNDS
Set forth below is Section 4.05 of the Master Resolution as of the Effective Date. All capitalized
terms used below in this Schedule VI have the meanings assigned to such terms in the Master
Resolution. All section references made below in this Schedule VI refer to sections in the Master
Resolution.
Section 4.05. Flow of Funds.
(A) Revenues. The Issuer shall deposit all Gross Revenues into the Revenue
Fund, promptly upon the receipt thereof. On or before the last day of each month, commencing
with the month in which delivery of the Bonds shall be made to the purchasers thereof, the moneys
in the Revenue Fund shall be deposited or credited in the following manner and in the following
order of priority:
(1) Operation and Maintenance. The Issuer shall deposit into or credit
to the Operation and Maintenance Fund such sums as are necessary to pay
Operating Expenses for the ensuing month. Amounts in the Operation and
Maintenance Fund shall be paid out from time to time by the Issuer for reasonable
and necessary Operating Expenses; provided, however, that no such payment shall
be made unless the provisions of Section 5.03 hereof in regard to the current Annual
Budget are complied with.
(2) Debt Service Fund. Next, the Issuer shall deposit into or credit to
the Debt Service Fund such sums as are described in Section 4.05(B) hereof.
(3) Reserve Fund. Next, the Issuer shall deposit into or credit to the
Reserve Fund such sums as are described in Section 4.05(C) hereof.
(4) Renewal and Replacement Fund. Next, the Issuer shall deposit into
or credit to the Renewal and Replacement Fund such sums as shall be sufficient to
pay one-twelfth (1/12) of the Renewal and Replacement Fund Requirement until
the balance on deposit in the Renewal and Replacement Fund equals the Renewal
and Replacement Fund Requirement. If the balance on deposit in the Renewal and
Replacement Fund exceeds the Renewal and Replacement Fund Requirement such
excess amount shall be transferred by the Issuer from the Renewal and Replacement
Fund and deposited into the Revenue Fund. The moneys in the Renewal and
Replacement Fund shall be applied by the Issuer for the purpose of paying the cost
of extensions, improvements or additions to, or the replacement or renewal of
capital assets of, the System, or extraordinary repairs of the System; provided,
however, that on or prior to each principal and interest payment date for the Bonds
(in no event earlier than the fifteenth day of the month next preceding such payment
date), moneys in the Renewal and Replacement Fund shall be applied for the
payment into the Interest Account in the Principal Account and the Bond
Amortization Account when the moneys therein are insufficient to pay the principal
of and interest on the Bonds coming due, but only to the extent moneys available
SCHEDULE VI-1
in the Reserve Fund for such purpose pursuant to Section 4.05(C) hereof shall be
inadequate to fully provide for such insufficiency.
(5) Subordinated Indebtedness Fund. Next, the Issuer shall deposit into
or credit to the Subordinated Indebtedness Fund such sums as are necessary to pay
the principal of, premium, if any, and interest on any Subordinated Indebtedness
hereafter issued by the Issuer.
(6) Rate Stabilization Fund. Next, the Issuer may, at its option, deposit
into the Rate Stabilization Fund any amount desired by the Issuer. Moneys in the
Rate Stabilization Fund may be used by the Issuer for any lawful purpose of the
Issuer, including to make deposits to the Revenue Fund at any time and from time
to time.
(7) Surplus Moneys. The balance of any moneys remaining in the
Revenue Fund after the payments and deposits required by part (1) through (6) of
this subsection (A) may be used for any lawful purpose.
(B) Debt Service Fund. The Issuer shall deposit into or credit to the Debt
Service Fund from moneys in the Revenue Fund sufficient to make all of the deposits required by
this subsection (B). The moneys on deposit in the Debt Service Fund shall be applied in the manner
provided herein solely for the payment of the principal of or Redemption Price, if applicable, and
interest on the Bonds and shall not be available for any other purpose. The moneys transferred
from the Revenue Fund to the Debt Service Fund shall be deposited or credited in the following
manner and in the following order of priority:
(1) Interest Account. The Issuer shall deposit into or credit to the
Interest Account the sum which, together with the balance in said account, shall
equal the interest on all Outstanding Bonds accrued and unpaid and to accrue to the
end of the then current calendar month (assuming that a year consists of twelve (12)
equal calendar months of thirty (30) days each). Moneys in the Interest Account
shall be applied by the Issuer to pay interest on the Bonds as and when the same
shall become due, whether by redemption or otherwise, and for no other purpose.
The Issuer shall adjust the amount of the deposit into the Interest Account not later
than the month immediately preceding any Interest Date so as to provide sufficient
moneys in the Interest Account to pay the interest coming due on the Bonds on such
Interest Date.
(2) Principal Account. Next, the Issuer shall deposit into or credit to the
Principal Account the sum which, together with the balance in said account, shall
equal (a) the principal amount of all Outstanding Bonds other than Term Bonds due
and unpaid, (b) that portion of the principal amount of the Bonds other than Term
Bonds next due which would have accrued on such Bonds next due during the then
current calendar month if such principal amount thereof were deemed to accrue
monthly (assuming that a year consists of twelve (12) equal calendar months of
thirty (30) days each) in equal installments from a date one year preceding the due
date of such Bonds next due and (c) the portion of the principal amount of the Bonds
other than Term Bonds next due which shall have accrued on such basis in prior
months. Serial Capital Appreciation Bonds (including their respective interest
SCHEDULE VI-2
components) shall be payable entirely from moneys in the Principal Account on
their respective maturity dates, and monthly deposits or credits to the Principal
Account to provide funds for such purpose shall commence in the month which is
one year prior to each such maturity date. Not later than the month immediately
preceding any principal payment date, the Issuer shall adjust the amount of the
deposit into the Principal Account so as to provide sufficient moneys in the
Principal Account to pay the principal on the Bonds other than Term Bonds
becoming due on such principal payment date. Moneys in the Principal Account
shall be applied by the Issuer to pay the principal of the Bonds other than Term
Bonds as and when the same shall become due, whether at maturity or otherwise,
and for no other purpose.
(3) Bond Amortization Account. Payments to the Bond Amortization
Account shall be on a parity with payments to the Principal Account. Commencing
in the month which is one year prior to the due date of each Amortization
Installment, the Issuer shall deposit into or credit to the Bond Amortization Account
the sum which, together with the balance in said account held for the credit of such
Amortization Installment and all Outstanding Term Bonds due and unpaid, shall
equal (a) the principal amount of all such Outstanding Term Bonds due and unpaid,
(b) that portion of such Amortization Installment which would have accrued during
the then current calendar month if such Amortization Installment were deemed to
accrue monthly (assuming that a year consists of twelve (12) equal calendar months
of thirty (30) days each) in equal amounts from a date one year preceding such due
date and (c) the portion of such Amortization Installment which shall have accrued
on such basis in prior months. Term Capital Appreciation Bonds (including their
respective interest components) shall be payable entirely from moneys in the Bond
Amortization Account on the respective due dates of the Amortization Installments
applicable thereto, and monthly deposits or credits to the Bond Amortization
Account to provide funds for such purpose shall commence in the month which is
one year prior to each such Amortization Installment due date. The Issuer shall
adjust the amount of the deposit into the Bond Amortization Account not later than
the month immediately preceding any date for payment of an Amortization
Installment so as to provide sufficient moneys in the Bond Amortization Account
to pay such Amortization Installment on such date. Moneys in the Bond
Amortization Account shall be applied by the Issuer to purchase or redeem Term
Bonds in the manner herein provided, and for no other purpose.
Amounts accumulated in the Bond Amortization Account with respect to any Amortization
Installment may be applied by the Issuer, on or prior to the sixtieth (60th) day preceding the due
date of such Amortization Installment (i) to the purchase of Term Bonds of the Series and maturity
for which such Amortization Installment was established, at a price not greater than the
Redemption Price at which such Term Bonds may be redeemed on the first date thereafter on
which such Term Bonds shall be subject to redemption, or (ii) to the redemption at the applicable
Redemption Price of such Term Bonds. The applicable Redemption Price (or principal amount of
maturing Term Bonds) of any Term Bonds so purchased or redeemed shall be deemed to constitute
part of the Bond Amortization Account until such Amortization Installment date, for the purposes
of calculating the amount of such Account. As soon as practicable after the sixtieth (60th) day
preceding the due date of any such Amortization Installment, the Issuer shall proceed to call for
SCHEDULE VI-3
redemption on such due date, by causing notice to be given as provided in Section 3.03 hereof,
Term Bonds of the Series and maturity for which such Amortization Installment was established
(except in the case of Term Bonds maturing on an Amortization Installment date) in such amount
as shall be necessary to complete the retirement of the unsatisfied balance of such Amortization
Installment. The Issuer shall pay out of the Bond Amortization Account and the Interest Account
to the respective Paying Agents, on or before the day preceding such redemption date (or maturity
date), the amount required for the redemption (or for the payment of such Term Bonds then
maturing), and such amount shall be applied by such Paying Agents to such redemption (or
payment).
(C) Reserve Fund. The Issuer shall deposit into or credit to each subaccount of
the Reserve Fund such sum, if any, as will be necessary to immediately restore the funds on deposit
therein to an amount equal to the Reserve Fund Requirement therefor including the reinstatement
of any Reserve Fund Insurance Policy or Reserve Fund Letter of Credit on deposit therein or the
cash replacement thereof. In the event the amounts available for such purpose shall be insufficient
to make all payments required by the preceding sentence, the available amount shall be prorated
among the various subaccounts in the Reserve Fund in the same proportion that the Reserve Fund
Requirement for each subaccount bears to the total Reserve Fund Requirement for all such
subaccounts. On or prior to each principal and interest payment date for the Bonds, moneys in
each subaccount of the Reserve Fund shall be applied by the Issuer to the payment of the principal
of or Redemption Price, if applicable, and interest on the Bonds, which such subaccount relates to,
to the extent moneys in the Interest Account, the Principal Account and the Bond Amortization
Account shall be insufficient for such purpose. Whenever there shall be surplus moneys in the
Reserve Fund by reason of a decrease in the Reserve Fund Requirement or as a result of a deposit
therein of a Reserve Account Insurance Policy and/or a Reserve Account Letter of Credit, such
surplus moneys shall be deposited by the Issuer into the Principal Account, or such other
appropriate fund or account of the Issuer or used to pay or provide for necessary rebate through
the Rebate Fund or to pay the premium on the Reserve Fund Insurance Policy, provided such
deposit to such other fund or account shall not adversely affect the exclusion from gross income
of interest on the Bonds for federal income tax purposes.
Upon the issuance of any Series of Bonds, under the terms, limitations and conditions as
herein provided, the Issuer shall provide for the terms of funding of a subaccount in the Reserve
Fund, if required. Such separate subaccount may be funded in such amount, if any, as the Issuer
deems appropriate by Supplemental Resolution.
Whenever moneys on deposit in a subaccount of the Reserve Fund, together with the other
available amounts in the Debt Service Fund, are sufficient to fully pay all Outstanding Bonds
(including principal and interest thereon) of the series secured by such subaccount in accordance
with their terms, the funds on deposit in such subaccount of the Reserve Fund shall be applied to
the payment of such Bonds.
Notwithstanding the foregoing provisions, in lieu of the required deposits into a subaccount
of the Reserve Fund, the Issuer may, at its sole option and discretion, cause to be deposited a
Reserve Fund Insurance Policy and/or Reserve Fund Letter of Credit in an amount equal to the
difference between the Reserve Fund Requirement applicable thereto and the sums, if any,
remaining on deposit in such subaccount of the Reserve Fund after the deposit of such Reserve
Fund Insurance Policy and/or Reserve Fund Letter of Credit. Such Reserve Fund Insurance Policy
and/or Reserve Fund Letter of Credit shall be payable to the Paying Agent for such Series (upon
SCHEDULE VI-4
the giving of notice as required thereunder) on any interest payment or redemption date on which
a deficiency exists which cannot be cured by funds in any other fund or account held pursuant to
this Resolution and available for such purpose. The issuer providing such Reserve Fund Insurance
Policy and/or Reserve Fund Letter of Credit shall, at the time of issuance thereof, be either (a) an
insurer whose municipal bond insurance policies insuring the payment, when due, of the principal
of and interest on municipal bond issues results in such issues being rated in one of the three
highest rating categories (without regard to gradations, such as “plus” or “minus” of such
categories) by Standard & Poor’s Rating Group or Moody’s Investors Service, or (b) a commercial
bank, insurance company or other financial institution the bonds payable or guaranteed by which
have, or whose obligation to pay is guaranteed by a commercial bank, insurance company or other
financial institution which has, been assigned a rating by Moody’s Investors Service or Standard
& Poor’s Rating Group in one of the three highest rating categories (without regard to gradations,
such as “plus” or “minus” of such categories).
If fifteen (15) days prior to an interest payment or mandatory redemption date, the Issuer
or a related Bond trustee shall determine that a deficiency exists in the amount of moneys available
to pay in accordance with the terms hereof interest and/or principal due on Bonds on such date,
the Issuer shall immediately notify (a) the issuer of the applicable Reserve Fund Insurance Policy
and/or the issuer of the Reserve Fund Letter of Credit, and (b) the Insurer, if any, of the amount of
such deficiency and the date on which such payment is due, and shall take all action to cause such
issuer or Insurer to provide moneys sufficient to pay all amounts due on such interest payment or
redemption date. Any available funds on deposit in a subaccount of the Reserve Fund shall be
drawn upon and expended prior to a draw upon the Reserve Fund Insurance Policy and/or a
Reserve Fund Line of Credit for that same subaccount.
If a disbursement is made from a Reserve Fund Insurance Policy and/or Reserve Fund
Letter of Credit provided pursuant to this Section 4.05(C), the Issuer shall reinstate the maximum
limits of such Reserve Fund Insurance Policy and/or Reserve Fund Letter of Credit immediately
following such disbursement from moneys available in the applicable subaccount of the Reserve
Fund in accordance with the provisions of the first paragraph of this Section 4.05(C), by depositing
funds in the amount of the disbursement made under such instrument, with the issuer thereof,
together with interest thereon to the date of reimbursement at the rate set forth in such Reserve
Fund Insurance Policy or such Reserve Fund Letter of Credit, but in no case greater than the
maximum rate of interest permitted by law. In addition, and in the same manner, the Issuer shall
reimburse the issuer of the Reserve Fund Insurance Policy and/or the issuer of the Reserve Fund
Letter of Credit for all reasonable expenses incurred by such issuer in connection with the draw on
such Reserve Fund Insurance Policy or the Reserve Fund Letter of Credit, as the case may be.
The Issuer may evidence its obligation to reimburse the issuer of any Reserve Fund Letter
of Credit or Reserve Fund Insurance Policy by executing and delivering to such issuer a promissory
note therefor, provided, however, any such note (a) shall not be a general obligation of the Issuer
the payment of which is secured by the full faith and credit or taxing power of the Issuer, and (b)
shall be payable solely from the Pledged Funds in the manner provided herein.
To the extent the Issuer causes to be deposited into the Reserve Fund, a Reserve Fund
Insurance Policy and/or a Reserve Fund Letter of Credit for a term of years shorter than the life of
the Series of Bonds so insured or secured, then the Reserve Fund Insurance Policy and/or the
Reserve Fund Letter of Credit shall provide, among other things, that the issuer thereof shall
provide the Issuer with notice as of each anniversary of the date of the issuance of the Reserve
SCHEDULE VI-5
Fund Insurance Policy and/or the Reserve Fund Letter of Credit of the intention of the issuer
thereof to either (a) extend the term of the Reserve Fund Insurance Policy and/or the Reserve Fund
Letter of Credit beyond the expiration dates thereof, or (b) terminate the Reserve Fund Insurance
Policy and/or the Reserve Fund Letter of Credit on the initial expiration dates thereof or such other
future date as the issuer thereof shall have established. If the issuer of the Reserve Fund Insurance
Policy and/or the Reserve Fund Letter of Credit notifies the Issuer pursuant to clause (b) of the
immediately preceding sentence or if the Issuer terminates the Reserve Fund Letter of Credit and/or
Reserve Fund Insurance Policy, then the Issuer shall deposit into the Reserve Fund, on or prior to
the fifteenth (15th) day of the first full calendar month following the date on which such notice is
received by the Issuer, such sums as shall be sufficient to pay an amount equal to a fraction, the
numerator of which is one (1) and the denominator of which is equal to the number of months
remaining in the term of the Reserve Fund Insurance Policy and/or the Reserve Fund Letter of
Credit of the Reserve Fund Requirement on the date such notice was received (the maximum
amount available, assuming full reimbursement by the Issuer, under the Reserve Fund Letter of
Credit and/or the Reserve Fund Insurance Policy to be reduced annually by an amount equal to the
deposit to the Reserve Fund during the previous twelve (12) month period) until amounts on
deposit in the Reserve Fund, as a result of the aforementioned deposits, and no later than upon the
expiration of such Reserve Fund Insurance Policy and/or such Reserve Fund Letter of Credit, shall
be equal to the Reserve Fund Requirement applicable thereto.
If any Reserve Fund Letter of Credit or Reserve Fund Insurance Policy shall terminate prior
to the stated expiration date thereof, the Issuer agrees that it shall fund the Reserve Fund over a
period not to exceed sixty (60) months \[or such other term agreed to by the provider of the Reserve
Fund Letter of Credit or the Reserve Fund Insurance Policy\] during which it shall make
consecutive equal monthly payments in order that the amount on deposit in such account at the
end of such period shall equal the Reserve Fund Requirement; provided, the Issuer may, with the
prior written consent of the Insurer, if any, obtain a new Reserve Fund Letter of Credit or a new
Reserve Fund Insurance Policy in lieu of making the payments required by this paragraph.
(D) Purchase or Redemption of Bonds. The Issuer, in its discretion, may use
moneys in the Principal Account and the Interest Account to purchase or redeem Bonds coming
due on the next principal payment date, provided such purchase or redemption does not adversely
affect the Issuer’s ability to pay the principal or interest coming due on such principal payment
date on the Bonds not so purchased or redeemed.
(E) Deposit of Moneys with Paying Agents. On or before the date established
for payment of any principal of or Redemption Price, if applicable, or interest on the Bonds, the
Issuer shall withdraw from the Debt Service Fund sufficient moneys to pay such principal or
Redemption Price, if applicable, or interest and deposit such moneys with the Paying Agent for
the Bonds to be paid.
(F) Reimbursement of Credit Bank. In the case of Bonds secured by a Credit
Facility or Insurer, amounts on deposit in any funds or accounts established for such Bonds may
be applied as provided in the applicable Supplemental Resolution to reimburse the Credit Bank or
Insurer for amounts drawn under such Credit Facility or Bond Insurance Policy to pay the principal
of or Redemption Price, if applicable, and interest of such Bonds or to pay the purchase price of
any such Bonds which are tendered by the Holders thereof for payment.
SCHEDULE VI-6
SCHEDULE VII
RATE COVENANT
All capitalized terms used below in this Schedule VII have the meanings assigned to such terms
in the Master Resolution.
Part A
Set forth below is the first paragraph of Section 5.04 of the Master Resolution as of the Effective
Date.
Section 5.04. Rates. The Issuer shall fix, establish, maintain and collect such Rates and
revise the same from time to time, whenever necessary, as will always provide in each Fiscal Year
Net Revenues adequate at all times to pay in each Fiscal Year at least one hundred twenty percent
(120%) of the current annual Debt Service Requirement becoming due in such Fiscal Year on each
Series of Outstanding Bonds and at least one hundred percent (100%) of any amounts required by
the terms hereof to be deposited in the Reserve Fund, with any issuer of a Reserve Fund Letter of
Credit or Reserve Fund Insurance Policy, or to be deposited in the Renewal and Replacement Fund
or to be paid for debt service on Subordinated Indebtedness in such Fiscal Year. Such Rates shall
not be so reduced so as to be insufficient to provide Net Revenues fully adequate for the purposes
provided therefore by this Resolution.
Part B
Set forth below is the second paragraph of Section 5.04 of the Master Resolution as of the Effective
Date.
If, upon making such determination in any Fiscal Year, the Issuer shall determine that it
has failed to comply with the requirements contained in the above paragraph, it shall cause within
the following 45 days of such determination the Consulting Engineers to review its Rates, Gross
Revenues, Operating Expenses and methods of operation and to make written recommendations
and file such written report with such 45 days as to the methods by which the Issuer may promptly
seek to comply with the requirements set forth above. The Issuer shall forthwith commence to
implement such recommendations to the extent required so within the thirty day period following
the filing of the report, as to cause it to thereafter comply with said requirements. To the extent the
Issuer causes the Consulting Engineers to undertake such review and implements such
recommendations, the failure to comply with Section the paragraph above shall not constitute an
event of default hereunder.
SCHEDULE VII-1
SCHEDULE VIII
ADDITIONAL BONDS TEST
Set forth below is Section 6.02 of the Master Resolution as of the Effective Date. All capitalized
terms used below in this Schedule VIII have the meanings assigned to such terms in the Master
Resolution. All section references made below in this Schedule VIII refer to sections in the Master
Resolution.
Section 6.02. Issuance of Bonds. The Issuer may issue one or more Series of Bonds for any
one or more of the following purposes: financing the Cost of Project, or the completion thereof or
refunding any or all Outstanding Bonds or any Subordinated Indebtedness or other debt of the
Issuer or any other purpose permitted by law. Additional Bonds shall be deemed to have been
issued pursuant to this Resolution the same as any Outstanding Bonds, and all of the other
covenants and other provisions of this Resolution (except as to details of such Additional Bonds
inconsistent therewith) shall be for the equal benefit, protection and security of the Holders of all
Bonds issued pursuant to this Resolution; provided, however, any Supplemental Resolution
authorizing the issuance of Bonds may provide that any of the covenants herein contained will not
be applicable to such Bonds, provided that such provision shall not, in the opinion of Bond
Counsel, adversely affect the rights of the Holders of any Bonds which shall then be Outstanding.
Except as provided in Sections 4.02 and 4.05 hereof, all Bonds, regardless of the time or times of
their issuance, shall rank equally with respect to their lien on the Pledged Funds and their sources
and security for payment therefrom without preference of any Bonds over any other; provided,
however, that the Issuer shall include a provision in any Supplemental Resolution authorizing the
issuance of Variable Rate Bonds pursuant to this Section 6.02 that in the event the principal thereof
is accelerated due to such Bonds being held by the issuer of a Credit Facility, the lien of such
Bonds on the Pledged Funds shall be subordinate in all respects to the pledge of the Pledged Funds
created by this Resolution. No such Additional Bonds shall be issued by the Issuer, as the case
may be, unless the following conditions are compiled with:
(A) The Issuer shall certify that it is current in all deposits into the various funds
and accounts established hereby and all payments theretofore required to have been deposited or
made by it under the provisions of this Resolution and has complied with the covenants and
agreements of this Resolution.
(B) There shall have been obtained and filed with the Issuer a certificate of an
Authorized Issuer Officer: (1) stating that such Authorized Issuer Officer has examined the books
and records of the Issuer relating to the collection and receipt of Gross Revenues and relating to
Operating Expenses; (2) setting forth the amount of Net Revenues, for the most recent Fiscal Year
for which audited financial statements for the System are available or any twelve (12) consecutive
months selected by the Issuer of the twenty four (24) months immediately preceding the issuance
of such Additional Bonds; and (3) stating that such Net Revenues, adjusted as provided in Section
6.02(E) hereof, equal at least 1.20 times the Maximum Debt Service Requirement for all
Outstanding Bonds and such Additional Bonds then proposed to be issued.
(C) In computing Maximum Debt Service Requirement for purposes of this
Section 6.02, the interest rate on outstanding Variable Rate Bonds, and on additional parity
Variable Rate Bonds then proposed to be issued, shall be calculated as provided in the definition
of Debt Service Requirement.
SCHEDULE VIII-1
(D) For the purpose of this Section 6.02, the phrase “the most recent Fiscal Year
audited financial statements for the System are available or any twelve (12) consecutive months
selected by the Issuer of the twenty-four (24) months immediately preceding the issuance of such
Additional Bonds” shall be sometimes referred to as “twelve (12) consecutive months.”
(E) Such Net Revenues may be adjusted by the Authorized Issuer Officer upon
the written advice of the Consulting Engineers, at the option of the Issuer, as follows:
(1) If the Issuer, prior to the issuance of the proposed Additional Bonds,
shall have adopted and implemented an increase in the Rates, the Net Revenues for
the twelve (12) consecutive months shall be adjusted to show the Net Revenues
which would have been derived from the System in such twelve (12) consecutive
months as if such increased Rates had been in effect during all of such twelve (12)
consecutive months.
(2) If the Issuer, prior to the issuance of the proposed Additional Bonds,
shall have acquired or has contracted to acquire any privately or publicly owned
existing water system, the cost of which shall be paid from all or part of the
proceeds of the issuance of the proposed Additional Bonds, then the Net Revenues
derived from the System during the twelve (12) consecutive months immediately
preceding the issuance of said Additional Bonds shall be increased by adding to the
Net Revenues for said twelve (12) consecutive months the Net Revenues which
would have been derived from said existing water system as if such existing water
system had been a part of the System during such twelve (12) consecutive months.
For the purposes of this paragraph, the Net Revenues derived from said existing
water system during such twelve (12) consecutive months shall be adjusted to
determine such Net Revenues by deducting the cost of operation and maintenance
of said existing water system from the gross revenues of said system. Such Net
Revenues shall take into account any increase in rates imposed on customers of
such acquired water system on or prior to the acquisition thereof by the Issuer.
(3) If the Issuer, in connection with the issuance of Additional Bonds,
shall enter into a contract (with a duration not less than the final maturity of such
Additional Bonds) with any public or private entity whereby the Issuer agrees to
furnish services in connection with any water system, then the Net Revenues of the
System during the twelve (12) consecutive months immediately preceding the
issuance of said Additional Bonds shall be increased by the least amount which said
public or private entity shall guarantee to pay in any one year for the furnishing of
said services by the Issuer, after deducting therefrom the proportion of operating
expenses and repair, renewal and replacement cost attributable in such year to such
services.
(4) In the event the Issuer shall be constructing or acquiring additions,
extensions or improvements to the System from the proceeds of such Additional
Bonds and shall have established Rates to be charged and collected from users of
such facilities when service is rendered, such Net Revenues may be adjusted by
adding thereto the Net Revenues estimated by the Consulting Engineers to be
derived during the first twelve (12) months of operation after completion of the
construction or acquisition of said additions, extensions and improvements from
SCHEDULE VIII-2
the proposed users of the facilities to be financed by Additional Bonds together
with other funds on hand or lawfully obtained for such purpose.
(5) If the Issuer, prior to the issuance of the proposed Additional Bonds,
shall have obtained new ongoing customers of the System the Net Revenues for the
twelve (12) consecutive months shall be adjusted to reflect the additional Net
Revenues which would have been derived from the System with respect to such
customers, as if such customers had been utilizing the System during all of such
twelve (12) consecutive months.
(F) In the event any Additional Bonds are issued for the purpose of refunding
any Bonds then Outstanding, the conditions of Section 6.02(A) and (B) shall not apply, provided
that the issuance of such Additional Bonds shall result in a reduction in aggregate debt service.
The conditions of Section 6.02(B) hereof shall apply to Additional Bonds issued to refund
Subordinated Indebtedness and to Additional Bonds issued for refunding purposes which cannot
meet the conditions of this paragraph.
(G) In the event that the total amount of any Series of Bonds authorized to be
issued shall not be issued simultaneously, such Bonds which shall be issued subsequently shall be
subject to the conditions of Section 6.02(B) hereof.
(H) If at any time the Issuer shall enter into an agreement or contract for an
ownership interest in any public or privately owned water system or for the reservation of capacity
therein whereby the Issuer has agreed as part of the cost thereof to pay part of the debt service on
the obligations of such public or privately owned water system issued in connection therewith,
such payments to be made by the Issuer shall be junior, inferior and subordinate in all respects to
the Bonds issued hereunder, unless such obligations (when treated as Additional Bonds) shall meet
the conditions of Section 6.02(B) hereof, in which case such obligations shall rank on parity as to
lien on the Pledged Funds with the Bonds.
(I) In addition to all of the other requirements specified in this Section 6.02,
the Issuer must comply with any applicable provisions of any financing documents relating to
outstanding Subordinated Indebtedness to the extent such provisions impact on the ability of the
Issuer to issue Additional Bonds.
SCHEDULE VIII-3
SCHEDULE 12(f)
LITIGATION
No.Parties Date Initiated Description Venue
1 City of Miami December 21, City of Miami Gardens (“Plaintiff”) Fla. 11th
Gardens vs. 2018 filed a “Class Action Complaint” against Circuit Court
City of North the City of North Miami Beach (the
Miami Beach “City”) seeking “declaratory judgment,
injunctive relief and damages on behalf
of itself and similarly situated residents
or business entities.” The Plaintiff
alleges that as a consequence of entering
into an agreement with Jacobs
Engineering for certain operation and
maintenance of the Norwood Plant, the
City no longer operates the Norwood
Plant as required under the Surcharge
Statute to charge the 25% surcharge (the
“Complaint”).
Plaintiff also takes issue with the fact
that the Norwood Plant is located within
Plaintiff boundaries and that residents
and business entities “located within the
City of Miami Gardens continue to pay
a premium for treated water processed
within their municipality that does not
leave the City of Miami Gardens before
delivery to consumers.”
The City moved to dismiss the damage
claims in Plaintiff’s Complaint as barred
by sovereign immunity (among other
defenses raised in the City’s motion to
dismiss). Following a hearing on the
City’s motion to dismiss, the Court
entered an order denying, in part, the
City’s motion to dismiss and ordering
Plaintiff to “replead to give a more
definite statement.” On February 10,
2020, Plaintiff filed a three-count
amended class action complaint, which
is substantially similar to the original
Complaint (the “Amended
Complaint”).
SCHEDULE 12(f)-1
On February 20, 2020, the City timely
filed a notice of appeal based on denial
of its defense of sovereign immunity
and the action was stayed pursuant to
the City’s notice of automatic stay. On
May 12, 2020, Plaintiff moved to
dismiss the appeal as moot based on the
filing of its Amended Complaint. On
June 10, 2020, the Third District Court
of Appeal dismissed the appeal as moot
noting that: “the initial complaint which
Appellant asks this Court to conclude
should have been dismissed is no longer
operative.” At this time the City has
until June 25, 2020 to file a motion for
rehearing of that dismissal. If no such
motion is filed, the case will be
remanded to the trial court and the City
will respond to the Amended Complaint.
SCHEDULE 12(f)-2
SCHEDULE 12(n)
PRINCIPAL PROJECT CONTRACTS
A. Existing Principal Project Contracts
No. Contract Date Parties Description
1 Agreement for NMB May 22, City of North Miami Agreement for CH2M Hill to
Water Operations, 2017 Beach, Florida and perform Basic Operation and
Maintenance, and CH2M Hill Maintenance Services, Repair
Program Management Engineers, Inc. and Replacement Services, and
Services Program Management Services.
3
B. Additional Principal Project Contracts
Contract Expected Effective Parties Description
Date (if known)
Construction of Phase 2 UnknownCity and to be Norwood Water Treatment
Upgrades to Norwood WTP determinedPlant Phase 2 Project
construction
Construction for Phase II and UnknownCity and to be Eastern Shores Watermain
III of Eastern Shores determinedProject installation and
Watermain System construction
Rehabilitation
Construction of Norwood UnknownCity and to be Norwood WTP Electrical
WTP Electrical System determinedSystem Improvements
Improvements Project Installation and
Construction
Construction of System-wide UnknownCity and to be System-wide Transmission
Transmission Watermains determinedWatermains Replacement
Replacement projects construction
Construction of System-wide UnknownCity and to be System-wide Distribution
Distribution Watermains determinedWatermains Replacement
Replacement Programprojects construction
Construct SCADA and UnknownCity and to be SCADA and Radio
Radio Telemetry System determinedTelemetry System
Upgradesinstallation and construction
3
The Additional Principal Project Contracts are proposed and are subject to change, at the Borrower’s sole discretion,
including bundling or phasing of projects, services or contracts, in order to (at the Borrower’s opinion) achieve the
most effective execution strategy. The Borrower may choose to enter into some of them, all of them or none of them.
Any Additional Principal Project Contract will not become final until after approval by the City Commission and
execution by the Borrower’s mayor.
SCHEDULE 12(n)-1
Construction of Honey Hill UnknownCity and to be Honey Hill Watermain
Watermain System determinedSystem Rehabilitation
Rehabilitationproject construction
Construction of Operations UnknownCity and to be Operations Center Pump
Center Pump Station determinedStation Improvements
ImprovementsProject construction
SCHEDULE 12(n)-2
EXHIBIT A
FORM OF WIFIA BOND
CITY OF NORTH MIAMI BEACH, FLORIDA
NORWOOD WATER TREATMENT PLANT UPGRADE AND TRANSMISSION MAIN
IMPROVEMENTS AND REPLACEMENTS PROJECT
(WIFIA – N18118FL)
WIFIA BOND
Maximum Principal Amount: $44,204,486
Effective Date: June 25, 2020 Due: August 1, 2060
CUSIP#660899AA3
CITY OF NORTH MIAMI BEACH, a municipality duly created and validly existing
under the laws of the State of Florida (the “Borrower”), for value received, hereby promises to
pay to the order of the UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
acting by and through the Administrator of the United States Environmental Protection Agency,
or its assigns (the “WIFIA Lender”), the lesser of (x) the Maximum Principal Amount set forth
above and (y) the aggregate unpaid principal amount of all disbursements (the “Disbursements”)
made by the WIFIA Lender (such lesser amount, being hereinafter referred to as the “Outstanding
Principal Sum”), together with accrued and unpaid interest (including, if applicable, interest at
the Default Rate, as defined in the WIFIA Loan Agreement (as defined below)) on the Outstanding
Principal Sum and all fees, costs and other amounts payable in connection therewith, all as more
fully described in the WIFIA Loan Agreement. The principal hereof shall be payable in the manner
and at the place provided in the WIFIA Loan Agreement in accordance with Exhibit F (WIFIA
Debt Service) to the WIFIA Loan Agreement, as revised from time to time in accordance with the
WIFIA Loan Agreement, until paid in full (which Exhibit F, as modified from time to time in
accordance with the terms of the WIFIA Loan Agreement, is incorporated in and is a part of this
WIFIA Bond). The WIFIA Lender is hereby authorized to modify the Loan Amortization
Schedule included in Exhibit F to the WIFIA Loan Agreement from time to time in accordance
with the terms of the WIFIA Loan Agreement to reflect the amount of each disbursement made
thereunder and the date and amount of principal or interest paid by the Borrower thereunder.
Absent manifest error, the WIFIA Lender’s determination of such matters as set forth on Exhibit
F to the WIFIA Loan Agreement shall be conclusive evidence thereof; provided, however, that
neither the failure to make any such recordation nor any error in such recordation shall affect in
any manner the Borrower’s obligations hereunder or under any other WIFIA Loan Document.
The interest rate on this WIFIA Bond shall be one and thirty-six one hundredths percent
(1.36%) per annum. Interest will accrue and be computed on the Outstanding Principal Sum (as
well as on any past due interest) from time to time on the basis of a three hundred sixty (360) day
year of twelve (12) thirty (30) day months; provided, that, upon the occurrence of an Event of
Default, the Borrower shall pay interest on the Outstanding Principal Sum at the Default Rate (as
defined in the WIFIA Loan Agreement to be the sum of (a) the WIFIA Interest Rate set forth above
EXHIBIT A-1
plus (b) 200 basis points) in accordance with Section 6 (Interest Rate) of the WIFIA Loan
Agreement.
Payments hereon are to be made in accordance with Section 8(d) (Payment of Principal
and Interest – Manner of Payment) and Section 31 (Notices) of the WIFIA Loan Agreement as the
same become due. Principal of and interest on this WIFIA Bond shall be paid in funds available
on or before the due date and in any lawful coin or currency of the United States of America that
at the date of payment is legal tender for the payment of public and private debts. If the Final
Maturity Date is amended in connection with an update to the Updated Financial Model approved
by the WIFIA Lender pursuant to Section 16(a) (Reporting Requirements – Updated Financial
Model) of the WIFIA Loan Agreement, the due date of this WIFIA Bond shall be deemed to be
amended to change the due date to such revised Final Maturity Date without any further action
required on the part of the Borrower or the WIFIA Lender and such amendment shall in no way
amend, modify or affect the other provisions of this WIFIA Bond without the prior written
agreement of the WIFIA Lender. Any such amendment shall be reflected in a revised Exhibit F.
This WIFIA Bond has been executed under and pursuant to that certain WIFIA Loan
Agreement, dated as of the date hereof, between the WIFIA Lender and the Borrower (the “WIFIA
Loan Agreement”) and is issued to evidence the obligation of the Borrower under the WIFIA
Loan Agreement to repay the loan made by the WIFIA Lender and any other payments of any kind
required to be paid by the Borrower under the WIFIA Loan Agreement or the other WIFIA Loan
Documents referred to therein. Reference is made to the WIFIA Loan Agreement for all details
relating to the Borrower’s obligations hereunder. All capitalized terms used in this WIFIA Bond
and not defined herein shall have the meanings set forth in the WIFIA Loan Agreement.
This WIFIA Bond may be prepaid at the option of the Borrower in whole or in part (and,
if in part, the principal installments and amounts thereof to be prepaid are to be determined in
accordance with the WIFIA Loan Agreement; provided, however, such prepayments shall be in
principal amounts of at least $1,000,000 or any integral multiple of $1 in excess thereof), from
time to time, but not more than annually, without penalty or premium, by paying to the WIFIA
Lender all or part of the principal amount of the WIFIA Bond in accordance with the WIFIA Loan
Agreement.
Payment of the obligations of the Borrower under this WIFIA Bond is secured pursuant to
the Master Resolution and WIFIA Supplemental Resolution referred to in the WIFIA Loan
Agreement.
Any delay on the part of the WIFIA Lender in exercising any right hereunder shall not
operate as a waiver of any such right, and any waiver granted with respect to one default shall not
operate as a waiver in the event of any subsequent default.
All acts, conditions and things required by the Constitution and laws of the State to happen,
exist, and be performed precedent to and in the issuance of this WIFIA Bond have happened, exist
and have been performed as so required. This WIFIA Bond is issued with the intent that the federal
laws of the United States of America shall govern its construction to the extent such federal laws
are applicable and the internal laws of the State shall govern its construction to the extent such
federal laws are not applicable.
EXHIBIT A-2
IN WITNESS WHEREOF, the CITY OF NORTH MIAMI BEACH has caused this WIFIA
Bond to be executed in its name and its seal to be affixed hereto and attested by its duly authorized
officer, all as of the Effective Date set forth above.
CITY OF NORTH MIAMI BEACH,
FLORIDA,
by its authorized representative
(SEAL)
By ______________________________
Name:____________________________
Title:_____________________________
ATTEST:
_________________________
Secretary
EXHIBIT A-3
CERTIFICATE OF AUTHENTICATION
This WIFIA Bond is the WIFIA Bond described in the within-mentioned WIFIA
Supplemental Resolution.
CITY OF NORTH MIAMI BEACH,
FLORIDA
By: ___________________________
(Authorized Signer)
EXHIBIT A-4
(FORM OF ASSIGNMENT)
FOR VALUE RECEIVED, the Undersigned hereby unconditionally sells, assigns
and transfers unto _______________________________________________________________
______________________________________________________________________________
(Please Insert Social Security or other identifying number of Assignee(s)):
the within bond and all rights thereunder.
Dated: ________________
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within note in every
particular, without alteration or enlargement or
any change whatever.
EXHIBIT A-5
EXHIBIT B
ANTICIPATED WIFIA LOAN DISBURSEMENT SCHEDULE
Period Start Period End Period Payment Disbursements in Ending Balance
Date Date Date Period
6/25/2020 7/31/2020 8/1/2020 $0.00$0.00
8/1/2020 1/31/2021 2/1/2021 $1,404,946.00$1,404,946.00
2/1/2021 7/31/2021 8/1/2021 $0.00$1,404,946.00
8/1/2021 1/31/2022 2/1/2022 $15,168,440.00$16,573,386.00
2/1/2022 7/31/2022 8/1/2022 $0.00$16,573,386.00
8/1/2022 1/31/2023 2/1/2023 $13,787,620.00$30,361,006.00
2/1/2023 7/31/2023 8/1/2023 $0.00$30,361,006.00
8/1/2023 1/31/2024 2/1/2024 $12,877,690.00$43,238,696.00
2/1/2024 7/31/2024 8/1/2024 $0.00$43,238,696.00
8/1/2024 1/31/2025 2/1/2025 $965,790.00$44,204,486.00
EXHIBIT B-1
EXHIBIT C
FORM OF NON-DEBARMENT CERTIFICATE
The undersigned, on behalf of the CITY OF NORTH MIAMI BEACH, hereby certifies
that the CITY OF NORTH MIAMI BEACH has fully complied with its verification obligations
under 2 C.F.R. § 180.320 and hereby further confirms, based on such verification, that, to its
knowledge, the Borrower and its principals (as defined in 2 C.F.R. § 180.995 and supplemented
by 2 C.F.R. § 1532.995):
(a)Are not presently debarred, suspended, proposed for debarment, declared
ineligible, or voluntarily excluded by any federal department or agency;
(b)Have not within a three (3) year period preceding the Effective Date been convicted
of or had a civil judgment rendered against them for commission of fraud or a criminal offense in
connection with obtaining, attempting to obtain, or performing a public (federal, state or local)
transaction or contract under a public transaction; violation of federal or state antitrust statutes or
commission of embezzlement, theft, forgery, bribery, falsification or destruction of records,
making false statements, or receiving stolen property;
(c)Are not presently indicted for or otherwise criminally or civilly charged by a
governmental entity (federal, state or local) with commission of any of the offenses enumerated in
paragraph (b) of this certification; and
(d)Have not within a three (3) year period preceding the Effective Date had one or
more public transactions (federal, state or local) terminated for cause or default.
Dated: _________________
CITY OF NORTH MIAMI BEACH,
by its authorized representative
By: _______________________________________
Name:
Title:
EXHIBIT C-1
EXHIBIT D
REQUISITION PROCEDURES
This Exhibit D sets out the procedures which the Borrower agrees to follow in submitting
Requisitions for the disbursement of WIFIA Loan proceeds in respect of the Eligible Project Costs
incurred in connection with the Project. Section 1 sets out the manner in which Requisitions are
to be submitted and reviewed. Sections 2 through 4 set out the circumstances in which the WIFIA
Lender may reject or correct Requisitions submitted by the Borrower or withhold a disbursement.
The Borrower expressly agrees to the terms hereof, and further agrees that (i) the rights of the
WIFIA Lender contained herein are in addition to (and not in lieu of) any other rights or remedies
available to the WIFIA Lender under the WIFIA Loan Agreement, and (ii) nothing contained
herein shall be construed to limit the rights of the WIFIA Lender to take actions including
administrative enforcement action and actions for breach of contract against the Borrower if it fails
to carry out its obligations under the WIFIA Loan Agreement during the term thereof.
Section 1. General Requirements. All requests by the Borrower for the disbursement of
WIFIA Loan proceeds shall be made by electronic mail or overnight delivery service by
submission to the WIFIA Lender, in accordance with Section 31 (Notices) of the WIFIA Loan
Agreement, of a Requisition, in form and substance satisfactory to the WIFIA Lender and
completed and executed by the Borrower’s Authorized Representative. The form of Requisition
is attached as Appendix One (Form of Requisition) to this Exhibit D.
Supporting documentation should be submitted with the requisition. If the Borrower
anticipates that it will draw down all or a portion of the proceeds of the WIFIA Loan to reimburse
the Borrower for Eligible Project Costs paid by or on behalf of the Borrower prior to such
disbursement of WIFIA Loan proceeds, whether paid from funds of the Borrower or proceeds of
Obligations issued by the Borrower, including for the purpose of paying or redeeming such
Obligations, the Borrower shall deliver appropriate documentation, including invoices and
records, evidencing such incurred or paid Eligible Project Costs (the “Eligible Project Costs
Documentation”). The Eligible Project Costs Documentation must provide sufficient detail to
enable the WIFIA Lender to verify that such costs are Eligible Project Costs paid by the Borrower,
in connection with the reimbursement of such Eligible Project Costs or for the purpose of paying
or redeeming, in whole or part, the portion of any such short-term interim financing in respect of
which the proceeds were used to pay such documented Eligible Project Costs. The WIFIA Lender
shall review the Eligible Project Costs Documentation for compliance with WIFIA disbursement
requirements, and any amounts approved by the WIFIA Lender as Eligible Project Costs will be
disbursed at such time as the Borrower submits a Requisition in respect of such approved amounts.
The WIFIA Lender agrees to promptly send to the Borrower in accordance with Section
31 (Notices) of the WIFIA Loan Agreement, an acknowledgement of receipt of each Requisition
in the form attached as Appendix Two (\[Approval/Disapproval\] of the WIFIA Lender) to this
Exhibit D setting forth the date of receipt by the WIFIA Lender of such Requisition and setting
forth the Business Day on which disbursement will be made absent denial by the WIFIA Lender.
All disbursement requests must be received by the WIFIA Lender at or before 5:00 P.M. (EST) on
st
the first (1) Business Day of a calendar month in order to obtain disbursement by the fifteenth
th
(15) day of such calendar month or, if either such day is not a Business Day, the next succeeding
EXHIBIT D-1
Business Day. If a Requisition is approved by the WIFIA Lender, the WIFIA Lender will notify
the Borrower of such approval and of the amount so approved.
Section 2. Rejection. A Requisition may be rejected in whole or in part by the WIFIA
Lender if it is: (a) submitted without signature; (b) submitted under signature of a Person other
than a Borrower’s Authorized Representative; (c) submitted after prior disbursement of all
proceeds of the WIFIA Loan; (d) submitted without adequate Eligible Project Costs
Documentation, including (i) copies of invoices and records evidencing the Eligible Project Costs,
(ii) a summary of the progress of construction of the Project and a general description of the work
done for which the funds being requisitioned are being applied (or a certification that no change
has occurred since the date of the latest quarterly report provided pursuant to Section 16(d)
(Reporting Requirements – Construction Reporting)), and (iii) a copy of the most recent update to
the Borrower’s risk register, if requested by the WIFIA Lender.
The WIFIA Lender will notify the Borrower of any Requisition so rejected, and the reasons
therefor. Any Requisition rejected for the reasons specified above (other than Section 2(c)) must
be resubmitted in proper form in order to be considered for approval. If a Requisition exceeds the
balance of the WIFIA Loan proceeds remaining to be disbursed, the request will be treated as if
submitted in the amount of the balance so remaining, and the WIFIA Lender will so notify the
Borrower.
Section 3. Correction. A Requisition containing an apparent mathematical error will
be corrected by the WIFIA Lender, after telephonic or email notification to the Borrower, and will
thereafter be treated as if submitted in the corrected amount.
Section 4. Withholding. The WIFIA Lender shall be entitled to withhold approval (in
whole or in part) of any pending or subsequent requests for the disbursement of WIFIA Loan
proceeds if: (a) a Default or an Event of Default shall have occurred and be continuing; (b) the
Borrower (i) knowingly takes any action, or omits to take any action, amounting to fraud or
violation of any applicable law, in connection with the transactions contemplated hereby;
(ii) prevents or materially impairs the ability of the WIFIA Lender to monitor compliance by the
Borrower with applicable law pertaining to the Project or with the terms and conditions of the
WIFIA Loan Agreement; (iii) fails to observe or comply with any applicable law, or any term or
condition of the WIFIA Loan Agreement; (iv) fails to satisfy the conditions set forth in Section 4
(Disbursement Conditions) and Section 11(b) (Conditions Precedent – Conditions Precedent to
Disbursements) of the WIFIA Loan Agreement; or (v) fails to deliver Eligible Project Costs
Documentation satisfactory to the WIFIA Lender at the times and in the manner specified by the
WIFIA Loan Agreement; provided, that in such case of Section 4(v), the WIFIA Lender may, in
its sole discretion, partially approve a disbursement request in respect of any amounts for which
adequate Eligible Project Costs has been provided and may, in its sole discretion, disburse in
respect of such properly documented amounts.
EXHIBIT D-2
(WIFIA Ref
WIFIA Loan
”), the Borrower hereby
”) and the UNITED STATES
WIFIA Lender
Borrower
Norwood Water Treatment Plant Upgrade and Transmission Main Improvements and Replacements ProjectCity of North Miami Beach N18118FL \[___\]
EXHIBIT D-3
FORM OF REQUISITION
) of the WIFIA Loan Agreement, dated as of June 25, 2020 (the “
APPENDIX ONE TO EXHIBIT D
4
Project name Borrower name WIFIA reference number Requisition number
Disbursement Conditions
1.2.3.4.
”), by and between the CITY OF NORTH MIAMI BEACH (the “
Norwood Water Treatment Plant Upgrade and Transmission Main Improvements and Replacements Project
If there is a Servicer for the WIFIA Loan, provide a copy to the Servicer as well and include its notice details here.
United States Environmental Protection Agency1200 Pennsylvania Avenue NW WJC-W 6201A Washington, D.C. 20460 Attention: WIFIA Director Re: N18118FL) Ladies and Gentlemen: Pursuant to
Section 4 (AgreementENVIRONMENTAL PROTECTION AGENCY, acting by and through the Administrator (the “requests disbursement in the amount set forth below in respect of Eligible Project
Costs paid or incurred by the Borrower. Capitalized terms used but not defined herein have the meaning set forth in the WIFIA Loan Agreement. In connection with this Requisition the
undersigned, as the Borrower’s Authorized Representative, hereby represents and certifies the following: 4
) of
Affirmative Covenants – Insurance
$\[___\] \[___\] $\[___\] \[___\]
EXHIBIT D-4
Requested disbursement amount Requested disbursement date (the “Disbursement Date”) Total amounts previously disbursed under the WIFIA Loan Agreement Wire instructions
5.6.7.8.
The amounts hereby requisitioned have been paid or incurred and approved for payment by or on behalf of the Borrower for Eligible Project Costs and have not been paid for or reimbursed
by any previous disbursement from WIFIA Loan proceeds. No portion of the amounts requisitioned will be applied to pay for Eligible Project Costs that have been previously paid, or are
expected to be paid, with proceeds of debt of the Borrower that is not the WIFIA Loan. The aggregate amount of all disbursements of the WIFIA Loan (including the amount requested under
this Requisition) does not exceed (a) the amount of the WIFIA Loan, (b) the amount of Eligible Project Costs paid or incurred by the Borrower, and (c) the cumulative disbursements through
the end of the current Federal Fiscal Year as set forth in the Anticipated WIFIA Loan Disbursement Schedule. The Borrower has sufficient available funds committed to the Project, which
together with funds that remain available and not yet drawn under the WIFIA Loan, will be sufficient to pay the reasonably anticipated remaining Total Project Costs. The total federal
assistance provided to the Project, including the maximum principal amount of the WIFIA Loan, does not exceed eighty percent (80%) of Total Project Costs. The Borrower has all Governmental
Approvals necessary as of the date hereof and as of the Disbursement Date (immediately after giving effect to the above-requested disbursement of WIFIA Loan proceeds), for the development,
construction, operation and maintenance of the Project and each such Governmental Approval has been issued and is in full force and effect (and is not subject to any notice of violation,
breach or revocation). Each of the insurance policies obtained by the Borrower in satisfaction of Section 14(f) (the WIFIA Loan Agreement is in full force and effect, and no notice
of termination thereof has been issued by the applicable insurance provider.
9.10.11.12.13.14.
) is complete, fully executed and in
) and no change has occurred since the date of the most recently
EXHIBIT D-5
Conditions Precedent – Conditions Precedent to Disbursements
Reporting Requirements – Construction Reporting
As of the date hereof and on the Disbursement Date (immediately after giving effect to the above-requested disbursement of WIFIA Loan proceeds), (i) no Default or Event of Default and
(ii) no event of default under any other Related Document and no event that, with the giving of notice or the passage of time or both, would constitute an event of default under any
Related Document, in each case, has occurred and is continuing. No Material Adverse Effect, or any event or condition that could reasonably be expected to have a Material Adverse Effect,
has occurred or arisen since the Effective Date. The Borrower, and each of its contractors and subcontractors at all tiers with respect to the Project, has complied with all applicable
laws, rules, regulations and requirements, including without limitation 40 U.S.C. §§ 3141–3144, 3146, and 3147 (relating to Davis-Bacon Act requirements) (and regulations relating thereto)
and 33 U.S.C. § 3914 (relating to American iron and steel products). Supporting documentation, such as certified payroll records and certifications for all iron and steel products used
for the Project, are being maintained and are available for review upon request by the WIFIA Lender. The representations and warranties of the Borrower set forth in the WIFIA Loan Agreement
and in each other Related Document are true and correct as of the date hereof and as of the Disbursement Date, except to the extent such representations and warranties expressly relate
to an earlier date (in which case, such representations and warranties shall be true and correct as of such earlier date). Each Bond Authorization Document and Principal Project Contract
that has been delivered by the Borrower to the WIFIA Lender pursuant to Section 11(b) (full force and effect. The current estimated percentage of physical completion of the Project
is \[___\]%. The Borrower is in compliance with Section 16(d) (delivered quarterly construction progress report that could reasonably be expected to cause a Material Adverse Effect.
All documentation evidencing the Eligible Project Costs to be reimbursed to the Borrower by the above-requested disbursement has been delivered by the Borrower to the WIFIA Lender at
the times and in the manner specified by the WIFIA Loan Agreement, including the details set forth \[in the attachment hereto, which is in form satisfactory to the WIFIA Lender\]\[below:
15.16.17.18.19.20.
Notes
WIFIA USE ONLY Approved Amount
, with an explanation in column
9
Other
Description of Activity
8
Activity Type
7
WIFIA Requested Amount
EXHIBIT D-6
Invoice Amount
, including for application and credit processing; or (f)
, which includes construction, reconstruction, rehabilitation and replacement activities; (c)
, which includes planning, preliminary engineering, design, environmental review, revenue
CITY OF NORTH MIAMI BEACH, By its authorized representative By: _______________________________ Name: Title:___________________________
WIFIA fees
Payment Date
Construction
Invoice Date
Development phase activity
6
, including capitalized interest, as necessary to meet market requirements, reasonably required reserve funds, capital issuance
, which includes acquiring an interest in real property, environmental mitigation, construction contingencies and acquisition of
Invoice Number
Carrying costs
5
Vendor or Contractor Name
Date: _______________________
If seeking reimbursement for internal costs, enter “Internally financed activities.” Vendor’s number indicated on the invoice sent to the Borrower. If the amount requested for reimbursement
by WIFIA is less than the total amount of the invoice, include an explanation for the difference. Specify whether activity is: (a) Provide a brief description of the activities included
in the invoice for which WIFIA funds are being requested and any other notes that will aid in the review of
The undersigned acknowledges that if the Borrower makes a false, fictitious, or fraudulent claim, statement, submission, or certification to the Government in connection with the Project,
the Government reserves the right to impose on the Borrower the penalties of 18 U.S.C. § 1001, to the extent the Government deems appropriate. 5678 forecasting and other pre-construction
activities; (b) Acquisition of real propertyequipment; (d) expenses and other carrying costs during construction; (e) H. 9 the disbursement request.
APPENDIX TWO TO EXHIBIT D
\[APPROVAL/DISAPPROVAL\] OF THE WIFIA LENDER
(To be delivered to the Borrower)
Requisition Number \[_______________\] is \[approved in the amount of $\[________\]\]
\[approved in part in the amount of $\[_________\]\] \[not approved, for the reasons set forth in Annex
10
A attached hereto,\] by the WIFIA Lender (as defined herein) pursuant to Section 4
(Disbursement Conditions) of the WIFIA Loan Agreement, dated as of June 25, 2020, by and
between the City of North Miami Beach (the “Borrower”) and the United States Environmental
Protection Agency, acting by and through the Administrator (the “WIFIA Lender”).
Any determination, action or failure to act by the WIFIA Lender with respect to the
Requisition set forth above, including any withholding of a disbursement, shall be at the WIFIA
Lender’s sole discretion, and in no event shall the WIFIA Lender be responsible for or liable to
the Borrower for any and/or all consequence(s) which are the result thereof.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, acting by and
through the Administrator
By: ___________________________
WIFIA Lender’s Authorized Representative
Name:
Title:
Dated:
10
If there is any partial or full denial of approval, the WIFIA Lender shall provide a separate attachment setting forth
the reasons for such partial or full denial of approval.
D-7
EXHIBIT E
FORM OF NON-LOBBYING CERTIFICATE
The undersigned, on behalf of the CITY OF NORTH MIAMI BEACH (the “Borrower”),
hereby certifies, to the best of his or her knowledge and belief, that:
(a)No Federal appropriated funds have been paid or will be paid, by or on behalf of
the Borrower, to any person for influencing or attempting to influence an officer or employee of
an agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the making of the WIFIA Loan.
(b)If any funds other than proceeds of the WIFIA Loan have been paid or will be paid
to any person for influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with the WIFIA Loan, the Borrower shall complete and submit Standard
Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
(c)The Borrower shall require that the language of this certification be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all subrecipients shall certify and
disclose accordingly.
Capitalized terms used in the certificate and not defined shall have the respective meanings
ascribed to such terms in the WIFIA Loan Agreement, dated as of June 25, 2020 (the “WIFIA
Loan Agreement”), by and between the United States Environmental Protection Agency, acting
by and through the Administrator (the “WIFIA Lender”), and the Borrower, as the same may be
amended from time to time.
This certification is a material representation of fact upon which reliance was placed when the
WIFIA Lender entered into the WIFIA Loan Agreement. Submission of this certification is a
prerequisite to the effectiveness of the WIFIA Loan Agreement imposed by section 1352, title 31,
U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty
of not less than $10,000 and not more than $100,000 for each such failure.
Dated: _________________
CITY OF NORTH MIAMI BEACH,
by its authorized representative
By: _______________________________________
Name:
Title:
EXHIBIT E-1
EXHIBIT F
WIFIA DEBT SERVICE
EXHIBIT F-1
NorthMiamiBeachWaterWIFIALoanAmortizationSchedule
ClosingDate6/25/2020
LoanAmount$44,204,486.00
Interestrate1.36%
WeightAverageLife26.5
DisbursementsinPrincipalSemiannualDebt
PeriodStartDatePeriodEndDatePeriodPaymentDateInterestPaymentEndingBalance
PeriodRepaymentServicePayment
6/25/20207/31/20208/1/2020$0.00$0.00$0.00$0.00$0.00
8/1/20201/31/20212/1/2021$1,404,946.00$9,553.64$0.00$9,553.64$1,404,946.00
2/1/20217/31/20218/1/2021$0.00$9,553.64$0.00$9,553.64$1,404,946.00
8/1/20211/31/20222/1/2022$15,168,440.00$112,699.04$0.00$112,699.04$16,573,386.00
2/1/20227/31/20228/1/2022$0.00$112,699.03$0.00$112,699.03$16,573,386.00
8/1/20221/31/20232/1/2023$13,787,620.00$206,454.85$0.00$206,454.85$30,361,006.00
2/1/20237/31/20238/1/2023$0.00$206,454.85$0.00$206,454.85$30,361,006.00
8/1/20231/31/20242/1/2024$12,877,690.00$294,023.15$0.00$294,023.15$43,238,696.00
2/1/20247/31/20248/1/2024$0.00$294,023.14$0.00$294,023.14$43,238,696.00
8/1/20241/31/20252/1/2025$965,790.00$300,590.52$0.00$300,590.52$44,204,486.00
2/1/20257/31/20258/1/2025$0.00$300,590.51$0.00$300,590.51$44,204,486.00
8/1/20251/31/20262/1/2026$0.00$300,590.51$0.00$300,590.51$44,204,486.00
2/1/20267/31/20268/1/2026$0.00$300,590.51$0.00$300,590.51$44,204,486.00
8/1/20261/31/20272/1/2027$0.00$300,590.51$0.00$300,590.51$44,204,486.00
2/1/20277/31/20278/1/2027$0.00$300,590.51$0.00$300,590.51$44,204,486.00
8/1/20271/31/20282/1/2028$0.00$300,590.51$0.00$300,590.51$44,204,486.00
2/1/20287/31/20288/1/2028$0.00$300,590.51$0.00$300,590.51$44,204,486.00
8/1/20281/31/20292/1/2029$0.00$300,590.51$0.00$300,590.51$44,204,486.00
2/1/20297/31/20298/1/2029$0.00$300,590.51$0.00$300,590.51$44,204,486.00
8/1/20291/31/20302/1/2030$0.00$300,590.51$0.00$300,590.51$44,204,486.00
2/1/20307/31/20308/1/2030$0.00$300,590.51$0.00$300,590.51$44,204,486.00
8/1/20301/31/20312/1/2031$0.00$300,590.51$0.00$300,590.51$44,204,486.00
2/1/20317/31/20318/1/2031$0.00$300,590.51$1,203,136.55$1,503,727.06$43,001,349.45
8/1/20311/31/20322/1/2032$0.00$292,409.18$0.00$292,409.18$43,001,349.45
2/1/20327/31/20328/1/2032$0.00$292,409.18$1,219,499.20$1,511,908.38$41,781,850.25
8/1/20321/31/20332/1/2033$0.00$284,116.59$0.00$284,116.59$41,781,850.25
2/1/20337/31/20338/1/2033$0.00$284,116.59$1,236,084.39$1,520,200.98$40,545,765.86
8/1/20331/31/20342/1/2034$0.00$275,711.21$0.00$275,711.21$40,545,765.86
2/1/20347/31/20348/1/2034$0.00$275,711.21$1,252,895.14$1,528,606.35$39,292,870.72
8/1/20341/31/20352/1/2035$0.00$267,191.53$0.00$267,191.53$39,292,870.72
2/1/20357/31/20358/1/2035$0.00$267,191.53$1,269,934.51$1,537,126.04$38,022,936.21
8/1/20351/31/20362/1/2036$0.00$258,555.97$0.00$258,555.97$38,022,936.21
2/1/20367/31/20368/1/2036$0.00$258,555.97$1,287,205.62$1,545,761.59$36,735,730.59
8/1/20361/31/20372/1/2037$0.00$249,802.97$0.00$249,802.97$36,735,730.59
2/1/20377/31/20378/1/2037$0.00$249,802.97$1,304,711.62$1,554,514.59$35,431,018.97
8/1/20371/31/20382/1/2038$0.00$240,930.93$0.00$240,930.93$35,431,018.97
2/1/20387/31/20388/1/2038$0.00$240,930.93$1,322,455.70$1,563,386.63$34,108,563.27
8/1/20381/31/20392/1/2039$0.00$231,938.24$0.00$231,938.24$34,108,563.27
2/1/20397/31/20398/1/2039$0.00$231,938.24$1,340,441.10$1,572,379.34$32,768,122.17
8/1/20391/31/20402/1/2040$0.00$222,823.24$0.00$222,823.24$32,768,122.17
2/1/20407/31/20408/1/2040$0.00$222,823.24$1,358,671.09$1,581,494.33$31,409,451.08
8/1/20401/31/20412/1/2041$0.00$213,584.27$0.00$213,584.27$31,409,451.08
2/1/20417/31/20418/1/2041$0.00$213,584.27$1,377,149.02$1,590,733.29$30,032,302.06
8/1/20411/31/20422/1/2042$0.00$204,219.66$0.00$204,219.66$30,032,302.06
2/1/20427/31/20428/1/2042$0.00$204,219.66$1,395,878.25$1,600,097.91$28,636,423.81
8/1/20421/31/20432/1/2043$0.00$194,727.69$0.00$194,727.69$28,636,423.81
2/1/20437/31/20438/1/2043$0.00$194,727.69$1,414,862.19$1,609,589.88$27,221,561.62
8/1/20431/31/20442/1/2044$0.00$185,106.62$0.00$185,106.62$27,221,561.62
2/1/20447/31/20448/1/2044$0.00$185,106.62$1,434,104.32$1,619,210.94$25,787,457.30
8/1/20441/31/20452/1/2045$0.00$175,354.71$0.00$175,354.71$25,787,457.30
2/1/20457/31/20458/1/2045$0.00$175,354.71$1,453,608.14$1,628,962.85$24,333,849.16
8/1/20451/31/20462/1/2046$0.00$165,470.18$0.00$165,470.18$24,333,849.16
2/1/20467/31/20468/1/2046$0.00$165,470.18$1,473,377.21$1,638,847.39$22,860,471.95
8/1/20461/31/20472/1/2047$0.00$155,451.21$0.00$155,451.21$22,860,471.95
2/1/20477/31/20478/1/2047$0.00$155,451.21$1,493,415.14$1,648,866.35$21,367,056.81
8/1/20471/31/20482/1/2048$0.00$145,295.99$0.00$145,295.99$21,367,056.81
2/1/20487/31/20488/1/2048$0.00$145,295.99$1,513,725.58$1,659,021.57$19,853,331.23
8/1/20481/31/20492/1/2049$0.00$135,002.66$0.00$135,002.66$19,853,331.23
2/1/20497/31/20498/1/2049$0.00$135,002.66$1,534,312.25$1,669,314.91$18,319,018.98
8/1/20491/31/20502/1/2050$0.00$124,569.33$0.00$124,569.33$18,319,018.98
2/1/20507/31/20508/1/2050$0.00$124,569.33$1,555,178.90$1,679,748.23$16,763,840.08
8/1/20501/31/20512/1/2051$0.00$113,994.12$0.00$113,994.12$16,763,840.08
2/1/20517/31/20518/1/2051$0.00$113,994.12$1,576,329.33$1,690,323.45$15,187,510.75
8/1/20511/31/20522/1/2052$0.00$103,275.08$0.00$103,275.08$15,187,510.75
2/1/20527/31/20528/1/2052$0.00$103,275.08$1,597,767.41$1,701,042.49$13,589,743.34
8/1/20521/31/20532/1/2053$0.00$92,410.26$0.00$92,410.26$13,589,743.34
2/1/20537/31/20538/1/2053$0.00$92,410.26$1,619,497.05$1,711,907.31$11,970,246.29
8/1/20531/31/20542/1/2054$0.00$81,397.68$0.00$81,397.68$11,970,246.29
2/1/20547/31/20548/1/2054$0.00$81,397.68$1,641,522.21$1,722,919.89$10,328,724.08
8/1/20541/31/20552/1/2055$0.00$70,235.33$0.00$70,235.33$10,328,724.08
2/1/20557/31/20558/1/2055$0.00$70,235.33$1,663,846.91$1,734,082.24$8,664,877.17
8/1/20551/31/20562/1/2056$0.00$58,921.17$0.00$58,921.17$8,664,877.17
2/1/20567/31/20568/1/2056$0.00$58,921.17$1,686,475.23$1,745,396.40$6,978,401.94
8/1/20561/31/20572/1/2057$0.00$47,453.14$0.00$47,453.14$6,978,401.94
2/1/20577/31/20578/1/2057$0.00$47,453.14$1,709,411.29$1,756,864.43$5,268,990.65
8/1/20571/31/20582/1/2058$0.00$35,829.14$0.00$35,829.14$5,268,990.65
2/1/20587/31/20588/1/2058$0.00$35,829.14$1,732,659.28$1,768,488.42$3,536,331.37
8/1/20581/31/20592/1/2059$0.00$24,047.06$0.00$24,047.06$3,536,331.37
2/1/20597/31/20598/1/2059$0.00$24,047.06$1,756,223.45$1,780,270.51$1,780,107.92
8/1/20591/31/20602/1/2060$0.00$12,104.74$0.00$12,104.74$1,780,107.92
2/1/20607/31/20608/1/2060$0.00$12,104.74$1,780,107.92$1,792,212.66$0.00
Total$44,204,486.00$14,777,588.29$44,204,486.00$58,982,074.29
EXHIBIT G-1
OPINIONS REQUIRED FROM COUNSEL TO BORROWER
An opinion of the counsel of the Borrower, dated as of the Effective Date, to the effect that:
(a)The Borrower has been duly created and validly exists as a municipality of the State under
and pursuant to the laws of the State of Florida (the “State”) (including the Act), with good
right and power to issue the WIFIA Bond.
(b)The Borrower has the right and power under the laws of the State, including the Act, to
enter into the Bond Authorization Documents, the Related Documents and the WIFIA
Bond, and each has been duly authorized, executed and delivered by the Borrower, is in
full force and effect, and constitutes a legal, valid and binding agreement of the Borrower
enforceable against the Borrower in accordance with its respective terms and conditions.
(c)The execution and delivery by the Borrower of, and the performance of its respective
obligations under, the Related Documents to which it is a party, have been duly authorized
by all necessary organizational or regulatory action.
(d)No authorization, consent, or other approval of, or registration, declaration or other filing
with any governmental authority of the United States of America or of the State is required
on the part of the Borrower for the execution and delivery by such party of, and the
performance of such party under, any Related Document to which it is a party other than
authorizations, consents, approvals, registrations, declarations and filings that have already
been timely obtained or made by the Borrower.
(e)The execution and delivery by the Borrower of, and compliance with the provisions of, the
Related Documents to which it is a party in each case do not (i) violate the Organizational
Documents of the Borrower, (ii) violate the law of the United States of America or of the
State or (iii) conflict with or constitute a breach of or default under any material agreement
or other instrument known to us to which the Borrower is a party, or to the best of our
knowledge, after reasonable review, any court order, consent decree, statute, rule,
regulation or any other law to which the Borrower is subject.
(f)To the best of our knowledge, after due inquiry and except as set forth in Schedule 12(f)
(Litigation) to the WIFIA Loan Agreement, there are no actions, suits, proceedings or
investigations against the Borrower by or before any court, arbitrator or any other
Governmental Authority in connection with the Related Documents or the System
(including the Project) that are pending.
(g)The Borrower would not have the defense of sovereign immunity in any breach of contract
action under the WIFIA Loan Agreement or the WIFIA Bond.
EXHIBIT G-1-1
EXHIBIT G-2
OPINIONS REQUIRED FROM BOND COUNSEL
An opinion of bond counsel, dated as of the Effective Date, to the effect that:
(a)The Borrower has the right and power under the laws of the State, including the Act, to
enter into the WIFIA Loan Documents, and each has been duly authorized, executed and
delivered by the Borrower, is in full force and effect, and constitutes a legal, valid and
binding agreement of the Borrower enforceable against the Borrower in accordance with
its respective terms and conditions.
(b)The WIFIA Bond is a valid and binding limited obligation of the Borrower enforceable in
accordance with its terms, payable solely from the Pledged Funds, in the manner and to the
extent provided in the Resolution and the WIFIA Loan Agreement.
(c)The Resolution creates a valid lien upon the Pledged Funds to secure the payment of the
principal of, interest on, and other amounts payable in respect of, the WIFIA Bond and
all conditions precedent to the validity of the pledge of Pledged Funds have been
satisfied.
(d)The WIFIA Bond is (i) secured by the Pledged Funds, (ii) a Bond entitled to the benefits
of a Bond under the Resolution, (iii) enforceable under the laws of the State without any
further action by the Borrower or any other Person, and (iv) ranks on a parity in right of
payment and right of security with all other Bonds and is senior in right of payment and
right of security to all Subordinated Indebtedness.
EXHIBIT G-2-1
EXHIBIT H
\[RESERVED\]
EXHIBIT H-1
EXHIBIT I
FORM OF CLOSING CERTIFICATE
Reference is made to that certain WIFIA Loan Agreement, dated as of June 25, 2020 (the
“WIFIA Loan Agreement”), by and among the City of North Miami Beach (the “Borrower”)
and the United States Environmental Protection Agency, acting by and through the Administrator
(the “WIFIA Lender”). Capitalized terms used in this certificate and not defined shall have the
respective meanings ascribed to such terms in the WIFIA Loan Agreement.
In connection with Section 11(a) (Conditions Precedent – Conditions Precedent to Effectiveness)
of the WIFIA Loan Agreement, the undersigned, \[___\], as Borrower’s Authorized Representative,
does hereby certify on behalf of the Borrower and not in his/her personal capacity, as of the date
hereof:
(a)pursuant to Section 11(a)(viii) of the WIFIA Loan Agreement, attached hereto as
Annex A is an incumbency certificate that lists all persons, together with their
positions and specimen signatures, who are duly authorized by the Borrower to
execute the Related Documents to which the Borrower is or will be a party, and
who have been appointed as a Borrower’s Authorized Representative in accordance
with Section 21 (Borrower’s Authorized Representative) of the WIFIA Loan
Agreement;
(b)pursuant to Section 11(a)(ii) of the WIFIA Loan Agreement, the Borrower has
delivered to the WIFIA Lender copies of each Bond Authorization Document,
together with any amendments, waivers or modifications thereto, that has been
entered into on or prior to the Effective Date, and each such document is complete,
fully executed, and in full force and effect, and all conditions contained in such
documents that are necessary to the closing of the WIFIA transactions contemplated
hereby have been fulfilled;
(c)pursuant to Section 11(a)(iii) of the WIFIA Loan Agreement, the Borrower has
delivered to the WIFIA Lender copies of each Existing Principal Project Contract,
together with any amendments, waivers or modifications thereto, and each such
document is complete, fully executed, and in full force and effect;
(d)pursuant to Section 11(a)(iv) of the WIFIA Loan Agreement, the Borrower has
delivered to the WIFIA Lender a copy of the Borrower’s Organizational
Documents, as in effect on the Effective Date, which Organizational Documents
are in full force and effect. Other than the Bond Authorization Documents, there
are no additional instruments or documents necessary for the Borrower to execute
and deliver, or to perform its obligations under, the WIFIA Loan Documents to
which it is a party and to consummate and implement the transactions contemplated
by the WIFIA Loan Documents;
(e)pursuant to Section 11(a)(viii)(1) of the WIFIA Loan Agreement, the aggregate of
all funds committed to the development and construction of the Project as set forth
EXHIBIT I-1
in the Base Case Financial Model and in the Project Budget are sufficient to carry
out the Project, pay all Total Project Costs anticipated for the Project and achieve
Substantial Completion by the Projected Substantial Completion Date;
(f)pursuant to Section 11(a)(viii)(2) of the WIFIA Loan Agreement, the Borrower has
obtained all Governmental Approvals necessary (i) as of the Effective Date in
connection with the Project and (ii) to execute and deliver, and perform its
obligations under the WIFIA Loan Documents, and each such Governmental
Approval is final, non-appealable and in full force and effect (and is not subject to
any notice of violation, breach or revocation);
(g)pursuant to Section 11(a)(viii)(3) of the WIFIA Loan Agreement, (i) the maximum
principal amount of the WIFIA Loan, together with the amount of any other credit
assistance provided under the Act to the Borrower, does not exceed forty-nine
percent (49%) of reasonably anticipated Eligible Project Costs and (ii) the total
federal assistance provided to the Project, including the maximum principal amount
of the WIFIA Loan, does not exceed eighty percent (80%) of Total Project Costs;
(h)pursuant to Section 11(a)(viii)(4) of the WIFIA Loan Agreement, the Borrower is
in compliance with NEPA and any applicable federal, state or local environmental
review and approval requirements with respect to the Project, and, if requested by
the WIFIA Lender, has provided evidence satisfactory to the WIFIA Lender of such
compliance;
(i)pursuant to Section 11(a)(viii)(5) of the WIFIA Loan Agreement, the Borrower has
developed, and identified adequate revenues to implement, a plan for operating,
maintaining and repairing the Project during its useful life;
(j)pursuant to Section 11(a)(viii)(6) of the WIFIA Loan Agreement, (i) the Borrower’s
Federal Employer Identification Number is 59-6000389, (ii) the Borrower’s Data
Universal Numbering System number is 071313951, and (iii) the Borrower has
registered with, and obtained confirmation of active registration status from, the
federal System for Award Management (www.SAM.gov), which confirmation is
attached hereto as Annex \[B\];
(k)pursuant to Section 11(a)(viii)(7) of the WIFIA Loan Agreement, the CUSIP
number for the WIFIA Loan is 660899AA3;
(l)pursuant to Section 11(a)(viii)(8) of the WIFIA Loan Agreement, the
representations and warranties of the Borrower set forth in the WIFIA Loan
Agreement and in each other Related Document to which the Borrower is a party
are true and correct on and as of the date hereof, except to the extent that such
representations and warranties expressly relate to an earlier date, in which case such
representations and warranties were true and correct as of such earlier date;
(m)pursuant to Section 11(a)(viii)(9) of the WIFIA Loan Agreement, no Material
Adverse Effect, or any event or condition that could reasonably be expected to have
a Material Adverse Effect, has occurred or arisen since December 9, 2019;
EXHIBIT I-2
(n)pursuant to Section 11(a)(x) of the WIFIA Loan Agreement, none of the rating
letters delivered to the WIFIA Lender pursuant to such Section 11(a)(ix) has been
reduced, withdrawn or suspended as of the Effective Date;
(o)pursuant to Section 11(a)(x) of the WIFIA Loan Agreement, the Borrower has
delivered to the WIFIA Lender the Base Case Financial Model, which (i)
demonstrates that projected System Revenues are sufficient to meet the Loan
Amortization Schedule, (ii) demonstrates compliance with the Rate Covenant for
each Borrower Fiscal Year through the Final Maturity Date, (iii) reflects principal
amortization and interest payment schedules acceptable to the WIFIA Lender, (iv)
demonstrates that the Borrower has developed, and identified adequate revenues to
implement, a plan for operating, maintaining and repairing the Project over its
useful life and (v) otherwise meets the requirements of such Section 11(a)(x);
(p)pursuant to Section 11(a)(xi) of the WIFIA Loan Agreement, attached hereto as
Annex \[C\] are certificates of insurance, and such insurance certificate is true and
correct and demonstrates compliance with the requirements of Section 14(f)
(Affirmative Covenants – Insurance) of the WIFIA Loan Agreement; and
(q)pursuant to Section 11(a)(xv) of the WIFIA Loan Agreement, no performance
security instrument is required to be delivered to or by the Borrower pursuant to
any Principal Project Contract as of the Effective Date.
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date first
mentioned above.
CITY OF NORTH MIAMI BEACH,
by its authorized representative
By: _______________________________
Name:
Title:
EXHIBIT I-3
ANNEX A TO EXHIBIT I
INCUMBENCY CERTIFICATE
The undersigned certifies that he/she is the \[Secretary\] of the City of North Miami Beach,
Florida, a municipality duly created and validly existing under the laws of the State of Florida, (the
“Borrower”), and as such he/she is authorized to execute this certificate and further certifies that
the following persons have been elected or appointed, are qualified, and are now acting as officers
or authorized persons of the Borrower in the capacity or capacities indicated below, and that the
signatures set forth opposite their respective names are their true and genuine signatures. He/She
further certifies that any of the officers listed below is authorized to sign agreements and give
written instructions with regard to any matters pertaining to the WIFIA Loan Documents as the
Borrower’s Authorized Representative (each as defined in that certain WIFIA Loan Agreement,
dated as of the date hereof, between the Borrower and the United States Environmental Protection
Agency, acting by and through the Administrator):
Name Title Signature
\[_______________\] \[___________________\] ________________________
\[_______________\] \[___________________\] ________________________
\[_______________\] \[___________________\] ________________________
\[_______________\] \[___________________\] ________________________
\[_______________\] \[___________________\] ________________________
IN WITNESS WHEREOF, the undersigned has executed this certificate as of this 25th day
of June, 2020.
CITY OF NORTH MIAMI BEACH,
by its authorized representative
By: _______________________________
Name:
Title:
EXHIBIT I-4
EXHIBIT J
FORM OF CERTIFICATE OF SUBSTANTIAL COMPLETION
\[Letterhead of Borrower\]
\[Date\]
WIFIA Program Office
\[Insert Proper Address\]
Attention: Administrator
Project: Norwood Water Treatment Plant Upgrade and Transmission Main Improvements
and Replacements Project (WIFIA – N18118FL)
Dear Director:
This Notice is provided pursuant to Section 16(h)(i)(A) (Reporting Requirements – Notices –
Substantial Completion) of that certain WIFIA Loan Agreement (the “WIFIA Loan
Agreement”), dated as of June 25, 2020, by and between the City of North Miami Beach (the
“Borrower”) and the United States Environmental Protection Agency, acting by and through its
Administrator (the “WIFIA Lender”).
Unless otherwise defined herein, all capitalized terms in this certificate have the meanings assigned
to those terms in the WIFIA Loan Agreement.
I, the undersigned, in my capacity as the Borrower’s Authorized Representative and not in my
individual capacity, do hereby certify to the WIFIA Lender that:
(a) on \[insert date Substantial Completion requirements were satisfied\], the Project satisfied
each of the requirements for Substantial Completion set forth in the \[Insert reference to the
concession agreement, design-build or similar agreement for the Project\];
(b) Substantial Completion has been declared under each of the above-referenced agreements
and copies of the notices of Substantial Completion under such agreements are attached to
this certification; and
(c) Substantial Completion, as defined in the WIFIA Loan Agreement, has been achieved.
CITY OF NORTH MIAMI BEACH,
by its authorized representative
By: _______________________________
Name:
Title:
EXHIBIT J-1
EXHIBIT K
FORM OF QUARTERLY REPORT
United States Environmental Protection Agency
WIFIA Director
WJC-W 6201A
1200 Pennsylvania Avenue NW
Washington, DC 20460
WIFIA_Portfolio@epa.gov
Re: Norwood Water Treatment Plant Upgrade and Transmission Main Improvements and
Replacements Project (WIFIA – N18118FL)
This Quarterly Report for the period of \[insert relevant monthly period\] is provided pursuant to
Section 16(d) (Reporting Requirements – Construction Reporting) of the WIFIA Loan Agreement,
dated as of June 25, 2020 (the “WIFIA Loan Agreement”), by and between the City of North
Miami Beach (“the Borrower”) and the United States Environmental Protection Agency, acting
by and through the Administrator of the Environmental Protection Agency (the “WIFIA
Lender”). Unless otherwise defined herein, all capitalized terms in this Quarterly Report have the
meanings assigned to those terms in the WIFIA Loan Agreement.
(i)Please complete the table in Exhibit A as subprojects are identified and awarded
(ii)Construction Progress, Governmental Approvals
Assessment of overall construction progress:
Notice of receipt of relevant Governmental Approvals since the Effective Date and since the
prior Quarterly Report:
(iii)Substantial Completion Date
Current projection for the Substantial Completion Date: _____________________________
If the current projection for the substantial completion date is later than previously reported in the
prior Quarterly Report, provide a description in reasonable detail for such projected delay:
EXHIBIT K-1
(iv)Material Problems (if any)
Detailed description of all material problems (including actual and anticipated cost and/or
schedule overruns, if any), encountered or anticipated in connection with the construction of the
Project during the preceding quarter, together with an assessment of how such problems may
impact the Construction Schedule and the meeting of critical dates thereunder and a detailed
description of the proposed solutions to any such problems:
(v)Proposed or pending change orders that exceed the threshold set out in Section
16(f) (Modifications to Total Project Costs) or could reasonably be expected to
result in a Material Adverse Effect
(vi)Other matters related to the Project
Date: _______________________ CITY OF NORTH MIAMI BEACH,
by its authorized representative
By: _______________________________
Name: _____________________________
Title:_______________________________
EXHIBIT K-2
%
Contract Duration
Days
Elapsed
(date)
Current
Contract
Completion
to
Date
Time
(days)
Added
(date)
Original
Contract
Completion
NTP Date
Effective
%
Costs
to Date
Earned or Paid
Total
Costs
to date
Earned or Paid
Costs
Period
Earned or Paid
Current
Reporting
EXHIBIT K-3
EXHIBIT A to
Quarterly Progress Report
Total
Current Amount
Contract
Orders to Date
Change
Amount
Original
Contract
Location
Description
Name
Project
ID
Project
TOTAL
EXHIBIT L
FORM OF PUBLIC BENEFITS REPORT
Pursuant to Section 11(a)(xii) (Conditions Precedent – Conditions Precedent to Effectiveness) and
Section 16(e) (Reporting Requirements – Public Benefits Report) of the WIFIA Loan Agreement,
the City of North Miami Beach (the “Borrower”) is providing this Public Benefits Report in
connection with the Norwood Water Treatment Plant Upgrade and Transmission Main
Improvements and Replacements Project (WIFIA – N18118FL):
(i) The estimated interest savings the Borrower is realizing through the use of the WIFIA
Loan compared to comparable market rate financing:
The estimated interest savings from using the WIFIA Loan compared to a comparable
market rate financing is $\[__\] million on a gross savings basis.
(ii) With respect to the report delivered \[prior to the Effective Date\]\[within ninety (90)
days following the Substantial Completion Date\]\[within ninety (90) following the fifth
anniversary of the Substantial Completion Date\], the number of jobs projected to be
created by the Project during the period between the Effective Date and the
Substantial Completion Date:
The Borrower projects approximately \[__\] jobs to be created by the Project during the
11
period between \[\[(1)\] the Effective Date and the Substantial Completion Date\] \[and\]
\[\[(2)\] the Substantial Completion Date and the fifth anniversary of the Substantial
12
Completion Date\].
(iii) Whether the Project will assist the Borrower in complying with applicable regulatory
requirements, and if so, a narrative description describing such enhancements:
\[___\].
(iv) The amount by which the Project will assist the Borrower in increasing the volume of
potable water produced (measured in MGD annually):
\[___\].
11
Include for both the reports delivered (i) prior to the Effective Date and (ii) 90 days following the Substantial
Completion Date.
12
Include for both the reports delivered (i) prior to the Effective Date and (ii) 90 days following the fifth anniversary
of the Substantial Completion Date.
EXHIBIT L-1
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT C
CITY OF SUNNY ISLES BEACH DRAWINGS AND TECHNICAL
SPECIFICATIONS
CLICK BELOW TO ACCESS SPECS:
https://csib-
my.sharepoint.com/:f:/g/personal/gcuevas
_sibfl_net/El2ooP0N1I1Emd4S9dYnDqgBpw
3Jrqqyt-2ARiJWJ-6y1Q?e=NNF1lT
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 42
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT D
CITY OF NORTH MIAMI BEACH DRAWINGS AND TECHNICAL
SPECIFICATIONS
CLICK BELOW TO ACCESS SPECS:
https://csib-
my.sharepoint.com/:f:/g/personal/gcuevas_si
bfl_net/Ev_0a65HUp9JjjH5u98n9y0BzG7k8xL2
_Y8ToyMSZ8z_9g?e=ie20dB
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 43
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT E
JOINT BID PRICE SHEET
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 44
INVITATION TO BID NO. 23-10-01
JOINT PROCUREMEMT
1.BIDDER AGREES TO PERFORM ALL THE WORK DESCRIBED IN THE CONTRACT DOCUMENTS TO PROVIDE A COMPLETE PROJECT AS SHOWN ON THE PLANS AND SPECIFICATIONS FOR THE FOLLOWING
LUMP SUM AND/OR UNIT PRICES.
2.BIDS SHALL INCLUDE SALES TAX AND ALL OTHER APPLICABLE TAXES AND FEES.
3.BIDDER IS TO INCLUDE FULL RESTORATION COSTS INTO THEIR UNIT PRICES EXCEPT FOR THE FINAL ASPHALT OVERLAY
ITEM NODESCRIPTIONQUANTITYUNITUNIT COSTTOTAL
GENERAL ITEMS
THE LUMP SUM (LS) PRICES FOR ITEMS SHALL BE DONE IN ACCORDANCE WITH THE CONTRACT DOCUMENTS AND SPECIFICATIONS AND ALL APPLICABLE FEDERAL, STATE, AND LOCAL REQUIREMENTS. COSTS
FOR PRE-CONSTRUCTION SURVEY ARE TO BE INCORPORATED INTO ITEM 1 AS WELL AS PROJECT SIGN(S).
THE LUMP SUM (LS) PRICE FOR (PHASED) CLEARING & STRIPPING SHALL INCLUDE BUT NOT BE LIMITED TO REMOVAL AND PROPER DISPOSAL OF EXISTING GROUND COVERINGS, ASPHALT PAVEMENT
OF
VARYING DEPTH, SIDEWALKS, CURB & GUTTER, CONCRETE PAVEMENT, LIMEROCK AND SUBGRADE (WHERE APPLICABLE), TREES AND/OR ALL OTHER ORGANIC MATERIAL FROM RIGHT OF WAY TO RIGHT OF
WAY AS NECESSARY TO PERFORM THE WORK STIPULATED IN THESE CONTRACT DOCUMENTS. THE LUMP SUM PRICE SHALL ALSO INCLUDE BUT NOT BE LIMITED TO REMOVAL, PROTECTION, STORAGE AND
REINSTALLATION OF BUS SHELTERS, EXISTING SIGNS, DECORATIVE STONE, LANDSCAPING, AND SPRINKLER SYSTEMS EXISTING WITHIN THE WORK ZONE. ALL ITEMS SHALL BE RESTORED TO AS EXISTING (SUCH
AS
EXISTING PAVERS) OR BETTER CONDITION AND AS PER PLANS.
Mobilization and Demobilization1LS
1
General Conditions1LS
2
Bonding1LS
3
Overhead and Profit1LS
4
5Maintenance of Traffic1LS
Survey Stakeout1LS
6
As-builts1LS
7
Density Testing1LS
8
Environmental Compliance (NPDES, SWPPP, Dewatering)1LS
9
Desilt completed system pipes - post construction1LS
10
Desilt completed system structures - post construction1LS
11
GENERAL ITEMS SUB-TOAL (1 - 11)
$
ROADWORK ITEMS
THE PRICE FOR EACH ROAD WORK ITEM SHALL INCLUDE BUT NOT BE LIMITED TO ALL LABOR, EQUIPMENT AND MATERIALS NECESSARY TO INSTALL AND CONSTRUCT THESE ITEMS IN ACCORDANCE WITH THESE
CONTRACT DOCUMENTS.
Removal & Disposal of Existing 24" or Smaller Storm Pipe4,228LF
12
Plug Existing 24" or Smaller Storm Pipe14EA
13
Removal/Disposal of Existing Drainage Structure40EA
14
15No Parking Striping w/two No Parking Signs adjacent to North Pump Station1LS
1 inch Milling17,500SY
16
171 inch of Asphalt Overlay (SP-9.5)28,000SY
ROADWORK ITEMS SUB-TOAL (12 - 17)
$
STORMWATER STRUCTURES ITEMS
THE PRICE FOR EACH DRAINAGE STRUCTURE CONSTRUCTION ITEM SHALL INCLUDE BUT NOT BE LIMITED TO ALL LABOR, EQUIPMENT AND MATERIALS NECESSARY TO INSTALL AND CONSTRUCT THESE ITEMS IN
ACCORDANCE WITH THESE CONTRACT DOCUMENTS WHICH INCLUDE ALL SAW CUTTING, ASPHALT REMOVAL AND DISPOSAL, EXCAVATION, DE-WATERING WHERE APPLICABLE, DE-WATERING & NPDES
PERMITS, INCLUDING THE REQUIRED CONSTRUCTION BEST MANAGEMENT PRACTICES TO MAINTAIN TURBIDITY WITHIN THE REQUIRED NPDES STANDARDS DURING THE DURATION OF THE PROJECT,
BEDDING MATERIAL, BACKFILL BASE MATERIAL, SODDING, CURBING, SIDEWALK, BACKFILL LIMEROCK BASE MATERIAL, COMPACTION, MATERIAL TO BE RESTORED TO SAME ELEVATION AS EXISTING ASPHALT
PAVEMENT (GRADE TO SLOPE) GRADING, TESTING, INSPECTIONS AND ANY OTHER MISCELLANEOUS WORK.
Type 7 Manhole w/48" Round Bottom & USF 58043EA
18
Type 7 Manhole w/48" x 48" Rect Bottom & USF 5807EA
19
Type 7 Manhole w/60" Round Bottom & USF 58010EA
20
Type 7 Manhole w/60" x 60" Rect Bottom & USF 5802EA
21
22Type 7 Manhole w/72" Round Bottom & USF 5801EA
Type 7 Manhole w/144' Round Bottom w/48" Riser w/USF 5801EA
23
Type 7 Manhole w/72" Round Bottom w/48"Riser w/USF 5801EA
24
Type 7 Manhole w/72" x 72" Rect. Bottom & USF 580 w/48" Riser2EA
25
9' x 6' Manhole Control Structure W/USF 580 (2) & Concrete Weir (SWBX)1EA
26
11' x 11' Manhole Control Structure W/USF 580 (2) & Concrete Weir (NWBX)1EA
27
Type 7 Manhole w/72" x 48" Rect. Bottom & USF 5803EA
28
P-9 Curb Inlet1EA
29
30P-6 Inlet w/48" Round Bottom7EA
Replace curb inlet w/New P-5 Inlet Top3EA
31
P-4 Inlet w/48" Round Bottom1EA
32
8' Diameter Downstream Defender2EA
33
60" Conflict Structure w/USF 580 for WM w/SS Split Casing1EA
34
60" Conflict Structure w/USF 580 for Sewer w/SS Split Casing1EA
35
6'x'4' Conflict Structure w/USF 580 for Sewer w/SS Split Casing1EA
36
STORMWATER STRUCTURES ITEMS SUB-TOTAL (18-36)
$
STORMWATER PIPES ITEMS
INVITATION TO BID NO. 23-10-01
JOINT PROCUREMEMT
1.BIDDER AGREES TO PERFORM ALL THE WORK DESCRIBED IN THE CONTRACT DOCUMENTS TO PROVIDE A COMPLETE PROJECT AS SHOWN ON THE PLANS AND SPECIFICATIONS FOR THE FOLLOWING
LUMP SUM AND/OR UNIT PRICES.
2.BIDS SHALL INCLUDE SALES TAX AND ALL OTHER APPLICABLE TAXES AND FEES.
3.BIDDER IS TO INCLUDE FULL RESTORATION COSTS INTO THEIR UNIT PRICES EXCEPT FOR THE FINAL ASPHALT OVERLAY
ITEM NODESCRIPTIONQUANTITYUNITUNIT COSTTOTAL
THE PRICE FOR EACH DRAINAGE PIPE CONSTRUCTION ITEM SHALL INCLUDE BUT NOT BE LIMITED TO ALL LABOR, EQUIPMENT AND MATERIALS NECESSARY TO INSTALL AND CONSTRUCT THESE ITEMS IN
ACCORDANCE WITH THESE CONTRACT DOCUMENTS WHICH INCLUDE ALL SAW CUTTING, ASPHALT REMOVAL AND DISPOSAL, EXCAVATION, DE-WATERING WHERE POSSIBLE, DE-WATERING & NPDES
PERMITS, INCLUDING THE REQUIRED CONSTRUCTION BEST MANAGEMENT PRACTICES TO MAINTAIN TURBIDITY WITHIN THE REQUIRED NPDES STANDARDS DURING THE DURATION OF THE PROJECT,
BEDDING MATERIAL, BACKFILL BASE MATERIAL, SODDING, CURBING, SIDEWALK, BACKFILL LIMEROCK BASE MATERIAL, COMPACTION, MATERIAL TO BE RESTORED TO SAME ELEVATION AS EXISTING ASPHALT
PAVEMENT (GRADE TO SLOPE) GRADING, TESTING, INSPECTIONS AND ANY OTHER MISCELLANEOUS WORK.
3718" A2000 PVC69LF
24" A2000 PVC6488LF
38
30" A2000 PVC1306LF
39
36" A2000 PVC1364LF
40
48" RCP275LF
41
72" RCP6LF
42
4396" RCP6LF
8' x 6' Concrete Box Culvert8LF
44
STORMWATER PIPES ITEMS SUB-TOTAL (37 - 44)
$
OVEREXCAVATION, DISPOSAL, NEW FILL ITEMS
THE PRICE FOR EACH SHALL INCLUDE BUT NOT BE LIMITED TO ALL LABOR, EQUIPMENT AND MATERIALS NECESSARY TO INSTALL AND CONSTRUCT THESE ITEMS IN ACCORDANCE WITH THESE
CONTRACT DOCUMENTS TO COVER OVEREXCAVATION WITH DISPOSAL OF UNSUITABLE MATERIAL WITH THE ADDITION OF NEW FILL.
Up to 3ft of Overexcavation & Disposal of Unsuitable Material with new fill for 18" Pipe69LF
45
Up to 3ft of Overexcavation & Disposal of Unsuitable Material with new fill for 24" Pipe6488LF
46
Up to 3ft of Overexcavation & Disposal of Unsuitable Material with new fill for 30" Pipe1306LF
47
Up to 3ft of Overexcavation & Disposal of Unsuitable Material with new fill for 36" Pipe1364LF
48
49Up to 3ft of Overexcavation & Disposal of Unsuitable Material with new fill for 48" Pipe275LF
Up to 3ft of Overexcavation & Disposal of Unsuitable Material with new fill for 72" Pipe6LF
50
Up to 3ft of Overexcavation & Disposal of Unsuitable Material with new fill for 96" Pipe or 8' x 6' Box Culvert14LF
51
OVEREXCAVATION, DISPOSAL, NEW FILL ITEMS SUB-TOAL (45 - 51)
$
FORCE MAIN ITEMS
WITH THE EXCEPTION OF THE FINAL ASPHALT OVERLAY, THE PRICE FOR EACH CONSTRUCTION ITEM SHALL INCLUDE BUT NOT BE LIMITED TO ALL LABOR, EQUIPMENT AND MATERIALS NECESSARY TO INSTALL
AND CONSTRUCT THESE ITEMS IN ACCORDANCE WITH THESE CONTRACT DOCUMENTS WHICH INCLUDE ALL SAW CUTTING, ASPHALT REMOVAL AND DISPOSAL, EXCAVATION, DE-WATERING WHERE
POSSIBLE, DE-WATERING & NPDES PERMITS, INCLUDING THE REQUIRED CONSTRUCTION BEST MANAGEMENT PRACTICES TO MAINTAIN TURBIDITY WITHIN THE REQUIRED NPDES STANDARDS DURING THE
DURATION OF THE PROJECT, BEDDING MATERIAL, BACKFILL BASE MATERIAL, SODDING, CURBING, SIDEWALK, BACKFILL LIMEROCK BASE MATERIAL, COMPACTION, MATERIAL TO BE RESTORED TO SAME
ELEVATION AS EXISTING ASPHALT PAVEMENT (GRADE TO SLOPE) GRADING, TESTING, INSPECTIONS AND ANY OTHER MISCELLANEOUS WORK.
5230" DIP FM552LF
42" DIP FM80LF
53
42" x 30" DIP Reducer2EA
54
30" - 45 Deg DIP Bend10EA
55
30" x 30" DIP Tee1EA
56
30" x 30" DIP "True" Wye1EA
57
5830" x 18" Reducer4EA
18" DIP56LF
59
18" Resilient Wedge Flanged Gate Valve4EA
60
18" Swing Type Lever & Weight Flanged Check Valve4EA
61
18" - 45 Deg DIP Bend4EA
62
FORCE MAIN ITEMS SUB-TOAL (52 - 62)
$
PUMP STATION ITEMS
THE LUMP SUM PRICE OF THIS ITEM SHALL INCLUDE FULL RESTORATION AS PER PLAN. THE FURNISHING OF ALL MATERIAL, EQUIPMENT, AND LABOR NECESSARY TO COMPLETELY INSTALL
TWO (2)
STORMWATER PUMPING STATIONS (INCLUDING ALL PIPING, PUMPS, VALVE VAULTS, STRUCTURES, CONTROL PANELS, POWER HOOKUP, INCLUDING ALL NECESSARY INSTALLATION PROCEDURES AS
DETERMINED BY THE CONTRACTOR AND FROM THE FOLLOWING ITEMS AND ACTIVITIES: SHEET PILING, COFFER DAMS, DEWATERING AND DEWATERING PERMITS, FORMS, PROTECTION OF EXCAVATION
AT ALL TIMES, SPECIFIC TRAFFIC CONTROL AND SPECIFIC NOTICES TO ADJACENT PROPERTY OWNERS REGARDING CLOSURES (IF APPLICABLE) AND INCONVENIENCES. FURNISH ALL MATERIALS, EQUIPMENT AND
LABOR NECESSARY TO INSTALL ALL STORMWATER PUMP STATION ELECTRICAL, COORDINATION WITH FPL FOR NEW SERVICE DROP, POWER VERIFICATION, AND INSTRUMENTATION WORK. INCLUDING,
BUT NOT LIMITED TO: PUMP CONTROL PANEL, STARTERS, CABINETS, SCADA-PLC, CONDUITS, WIRE CABLES, PULL BOXES, POWER RECEPTACLES, SWITCHES, BREAKERS, REINFORCED CONCRETE
EQUIPMENT PAD, AND ALL NECESSARY ELECTRICAL CIRCUITS. STRUCTURAL ELEMENTS OR ACTIVITIES SHALL BE PERFORMED USING THE SERVICES OF A FLORIDA REGISTERED PROFESSIONAL
ENGINEER TO DEVELOP, CERTIFY, SIGN AND SEAL PLANS FOR THE PUMP STATION STRUCTURES AND SPECIFICALLY FOR ACTIVITIES SUCH AS: FORM PLACEMENT AND REMOVAL OF STEEL
SIZE AND
PLACEMENT, POURING METHODS FOR THE SPECIFIC MASS OF CONCRETE, CONCRETE CURING, AND PROTECTION METHODS. INCLUDE ALL COST FOR SURVEYING AND AS-BUILT PREPARATION,
BEDDING MATERIAL, BACKFILL AND TEMPORARY ASPHALT RESTORATION, BACKFILL BASE MATERIAL, SODDING, CURBING, SIDEWALK, HANDICAP RAMP, BACKFILL LIMEROCK BASE MATERIAL COMPACTION
LABORATORY TEST, PERMANENT TRENCH RESTORATION , MATERIAL TO BE RESTORED TO PROPOSED ELEVATIONS (GRADE TO SLOPE), TESTING, INSPECTION AND OTHER MISCELLANEOUS WORK.
INVITATION TO BID NO. 23-10-01
JOINT PROCUREMEMT
1.BIDDER AGREES TO PERFORM ALL THE WORK DESCRIBED IN THE CONTRACT DOCUMENTS TO PROVIDE A COMPLETE PROJECT AS SHOWN ON THE PLANS AND SPECIFICATIONS FOR THE FOLLOWING
LUMP SUM AND/OR UNIT PRICES.
2.BIDS SHALL INCLUDE SALES TAX AND ALL OTHER APPLICABLE TAXES AND FEES.
3.BIDDER IS TO INCLUDE FULL RESTORATION COSTS INTO THEIR UNIT PRICES EXCEPT FOR THE FINAL ASPHALT OVERLAY
ITEM NODESCRIPTIONQUANTITYUNITUNIT COSTTOTAL
Duplex Stormwater Pumping Station (16' L x 16' W x 15' H)
2EA
63
Duplex Stormwater Pumping Station piping, fittings, valves, & Electrical Components not otherwise mentioned in
previous
2EA
64
Vault for Duplex Stormwater Pumping Station (8' L x 16' W x 6.8' H)2EA
65
Vault piping, fittings & valves not otherwise mentioned in previous quantities (DIP FM)2EA
66
Pump Station electrical components2EA
67
Portable Diesel 125 KW Generator2EA
68
Provide 3-Phase Power at Each Station Allowance2EA
69$105,000$210,000
SCADA SYSTEM2EA
70
PUMP STATION ITEMS SUB-TOAL (63 - 70)
$
MISCELLANEOUS ITEMS
THE PRICE FOR EACH CONSTRUCTION ITEM SHALL INCLUDE BUT NOT BE LIMITED TO ALL LABOR, EQUIPMENT AND MATERIALS NECESSARY TO INSTALL AND CONSTRUCT THESE ITEMS IN ACCORDANCE
WITH THESE CONTRACT DOCUMENTS WHICH INCLUDE ALL SAW CUTTING, ASPHALT REMOVAL AND DISPOSAL, EXCAVATION, DE-WATERING, DE-WATERING & NPDES PERMITS, BEDDING MATERIAL,
BACKFILL BASE MATERIAL, BACKFILL LIMEROCK BASE MATERIAL, COMPACTION, MATERIAL TO BE RESTORED TO SAME ELEVATION AS EXISTING ASPHALT PAVEMENT (GRADE TO SLOPE) GRADING, TESTING,
INSPECTIONS AND ANY OTHER MISCELLANEOUS WORK. NO ADDITIONAL COMPENSATION SHALL BE MADE FOR CHANGES IN ALIGNMENT OR GRADE TO AVOID EXISTING INFRASTRUCTURE UNLESS THE
EXCAVATIONS EXCEED TEN (10) FEET IN DEPTH.
Connect Existing Drainage Pipe to Proposed Drainage Structure65EA
71
72Connect Proposed Storm Pipe to Existing Drainage Structure9EA
Connect Dissimilar storm pipe (24") with MarMac pipe coupler or approved
1EA
73
equal
Pipe lining of existing storm up 24" Diameter1,000LF
74
75Hydroseal of existing joints where directed50EA
Remove Existing P-5 Inlet to Plug west pipe & Reinstall Inlet1EA
76
5' Wide Concrete SW at South Pump Station w/Detectable Warning Surface
31SY
77
min 6" thick
Field verify existing inlet and replace w/New Top Slab w/USF 4615-62101EA
78
12" SS Split Casing Sleeve for 8" WM1EA
79
8012" SS Split Casing Sleeve for 8" SS3EA
Core existing seawall & Install Proposed 42" Outfall Pipe2EA
81
Remove and replace trees, pavers, pavement, irrigation and sod for outfalls
2LS
82
36" Tideflex Checkmate Valve1LS
83
Manatee Grate for 42" Outfall2EA
84
Install Rip-Rap w/12" Dia Stone w/Geofabric (or approved equal)64SY
85
86Deflection of Existing Buried Electric ("SL")5EA
Deflection of Existing Gas1EA
87
884" WM Deflection - 80 LF1EA
6" WM Deflection1EA
89
8" WM Deflection6EA
90
Water Service Relocation8EA
91
SS Lateral Relocation1EA
92
Rental of 2 temporary 6000 gpm pumps to provide backup for storm protection 12MTHS
93
94Hourly Crew Rate100HR
City Permit fee1EA
95$10,000$10,000
$
MISCELLANEOUS ITEMS SUB-TOAL (71 - 95)
$
TOTAL FOR STORM DRAINAGE PROJECT
WATERMAIN REPLACEMENT PROJECT
ROADWORK ITEMS
THE PRICE FOR EACH ROAD WORK ITEM SHALL INCLUDE BUT NOT BE LIMITED TO ALL LABOR, EQUIPMENT AND MATERIALS NECESSARY TO INSTALL AND CONSTRUCT THESE ITEMS IN ACCORDANCE WITH THESE
CONTRACT DOCUMENTS. BID PRICE INCLUDES TRAFFIC LOOP REPLACEMENT, IF NEED (INCLUDES ALL PROFESSIONAL WORK AND PERMITTING).
1 inch Milling5,100SY
96
1 inch of Asphalt Overlay (SP-9.5)5,100SY
97
ROADWORK ITEMS SUB-TOAL (96 - 97)
$
INVITATION TO BID NO. 23-10-01
JOINT PROCUREMEMT
1.BIDDER AGREES TO PERFORM ALL THE WORK DESCRIBED IN THE CONTRACT DOCUMENTS TO PROVIDE A COMPLETE PROJECT AS SHOWN ON THE PLANS AND SPECIFICATIONS FOR THE FOLLOWING
LUMP SUM AND/OR UNIT PRICES.
2.BIDS SHALL INCLUDE SALES TAX AND ALL OTHER APPLICABLE TAXES AND FEES.
3.BIDDER IS TO INCLUDE FULL RESTORATION COSTS INTO THEIR UNIT PRICES EXCEPT FOR THE FINAL ASPHALT OVERLAY
ITEM NODESCRIPTIONQUANTITYUNITUNIT COSTTOTAL
OVEREXCAVATION, DISPOSAL, NEW FILL ITEMS
THE PRICE FOR EACH SHALL INCLUDE BUT NOT BE LIMITED TO ALL LABOR, EQUIPMENT AND MATERIALS NECESSARY TO INSTALL AND CONSTRUCT THESE ITEMS IN ACCORDANCE WITH THESE
CONTRACT DOCUMENTS TO COVER OVEREXCAVATION WITH DISPOSAL OF UNSUITABLE MATERIAL WITH THE ADDITION OF NEW FILL.
Up to 3ft of Overexcavation & Disposal of Unsuitable Material with new fill for 4" Pipe20LF
98
Up to 3ft of Overexcavation & Disposal of Unsuitable Material with new fill for 6" Pipe700LF
99
100Up to 3ft of Overexcavation & Disposal of Unsuitable Material with new fill for 8" Pipe3800LF
Up to 3ft of Overexcavation & Disposal of Unsuitable Material with new fill for 12" Pipe10LF
101
OVEREXCAVATION, DISPOSAL, NEW FILL ITEMS SUB-TOAL (98 - 101)
$
WATERMAIN ITEMS
WITH THE EXCEPTION OF THE FINAL ASPHALT OVERLAY, THE PRICE FOR EACH CONSTRUCTION ITEM SHALL INCLUDE BUT NOT BE LIMITED TO ALL LABOR, EQUIPMENT AND MATERIALS NECESSARY TO INSTALL
AND CONSTRUCT THESE ITEMS IN ACCORDANCE WITH THESE CONTRACT DOCUMENTS WHICH INCLUDE ALL SAW CUTTING, ASPHALT REMOVAL AND DISPOSAL, EXCAVATION, DE-WATERING WHERE
POSSIBLE, DE-WATERING, EXCAVATION TRENCH AND EXISTING UTILITY SHEETING, SHORING, BRACING, SUPPORT & STABILIZATION & NPDES PERMITS, INCLUDING THE REQUIRED CONSTRUCTION BEST
MANAGEMENT PRACTICES TO MAINTAIN TURBIDITY WITHIN THE REQUIRED NPDES STANDARDS DURING THE DURATION OF THE PROJECT, BEDDING MATERIAL, BACKFILL BASE MATERIAL, SODDING, CURBING,
SIDEWALK, BACKFILL, LIMEROCK BASE MATERIAL, COMPACTION, MATERIAL TO BE RESTORED TO SAME ELEVATION AS ADJACENT GRADE, TESTING, INSPECTIONS, AND ANY OTHER MISCELLANEOUS WORK.
BID PRICE SHALL INCLUDE SALTWATER INTRUSSION AND CORROSIVE SOIL PROTECTION, PROTECTION FROM HYDROCARBON CONTAMINATION, COMPLIANCE WITH GEOTECHNICAL RECOMENDATIONS, JOINT
RESTRAINTS, ANY AND ALL TYPES OF BENDS AND FITTINGS REQUIRED FOR SUCESSFULL INSTALLATION, UTILITY/OWNER COORDINATION, 1" OF TEMPORARY SACRIFICAL ASPHALT TO BE MILLED AS PART OF ITEM
13.
WATER SERVICE CONNECTION (4" DIP) (PER FIG 216)44EA
102
103FIRE SERVICE CONNECTION (6" DIP) (PER FIG 216) (NOT SHOWN ON PLANS)44EA
8" STEEL PIPE (INCLUDES ALL BENDS, FITTINGS, STRAPS, AND ANY OTHER EQUIPMENT OR MATERIAL)350LF
104
4" DIP (INCLUDES ALL BENDS AND FITTINGS)20LF
105
6" DIP (INCLUDES ALL BENDS AND FITTINGS)700LF
106
8" DIP (INCLUDES ALL BENDS AND FITTINGS)11400LF
107
12" DIP (INCLUDES ALL BENDS AND FITTINGS)10EA
108
AIR RELEASE VALVE 5EA
109
6" GATE VALVE30EA
110
1118" GATE VALVE17EA
FIRE HYDRANT ASSEMBLY (PER FIG 307)30EA
112
CUT-IN CONNECTION TO EXISTING WATERMAIN3EA
113
REMOVAL OF EXISTING HYDRANTS30EA
114
REMOVAL OF EXISTING ASBESTOS CEMENT PIPE810LF
115
CAP AND GROUT FILL WATERMAINS ABANDONDED WATERMAINS 6" AND LARGER80BCY
116
8" REINFORCE SLAB (PER FIG 209) FOR USE WITH WATERMAINS WITH LESS THAN 2.5' COVER2400SQF
117
GEOTEXTILE FABRIC (TENSAR TX5)15000SY
118
1196" LINE STOP12EA
8" LINE STOP12EA
120
12" LINE STOP12EA
121
SAMPLE POINTS20EA
122
WATERMAIN ITEMS SUB-TOAL (102 - 122)
$
MISCELLANEOUS ITEMS
THE PRICE FOR EACH CONSTRUCTION ITEM SHALL INCLUDE BUT NOT BE LIMITED TO ALL LABOR, EQUIPMENT AND MATERIALS NECESSARY TO INSTALL AND CONSTRUCT THESE ITEMS IN ACCORDANCE
WITH THESE CONTRACT DOCUMENTS WHICH INCLUDE ALL SAW CUTTING, ASPHALT REMOVAL AND DISPOSAL, EXCAVATION, DE-WATERING, DE-WATERING & NPDES PERMITS, BEDDING MATERIAL,
BACKFILL BASE MATERIAL, BACKFILL LIMEROCK BASE MATERIAL, COMPACTION, MATERIAL TO BE RESTORED TO SAME ELEVATION AS EXISTING ASPHALT PAVEMENT (GRADE TO SLOPE) GRADING, TESTING,
INSPECTIONS AND ANY OTHER MISCELLANEOUS WORK. NO ADDITIONAL COMPENSATION SHALL BE MADE FOR CHANGES IN ALIGNMENT OR GRADE TO AVOID EXISTING INFRASTRUCTURE UNLESS THE
EXCAVATIONS EXCEED TEN (10) FEET IN DEPTH.
TREE REMOVAL AND REPLACEMENT (INCLUDES COORDINATION AND PERMITTING WITH MD-RER AND ANY
12350EA
PROFESSIONAL SERVICE, COMPLIANCE WITH ENDANGARED SPECIES ACT AND INSTALLATION OF ROOT BARRIER)
$
MISCELLANEOUS ITEMS SUB-TOAL (123 - 123)
WATERMAIN REPLACEMENT TOTAL
$
GRAND BID TOTAL (ITEMS 1 - 123)
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT F
DAVIS-BACON – GENERAL DECISION NUMBER FL20230178
01/06/2023 - HIGHWAY
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 45
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT G
AFFIRMATIVE ACTION REQUIREMENTS
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 46
AFFIRMATIVE ACTION REQUIREMENTS
(REV 4-10-96) (FA 6-25-96) (7-00)
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL
EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER 11246)
1.The Bidder’s attention is called to the “Equal Opportunity Clause” and the “Standard
Federal Equal Employment Opportunity Construction Contract Specifications” set forth herein.
2.The goals and timetables for minority and female participation expressed in percentage
terms for the Contractor’s aggregate workforce in each trade on all construction work in the
covered area, are as follows:
Timetables
Goals for Minority Participation in Each Trade
Until Further Notice
Alachua 20.6, Baker 21.8, Bay 14.1, Bradford 22.2, Brevard 10.7, Broward 15.5, Calhoun 29.5,
Charlotte 17.1, Citrus 17.1, Clay 21.8, Collier 17.1, Columbia 22.2, Dade 39.5, DeSoto 17.1,
Dixie 22.2, Dual 21.8, Escambia 18.3, Flagler 14.9, Franklin 29.5, Gadsden 29.5, Gilchrist 22.2,
Glades 30.4, Gulf 15.4, Hamilton 22.2, Hardee 17.1, Hendry 30.4, Hernando 17.1, Highlands
17.1,Hillsborough 17.9, Holmes 15.4, Indian River 30.4, Jackson 29.5, Jefferson 29.5, Lafayette
22.2, Lake 14.9, Lee 15.3, Leon 24.3, Levy 22.2, Liberty 29.5, Madison 29.5, Manatee 15.9,
Marion 22.2, Martin 30.4, Monroe 30.4, Nassau 21.8, Okaloosa 15.4, Okeechobee 30.4, Orange
15.5, Osceola 15.5, Palm Beach 22.4, Pasco 17.9, Pinellas 17.9, Polk 18.0, Putnam 22.2, St.
Johns 21.8, St. Lucie 30.4, Santa Rosa 18.3, Sarasota 10.5, Seminole 15.5, Sumter 14.9,
Suwannee 22.2, Taylor 29.5, Union 22.2, Volusia 15.7, Wakulla 24.3, Walton 15.4, Washington
15.4.
Goals for Female Participation In Each Trade- Statewide
From April 1, 1980 until further notice
6.9
These goals are applicable to all the Contractors Construction work (whether or not it is
Federal or federally assisted) performed in the covered area.
If the Contractor performs construction work in a geographical area located outside of the
covered area, it shall apply the goals established for such geographical area where the work is
actually performed, with regard to the second area, the Contractor also is subject to the goals for
both its federally involved and nonfederally involved construction.
The Contractor’s compliance with the Executive order and the regulations in 41 CFR Part
60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative
action obligations required by the specifications set forth in 41 CFR 60-4.3(a), and its efforts to
meet the goals. The hours of minority and female and employment and training must be
substantially uniform throughout the length of the Contract, and in each trade, and the Contractor
shall make a good faith effort to employ minorities and women evenly on each of its projects.
The transfer of minority or female employees or trainees from Contractor to Contractor or from
project to project for the sole purpose of meeting the Contractors goals shall be a violation of the
Contract, the Executive Order and the regulations in 41 CFR Part 60-4. Compliance with the
goals will be measured against the total work hours performed.
3. The Contractor shall provide written notification to the Department’s Civil Rights
Administrator within 10 working days of award of any construction subcontract in excess of
$10,000 at any tier for construction work under the Contract resulting from this solicitation. The
notification shall list the name, address and telephone number of the subcontractor; employer
identification number of the subcontractor; estimated dollar amount of the subcontract; estimated
starting and completion dates of the subcontract; and that geographical area in which the
Contract is to be performed.
4. As used in this Notice, and in the Contract resulting from this solicitation, the "covered
area” is the county where the Contract is to be performed.
STANDARD FEDERAL EQUAL EMPLOYMENT
OPPORTUNITY CONSTRUCTION CONTRACT
SPECIFICATIONS (EXECUTIVE ORDER 11246)
1. As used in these Specifications:
a. Covered area means the geographical area described in this solicitation from
which this Contract resulted;
b. “Director” means Director, Office of Federal Contract Compliance Programs.
United States Department of Labor, or any person to whom the Director delegates authority;
c. Employer identification number means the Federal Social Security number
used on the Employer’s Quarterly Federal Tax Return, U.S. Treasury Department Form 941;
d. Minority includes:
(i) Black (all persons having origins in any of the Black African racial
groups not of Hispanic origin);
(ii) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or
South American or other Spanish Culture or origin, regardless of race);
(iii) Asia and Pacific Islander- (all persons having origins in any of the
original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or Pacific Islands); and
(iv) American Indian or Alaskan Native (all persons having origins in any
of the original peoples of North America and maintaining identifiable tribal affiliations through
membership and participation or community identification).
2. Whenever the Contractor, or any Subcontractor at any tier, subcontracts a portion of
the work involving any construction trade, it shall physically include in each subcontract in
excess of $10,000 the provisions of these Specifications and the Notice which contains the
applicable goals for minority and female participation and which is set forth in the solicitations
from which this Contract resulted.
3. If the Contractor is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan
approved by the U.S. Department of Labor in the covered area either individually or through an
association, its affirmative action obligations on all work in the Plan area (including goals and
timetables) shall be in accordance with that Plan for those trades which have unions participating
in the Plan. Contractors must be able to demonstrate their participation in and compliance with
the provisions of any such Hometown Plan. Each Contractor or Subcontractor participating in an
approved Plan is individually required to comply with its obligations under the EEO clause, and
to make a good faith effort to achieve each goal under the Plan in each trade in which it has
employees. The overall good faith performance by other Contractors or Subcontractors toward a
goal in an approved Plan does not excuse any covered Contractor’s or Subcontractor’s failure to
make good faith efforts to achieve the Plan goals and timetables.
4. The Contractor shall implement the specific affirmative action standards provided in
paragraph 7a through p of these Specifications. The goals set forth in the solicitation from which
this Contract resulted are expressed as percentages of the total hour of employment and training
of minority and female utilization the Contractor should reasonably be able to achieve in each
construction trade in which it has employees in the covered area. Covered Construction
Contractors performing construction work in geographical areas where they do not have a
Federal or federally assisted construction Contract shall apply the minority and female goals
established for the geographical area where the work is being performed. Goal are published
periodically in the Federal Register in notice form, and such notices any be obtained from any
Office of Federal Contract Compliance Programs Office or from procurement contracting
officers. The Contractor is expected to make substantially uniform progress in meeting its goals
in each craft during the period specified.
5. Neither the provisions of any collective bargaining agreement, nor the failure by a
union with whom the Contractor has a collective bargaining agreement, to refer either minorities
or woman shall excuse Contractors obligations under these Specifications, Executive 11242, or
the regulations promulgated pursuant thereto.
6. In order for the nonworking training hours of apprentices and trainees to be counted in
meeting the goals, such apprentices and trainees must be employed by the Contractor during the
training period, and the Contractor must have made a commitment to employ the apprentices and
trainees at the completion of their training, subject to the availability of employment
opportunities. Trainees must be trained pursuant to training programs approved by the U.S.
Department of Labor.
7. The Contractor shall take specific affirmative actions to ensure equal employment
opportunity. The evaluation of the Contractor’s compliance with these Specifications shall be
based upon its effort to achieve maximum results from its actions. The Contractor shall
document these efforts fully, and shall implement affirmative action steps at least as extensive as
the following:
a. Ensure and maintain a working environment free of harassment, intimidation,
and coercion at all sites, and in all facilities at which the Contractor’s employees are assigned to
work. The Contractor, where possible, will assign two or more women to each construction
project. The Contractor shall specifically ensure that all foremen, superintendents, and other on-
site supervisory personnel are aware of and carry out the Contractor’s obligation to maintain
such a working environment, with specific attention to minority or female individuals working at
such sites or in such facilities.
b. Establish and maintain a current list of minority and female recruitment
sources, provide written notification to minority and female recruitment sources and to
community organizations when the Contractor or its unions have employment opportunities
available, and maintain a record of the organizations’ responses.
c. Maintain a current file of the names, addresses and telephone numbers of each
minority and female off-the-street applicant and minority or female referral from a union, a
recruitment source or community organization and of what action was taken with respect to each
such individual. If such individual was sent to the Union hiring hall for referral and was not
referred back to the Contractor by the union or, if referred, not employed by the Contractor, this
shall be documented in the file with the reason therefor, along with whatever additional actions
the Contractor may have taken.
d. Provide immediate written notification to the Director when the union or
unions with which the Contractor has a collective bargaining agreement has not referred to the
Contractor a minority person or women sent by the Contractor, or when the Contractor has other
information that the union referral process has impeded the Contractor’s efforts to most its
obligations.
e. Develop on-the-job training opportunities and/or participate in training
programs for the area which expressly include minorities and woman, including upgrading
program and apprenticeship and trainee programs relevant to the Contractor’s employment
needs, especially those programs funded or approves by the Department of Labor. The
Contractor shall provide notice of these programs to the sources complies under 7b above.
f. Disseminate the Contractor’s EEO policy by providing notice of the unions and
training programs and requesting their cooperation in assisting the Contractor in meeting its EEO
obligations; by including it in any policy manual and collective bargaining agreement; by
publicizing it in the company newspaper, annual report, etc.; by specific review of the policy
with all management personnel and with all minority and female employees at least once a year;
and by posting the company EEO policy on bulletin boards accessible to all employees at each
location where construction work is performed.
g. Review, at least annually, the company's EEO policy and affirmative action
obligations under these Specifications with all employees having any responsibility for hiring,
assignment, layoff, termination or other employment decisions including specific review of these
item with onsite supervisory personnel such as Superintendents, General Foremen, etc., prior to
the initiation of construction work at any job site. A written record shall be made and maintained
identifying the time and place of these meetings, persons attending, subject matter discussed, and
disposition of the subject matter.
h. Disseminate the Contractor's EEO policy externally by including it in any
advertising in the news media, specifically including minority and female news media, and
providing written notification to and discussing the Contractor's EEO policy with other
Contractors and Subcontractors with whom the Contractor does or anticipates doing business.
i. Direct its recruitment efforts, both oral and written, to minority, female and
community organizations, to schools with minority and female students and to minority and
female recruitment and training organizations serving the Contractor’s recruitment area and the
employment needs. Not later than one month prior to the date for the acceptance of applications
for apprenticeship or other training by any recruitment source, the Contractor shall send written
notification to organizations such as the above, describing the openings, screening procedures,
and tests to be used in the selection process.
j. Encourage present minority and female employees to recruit other minority
persons and women and, where reasonable, provide after school, summer and vacation
employment to minority and female youth both on the site and in other areas of a Contractor’s
workforce.
k. Validate all tests and other selection requirements where there is an obligation
to do so under 41 CFR Part 60-3.
l. Conduct, at least annually, an inventory and evaluation at least of all minority
and female personnel for promotional opportunities and encourage these employees to seek or to
prepare for, through appropriate training, etc., such opportunities.
m. Ensure that seniority practices, job classifications, work assignment and other
personnel practices, do not have a discriminatory affect by continually monitoring all personnel
and employment related activities to ensure that the EEO policy and the Contractor’s obligations
under these Specifications are being carried out.
n. Ensure that all facilities and company activities are non-segregated except that
separate or single-user toilet and necessary changing facilities shall be provided to assure privacy
between the sexes.
o. Document and maintain a record of all solicitations of offers for subcontracts
from minority and female construction Contractors and female construction Contractors and
suppliers, including circulation of solicitations to minority and female Contractor associations
and other business associations.
p. Conduct a review, at least annually, of all supervisors’ adherence to and
performance under the Contractor’s EEO policies and affirmative action obligations.
8. Contractors are encouraged to participate in voluntary associations which assist in
fulfilling 1 or more of their affirmative action obligations (7a through p). The efforts of a
Contractor association, joint contractor-union, contractor-community, or other similar group of
which the Contractor is a member and participant, may be asserted as fulfilling any 1 of its
obligations under 7a through p of these Specifications provided that the Contractor actively
participates in the group, takes every effort to assure that the group has positive impact on the
employment of minorities and women in the industry, ensures that the concrete benefits of the
program are reflected in the Contractors’ minority and female workforce participation makes a
good faith effort to meet its individual goals and timetables, and can provide access to
documentation which demonstrates the effectiveness of actions taken an behalf of the Contractor.
The obligation to comply, however, is the Contractors’ and failure of such a group to fulfill an
obligation shall not be a defense for the Contractor’s noncompliance.
9. A single goal minorities and a separate single goal for women have been established.
The Contractor, however, is required to provide equal employment opportunity and to take
affirmative action for all minority groups, both male and female, and all women, both minority
and non-minority. Consequently, the Contractor may be in violation of the Executive Order if a
particular group is employed in a substantially disparate manner (for example, even though the
Contractor has achieved its goals for women generally, the Contractor may be in violation of the
Executive Order if a specific minority group of women is underutilized).
10. The Contractor shall not use the goals and timetables or affirmative action standards
to discriminate against any person because of race, color, religion, sex, national origin, or
disability.
11. The Contractor shall not enter into any Subcontract with any person or firm debarred
from Government contracts pursuant to Executive Order 11246.
12. The Contractor shall carry out such sanctions and penalties for violation of these
Specifications and of the Equal Opportunity clause, including suspension, termination and
cancellation of existing subcontracts as may be imposed ordered pursuant to Executive Order
11246, as amended, and its implementing regulations, by the Office of Federal Contract
Compliance Programs. Any Contractor who fails to carry out such sanctions and penalties shall
be in violation of these Specifications and Executive Order 11246, as amended.
13. The Contractor, in fulfilling its obligations under these Specifications, shall
implement specific affirmative action steps, at least as extensive as those standards prescribed in
paragraph 7 of these Specifications, so as to achieve maximum results from its efforts to ensure
equal employment opportunity. If the Contractor fails to comply with the requirements of the
Executive Order, the implementing regulations, or these Specifications, the Director shall
proceed in accordance with 41, CFR 60-4.8.
14. The Contractor shall designate a responsible official to monitor all employment
related activity to ensure that the company EEO policy is being carried out, to submit reports
relating to the provisions hereof as may be required by the Government and to keep records.
Records shall at least include for each employee the name, address, telephone numbers,
construction trade, union affiliation if any, employee identification number whom assigned,
social security number, race, sex, status (e.g., mechanic, apprentice, trainee, helper, or laborer),
dates of changes in status, hours worked per week in the indicated trade, rate of pay, and
locations at which the work was performed. Records shall be maintained in an easily
understandable and retrievable form; however, to the degree that existing records satisfy this
requirement, contractors shall not be required to maintain separate records.
15. Nothing herein provided shall be construed as a limitation upon the application of
other laws which establish different standards of compliance or upon the application of
requirements for the hiring of local or other area residents (e.g. those under the Public Works
Employment Act of 1977 and the Community Development Block Grant Program).
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT H
WORKFORCE COMMUNITY PLAN
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 47
Workforce Continuity Plan
Table of Contents
Section 1: Ensuring ready access to a sufficient supply of appropriately skilled and unskilled
labor to ensure high-quality construction throughout the life of the project, including a
description of any required professional certifications and/or in-house training. ....................... 3
Section 2: Minimizing risks of labor disputes and disruptions that would jeopardize
timeliness and cost-effectiveness of the project. ................................................................................ 4
Section 3: Providing a safe and healthy workplace that avoids delays and costs associated
with workplace illnesses, injuries and fatalities, including descriptions of safety training,
certification, and/or license requirements for all relevant workers. ............................................... 5
Section 4: Wages and benefits for workers – how project workers will be paid such that an
appropriately skilled workforce will be obtained. ............................................................................ 6
Section 5: Project Labor Agreement .................................................................................................... 7
As a condition of funding set forth by the grantor agency to this contract, the Prime contractor
must develop a Workforce Continuity Plan containing five areas of content. These areas cover
the Prime contractor’s plan to ensure access to labor, minimize labor disputes, provide a safe and
healthy workplace, how wages will secure an appropriately skilled workforce, and whether a
project labor agreement exists.
Section 1: Ensuring ready access to a sufficient supply of appropriately
skilled and unskilled labor to ensure high-quality construction throughout
the life of the project, including a description of any required professional
certifications and/or in-house training.
Please provide estimates of staff needed for the present project, how staffing needs are met,
associated certifications, and trainings offered.
Section 2: Minimizing risks of labor disputes and disruptions that would
jeopardize timeliness and cost-effectiveness of the project.
Please provide a history of any labor disputes on past projects, how they were resolved, and
lessons learned. In the absence of prior labor disputes, please provide measures for minimizing
labor disputes for the present project.
Section 3: Providing a safe and healthy workplace that avoids delays and
costs associated with workplace illnesses, injuries and fatalities, including
descriptions of safety training, certification, and/or license requirements
for all relevant workers.
Please describe all OSHA safety measures taken to ensure a healthy and safe workplace, as well
as all other trainings, certifications, or license requirements.
Section 4: Wages and benefits for workers – how project workers will be
paid such that an appropriately skilled workforce will be obtained.
Please describe prevailing wage rates that will be paid at or above Davis-Bacon minima, by labor
classification. Provide answers as narrative, and as data entered in the below table.
Table 1: Wage Rates for Attracting Workforce
Wage and Benefit Rate Davis Bacon Wage + Benefit
Position
to be paidRate
Wage Rates can be found at the US Government, Sam.gov website
Davis-Bacon 1-page FAQ for contractors at this link.
Section 5: Project Labor Agreement
Please describe if the project will include any project labor agreements, such as those detailed by
29 U.S.C. 158(f):
(f)A GREEMENT COVERING EMPLOYEES IN THE BUILDING AND CONSTRUCTION
INDUSTRY
It shall not be an unfair labor practiceunder subsections (a) and (b) of this section
for an employer engaged primarily in the building and construction industry to
make an agreement covering employees engaged (or who, upon their employment,
will be engaged) in the building and construction industry with a labor
organization of which building and construction employees are members (not
established, maintained, or assisted by any action defined in subsection (a) as
an unfair labor practice) because (1) the majority status of such labor
organization has not been established under the provisions of section 159 of this
title prior to the making of such agreement, or (2) such agreement requires as a
condition of employment, membership in such labor organization after the seventh
day following the beginning of such employment or the effective date of the
agreement, whichever is later, or (3) such agreement requires the employer to
notify such labor organization of opportunities for employment with
such employer, or gives such labor organization an opportunity to refer qualified
applicants for such employment, or (4) such agreement specifies minimum training
or experience qualifications for employment or provides for priority in opportunities
for employment based upon length of service with such employer, in the industry or
in the particular geographical area: Provided, That nothing in this subsection shall
set aside the final proviso to subsection (a)(3): Provided further, That any
agreement which would be invalid, but for clause (1) of this subsection, shall not be
a bar to a petition filed pursuant to section 159(c) or 159(e) of this title.
Yes, In addition to this workforce continuity plan, there is a project labor agreement
No, there is no project labor agreement
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
EXHIBIT I
CITY OF SUNNY ISLES BEACH SAMPLE AGREEMENT
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 48
AGREEMENTNo.(I
BETWEENTHECITYOFSUNNYISLESBEACHAND
(INSERTCONTRACTORNAME)
THISAGREEMENTis made and entered into as of __________, by and between (INSERT
CONTRACTOR NAME),having its principal office at (INSERT CONTRACTORPRINCIPAL ADDRESS)
(hereinafter referred to as the "CONTRACTOR"), whose Federal ID # is ________________, and the
CITY OF SUNNY ISLES BEACH, a municipal corporation of the State of Florida, having its principaloffice
at 18070 Collins Avenue, Sunny IslesBeach, Florida 33160 (hereinafter referred to as the "CITY" or
“City”).
RECITALS
WHEREAS,theCITYinitiated an invitation to bid to seek contractors willing to provide the
Central Island Area PumpStation andDrainageImprovements constructionservices; and
WHEREAS, the CONTRACTORresponded to the invitation to bidto provide the services and
to be bound by the terms and conditions of the Invitation To Bid No. (ITB) No. 23-03-01, City of Sunny
Isles Beach Central Island Drainage Improvements and North Miami Beach Distribution System
Watermain Replacements,which includes the General Terms and Conditions, Special Conditions,
Scope of Services, and associated addenda attached heretoand incorporated herein as Exhibit"A",
and the assertions included in the CONTRACTOR’s Proposal attached hereto and incorporated herein
asExhibit"B";and
WHEREAS,theCITYdesires to procure from theCONTRACTORsuch services for theCITY, in
accordancewith the terms and conditions of this Agreement; and
WHEREAS,ResolutionNo.(INSERT#),authorizing the work to be performed by the
CONTRACTOR was approved by the City Commission at its (INSERTAGENDADATE) city commission
meeting.
NOW,THEREFORE, inconsiderationof the mutualcovenants, terms, and provisions contained
herein, the partiesdo hereby agree asfollows:
ARTICLE1–DEFINITIONS
Wheneverused in this Agreement or in other Contract Documents,the followingterms have the
meanings indicated which are applicable to boththe singular and pluralforms:
1.1Agreement – This written agreementbetween the CITY and theCONTRACTORcovering the
work tobeperformed includingother Contract Documents that are attachedtoor
incorporated in the Agreement.
1.2Application forPayment – Theform accepted bytheCITY which is to be usedbythe
CONTRACTOR in requesting progressor finalpayment and whichisto includesuch
supportingdocumentationas is requiredby the Contract Documents.
ITB 23-03-01 Sunny Isles Beach Central Island Area Drainage Improvement and
North Miami Beach Distribution System Watermain Replacements
1.3Approve – The word approve is defined to mean reviewof the material, equipmentor
methods for general compliance with design concepts and with the design concepts and
with the information given in the Contract Documents. It does not imply a responsibility on
the part of the CITY to verify in every detail conformance with plans and specifications.
1.4 Bid – The offer or Bid of the CONTRACTOR submitted on the prescribed form setting forth
the total prices for the Work to be performed.
1.5 Bid Documents –This Agreement, the Instructions to Bidders, the Bid Form (with
supplemental affidavits and agreements), the Contract Forms, General Conditions, the
Supplementary Conditions, the Specifications, and the Plans, which documents all become
an integral part of the Contract Documents.
1.6 Certificate of Substantial Completion - Certificate provided by the CITY certifying that all
Work, excludingthepunchlist items, hasbeen completed, inspected, and accepted by the
CITY.
1.7 Change Order - A change order is defined as a written order to a CONTRACTOR approved by
the CITY, authorizing a revision of an underlying agreement between the CITY and a
CONTRACTOR that is directly related to the original scope of work or an adjustment in the
original contract price or the contract time directly related to the original scope of work,
issued on or after the effective date of the contract.
1.8 CITY – The City of Sunny Isles Beach, Florida including but not limited to its employees,
agents, officials, representatives, contractors, subcontractors, volunteers, successors and
assigns, with whom the CONTRACTOR has entered into the Agreement and for whom the
Work is to be provided. The Project Manager, or designee, shall be the authorized agent for
the CITY unless otherwise specified.
1.9 Contract Documents – The Contract Documents shall consist of this Agreement, Exhibits
to this Agreement, the Bid Documents, Public Construction Bond, Performance Bond,
Payment Bond and Certificates of Insurance, Notice of Award and Notice to Proceed,
General Conditions as amended by the Special Conditions, Technical Specifications,
Plans/Drawings, Addenda, Bid Form and supplement Affidavits and Agreements, all
applicable provisions of State and Federal Law and any modification, including Change
Orders or written amendments duly delivered after execution of Agreement, Invitation to Bid,
Instructions to Bidders and Bid Bond, CONTRACTOR’s response to the CITY’s Invitation to
Bid, Schedule of Completion and Schedule of Values, all amendments, modifications and
supplements, change orders and work directive changes issued on or after the Effective
Date of the Agreement, as well as any additional documents that are required to be
submitted under the Agreement.
The Contract Documents shall also consist of the Federal Provisions Related to Grant Funds
attached to the Bid Documents, the State of Florida Department of Environmental Projection
(“FDEP”) Grant Agreement with the CITY (Agreement No. 22FRP50), the American Rescue Plan
Act (“ARPA”) Grant Agreement with the CITY (Agreement No. Y5301), the State of Florida
Department of Environmental Projection (“FDEP”) Grant Agreement with the CITY (Agreement
No LPA0391).
Permits on file with the CITY and or those permits to be obtained shall be considered
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ITB 23-03-01 Sunny Isles Beach Central Island Area Drainage Improvement and
North Miami Beach Distribution System Watermain Replacements
directive in nature and willbeconsidered a part of this Agreement. A copyof all permits
shall be given to the CITY for inclusion in the Contract Documents. Terms of permits shall
be met prior to acceptance of the Work and release of the final payment.
1.10 Contract Price – The monies payable to the CONTRACTOR by the CITY under the Contract
Documents and in accordance withtheline-itemunit priceslisted in the Bid.
1.11 Contract Time – The number of calendar days stated in the Agreement for the completion
of the Work. The dates on which the work shall be started and shall be completed as
stated in the Notice to Proceed.
1.12 CONTRACTOR – The person, firm, company, or corporation with whom the CITY has entered
intothe Agreement, including butnotlimited to its employees, agents, representatives,
CONTRACTORs, subcontractors, their subcontractors and their other successors and
assigns.
1.13 Day – A calendar day of twenty-four (24) hours ending at midnight.
1.14 Defective – An adjective which when modifying the word “Work” refers to work that is
unsatisfactory, faulty, or deficient, or does not conform to the Contract Documents or does
not meet the requirements of any inspection, test or approval referred to in the Contract
Documents, or has been damaged prior to the Project Manager’s recommendation of final
payment.
1.15 Effective Date of the Agreement – The date specified in the Notice to Proceed given by
the CITY to the CONTRACTOR indicating when the Contract Time will commence to run
and on which the Agreement becomes effective, but if no such date is indicated, it
means the date on which the Agreement is approved by the CITY Commission or if CITY
Commission approval is not required it is the date on which the Agreement is fully
executed by the CITY.
1.16 Final Completion Date – The date the Work is completed, including completion of the final
punch list, and delivered along with those items specified in the Contract Documents
and is accepted by the CITY.
1.17Hazardous Materials (HAZMAT) - Anysolid,liquid,or gaseous material that is toxic,
flammable, radioactive, corrosive, chemically reactive, or unstable upon prolonged
storage in quantities that could pose a threat to life, property, or the environment
defined in Section 101(14) of Comprehensive Environmental Response, Compensation and
Liability Act of 1980 and in 40 CFR 300.6. Also defined by 49 CFR171.8 as a substance or
material designated by the Secretary of Transportation to be capable of posing an
unreasonable risk to health, safety, and property when transported in commerce and
which has been so designated.
1.18 Hazardous Substance - As defined by Section 101(14) of the Comprehensive Environmental
Response, Compensation and Liability Act; any substance designated pursuant to Section
311(b) (2) (A) of the Clean Water Act; any element, compound, mixture, solution or
substance designated pursuant to Section 102 identified under or listed pursuant to
Section 3001 of the Solid Waste Disposal Act {but not including any waste listed under
Section 307\[a\] of the Clean Water Act}; any hazardous air pollutant listed under Section
PAGE 3 OF 38
ITB 23-03-01 Sunny Isles Beach Central Island Area Drainage Improvement and
North Miami Beach Distribution System Watermain Replacements
112 of theClean Air Act; and any imminently hazardouschemical substanceor mixture
pursuant to Section 7 of the Toxic Substances Control Act. The term does not include
petroleum, including crude oil or any fraction thereof, which is not otherwise specifically
listed or designated as a hazardous substance in the first sentence of this paragraph,
and the term does not include natural gas, natural gas liquids, liquefied natural gas, or
synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).
1.19 Hazardous Waste - Those solid wastes designated by OSHA in accordance with 40 CFR
261 due to the properties of ignitability, corrosively, reactivity, or toxicity. Any material
that is subject to the Hazardous Waste Manifest requirements of the EPA specified in
40 CFR Part 262.
1.20 Holidays - Those designated non-workdays as established by the City Commission of the
City of Sunny Isles Beach.
1.21 Inspection – The term “inspection” and the act of inspecting as used in this Agreement is
defined to mean the examination of construction to ensure that it conforms to the design
concept expressed in the plans and specifications. This term shall not be construed to
mean supervision, superintending and/or overseeing.
1.22 Notice of Award - The written notice by CITY to the CONTRACTOR stating that upon
compliance by the CONTRACTOR with the conditions precedent enumerated therein, within
the time specified that the CITY will sign and deliver this Agreement.
1.23 Notice to Proceed – A written notice given by the CITY to the CONTRACTOR fixing the date
on which the Contract Time will commence to run and on which the Contract Time will end.
1.24 Plans - The drawings which show the character and scope of the work to be performed and
which have been prepared or approved by the CITY and are referred to in the Contract
Documents.
1.25 Premises (otherwise known as Site or Work Site) – means the land, buildings, facilities, etc.
upon which the Work is to be performed.
1.26 Project – The total construction of the Work to be provided as defined in the Contract
Documents.
1.27 Project Manager - The employee of the CITY, or other designated individual who is
herein referred to as the Project Manager, will assume all duties and responsibilities and
will have the rights and authorities assigned to the Project Manager in the contract
Documents in connection with completion of the Work in accordance with this Agreement.
1.28 Punch List - The CITY's list of Work yet to be done or be corrected by the CONTRACTOR,
before the Final Completion date can be determined by the CITY.
1.29 Record Documents - A complete set of all specifications, drawings, addenda,
modifications, shop drawings, submittals and samples annotated to show all changes
made during the construction process.
1.30 Record Drawings or "As-Built" - A set of drawings which show significant changes in the
work made during construction and which are usually based on drawings marked up in
PAGE 4 OF 38
ITB 23-03-01 Sunny Isles Beach Central Island Area Drainage Improvement and
North Miami Beach Distribution System Watermain Replacements
the field and otherdata furnished by theCONTRACTOR. Thesedocuments will be signed
and sealed by the Engineer of Record or a Professional Land Surveyor licensed in the State
of Florida.
1.31 Substantially Completed Date – A date when the CONTRACTOR has requested in writing,
stating that the Work is substantially completed and is ready for an inspection and
issuance of a final punch list for the Project.
1.32 Work – The entire completed delivered product or the various separately identifiable parts
thereof required to be furnished under the Contract Documents. Work is the result of
performing services, furnishing labor and furnishing and incorporating material and
equipment into the product, all as required by the Contract Documents.
ARTICLE 2– SCOPE OF WORK
2.1The CONTRACTOR shall complete all work asspecified or indicated intheContract
Documents. The Project for which the Work under the Contract Documents may be the
whole or only part is generally described as ITB.
2.2 All Work for the Project shall be constructed in accordance with the Drawings and
Specifications.
2.3 Within ten (10) days of the execution of this Agreement, the CONTRACTOR shall contact
the Project Manager. The general sequence of the work shall be submitted by the
CONTRACTOR and approved by the CITY before any work commences. The CITY reserves
the right to issue construction directives necessary to facilitate the Work or to minimize
any conflict with operations.
ARTICLE3 –PROJECT MANAGER
3.1 The Project Manager is hereby designated by the CITY as the (INSERT RESPONSIBLE DEPT.
TITLE). The Project Manager will assume all duties and responsibilities and will have the rights
and authorities assigned to the Project Manager in the Contract Documents in connection
with completion of the Work in accordance with this Agreement.
ARTICLE 4 – CONTRACT DOCUMENTS
The Contract Documents which comprise the entire Agreement between the CITY and
CONTRACTOR are attached to this Agreement, are made a part hereof and consist of the following:
4.1 This Agreement.
4.2 Public Construction Bond, Performance Bond, Payment Bond and Certificates of Insurance.
4.3 Notice of Award and Notice to Proceed.
4.4 ITB and General Conditions as amended by the Special
Conditions.
4.5 Technical Specifications.
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ITB 23-03-01 Sunny Isles Beach Central Island Area Drainage Improvement and
North Miami Beach Distribution System Watermain Replacements
4.6 Plans/Drawings.
4.7 Bid Form and supplement Affidavits and Agreements.
4.8 All applicable provisions of State and Federal Law and any modification, including
Change Orders or written amendments duly delivered after execution of Agreement.
4.9 Instructions to Bidders and Bid Bond.
4.10 CONTRACTOR’s response.
4.11 Schedule of Completion and Schedule of Values.
4.12 All amendments, modifications and supplements, change orders and work directive
changes, issued on or after the Effective Date of the Agreement.
4.13 Any Additional documents that are required to be submitted under the Agreement.
4.14 Permits on file with the CITY and or those permits to be obtained shall be considered
directive in nature and will be considered a part of this Agreement. A copy of all
permits shall be given to the CITY for inclusion in the Contract Documents. Terms of
permits shall be met prior to acceptance of the Work and release of the final payment.
There are no Contract Documents other than those listed in this Article 4. The Contract
Documents may only be altered, amended, or repealed in accordance with the provisions of the
terms of this Agreement.
In the event of any conflict between the documents or any ambiguity or missing specification or
instruction, the following priority is established:
a. Specific direction from the CITY Manager (or designee).
b. This Agreementand any attachments.
c. ITB and the specifications prepared by the CITY.
d. CONTRACTOR’s response
e. Schedule of Values.
f. Schedule of Completion.
If during the performance of the Work, CONTRACTOR finds a conflict, error or discrepancy in the
Contract Documents, CONTRACTOR shall so report to the Project Manager, in writing, at once and
before proceeding with the Work affected shall obtain a written interpretation or clarification from
the CITY.
It is the intent of the specifications and plans to describe a complete Project to be constructed in
PAGE 6 OF 38
ITB 23-03-01 Sunny Isles Beach Central Island Area Drainage Improvement and
North Miami Beach Distribution System Watermain Replacements
accordance withthe Contract Documents.Any Work that may reasonably be inferred from the
specifications or plans as being required to produce the intended result shall be supplied whether
or not it is specifically called for. When words which have a well-known technical or trade meaning
are used to describe Work, materials, or equipment, such works shall be interpreted in
accordance with such meaning. Reference to standard specifications, manuals or codes of any
technical society, organization or associations, or to the code of any governmental authority whether
such reference be specific or implied, shall mean the latest standard specification, manual or
code in effect as of the Effective Date of this Agreement, except as may be otherwise specifically
stated. However, no provision of any referenced standard specification, manual or code (whether
or not specifically incorporated by reference in the Contract Documents) shall change the duties
and responsibilities of the CITY, the CONTRACTOR, or any of their agents or employees from
those set forth in the Contract Documents.
ARTICLE 5 – CONTRACT TIME
5.1 The CONTRACTOR recognizes that TIME IS OF THE ESSENCE.
5.2 The Work shall be substantially completed within ____ calendar days after the date when
the Contract Time commences to run as provided in the Notice to Proceed.
5.3 The Work shall be finally completed on the Final Completion Date and ready for final
payment in accordance with this Agreement within ____ calendar days after the date
when the Contract Time commences to run as provided in the Notice to Proceed.
5.4 The initial Contract Time shall commence upon date of Notice to Proceed by the CITY.
The CITY reserves the right to extend the Agreement, providing all terms conditions and
specifications remain the same, both parties agree to the extension, and such extension is
approved by the CITY.
5.5 In the event services are scheduled to end because of the expiration of this contract, the
CONTRACTOR shall continue the service upon the request of the CITY as authorized by the
awarding authority. The extension period shall not extend for more than ninety (90) days
beyond the expiration date of the existing Agreement. The CONTRACTOR shall be
compensated for the service at the rate in effect when this extension clause is invoked by
the CITY.
ARTICLE 6 – CONTRACT PRICE
6.1 CITY shall pay CONTRACTOR for performance of the Work in accordance with Article 7,
subject to additions and deletions by Change Order, as provided for in this Agreement.
The parties expressly agree that the Contract Price which shall not exceed the amount of
(INSERT WRITTEN DOLLAR AMT) ($__________) constitutes the total maximum
compensation payable to the CONTRACTOR for performing the Work, plus any Work done
pursuant to a Change Order. Contract Price is in accordance with the line item unit
prices listed in the Bid. Line items are based on a unit price cost multiplied by a defined
quantity. Any additional duties, responsibilities and obligations assigned to or undertaken
by CONTRACTOR shall be at CONTRACTOR’s expense without change to the Contract Price.
PAGE 7 OF 38
ITB 23-03-01 Sunny Isles Beach Central Island Area Drainage Improvement and
North Miami Beach Distribution System Watermain Replacements
6.2TheContractPriceconstitutesthecompensationpayabletoCONTRACTORforperforming
the Work plus any Work done pursuant to a Change Order. All duties responsibilities and
obligations assigned to or undertaken by CONTRACTOR shall be at CONTRACTOR’s
expense without change in the Contract Price.
ARTICLE 7 – PAYMENT PROCEDURES
7.1 CONTRACTORshall submit Applications for Payment in accordance with the Contract
Documents. Applications for Payment will be processed by CITY as provided in the
General Conditions.
7.2 Progress Payments. CITY shall make progress payments on account of the Contract Price
on the basis of CONTRACTOR’s monthly Applications for Payment, which shall be
stth
submitted by the CONTRACTOR between the first (1) and the tenth (10) day after the
end of each calendar month for which payment is requested. All progress payments will
be made on the basis of the progress of the Work completed.
7.3 Prior to Final Completion, progress payments will be made in an amount equal to
ninety five percent (95%) of the value of Work completed less in each case the aggregate
of payments previously made.
7.4 Final Payment. Upon final completion of the Work in accordance with the General
Conditions, as may be supplemented, the CITY shall pay CONTRACTOR an amount sufficient
to increase total payments to one hundred percent (100%) of the Contract Price. However,
not less than five percent (5%) of the Contract Price shall be retained until Record
Drawings (as-built), specifications, addenda, modifications and shop drawings. Including
all manufacturers’ instructional and parts manuals are delivered to and accepted by the
CITY.
7.5 The CITY shall make payment to the CONTRACTOR in accordance with the Florida Prompt
Payment Act, Section 218.70, Florida Statutes.
ARTICLE8 –CONTRACTOR’S REPRESENTATIONS
In order to induce the CITY to enter into this Agreement, CONTRACTOR makes the following
representations upon which the CITY has relied:
8.1 CONTRACTOR is qualified in the field of public construction and in particular to perform the
Work and services set forth in this Agreement.
8.2 CONTRACTOR has visited the Work Site, has conducted extensive tests, examinations and
investigations and represents and warrants a thorough familiarization with the nature and
extent of the Contract Documents, the Work, locality, soil conditions, moisture conditions
and all year-round local weather and climate conditions (past and present), and, in reliance
on such tests, examination and investigations conducted by CONTRACTOR and the
CONTRACTOR's experts, has determined that no conditions exist that would in any manner
affect the Proposed Price and that the project can be completed for the Proposed
Price submitted within the Contract Time as defined in this Agreement. Furthermore,
CONTRACTOR warrants and confirms that he is totally familiar with, understands and
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ITB 23-03-01 Sunny Isles Beach Central Island Area Drainage Improvement and
North Miami Beach Distribution System Watermain Replacements
obligatesCONTRACTOR to comply with all federal, state and local laws, ordinances, rules,
regulations and all market conditions that affect or may affect the cost and price of
materials and labor needed to fulfill all provisions of this Agreement or that in any manner
may affect cost, progress or performance of the Work.
8.3 The CONTRACTOR has satisfied itself as to the nature and location of the Work under the
Contract Documents, the general and local conditions of the Project, particularly those
bearing upon availability of transportation, disposal, handling and storage of materials,
availability of labor, water, electric power, and roads, the conformation and conditions at
the ground based on CITY provided reports, the type of equipment and facilities needed
preliminary to and during the prosecution of the Work and all other matters which can
in any way affect the Work or the cost thereof under the Contract Documents.
.4 The CONTRACTOR has also studied carefully all reports of investigations and tests of
8
subsurface and latent physical conditions at the site or otherwise affecting cost, progress
or performance of the Works, and finds and has further determined that no conditions
exist that would in any manner affect the Proposed Price and that the project can be
completed for the Proposed Price submitted.
8.5 CONTRACTOR has made or caused to be made examinations, investigations, tests and
studies of such reports and related data in addition to those referred to in Paragraphs 8.2,
8.3 and 8.4 above as he deems necessary for the performance of the Work at the Contract
Prices, within the Contract Time and in accordance with the other terms and conditions of
the Contract Documents; and no additional examinations, investigations, tests, reports or
similar data are, or will be, required by CONTRACTOR for such purposes.
8.6 CONTRACTOR has correlated the results of all such observations, examinations,
investigations, tests, reports and data with the terms and conditions of the Contract
Documents.
8.7 CONTRACTOR has given CITY written notice of all conflicts, errors or discrepancies that it
has discovered in the Contract Documents and the written resolution by CITY is acceptable
to the CONTRACTOR.
8.8 Labor
8.8.1 The CONTRACTOR shall provide competent, suitable qualified personnel to survey
and lay out the Work and perform construction as required by the Contract
Documents. The CONTRACTOR shall at all times maintain good discipline and
order at the site.
8.8.2 The CONTRACTOR shall, at all times, have a competent superintendent, capable of
reading and thoroughly understanding the drawings and specifications, as the
CONTRACTOR’s agent on the Work, who shall, as the CONTRACTOR’s agent,
supervise, direct and otherwise conduct the Work.
8.8.3 The CONTRACTOR shall designate the superintendent on the job to the CITY,
in writing, immediately after receipt of the Notice to Proceed. The CONTRACTOR
understands and agrees that the superintendent’s physical presence on the job
site is indispensable to the successful completion of the Work. If the superintendent
is frequently absent from the job site, the Project Manager may deliver written
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notice to the CONTRACTORtostop work orterminate the Contract in accordance
with Article 17.
8.8.4 The CONTRACTOR shall assign personnel to the job site that have successfully
completed training programs related to trench safety, confined space and
maintenance of traffic. A certified “competent person” shall be assigned to the
job site. Personnel certified by the International Municipal Signal Associations with
Florida Department of Transportation qualifications are required relative to
maintenance of traffic. Failure to pursue the Work with the properly certified
supervisory staff may result in notice to stop work or terminate the Contract in
accordance with Article 17.
8.9 Materials:
8.9.1 The CONTRACTOR shall furnish all materials, equipment, labor, transportation,
construction equipment and machinery, tools, appliances, fuel, power, light,
heat, telephone, water and sanitary facilities and all other facilities and
incidentals necessary for the execution, testing, initial operation and completion of
Work.
8.9.2 All material and equipment shall be of good quality and new, except as otherwise
provided in the Contract Documents. Suppliers shall be selected and paid by the
CONTRACTOR; the CITY reserves the right to approve all suppliers and materials.
8.10 Work Hours:
8.10.1 Except as may be approved by the CITY in writing, all work at the site shall be
performed between the hours 7:00 AM and 7:00 PM Monday through Thursday and
7:00 AM to 5:00 PM on Fridays. The CONTRACTOR will not permit overtime work or
the performance of work on Saturday, Sunday or any legal holiday (designated by
the City of Sunny Isles Beach) without the Project Manager’s written consent at least
seventy-two (72) hours in advance of starting such work. If the Project Manager
permits overtime work, the CONTRACTOR shall pay for the additional charges to the
CITY with respect to such overtime work. Such additional charges shall be a
subsidiary obligation of the CONTRACTOR and no extra payment shall be made to
the CONTRACTOR for overtime work. The cost to the CONTRACTOR to reimburse
the CITY for overtime inspection is established at direct-labor and overtime costs
for each person or inspector required. Incidental overtime costs for engineering,
testing and other related services will also be charged to the CONTRACTOR at the
actual rate accrued.
8.11 Patent Fee and Royalties: The CONTRACTOR shall pay all license fees and royalties and
assume all costs incident to the use in the performance of the Work or the incorporation
in the Work, or any invention, design, process, product or device which is the subject of patent
rights or copyrights held by others. The CONTRACTOR hereby expressly binds himself or
itself to indemnify and save harmless the CITY from all such claims and fees and from any
and all suits and action of every name and description that may be brought against CITY
on account of any such claims, fees, royalties, or costs for any such invention or patent,
and from any and all suits or actions that may be brought against said CITY he
for t
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infringement of anyand all patentsorpatentrights claimedbyanyperson, firm corporation
or other entity.
8.12 Permits: The CONTRACTOR shall obtain and pay for all permits and licenses. There shall be
no allowance for CONTRACTOR markup, overhead or profit for permits and licenses. The
CONTRACTOR shall pay all government charges which are applicable at the time of opening
of proposals. It shall be the responsibility of the CONTRACTOR to secure and pay for all
necessary licenses and permits of a temporary nature necessary for the prosecution of Work.
8.13 Law and Regulations: The CONTRACTOR shall give all notices and comply with all laws,
ordinances, rules and regulations applicable to the Work. If the CONTRACTOR observes
that the specifications or plans are at variance therewith, the CONTRACTOR shall give the
Project Manager prompt written notice thereof, and any necessary changes shall be
adjusted by any appropriate modifications. If the CONTRACTOR performs any work knowing
or having reason to know that it is contrary to such laws, ordinances, rules and regulations,
and without such notice to the Project Manager, the CONTRACTOR shall bear all costs
arising therefrom; however, it shall not be the CONTRACTOR’s primary responsibility to
make certain that the specifications and plans are in accordance wit
h such laws, ordinances,
rules and regulations.
8.14 Taxes: The CONTRACTOR shall pay all sales, consumer, use and other similar taxes
required to be paid by him in accordance with the laws of the CITY of Sunny Isles Beach,
County of Miami-Dade, and State of Florida.
8.15 CONTRACTOR Use of Premises: The CONTRACTOR shall confine construction equipment, the
storage of materials and equipment and the operations of workmen to areas permitted by
law, ordinances, permits and/or the requirements of the Contract Documents, and shall
not unreasonably encumber the premises with construction equipment or other materials
or equipment.
The CONTRACTOR shall not enter upon private property for any purpose without first securing
the permission of the property owner in writing and furnishing the Project Manager with a copy
of said permission. This requirement will be strictly enforced, particularly with regard to such
vacant properties as may be utilized for storage or staging by the CONTRACTOR.
The CONTRACTOR shall conduct his work in such a manner as to avoid damage to adjacent
private or public property. Any damage to existing structures of work of any kind, including
permanent reference markers or property corner markers, or the interruption of a utility service,
shall be repaired or restored promptly at no expense to the CITY or property owner.
The CONTRACTOR will preserve and protect all existing vegetation such as trees, shrubs and grass
on or adjacent to the site which do not reasonably interfere with the construction, as determined by
the Project Manager. The CONTRACTOR will be responsible for repairing or replacing any trees,
shrubs, lawns and landscaping that may be damaged due to careless operation of equipment,
stockpiling of materials, tracking of grass by equipment or other construction activity. The
CONTRACTOR will be liable for or will be required to replace or restore at no expense to the
CITY all vegetation not protected or preserved as rehat may be destroyed or
quired herein t
damaged.
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Duringthe progress of the work,theCONTRACTORshall keep the premises free from
accumulations of waste materials, rubbish and debris resulting from the Work. At the completion
of the Work, the CONTRACTOR shall remove all waste materials, rubbish and debris from and
about the premises as well as all tools, appliances, construction equipment and machinery,
and surplus materials and shall leave the site clean and ready for occupancy by the CITY. The
CONTRACTOR shall restore to their original condition those portions of the site not designated for
alteration by the Contract Documents at no cost to the CITY.
8.16Project Coordination: The CONTRACTOR shall providefor the complete coordination of
the construction effort. This shall include, but not necessarily be limited to, coordination of
the following:
8.16.1 Flow of material and equipment from suppliers.
8.16.2 The interrelated work with affected utility companies.
8.16.3 The interrelated work with the CITY where tie-ins to existing facilities are
required.
8.16.4 The effort of independent testing agencies.
8.16.5 Notice to affected property owners as may be directed by the Project Manager.
8.17 Project Record Documents and As-Built (Record Drawings): The CONTRACTOR shall
keep one record copy of all specifications, plans addenda, modifications, shop drawings
and samples at the site, in good order and annotated to show all changes made during
the construction process. These shall be available to the Project Manager or examination
and shall be delivered to the Project Manager upon completion of the Work. Upon
completion of the project and prior to final payment, an as-built (record drawings) of the
Project shall be submitted to the Project Manager.
The as-built drawings shall be signed and sealed by a Florida Registered Professional
Surveyor and Mapper, Engineer, Architect or Landscape Architect depending on the type
of drawing.
8.18 Safety and Protection:
8.18.1The CONTRACTORshall be responsible for initiating, maintaining, and
supervising all safety precautions and programs in connection with the Work. The
CONTRACTOR shall take all necessary precautions for the safety of, and
shall provide the necessary protection to prevent damage, injury, or loss to:
8.18.1.1 All employees working on the project and other persons who may
be affected thereby.
8.18.1.2 All the Work and all materials or equipment to be incorporated
therein, whether in storage on or off the site.
8.18.1.3 Other property at the site or adjacent thereto, including trees,
shrubs, lawns, walks, pavements, roadways, structures and utilities
not designated for removal, relocation or replacement in the
course of construction.
8.18.2 The CONTRACTOR shall comply with all applicable laws, ordinances, rules,
regulations, and orders of any public body having jurisdiction for the safety of
persons or property or to protect them from damage, injury or loss; and shall
erect and maintain all necessary safeguards for such safety and protection.
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The CONTRACTORshallnotify ownersofadjacentpropertyandutilities when
execution of the Work may affect them at least seventy-two (72) hours
in advance (unless otherwise required). All damage, injury or loss to any property
caused, directly or indirectly, in whole or in part by the CONTRACTOR, any
subcontractor or anyone directly or indirectly employed by any of them or anyone
for whose acts any of them may be liable, shall be remedied by the
CONTRACTOR. The CONTRACTOR’s duties and responsibilities for safety and
protection of the Work shall continue until such time as all the Work is
completed and accepted by the CITY.
8.19Emergencies: In emergenciesaffecting the safetyor protectionofpersonsorthe
Work or property at the site or adjacent thereto, the CONTRACTOR, without special
instruction or authorization from the CITY is obligated to act to prevent threatened
damage, injury or loss. The CONTRACTOR shall give the Project Manager prompt written
notice of any significant changes in the Work or deviations from the Contract
Documents caused thereby.
8.20Risk of Loss: The risk of loss, injury or destruction shall be on the CONTRACTOR until
acceptance of the Work by the CITY. Title to the Work shall pass to the CITY upon
acceptance of the Work by the CITY.
8.21Environmental: The CONTRACTOR has fully inspected the Premises and agrees, except as
to the presence of any asbestos, to accept the Premises in an “as is” physical condition,
without representation or warranty by the CITY of any kind, including, without limitation, any
and all existing environmental claims or obligations that may arise from the presence of
any “contamination” on, in or about the Premises. Further, CONTRACTOR and all entitles
claiming by, through or under the CONTRACTOR, releases and discharges the CITY, from
any claim, demand, or cause of action arising out of or relating to the CONTRACTOR’s
use, handling, storage, release, discharge, treatment, removal, transport, decontaminati
on,
cleanup, disposal and/or presence of any hazardous substances including asbestos on,
under, from or about the Premises. The CONTRACTOR shall have no liability for any pre-
existing claims or “contamination” on the Premises.
The CONTRACTOR shall not use, handle, store, discharge, treat, remove, transport, or
dispose of Hazardous Substances including asbestos at, in, upon, under, to or from the
Premises until receipt of instructions from the CITY. At such time, a CITY approved Change
Order, which shall not include any profit, shall authorize the CONTRACTOR to perform
such services.
The CONTRACTOR shall immediately deliver to the Project Manager complete copies of all
notices, demands, or other communications received by the CONTRACTOR from any
governmental or quasi-governmental authority or any insurance company or board of fire
underwriters or like or similar entities regarding in any way alleged violations or potential
violations of any Environmental Law or otherwise asserting the existence or potential
existence of any condition or activity on the Premises which is or could be dangerous to
life, limb, property, or the environment.
or other and additional consideration, the CONTRACTOR hereby agrees, at its sole cost
F
and expense, to indemnify and protect, defend, and hold harmless the CITY and its
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respective employees, agents, officials, officers, representatives,CONTRACTORs and
subcontractors, successors, and assigns (hereafter the “CITY”) from and against any and
all claims, demands, losses, damages, costs, expenses, including but not limited to
mitigation, restoration, and natural restoration expenses, liabilities, assessments, fines,
penalties charges, administrative and judicial proceedings and orders, judgments, causes of
action, in law or in equity, remedial action requirements and/or enforcement actions of
any kind (including, without limitation, attorneys’ fees and costs) directly or indirectly
arising out of or attributable to, in whole or in part
, the CONTRACTOR’s use, handling,
storage, release, threatened release, discharge, treatment, removal, transport,
decontamination, cleanup, disposal and/or presence of a Hazardous Substance (excluding
asbestos) on, under, from, to or about the Premises or any other activity carried on or
undertaken on or off the Premises by the CONTRACTOR or its employees, agents or
subcontractors, in connection with the use, handling, storage, release, threatened release,
discharge, treatment, mitigation, natural resource restoration, removal, transport,
decontamination, cleanup, disposal and/or presence or any Hazardous Substance in
cluding
asbestos located, transported, or present on, undue, from, to, or about the Premises.
This indemnity is intended to be operable under 42 U.S.C. sections 9607, as amended, and
any successor section.
The s
cope of the indemnity obligations includes, but is not limited to: (a) all consequential
damages; (b) the cost of any required or necessary repair, cleanup, or detoxification of the
applicable real estate and the preparation and implementation of any closure, remedial or
other required plan, including without limitation; (i) the costs of removal or remedial action
incurred by the United States government or the State of Florida or response costs incurred
by any other person, or damages from injury to destruction of, or loss of, natural resources,
including the cost of assessing such i
njury, destruction, or loss, incurred pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act, as amended; (ii)
the clean-up costs, fines, damages, or penalties incurred pursuant to any applicable
provisions of Florida law; and (iii) the cost and expenses of abatement, correction or
cleanup, fines, damages, response costs, or penalties which arise from the provisions of
any other statute, law, regulation, code ordinance, or legal requirement state or federal;
and (c) liability for personal injury or property damage arising under any statutory or
common law tort theory, including damages assessed for the maintenance of a public
private nuisance, response costs, or for the carrying on of an abnormally dangerous activity.
8.22No Extended Damages: Forother and additional good and valuable considerationthe
receipt and sufficiency of which is hereby acknowledged, the CONTRACTOR covenants
and agrees that in the event of any delay of construction or for any other reason or
allegation or claim, and notwithstanding the reason of the delay, reason, claim or
allegation or who caused them or the construction delay or whether they were caused by
the CITY, that there will be no entitlement to CONTRACTOR to or for any direct or indirect
financial damages or losses for extended corporate overhead impact, extended project
overhead impacts, project support services, mobilization or demobilization or by whatever
other label or legal concept or theory and types of names or labels orbasis such claims
may have, or any business damages or losses of whatever type or nature, and CONTRACTOR
hereby waives any right to make any such claim or claims. This provision will have
application and effect when construction delays are anticipated and agreed upon by both
the CITY and the CONTRACTOR.
8.23No Liens: If any Subcontractor, supplier, laborer, or materialmen of CONTRACTOR or any
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other person directly or indirectly acting for or through CONTRACTOR filesorattemptsto
file a mechanic’s or construction lien against the real property on which the work is
performed or any part or against any personal property or improvements or claim
against any monies due or to become due from the CITY to CONTRACTOR or from
CONTRACTOR to a Subcontractor, for or on account of any work, labor, services, material,
equipment, or other items furnished in connection with the Work or any Change Order,
CONTRACTOR agrees to satisfy, remove, or discharge such lien or claim at its own
expense by bond, payment, or otherwise with
in twenty (20) days of the filing or from
receipt of written notice from the CITY.
Additionally, until such time as such lien or claim is satisfied, removed or discharged by
CONTRACTOR, all monies due to CONTRACTOR, or that become due to CONTRACTOR before
the lien or claim is satisfied, removed or otherwise discharged, shall be held by CITY as
security for the satisfaction, removal and discharge of such lien and any expense that may
be incurred while obtaining such. If CONTRACTOR shall fail to do so, CITY shall have the
right, in addition to all other rights and remedies provided by this Agreement or by law, to
satisfy, remove, or discharge such lien or claim by whatever means CITY chooses at
the entire and sole cost and expense of CONTRACTOR which costs and expenses shall,
without limitation, include attorney’s fees, litigation costs, fees and expenses and all court
costs and assessments.
8.24Weather Emergencies: Upon issuance of a Hurricane Watch by the National Weather
Service, the CONTRACTOR shall submit to the CITY a plan to secure the work area in
the event a Hurricane Warning is issued. The plan shall detail how the CONTRACTOR will
secure the Premises, equipment and materials in a manner as to prevent damage to the
Work and prevent materials and equipment from becoming a hazard to persons and
property on and around the Premises. The plan shall include a time schedule required to
accomplish the hurricane preparations and a list of emergency contacts that will be
available and in the CITY before, during and immediately after the storm.
Upon issuance of a Hurricane Warning by the National Weather Service, if the
CONTRACTOR has not already done so, the CONTRACTOR shall implement its
hurricane preparedness plan. Cost of development and implementation of the hurricane
preparedness plan shall be considered as incidental to construction. Cost of any clean up
and rework required after the storm will be considered normal construction risk within
Florida and shall not entitle the CONTRACTOR to any additional compensation.
CONTRACTOR shall be entitled to request an extension in time for completion of the Work,
in accordance with the provisions of Article 15 of this Agreement, equal to the time he is
shut down for implementation of the preparedness plan, the duration of the storm and
a reasonable period to restore the Premises.
8.25Force Majeure: No Party shall hold the other responsible for damages or for delays in
performance caused by force majeure, acts of God, or other acts or circumstances
beyond the control of the other party or that could not have been reasonably foreseen and
prevented. For this purposes, such acts or circumstances shall include, but not be limited
to weather conditions affecting performance, floods, epidemics, war, riots, strikes,
lockouts, or other industrial disturbances, or protest demonstrations. Should such acts
or circumstances occur, the parties shall use their best efforts to overcome the difficulties
arising therefrom and to resume the Work as soon as reasonably possible with the
normal pursuit of the Work.
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Inclement weather, continuous rain for less than three (3) days or the acts or omissions
of subcontractors, third-party CONTRACTORs, materialmen, suppliers, or their
subcontractors, shall not be considered acts of force majeure.
No Party shall be liable for its failure to carry out its obligations under the Agreement
during a period when such Party is rendered unable by force majeure to carry out its
obligation, but the obligation of the Party or Parties relying on such force majeure shall be
suspended only during the continuance of the inability and for no longer period than the
unexpected or uncontrollable event.
The CONTRACTOR further agrees and stipulates, that its right to excuse its failure to
perform by reason of force majeure shall be conditioned upon giving written notice of its
assertion that a Force Majeure delay has commenced within 96 hours after such an
occurrence. The CONTRACTOR shall use its reasonable efforts to minimize such delays.
The CONTRACTOR shall promptly provide an estimate of the anticipated additional
time required to complete the Project.
8.26 PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN DEPARTMENT OF
TRANSPORTATION FINANCIAL ASSISTED CONTRACTS:
t shall not discriminate on the basis of race, color, national origin, or sex in the
The recipien
award and performance of any DOT-assisted contract or in the administration of its DBE
program or the requirements of 49 CFR part 26. The recipient shall take all necessary
and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the award and
administration of DOT-assisted contracts. The recipient's DBE program, as required by 49
CFR part 26 and as approved by DOT, is incorporated by reference in this agreement.
Implementation of this program ailure to carry out its terms shall
is a legal obligation and f
be treated as a violation of this agreement. Upon notification to the recipient of its failure
to carry out its approved program, the Department may impose sanctions as provided
for under Part 26 and may, in appropriate cases, refer the matter for enforcement under
18 U.S.C. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801
et seq.).
Additionally, the CONTRACTOR assures that it, the sub recipient or the subcontractor shall
not discriminate on the basis of race, color, national origin, or sex in the performance of this
contract. The CONTRACTOR shall carry out applicable requirements of 49 CFR part 26 in the
award and administration of DOT-assisted contracts. Failure by the CONTRACTOR to carry
out these requirements is a material breach of this contract, which may result in the
termination of this contract or such other remedy as the recipient deems appropriate.
(This additional language must be included in each subcontract the prime CONTRACTOR signs
with a subcontractor.)
ARTICLE 9 – CITY’SRESPONSIBILITIES
9.1 The CITY shall furnish the data required of the CITY under the Contract Documents
promptly and shall make payments to the CONTRACTOR promptly after they are due as
provided in Article 7.
9.2 The CITY’s duties in respect of providing lands and easements and providing engineering
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surveys to establish reference points are set forth intheContractDocuments.
9.3 Technical Clarifications and Interpretations:
9.3.1 The CITYshall issue, with reasonable promptness, such written clarifications or
interpretations of the Contract Documents as it may determine necessary, which
shall be consistent with or reasonably inferable from the overall intent of the
Contract Documents. Should the CONTRACTOR fail to request interpretation of
questionable items in the Contract Documents, the CITY shall not entertain any
excuse for failure to execute the Work in a satisfactory manner.
9.3.2 The CITYshall interpretand decidematters concerningperformanceunderthe
requirements of the Contract Documents, and shall make decisions on all claims,
disputes or other matters in question. Written notice of each claim, dispute or
other matter will be delivered by claimant to the other Party but in no event later
than five (5) days after the occurrence of the event, and written supporting date
will be submitted to the other Party within five (5) days after such occurrence.
All written decisions of the CITY on any claim or dispute will be final and binding.
9.4 The CONTRACTOR shall perform all Work to the reasonable satisfaction of the CITY in
accordance with the Contract Documents. In cases of disagreement or ambiguity, the CITY
shall decide all questions, difficulties, and disputes of whatever nature, which may arise
under or by reason of this Agreement or the quality, amount and value of the Work, and
the CITY’s decisions on all claims, questions and determination are final.
ARTICLE 10– BONDSAND INSURANCE
10.1Public Construction and Other Bonds:
NTRACTOR shall furnish Public Construction or Performance and Payment Bonds (“Bond”),
The CO
each in an amount at least equal to the Contract Price as security for the faithful performance and
payment of all the CONTRACTOR’s obligations under the Contract Documents. These Bonds shall
remain in effect until at least one (1) year after the date of final payment, except as otherwise
provided by law. All Bonds shall be furnished and provided by the surety and shall be in
substantially the same form as prescribed by the Contract Documents and be executed by such
sureties as (i) are licensed to conduct business in the State of Florida, and (ii) are named in the
current list of Companies Holding Certificates of Authority as Acceptable Sureties on Federal
Bonds and as Acceptable Reinsuring Companies as published in Circular 570 (amended) by
the Audit Staff Bureau of Accounts, U.S. Treasury Department and (iii) otherwise meet the
requirements set forth herein that apply to sureties. All Bonds signed by an agent must be
accompanied by a certified copy of the authority to act.
10.1.1 Performance Bond: The CONTRACTOR shall execute and record in the public records
of Dade County, Florida a payment and performance bond in an amount at least
equal to the Contract Price with a surety insurer authorized to do business in the
State of Florida as surety (“Bond”), in accordance with Section 255.05, Florida
Statues (2014) as may be amended or revised, as security for faithful performance
and payment of all of the CONTRACTOR’s obligations under the Contract Documents.
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A Corporate Surety Bond legally issued, meeting the approval of the CITY in an
amount not less than the Contract Price of such improvements, conditioned that
the CONTRACTOR shall maintain and make all repairs to the improvements
constructed by the CONTRACTOR at their own expense and free of charge to the
CITY, for the period of one (1) year after the date of acceptance of the Work
within such period by reason of any imperfection of the material used or by
reason of any defective workmanship, or any improper, imperfect or defective
preparation of the base upon which any such improvement shall be laid.
10.2Disqualification of Surety: If the Surety on any Bond furnished by the CONTRACTOR is
declared bankrupt or becomes insolvent or its right to do business is terminated in the
State of Florida or it ceases to meet the requirements of clauses (i) and (ii) of Paragraph
10.1, the CONTRACTOR shall within five (5) days thereafter substitute another Bond and
Surety, both of which shall be acceptable to the CITY.
10.3Insurance:
10.3.1 The CONTRACTOR shall provide, and shall require all of its sub-CONTRACTORs to
provide, pay for, and maintain in force at all times during the term of the
Agreement, such insurance, including Property Insurance (Builder’s Risk),
Commercial General ability Insurance, Business Automobile Liability Insurance,
Workers’ Compensation Insurance, Employer’s Liability Insurance, and
Umbrella/Excess Liability, as stated below. Such policy or policies shall be issued
by companies authorized to do business in the State of Florida and having agents
upon whom service of process may be made in the State of Florida. A Sample
Insurance Certificate shall be included with the bid to demonstrate the firm’s
ability to comply with insurance requirements. Provide a previous certificate or
other evidence listing the insurance companies’ names for all required coverage,
and the dollar amounts of coverage.
A. The CITY is required to be named as additional insured on the
Commercial General Liability insurance policy. BINDERS ARE
UNACCEPTABLE. The insurance coverage required shall include those
classifications, as listed in standard liability insurance manuals, which
most nearly reflect the operations of the CONTRACTOR. Any exclusions or
provisions in the insurance maintained by the CONTRACTOR that precludes
coverage for the work contemplated in this Agreement shall be deemed
unacceptable and shall be considered a breach of contract.
B. The CONTRACTOR shall provide the CITY an original Certificate of Insurance
for policies required by Article 10. All certificates shall state that the CITY
shall be given ten (10) days’ notice prior to expiration or cancellation of
the policy. The insurance provided shall be endorsed or amended to
comply with this notice requirement. In the event that the insurer is
unable to accommodate, it shall be the responsibility of the CONTRACTOR
to provide the proper notice. Such notification will be in writing by
registered mail, return receipt requested and addressed to the Finance
Department. Such policies shall: (1) name the insurance company or
companies affording coverage acceptable to the CITY, (2) state the effective
and expiration dates of the policies, (3) include special endorsements
where necessary. Such policies provided under Article 10 shall not be
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affected by any other policy of insurance, which the CITY may carry in its own
name.
C. The CONTRACTOR shall as a condition precedent of this Agreement,
furnish to the CITY of Sunny Isles Beach, c/o Project Manager, 18070 Collins
Avenue, Sunny Isles Beach, FL 33160. Certificate(s) of Insurance upon
execution of this Agreement, which indicate that insurance coverage has
been obtained which meets the requirements as outlined below:
10.3.2 Property Insurance (Builder’s Risk): The CONTRACTOR shall purchase
and maintain property insurance upon the Work at or off the site of 100% of
the contract completed value. These policies shall insure the interest of the
owner, CONTRACTOR and subcontractors in the Work, and shall insure against
“all risks” of physical loss and damage including theft, vandalism and malicious
mischief, collapse and water damage. All such insurance required by this
paragraph shall remain in effect until the Work is completed and accepted
by the CITY.
10.3.3 Commercial General Liability
A. Limits of Liability:
Bodily Injury and Property Damage - Combined Single Limit
Each Occurrence $1,000,000
Project Aggregate $1,000,000
General Aggregate $2,000,000
Personal Injury $1,000,000
Products/Completed Operations $1,000,000
B.Endorsements Required:
CITY of Sunny Isles Beach included as an Additional Insured Broad Form
Contractual Liability
Waiver of Subrogation
Premises/Operations
Products/Completed
Operations Independent CONTRACTORs
Owners and CONTRACTORs Protective Liability
CONTRACTORs Pollution Liability
10.3.4 Business Automobile Liability
A. Limits of Liability:
Bodily Injury and Property Damage - Combined Single Limit
All Autos used in completing the contract Including Hired, Borrowed or Non-
Owned Autos
Any One Accident $1,000,000
B. Endorsements Required:
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Waiver of Subrogation
10.3.5 Workers’ Compensation and Employer’s LiabilityInsurance
Limits: Workers’ Compensation – Per Florida Statute 440
Employers’ Liability - $500,000
Any firm performing work on behalf of the City of Sunny Isles Beach must provide
Workers’ Compensation insurance. Exceptions and exemptions can only be made if they
are in accordance with Florida Law.
The CONTRACTOR must be in compliance with all applicable State and Federal workers’
compensation laws, including the U.S. Longshore Harbor Workers’ Act or Jones Act.
10.3.6 Umbrella/Excess Liability: The CONTRACTOR shall provide umbrella/excess
coverage with limits of no less than $2,000,000 excess of Commercial General
Liability, Automobile Liability and Employer’s Liability.
10.3.7 Environmental Pollution Insurance. The CONTRACTOR shall carry an Environmental
Pollution Insurance for pollution-related incidents, including the cost of cleaning up
a site after a pollution incident, with limits not less than $500,000.00 Dollars per
occurrence with deductible not greater than $100,000.00. An additional Form or
endorsement to the Commercial General Liability Insurance to include an
Environmental Pollution Insurance coverage providing the specified coverage, is
acceptable.
10.3.8 All insurance policies required above shall be issued by companies authorized to
do business under the laws of the State of Florida, with the following
qualifications:
The CONTRACTOR’s insurance must be provided by an A.M. Best’s “A-“rated or
better insurance company authorized to issue insurance policies in the State of
Florida, subject to approval by the CITY’s Risk Manager. Any exclusions or provisions
in the insurance maintained by the CONTRACTOR that precludes coverage for work
contemplated in this project shall be deemed unacceptable and shall be considered
breach of contract.
NOTE: CITY BID NUMBER MUST APPEAR ON EACH CERTIFICATE.
mpliance with the foregoing requirements shall not relieve the CONTRACTOR of
Co
their liability and obligation under this section or under any other section of this
Agreement.
The CONTRACTOR shall be responsible for assuring that the insurance certificates
required in conjunction with this Section remain in force for the duration of the
Project. If insurance certificates are scheduled to expire during the contractual
period, the CONTRACTOR shall be responsible for submitting new or renewed
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insurance certificatesto the CITYat a minimum of thirty (30)calendar days in
advance of such expiration. In the event that expired certificates are not replaced
with new or renewed certificates that cover the contractual period, the CITY shall:
A. Suspend the Agreement until such time as the new or renewed
certificates are received by the CITY.
B. The CITY may, at its sole discretion, terminate the Agreement for cause
and seek damages from the CONTRACTOR in conjunction with the violation
of the terms and conditions of the Agreement.
ARTICLE11- WARRANTY AND GUARANTEE,TESTSAND INSPECTIONS, CORRECTION,
REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK
11.1 Warranty: The CONTRACTOR warrants and guarantees to the CITY that all Work will be in
accordance with the Contract Documents and will not be defective. Prompt notice of all
defects shall be given to the CONTRACTOR. All defective work, whether or not in place, may
be rejected, corrected or accepted as provided in this Article.
11.1.1 Warranty of Title: The CONTRACTOR warrants to the CITY that it possesses good,
clear and marketable title to all equipment and materials provided and that there
are no pending liens, claims or encumbrances against the equipment and
materials.
11.1.2 Warranty of Specifications: The CONTRACTOR warrants that all equipment,
materials and workmanship furnished, whether furnished by the CONTRACTOR, its
subcontractors or suppliers, will comply with the specifications, drawings and
other descriptions supplied or adopted and that all services will be performed in a
workmanlike manner.
11.1.3 Warranty of Merchantability: The CONTRACTOR warrants that any and all
equipment to be supplied pursuant to this Agreement is merchantable, free from
defects, whether patent or latent in material or workmanship, and fit for the
ordinary purposes for which it is intended.
11.2 Tests and Inspections: The Contactor shall give the Project Manager timely (minimum of
thirty-six (36) hours) notice of readiness of the Work for all required inspections, tests,
or approvals.
11.2.1 If any law, ordinance, rule, regulation, code or order of any public body having
jurisdiction requires any Work (or part thereof) to specifically be inspected,
tested or approved, the CONTRACTOR shall assume full responsibility, pay all costs
in connection therewith and furnish the Project Manager the required certificates
of inspection, testing or approval. The CONTRACTOR shall also be responsible
for and shall pay all costs in connection with any inspection or testing required
in connection with the CITY’s acceptance of a manufacturer, fabricator, supplier
or distributor of materials or equipment submitted for approval prior to the
CONTRACTOR’s purchase thereof for incorporation of the Work.
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11.2.2All inspections, tests or approvals other thanthose requiredby law, ordinance,
rule, regulation, code or order of any public body having jurisdiction shall be
performed by the CITY or by a professional testing firm designated by the CITY.
The CITY will pay for sampling and testing if the test results are passing. The
CONTRACTOR will reimburse the CITY for sampling, testing, and retesting costs
associated with failing tests.
11.2.3 Neither observations by the Project Manager nor inspections, tests or approvals by
others shall relieve the CONTRACTOR from his obligations to perform the Work in
accordance with Contract Documents.
11.3 Uncovering Work: If any work that is to be inspected, tested or approved is covered
without approval or consent of the Project Manager, it must, if requested by the Project
Manager, be uncovered for observation and/or testing. Such uncovering and replacement
shall be at the CONTRACTOR’s sole expense unless the CONTRACTOR has given the Project
Manager timely notice of the CONTRACTOR’s intention to cover such Work and the Project
Manager has not acted with reasonable promptness in response to such notice.
11.3.1 If the Project Manager considers it necessary or advisable that Work covered in
accordance with Paragraph 11.2.1, 11.2.2 and 11.2.3 be observed by the CITY or
inspected or tested by others, the CONTRACTOR at the CITY’s request, shall
uncover, expose or otherwise make available for observation, inspection or
testing as the Project Manager may require, that portion of the Work in question,
furnishing all necessary labor, material and equipment. If it is found that such
Work is defective, the CONTRACTOR shall bear all the expenses of such
uncovering, exposure, observation, inspection and testing and of satisfactory
reconstruction, including compensatifor additional professional services, and an
on
appropriate deductive Change Order shall be issued. If, however, such work is not
found to be defective, the CONTRACTOR shall be allowed an increase in the
Contract Price or an extension of the Contract Time, or both, directly attributable to
such uncovering, exposure, observation, inspection testing and reconstruction if he
makes a claim therefore as provided in Articles 14 and 15.
11.4 CITY May Stop the Work: If the Work is defective, or the CONTRACTOR fails to supply
sufficient skilled supervisory personnel or workmen or suitable materials or equipment or
the work area is deemed unsafe, the CITY may order the CONTRACTOR to stop the
Work, or any portion thereof, until the cause for such order has been eliminated;
however, this right of the CITY to stop the Work shall not give rise to any duty on the part
of the CITY to exercise this right for the benefit of the CONTRACTOR or any other party.
The CITY will not award any increase in Contract Price or Contract Time if the Work is stopped due
to the circumstances described herein.
11.5 Correction or Removal of Defective Work Before Final Payment: If required by the
Project Manager, the CONTRACTOR shall promptly, without cost to the CITY and as
Specified by the Project Manager, either correct any defective Work, whether or not
fabricated, installed or completed, or if the Work has been rejected by the CITY remove it
from the site and replace it with non-defective Work.
11.6 One Year Correction Period After Final Payment: If within one (1) year after the date of
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finalacceptance,orsuch longerperiod of timeasmaybe prescribedby law or by the
terms of any applicable special guarantee required by the Contract Documents, any work
is found to be defective, the CONTRACTOR shall promptly, without cost to the CITY and
in accordance with the CITY’s written instructions, either correct such defective Work, or, if
it has been rejected by the CITY, remove it from the site and replace it with non-defective
Work.
If The CONTRACTOR does not promptly comply with the terms of such instructions or in an emergency
where delay would cause serious risk of loss or damage, the CITY may have the defective Work
corrected or the rejected Work removed and replaced, and all direct and indirect costs for such
removal and replacement, including compensation for additional professional services, shall be paid
by the CONTRACTOR.
11.7 Acceptance of Defective Work, Deductions: If, instead ofrequiring correction or removal
and replacement of defective Work, the CITY, at the CITY’s sole option, prefers to accept it,
the CITY may do so. In such a case, if acceptance occurs prior to the Project Manager’s
recommendation of final payments, a Change Order shall be issued incorporating the
necessary revisions in the Contracts Documents, including appropriate reduction in
the Contract Price; or if the acceptance occurs after such recommendation, an
appropriate amount shall be paid by the CONTRACTOR to the CITY.
11.8 CITY May Correct Defective Work: If the CONTRACTOR fails within a reasonable time after
written notice of the Project Manager to proceed to correct defective Work or to
remove and replace rejected Work as required by the Project Manager in accordance with
Paragraph 11.5, or if the CONTRACTOR fails to perform the Work in accordance with the
Contract Documents, the CITY may, after seven (7) days written notice to the
CONTRACTOR, correct and remedy any such deficiency. In exercising its rights under this
paragraph, the CITY shall proceed expeditiously. To the extent necessary to complete
corrective and remedial action, the CITY may exclude the CONTRACTOR from all or part of
the site, take possession of all or part of the Work, suspend the CONTRACTOR’s services
related thereto and take possession of the CONTRACTOR’s tools, construction equipment
and materials stored at the site or elsewhere. The CONTRACTOR shall allow the CITY’s
representative agents and employees such access to the site as may be necessary to
enable the CITY to exercise its rights under this paragraph. All direct and indirect costs of
the CITY in exercising such rights shall be charged against the CONTRACTOR in an
amount verified by the Project Manager, and a Change Order shall be issued incorporating
the necessary revisions in the Contract Documents and a reduction in the Contract Price.
Such direct and indirect costs shall include, in particular but without limitation,
compensation for additional professional services required and costs of repair and
replacement of work of others destroyed or damaged by correction, removal or
replacement of the CONTRACTOR’s defective Work. The CONTRACTOR shall not be allowed
an extension of the Contract Time because of any delay in performance of the Work
attributable to the exercise by the CITY of the CITY’s right hereunder.
ARTICLE 12 –INDEMNIFICATION
12.1 Disclaimer of Liability: The CITY shall not at any time, be liable for injury or damage
occurring to any person or property from any cause, whatsoever, arising out of
CONTRACTOR’s construction and fulfillment of this Agreement.
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12.2Indemnification:Forother, additional good valuable consideration,the receipt and
sufficiency of which is hereby acknowledged:
12.2.1 The CONTRACTOR shall, at its sole cost and expense, indemnify and hold harmless
the CITY, its representatives, employees and elected and appointed officials from
or on account of all claims, damages, losses, liabilities and expenses, direct,
indirect or consequential including but not limited to fees and charges of
engineers, architects, attorneys, consultants and other professionals and court
costs arising out of or in consequence of the performance of this Agreement at all
trial and appellate levels. Indemnification shall specifically include but not be
limited to claims, damages, losses, liabilities and expenses arising out of or
from (a) the negligent or defective design of the project and Work of this
Agreement; (b) any act, omission or default of the CONTRACTOR, its
Subcontractors, agents, servants or employees; (c) any and all bodily injuries,
sickness, disease or death; (d) injury to or destruction of tangible property,
including any resulting loss of use; (e) other such damages, liabilities, or losses
received or sustained by any person or persons during or on account of any
operations connected with the construction of this Project including the warranty
period; (f) the use of any improper materials; (g) any construction defect including
both patent and latent defects; (h) failure to timely complete the work;
(i) The violation of any federal, state, county or CITY laws, ordinances or
regulations by CONTRACTOR, its subcontractors, agents, servants, independent
CONTRACTORs or employees; (j) the breach or alleged breach by CONTRACTOR of
any term of the Agreement, including the breach or alleged breach of any warranty
or guarantee.
12.2.2 CONTRACTOR agrees to indemnify, defend, save and hold harmless the CITY, its
officers, agents and employees, from all damages, liabilities, losses, claims,
fines and fees, and from any and all suits and actions of every name and
description that may be brought against CITY, its officers, agents and
employees, on account of any claims, fees, royalties, or costs for any invention or
patent and/or for the infringement of any and all copyrights or patent rights
claimed by any person, firm, or corporation.
12.2.3 CONTRACTOR shall pay all claims, losses, liens, settlements or judgments of any
nature in connection with the foregoing indemnifications including, but not limited
to, reasonable attorney’s fees and costs for trails and appeals.
y Subcontractor, supplier, laborer, or materialmen of CONTRACTOR or any
12.2.4 If an
other person directly or indirectly acting for or through CONTRACTOR files or
attempts to file a mechanic’s or construction lien against the real property on
which the work is performed or any part or against any personal property or
improvements thereon or make a claim against any monies due or to become due
from the CITY to CONTRACTOR or from CONTRACTOR to a Subcontractor, for or on
account of any work, labor, services, material, equipment, or other items furnished
in connection with the Work or any change order, CONTRACTOR agrees to satisfy,
remove, or discharge such lien or claim at its own expense by bond, payment, or
otherwise within five (5) days of the filing or from receipt of written notice from the
CITY.
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Additionally, until such timeassuchlienor claim is satisfied, removedor
discharged by CONTRACTOR, all monies due to CONTRACTOR, or that become due
to CONTRACTOR before the lien or claim is satisfied, removed or otherwise
discharged, shall be held by CITY as security for the satisfaction, removal and
discharge of such lien and any expense that may be incurred while obtaining the
discharge. If CONTRACTOR shall fail to do so, CITY shall have the right, in
addition to all other rights and remedies provided by this Agreement or by law, to
satisfy, remove, or discharge such lien or claim by whatever means C
ITY
chooses at the entire and sole cost and expense of CONTRACTOR which costs and
expenses shall, without limitation, include attorney’s fees, litigation costs, fees
and expenses and all court costs and assessments, and which shall be deducted
from any amount owing to CONTRACTOR. In the event the amount due
CONTRACTOR is less than the amount required to satisfy CONTRACTOR’s
obligation under this, or any other article, paragraph or section of this
Agreement, the CONTRACTOR shall be liable for the deficiency due the CITY.
2.5 The CONTRACTOR and the CITY agree that Section 725.06(2), Florida Statutes
12.
controls the extent and limits of the indemnification and hold harmless provisions
of this Agreement, if any, and that the parties waive any defects in the wording of
this Article that runs afoul of said statutory section.
ARTICLE 13– CHANGES IN THE WORK
13.1 Without invalidating this Agreement, the CITY may, at any time or from time to time
order additions, deletions or revisions in the Work through the issuance of Change
Orders. Upon receipt of a Change Order, the CONTRACTOR shall proceed with the Work
involved. All Work shall be executed under the applicable conditions of the Contract
Documents. If any Change Order causes an increase or decrease in the Contract Price
or an extension or shortening of the Contract Time, an equitable adjustment will be made
as provided in Article 14 or Article 15 on the basis of a claim made by either Party.
13.2 The Project Manager may authorize minor changes in the work not involving an
adjustment in the Contract Price or the Contract Time, which are consistent with the
overall intent of the Contract Documents. Such changes must be in writing and signed by
the CITY and the CONTRACTOR.
13.3 If notice of any change affecting the general scope of the Work or change in the
Contract Price is required by the provisions of any Bond to be given to the Surety, it will
be the CONTRACTOR’s responsibility to so notify the Surety, and the amount of each
applicable Bond shall be adjusted accordingly. The CONTRACTOR shall furnish proof of
such adjustment to the CITY.
ARTICLE 14– CHANGE OF CONTRACT PRICE
Change of Contract Price, approved by CITY, shall be computed as follows:
14.1Cost of the Work: The term “Cost of the Work” means the sum of all direct costs
necessarily incurred and paid by CONTRACTOR in the proper performance of the Work.
Except as otherwise may be agreed to in writing by the CITY, these costs shall be in amounts
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nohigherthanthoseprevailingintheCITYandshallincludeonly thefollowing itemsand
shall not include any of the costs itemized in Paragraph 14.2.
14.1.1 Payroll costs for employees inthe direct employ of the CONTRACTOR in the
performance of the Work under schedules of job classifications agreed upon by the
CITY and the CONTRACTOR. Payroll costs for employees not employed full time on
the Work shall be apportioned on the basis of their time spent on the Work. Payroll
costs shall include, but not be limited to, salaries and wages plus and cost of
fringe benefits which shall include social security contributions, unemployment,
excise and payroll taxes, worker’s compensation, health and retirement benefits,
bonuses, sick leave, vacation and applicableholidaypay.
14.1.2 Cost of all materials and equipment furnished and incorporated in the Work,
including costs of transportation and storage, and required suppliers and field
services. All cash discounts, rebates and refunds and all returns from sale of
surplus materials and equipment shall accrue to the CITY, and the CONTRACTOR
shall make provisions so that they may be obtained.
14.1.3 Supplemental costs including the following:
14.1.3.1 Cost, including transportation and maintenance of all materials,
supplies, equipment, machinery, appliances, office and temporary
facilities at the site and hand tools not owned by the workers,
which are consumed in the performance of the Work.
14.1.3.2 Rentals of all construction equipment and machinery and the parts
whether rented from the CONTRACTOR or others in accordance
with rental agreements approved by the CITY, and the costs of
transporting, loading, unloading, installation, dismantling and
removal. The rental of any such equipment, machinery or parts
shall cease when the use is no longer necessary for the Work.
14.1.3.3 Sales, consumer, use or similar taxes related to the Work and for
which the CONTRACTOR is liable, imposed by laws and regulations.
14.1.3.4 Royalty payments and fees for permits and licenses.
14.1.3.5 The cost of utilities, fuel and sanitary facilities at the Work site.
14.1.3.6 Minor expenses such as telegrams, long distance telephone calls,
telephone service at the site, expressage and similar petty cash
items in connection with the Work.
14.1.3.7 Cost of premiums for additional bonds and insurance required
because of changes in the Work.
14.2 The Contract Price may only be increased by a Change Order when Work is modified in
accordance with Article 13 and approved by the CITY in writing. Any claim for an
increase in the Contract Price resulting from a Change Order shall be based on written
notice delivered to the Project Manager within ten (10) days of the occurrence of the
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Change Order givingrisetothe claim. Notice of the amount of the claim with supporting
data shall be included in the Change Order and delivered within twenty (20) days of such
occurrence unless Project Manager allows an additional period of time to ascertain
accurate cost data. Any change in the Contract Price resulting from any such claim shall
be incorporated in the Change Order.
14.3 Not Included in the Cost of the Work: The term “cost of the Work” shall not include
any of the following:
14.3.1 Payroll costs and other compensation of the CONTRACTOR’s officers executives,
principals (of partnership and sole proprietorships), general managers,
engineers, architects, estimators, attorneys, auditor, accountants, purchasing
and contracting agents, expediters, timekeepers, clerks and other personnel
employed by the CONTRACTOR whether at the site or in the CONTRACTOR’s
principal or branch office for general administration of the work and not
specifically included in the agreed upon schedule of job classifications referred
to in Paragraph 14.1.1, all of which are to be considered ad
ministrative costs
covered by the CONTRACTOR’s fee.
14.3.2 Expenses of the CONTRACTOR’s principal and branch offices other than the
CONTRACTOR’s office at the site.
14.3.3 Any part of the CONTRACTOR’s capital expenses, including interest on the
CONTRACTOR’s capital employed for the Work and charges against the
CONTRACTOR for delinquent payments.
14.3.4 Cost of premiums for all bonds and for all insurance whether or not the
CONTRACTOR is required by the Contract Documents to purchase and maintain the
same.
14.3.5 Costs due to the negligence of the CONTRACTOR, any subcontractor, or anyone
directly or indirectly employed by any of them or for whose acts any of them
may be liable, including but not limited to, the correction of defective Work,
disposal of materials or equipment wrongly supplied and making good any
damage to property.
3.6 Other overhead or general expense costs of any kind and the costs of any item not
14.
specifically and expressly included in Paragraph 14.1
14.4 Basis of Compensation: The CONTRACTOR’s compensation, allowed to the CONTRACTOR
for overhead and profit, shall be determined as follows:
14.4.1 A mutually acceptable negotiated fee:
14.4.1.1 For costs incurred under Paragraphs 14.1.1 and 14.1.2, the
CONTRACTOR’s fee shall not exceed five percent (5%).
14.4.1.2 No fee shall be payable on the basis of costs itemized under Paragraphs
14.1.3.1, 14.1.3.2, 14.1.3.3, 14.1.3.4, 14.1.3.5, 14.1.3.6, 14.1.3.7,
14.3.1, 14.3.2, 14.3.3, 14.3.4, 14.3.5 and 14.3.6.
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14.4.1.3 The amount of credit to be allowed by the CONTRACTOR to the CITY for any
such change which results in a net decrease plus a deduction in the
CONTRACTOR’s fee by an amount equal to five percent (5%) for the net
decrease.
14.4.1.4 When both additions and credits are involved in any one change the
combined overhead and profit shall be figured on the basis of net
increase if any, however, not to exceed five percent (5%) of the agreed
compensation. Profit will not be paid on any Work not performed.
14.5 Cost Breakdown Required: Whenever the cost of any Work is to be determined
pursuant to this Article, the CONTRACTOR will submit in form acceptable to the CITY an
itemized cost breakdown together with supporting documentation. Whenever a
change in the Work is to be based upon mutual acceptance of a lump sum, whether the
amount is an addition, credit, or no-charge-in-cost, the CONTRACTOR shall submit an
estimate substantiated by a complete itemized breakdown:
14.5.1 The breakdown shall list quantities and unit prices for materials, labor,
equipment and other items of cost.
14.5.2 Whenever a change involves the CONTRACTOR and one (1) or more
subcontractors and the change is an increase in the agreed compensation, the
overhead and profit percentage for the CONTRACTOR and each subcontractor shall
be itemized separately.
14.6 Time for the CITY to Approve Extra Work: Any Extra Work in an amount up to and not
exceeding a cumulative amount of $50,000 for a specific project can be approved by the
CITY Manager and shall require a written Change Order proposal to be submitted to the
Public Works Director for submittal and approval by the CITY Manager. Extra Work exceeding
the cumulative amount of $50,000 for a specific project must be approved by the CITY
Commission and a written Change Order proposal must be submitted to the Public
Works Director for submittal and approval by the CITY Manager and CITY
Commission. No financial or time claim for delay to the project resulting from the Change
Order approval process outlined above under Section 14.6 will be allowed.
ARTICLE 15 – CHANGE OF THE CONTRACT TIME
15.1 The Contract Time may only be changed by a Change Order. Any claim for an
extension in the Contract Time shall be based on written notice delivered to the Project
Manager within five (5) days of the occurrence of the event giving rise to the claim. Any
change in the Contract Time resulting from any such claim shall be incorporated in a
Change Order.
15.2 The Contract Time will be extended in an amount equal to time lost due to delays
beyond the control of the CONTRACTOR if a claim is made there for as provided in
Paragraph 15.1. Such delays shall include but not be limited to, acts or neglect by the CITY,
or to fires, floods, labor disputes, epidemics, abnormal weather conditions, or acts of
God.
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15.3 All time limits stated in the Contract Documents are of the essence. The provisions of this
Article 15 shall not exclude recovery for damages for delay by the CONTRACTOR.
15.4 Delays caused by or resulting from entities, CONTRACTORs or subcontractors who are not
affiliated with the CONTRACTOR (non-affiliated CONTRACTORs) shall not give rise to a
claim by the CONTRACTOR for damages for increases in material and/or labor costs. Such
entities, CONTRACTORs and subcontractors include, but are not limited to, the CITY's
CONTRACTORs and subcontractors, Florida Power and Light Company, AT&T and Florida
East Coast Railway, LLC.
ARTICLE 16 – LIQUIDATED DAMAGES
16.1 If the Work is not fully complete according to the terms of this Agreement within the limits
herein stipulated (See Article 5), the CONTRACTOR shall pay the CITY, not as a penalty, but
as liquidated damages, a sum equal to three thousand five hundred dollars ($3,500) per
day for each day elapsing between the expiration of such time limit and the date of full
completion, providing, however, that the time limits herein stated are subject to extension
without payment of damages, as provided in Articles 5 and 8, herein. It is agreed that these
liquidated damages are a good faith and reasonable pre-estimate of CITY’s actual damages
due to delay by CONTRACTOR because it is difficult, if not impossible, to accurately estimate
the actual damages suffered by CITY due to any such delay. As compensation due the CITY
for loss of use and for additional costs incurred by the CITY due to such non-completion of
the work, the CITY shall have the right to deduct the liquidated damages from any amount
due, or that may become due to the CONTRACTOR under this agreement, or to invoice the
CONTRACTOR for such damages if the costs incurred exceed the amount due to the
CONTRACTOR.
16.2No Extended Damages: For other and additional good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the CONTRACTOR covenants
and agrees that in the event of any delay of construction or for any reason, allegation or
claim, and notwithstanding the reason of the delay, reason, claim or allegation or who
caused them or the construction delay or whether they were caused by the CITY, that there
will be no entitlement to CONTRACTOR to or for any direct or indirect financial damages
or losses for extended corporate overhead impact, extended project overhead impacts,
project support services, mobilization or demobilization or by whatever other label or legal
concept or theory and types of names or labels or basis such claims may have, or any
business damages or losses of whatever type or nature, and CONTRACTOR hereby waives
any right to make any such claim or claims. This provision will have application and
effect when construction delays are anticipated and agreed upon by both the CITY and the
CONTRACTOR.
ARTICLE 17 – SUSPENSION OF WORK AND TERMINATION
17.1 CITY May Suspend Work: The CITY may, at any time and without cause, suspend the Work
or anyportion of the Work for a period of not more than ninety (90) days by notice in
writing to the CONTRACTOR which shall fix the date on which Work shall be resumed.
The CONTRACTOR shall resume the Work on the date fixed. The CONTRACTOR will be
allowed an increase in the Contract Price or an extension of the Contract Time, or both,
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directly attributable to anysuspension, if theCONTRACTORmakes a claim as provided
in Articles 14 and 15.
17.2 CITY May Terminate Work: The CITY retains the right to terminate this Agreement, with
thirty (30) days prior written notice. Additionally, the CITY may also terminate this
Agreement upon 15 days’ notice upon the occurrence of any one or more of the
following events:
17.2.1 If the CONTRACTOR commences a voluntary case or a petition is filed against the
CONTRACTOR, under any chapter of the Bankruptcy Code, or if the
CONTRACTOR takes any equivalent or similar action by filing a petition or otherwise
under any other federal or state law in effect at such time relating to the bankruptcy
or insolvency.
17.2.2 If the CONTRACTOR makes a general assignment for the benefit of creditors.
17.2.3 If a trustee, receiver, custodian, or agent of the CONTRACTOR is appointed under
applicable law or under Contract, whose appointment or authority to take charge of
property of the CONTRACTOR is for the purpose of enforcing a lien against
such property or for the purpose of general administration of such property
for the benefit of the CONTRACTOR’s creditors.
17.2.4 If the CONTRACTOR persistently fails to perform the Work in accordance with the
Contract Documents, including but not limited to, failure to supply sufficient
skilled Workers or suitable materials or equipment or failure to adhere to the
progress schedule as same may be revised from time to time.
17.2.5 If the CONTRACTOR repeatedly fails to make prompt payments to subcontractors or
for labor, material or equipment.
17.2.6 If the CONTRACTOR repeatedly disregards proper safety procedures.
17.2.7 If the CONTRACTOR disregards any local, state or federal laws or regulations.
17.2.8 If the Contactor otherwise violates any provisions of this Agreement.
17.3 If the CONTRACTOR, within a period of ten (10) calendar days after such notice, shall not
proceed in accordance therewith, the CITY may exclude the CONTRACTOR from the Work site
and take the prosecution of the Work out of the hands of the Contactor, and take possession
of the Work and all of the CONTRACTOR’s tools, appliances, construction equipment and
machinery at the site and use them without liability to the CITY for trespass or conversion,
incorporate ion the Work all materials and equipment stored at the site or for which the CITY
has paid the CONTRACTOR but which are stored elsewhere. And Further, the CONTRACTOR
may be excluded from the Work site and the CITY take possession of the Work and of all
the CONTRACTOR’s tools, appliances, construction equipment and machinery at the site
and use them without liability to the CITY for trespass or conversion, incorporate in the
Work all materials and equipment stored at the site or for which the CITY has paid the
CONTRACTOR but which are stored elsewhere, and finish the Work as the CITY may deem
expedient. In this instance, the CONTRACTOR shall not be entitled to receive any further
compensation until the Work is finished.
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17.3.1 If after notice of termination of CONTRACTOR’s right to proceed, it is determined for
any reason that CONTRACTOR was not in default, the rights and obligations of the
CITY and CONTRACTOR shall be the same as if the notice of termination had been
issued pursuant to the Termination for Convenience Clause as set forth in Section
17.5 below.
17.3.2 Upon receipt of Notice of Termination pursuant to Sections 17.2 or 17.5,
CONTRACTOR shall promptly discontinue all affected work unless the Notice of
Termination directs otherwise and deliver or otherwise make available to CITY all
data, drawings, specifications reports, estimates, summaries and such other
information as may have been required by the Contract Documents whether
completed or in process.
17.4 If the CONTRACTOR commits a default due to its insolvency or bankruptcy, the following
shall apply:
17.4.1 Should this Agreement be entered into and fully executed by the parties, funds
released and the CONTRACTOR (Debtor) files for bankruptcy, the following shall
occur:
17.4.1.1 In t
he event the Contactor files a voluntary petition under 11 U.S.C.301
or 302, or an order for relief is entered under 11 U.S.C. 303, the
CONTRACTOR shall acknowledge the extent, validity, and priority of
the lien recorded in favor of the CITY. The CONTRACTOR further agrees
that in the event of this default, the CITY shall, at its option, be entitled
to seek relief from the automatic stay pursuant to 11 U.S.C. 362. The
CITY shall be entitled to relief from the automatic stay pursuant to 11
U.S.C. 362(d) (1) or (d) (2), and the Contactor agrees to waive the
notice provisions in effect pursuant to 11 U.S.C. 362 and any
applicable Local Rules of the United States Bankruptcy Court. The
Contactor acknowledges that such waiver is done knowingly and
voluntarily.
17.4.1.2 Agreement constitutes an executory contract within the meaning of 11
U.S.C. 365. The CONTRACTOR acknowledges that this Agreement is not
capable of being assumed pursuant to 11 U.S.C. 365(c) (2), unless the
CITY expressly consents in writing to the assumption. In the event the
CITY consents to the assumption, the CONTRACTOR agrees to file a
motion to assume this Agreement within ten (10) days after receipt of
written consent from the CITY, regardless of whether the bankruptcy
proceeding is pending under Chapter 7, 11, or 13 of Title 11 of the United
States Code. The CONTRACTOR further acknowledges that this
Agreement is not capable of being assigned pursuant to U.S.C. 365(b) (1).
17.5Termination for Convenience: This Agreement may be terminated for convenience in writing
by CITY upon thirty (30) days written notice to CONTRACTOR (delivered by certified mail,
return receipt requested) of intent to terminate and the date on which such termination
becomes effective. In such case, CONTRACTOR shall be paid for all work executed and
expenses incurred prior to termination. In addition to termination settlement costs
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reasonably incurred by CONTRACTORrelating to commitments which had become firm prior
to the termination. Payment shall include reasonable profit for work/services satisfactorily
performed. No payment shall be made for profit for work/services which have not been
performed.
17.6 Where the CONTRACTOR’s service has been so terminated by the CITY, the termination shall
not affect any rights of the CITY against the CONTRACTOR then existing or which may
thereafter accrue. Any retention or payment of moneys due the CONTRACTOR by the CITY
will not release the CONTRACTOR from liability.
17.7 The CONTRACTOR has no right, authority or ability to terminate the Work except for the
wrongful withholding of any payments due the CONTRACTOR from the CITY.
ARTICLE18–DISPUTERESOLUTION
18.1 Resolution of Disputes: Questions, claims, difficulties and disputes of whatever
nature which may arise to the technical interpretation of the Contract Documents
and fulfillment of this Agreement as to the character, quality, amount and value of
any work done and materials furnished, or proposed to be done or furnished under
or, by reason of, the Contract Documents which cannot be resolved by mutual
agreement of the Contract Administrator and CONTRACTOR shall be submitted
to the Consultant for resolution. When either party has determined that a disputed
question, claim, difficulty or dispute is at an impasse, that party shall notify the other
party in writing and submit question, claim, difficulty or dispute to the Consultant
for resolution. The parties may agree to a proposed resolution at any time without
the involvement and determination of the Consultant.
18.1.1 The Consultant shall notify Contract Administrator and CONTRACTOR in
writing of Consultant's decision within twenty-one (21) calendar days from
the date of the submission of the question, claim, difficulty or dispute,
unless Consultant requires time to gather information or allow the
parties to provide additionalinformation.
18.1.2 In the event the determination of a dispute by the Consultant under this
Article is unacceptable to any of the parties hereto, the party objecting to
the determination must notify the other party and the City Manager, in
writing within ten (10) days after receipt of the determination. The notice
must state the basis of the objection and the proposed resolution. Final
resolution of such dispute shall be madeby the City Manager. The City
Manager's decision shall be final and binding on the parties.
18.1.3 All non-technical administrative disputes (such as billing and payment) shall
bedetermined by Contract Administrator.
18.1.4 During the dependency of any dispute and after a determination thereof,
CONTRACTOR, Consultant, and Contract Administrator shall act in good faith
to mitigate any potential damages including utilization of construction
schedule changes and alternate means of construction. During the
pendency of any dispute arising under this Agreement, other than
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termination herein, CONTRACTOR shall carry on the Work and adhere to the
progress. The Work shall not be delayed or postpone pending resolution of
any disputes or disagreements.
18.1.5 For any disputes which remain unsolved, within sixty (60) calendar days
after Final Completion of the Work, the parties shall participate in
mediation to
address all unresolved disputes. A mediator shall be mutually
agreed upon bythe parties. Should any objection not be resolved in
mediation, the partiesretainalltheirlegalrights and remedies under
applicable law. If a party objecting to a determination, fails to comply in
strict accordance with the
requirements of this Article, said party
specifically waives all of its rightsprovided hereunder, including its rights
and remedies under applicable law.
ARTICLES 19 - NOTICES
19.1 All notices required by any of the Contract Documents shall be in writing and shall be
deemed delivered upon mailing by certified mail, return receipt requested to the following:
To the CITY:
City Manager’s Office
CITY of Sunny Isles Beach
th
18070 Collins Avenue 4 Floor
Sunny Isles Beach, Florida 33160
Office of the City Attorney
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
Project Manager
City of Sunny Isles Beach
18070 Collins Ave.
Sunny Isles Beach, FL 33162
CONTRACTOR NAME
ADDRESS
EMAIL
TELEPHONE
ARTICLE 20 – LIMITATION OF LIABILITY
20.1 The CITY desires to enter into this Agreement only if in so doing the CITY can place a
limit on the CITY’s liability for any cause of action arising out of this Agreement, so that
the CITY’s liability for any breach never exceeds the sum of $1,000. For other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the CONTRACTOR expresses its willingness to enter into this Agreement with the
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knowledge that the CONTRACTOR’s recovery from the CITYtoanyactionor claim arising
from the Agreement is limited to a maximum amount of $1,000, which amount shall be
reduced by the amount actually paid by the CITY to the CONTRACTOR pursuant to this
Agreement, for any action or claim arising out of this Agreement. Nothing contained in
this paragraph or elsewhere in this Agreement is in any way intended either to be a waiver
of the limitation placed upon the CITY’s liability as set forth in Section 768.28, Florida
Statutes, or to extend the CITY’s liability beyond the limits established in said Section 768.28;
and no claim or award agains
t the CITY shall include attorney’s fees, investigative costs,
expert fees, suit costs or pre-judgment interest.
20.2 No Extended Damages: For other and additional good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the CONTRACTOR covenants
and agrees that in the event of any delay of construction or for any reason, allegation or
claim, and notwithstanding the reason of the delay, reason, claim or allegation or who
caused them or the construction delay or whether they were caused by the CITY, that there
will be no entitlement to CONTRACTOR to or for any direct or indirect financial damages
or losses for extended corporate overhead impact, extended project overhead impacts,
project support services
, mobilization or demobilization or by whatever other label or legal
concept or theory and types of names or labels or basis such claims may have, or any
business damages or losses of whatever type or nature, and CONTRACTOR hereby waives
any right to make any such claim or claims. This provision will have application and effect
when construction delays are anticipated and agreed upon by both the CITY and the
CONTRACTOR.
ARTICLE 21 – GOVERNING LAW
21.1 This Agreement shall be governed by the laws of the State of Florida. Both Parties agree
that the courts of the State of Florida shall have jurisdiction of any claim arising in
connection with this Agreement. Venue for any claim, objection or dispute arising out of
this Agreement shall be in Dade County, Florida. By entering into this Agreement,
CONTRACTOR and CITYhereby expressly waive any rights either party may have to a trial by
jury or any civil litigation related to, or arising out of the Project. CONTRACTORshall
specifically bind all subcontractors to the provisions of this Agreement.
ARTICLE22–MISCELLANEOUS
22.1 The duties and obligations imposed by this Agreement and the rights and remedies
available to the parties and, in particular but without limitation, the warranties, guaranties
and obligations imposed upon the CONTRACTOR and all of the rights and remedies
available to the CITY, are in addition to, and are not to be construed in any way as a
limitation of, any rights and remedies available to any or all of them which are otherwise
imposed or available by laws or regulations, by special warranty or guarantee or by other
provisions of the Contract Documents, and the provisions of this Paragraph willbeas
effective as if repeated specifically in the Contract Documents, and the provisions of
this Paragraph will survive final payment and termination or completion of this
Agreement.
22.2 The CONTRACTOR shall not assign or transfer this Agreement or its rights, title or interests.
The obligations undertaken by the CONTRACTOR pursuant to this Agreement shall not
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bedelegatedorassignedtoanyotherpersonorfirm.Violationoftheterms ofthis
Paragraph shall constitute a material breach of Agreement by the CONTRACTOR and the
CITY any, at its discretion, cancel this Agreement and all rights, title and interest of
the CONTRACTOR which shall immediately cease and terminate.
22.3 The CONTRACTOR and its employees, volunteers and agents shall be and remain an
independent CONTRACTORs and not agents or employees of the CITY with respect to all of
the acts and services performed by and under the terms of this Agreement. This
Agreement shall not in any way be constructed to create a partnership, association or any
other kind of joint undertaking or venture between the Parties.
22.4 The CITY reserves the right to audit the records of the CONTRACTOR relating in any way to
the Work to be performed pursuant to this Agreement at any time during the performance
and term of this Agreement and for a period of three (3) years after completion and
acceptance by the CITY. If required by the CITY, the CONTRACTOR agrees to submit to an
audit by an independent certified public accountant selected by the CITY. The
CONTRACTOR shall allow the CITY to inspect, examine and review the records of the
CONTRACTOR at any and all times during normal business hours during the term of this
Agreement.
22.5 The remedies expressly provided in this Agreement to the CITY shall not be deemed to be
exclusive but shall be cumulative and in addition to all other remedies in favor of the
CITY now or later existing at law or in equity.
22.6 Should any part, term or provisions of this Agreement be decided by the courts to be
invalid, illegal or in conflict with any state or federal law, the validity of the remaining
portion or provision shall not be affected.
22.7 The CONTRACTOR understands the CITY is subject to Florida’s Public Records Act, Chapter
119, Florida Statutes, and that any such books, records, documents and data maintained
by the CITY are public records unless expressly exempted by general law. CONTRACTOR
agrees that all documents and advertisements maintained and generated pursuant to this
Agreement shall be subject to all provisions of Chapter 119, Florida Statutes. It is further
understood that any report, tracing, plan, map or other work product, without limitation,
given by CITY to CONTRACTOR pursuant to this Agreement shall at all times remain the
property of CITY, shall be returned to CITY, and shall not be used by CONTRACTOR for any
other purpose without the written consent of the CITY. CONTRACTOR shall comply with the
requirements of Florida Statutes 119.071 to the extent applicable to CONTRACTOR as
stated below:
A.Keep and maintain public records in the CONTRACTOR’s possession or control in
connection withthe CONTRACTOR’s performance under this Agreement. The
CONTRACTOR shall ensure that public records that are exempt or confidential and
exempt from public records disclosure requirements are not disclosed, except as
authorized by law, for the duration of the Agreement, and following completion of the
Agreement until the records are transferred to the City.
B. Upon request from the CITY’s custodian of public records, the CONTRACTOR shall provide
the CITY with a copy of the requested records or allow the records to be inspected or copied
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within a reasonable time at a cost that does not exceed the cost provided by Chapter 119,
Florida Statutes, or as otherwise provided by law.
C. Unless otherwise provided by law, any and all records, including but not limited to reports,
surveys, and other data and documents provided or created in connection with this
Agreement are and shall remain the property of the CITY. Notwithstanding, it is understood
that at all times CONTRACTOR’s work papers shall remain the sole property of the
CONTRACTOR and are not subject to the terms of this Agreement.
D. Upon completion of this Agreement or in the event of termination by either party, any and
all public records relating to the Agreement in the possession of the CONTRACTOR shall be
delivered by the CONTRACTOR to the City Manager, at no cost to the CITY, within seven (7)
days. All such records stored electronically by the CONTRACTOR shall be delivered to the
CITY in a format that is compatible with the CITY’s information technology systems. Once
the public records have been delivered upon completion or termination of this Agreement,
the CONTRACTOR shall destroy any and all duplicate records that are exempt or
confidential and exempt from public records disclosure requirements. Notwithstanding
the terms of this Section, the parties agree and it is understood that the CONTRACTOR will
maintain a copy of any information, confidential or otherwise, necessary to support its work
product generated as a result of its engagement for services, solely for reference and
archival purposes in accordance with all applicable professional standards, which will
remain subject to the obligations of confidentiality herein.
E. Any compensation due to the CONTRACTOR shall be withheld until all records are received
as provided herein.
F. The CONTRACTOR’s failure or refusal to comply with the provisions of this section shall
result in the immediate termination of this Agreement by the CITY.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO
THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS
AT TELEPHONE NUMBER: (305) 792-1703, CityClerk@sibfl.net, 18070
th
Collins Avenue, 4Floor, Sunny Isles Beach, Florida 33160.
22.9ORDER OF PRECEDENCE
In the event there is a conflict between the agreement, the ITB, CONTRACTOR’s response, or
scope of work, the order of precedence shall be this agreement, the ITB, and the
CONTRACTOR’s response. The CITY expressly rejects any additional terms or conditions not
consistent with the terms herein.
ARTICLE 23 E-VERIFY
23.1 Pursuant to Section 448.095(2), Florida Statutes, the CONTRACTOR must:
A. Register with and use the E-Verify system to verify the work authorization status of all newly
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hired employees and require all subcontractors (providing services or receiving funding under
this Agreement) to register with and use the E-Verify system to verify the work authorization
status of all the subcontractors’ newly hired employees;
B. Secure an affidavit from all subcontractors (providing services or receiving funding under
this Agreement) stating that the subcontractor does not employ, contract with, or subcontract
with an “unauthorized alien” as defined in Section 448.095(1)(k), Florida Statutes;
C. Maintain copies of all subcontractor affidavits for the duration of this Agreement and
provide the same to the CITY upon request;
D. Comply fully, and ensure all of its subcontractors comply fully, with Section 448.095, Florida
Statutes;
E. Be aware that a violation of Section 448.09, Florida Statutes (Unauthorized aliens;
employment prohibited) shall be grounds for termination of this Agreement; and,
F. Be aware that if the CITY terminates this Agreement under Section 448.095(2) (c), Florida
Statutes, CONTRACTOR may not be awarded a contract for at least one (1) year after the date
on which the Agreement is terminated and will be liable for any additional costs incurred by
the CITY as a result of the termination of the Agreement.
ARTICLE 24 SCRUTINIZED COMPANIES
24.1 The CONTRACTOR certifies that it and its subcontractors are not on the Scrutinized Companies
that Boycott Israel List. Pursuant to Section 287.135, F.S., the CITY may immediately terminate this
Agreement at its sole option if the CONTRACTOR or its subcontractors are found to have submitted a
false certification; or if the CONTRACTOR, or its subcontractors are placed on the Scrutinized
Companies that Boycott Israel List or is engaged in the boycott of Israel during the term of the
Agreement.
24.2 If this Agreement is for more than one million dollars, the CONTRACTOR certifies that it and its
subcontractors are also not on the Scrutinized Companies with Activities in Sudan, Scrutinized
Companies with Activities in the Iran Petroleum Energy Sector List, or engaged with business
operations in Cuba or Syria as identified in Section 287.135, F.S. Pursuant to Section 287.135, F.S.,
the CITY may immediately terminate this Agreement at its sole option if the CONTRACTOR, its affiliates,
or its subcontractors are found to have submitted a false certification; or if the CONTRACTOR, its
affiliates, or its subcontractors are placed on the Scrutinized Companies with Activities in Sudan List,
or Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or engaged with
business operations in Cuba or Syria during the term of the Agreement.
24,3 The CONTRACTOR agrees to observe the above requirements for applicable subcontracts
entered into for the performance of work under this Agreement. As provided in Subsection 287.135(8),
F.S., if federal law ceases to authorize the above-stated contracting prohibitions then they shall
become inoperative.
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IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on date
stated herein.
(INSERTCOMPANYNAME)CITYOFSUNNYISLESBEACH
___________________________ _________________________________
Signature Larisa Svechin, Mayor
___________________________ ____________________
(Name) Date
___________________________
President
Approved as to form and legal sufficiency:
____________________
Date ________________________________
Valerie Vicente, City Attorney
Attest:
__________________________
City Clerk
(City Seal)
PAGE 38OF 38
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
AFFIDAVITS
CITY OF SUNNY ISLES BEACH
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 50
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Telephone: (305) 947-0606 Fax: (305) 949-3113
The undersigned being first duly sworn as provided by law,
deposes, and says:
This Affidavit is made with the knowledge and intent that it is to be filed with the City of Sunny Isles Beach City Commission and that it will be
relied upon by said County, in any consideration which may give to and any action it may take with respect to this Bid.
The undersigned is authorized to make this Affidavit on behalf of,
_____________________________________________________________
(Name of
Corporation, Partnership, Individual, etc.)
a, ________
________________________, formed under the laws of _____________
(Type of Business) (State)
of which he is ________________________________________________.
(Sole Owner, Partner, President, etc.)
Neither the undersigned nor any person, firm, or corporation named in above Paragraph 10.2, nor anyone else to the knowledge of the
undersigned, have themselves solicited or employed anyone else to solicit favorable action for this Bid by the City, also that no head of any
department or employee therein, or any officer of the City of Sunny Isles Beach, Florida is directly interested therein.
This Bid is genuine and not collusive or a sham; the person, firm or corporation named above in Paragraph 10.2 has not colluded, conspired,
connived or agreed directly or indirectly with any proposers or person, firm or corporation, to put in a sham Bid, or that such person, firm or
corporation, shall refrain from Bidding, and has not in any manner, directly or indirectly, sought by agreement or collusion, or communication
or conference with any person, firm or corporation, to fix the prices of said Bid or Bids of any other proposers; and all statements contained in
the Bid or Bids described above true; and further; neither the undersigned, nor the person, firm or corporation named above in Paragraph
10.2, has directly or indirectly submitted said Bid or the contents thereof, or divulged information or data relative thereto, to any association or
to any member or agent thereof.
______________________________________________________________________
TAKEN, SWORN AND SUBSCRIBED TO BEFORE ME this _____ day of _______________________, 200_.
Personally Known ________ or Produced Identification ________;
Type of identification ___________________________________
(Affix seal here)
___________________________________
(name printed or typed)
D ECEMBER 28,2010
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Telephone: (305) 947-0606 Fax: (305) 949-3113
Pursuant to the provisions of paragraph (2) (a) of Section 287.133, Florida State 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 Bids on leases of
real property to a public entity, may not be awarded to perform Work as a Contractor, supplier, Sub-Contractor, or
Consultant under a Contract with any public entity, and may not transact business with any public entity in excess
of the threshold amount Category Two of Sec. 287.017, FS for thirty six months from the date of being placed on
the convicted vendor list".
This sworn statement is submitted to City of Sunny Isles Beach _____________
by____________________________________________________________________________
\[print individual’s name and title\]
for____________________________________________________________________________
\[print name of entity submitting sworn statement\]
whose business address is:
_______________________________________________________________________________
_______________________________________________________________________________
and (if applicable) its Federal Employer Identificationnumber (FEIN) is_____________________.
rn
(If the entity had no FEIN, include the Social Security Number of the individual signing this swo
statement:_________________________________.)
I understand that a "public entity crime" as defined in Paragraph 287.133(1)(g), Florida Statutes, means a
violation of any state or federal law by a person with respect to and directly related to the transaction of
business with any public entity or with an agency or political subdivision of any other state or with the
United States, including, but not limited to, any Bid or Contract for goods or services to be provided to any
public entity or an agency or political subdivision of any other state of the United States and involving
antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation.
I understand that "convicted" or "conviction" as defined in Para. 287.133(1)(b), Florida Statutes, means a
finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any
federal or state trail court of record relating to charges brought by indictment or information after July 1,
1989, as a result of a jury verdict, non-jury trial, or entry of a plea of guilty or nolo contendere.
I understand that an "affiliate" as defined in Para. 287.133(1)(a), Florida Statutes, means:
a.) predecessor or successor of a person convicted of a public entity crime; or
b.) Any entity under the control of any natural personwho is active in the management of the entity
and who has been convicted of a public entity crime. The term "affiliate" includes those officers,
directors, executors, partners, shareholders, employees, members, and agents who are active in
the management of an affiliate. The ownership by one person of shares constituting a controlling
interest in another person, or a pooling of equipment or income among persons when not for fair
D ECEMBER 28,2010
market value under an arm's length agreement, shall be a prime facie case that one person
controls another person. A person who knowingly enters into a joint venture with a person who
has been convicted of a public entity crime in Florida during the preceding 36 months shall be
considered an affiliate.
I understand that a "person" as defined in Para. 287.133(1)(e), Florida Statutes, means any natural
person or entity organized under the laws of any state or of the United States with the legal power to
enter into a binding Contract and which Bids or applies to Bid on Contracts for the provision of goods or
services let by a public entity, or which otherwise transacts or applies to transact business with a public
entity. The term "persons" includes those officers, directors, executives, partners, shareholders,
employees, members, and agents who are active in management of any entity.
relation to the entity
Based on information and belief, the statement which I have marked below is true in
submitting this sworn statement. (Indicate which statement applies.)
____ Neither the entity submitting this sworn statement, nor any of it's officers, directors, executives, partners,
shareholders, employees, members, or agents who are active in the management of the entity, nor any
affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1,
1989.
____ The entity submitting this sworn statement, or one or moreof itsofficers, directors, executives, partners,
shareholders, employees, members, oragents who areactive in the management of the entity, or an
affiliate of theentityhas beenchargedwith andconvicted ofa public entity crime subsequent toJuly 1,
1989.
____ The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners,
shareholders, employees, members, or agents who are active in the management of the entity, or an
affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1,
1989. However, there has been a subsequent proceeding before a Hearing Officer of the State of
Florida, Division of Administrative Hearings and the Final Order entered by the Hearing Officer of the
State of Florida, Division of Administrative Hearings and the Final Order entered by the Hearing Officer
determined that it was not in the public interest to place the entity submitting this sworn statement on the
convicted vendor list. (Attach a copy of the final order.)
I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE
PUBLIC ENTITY IDENTIFIED IN PARAGRAPH 11.1 (ONE) ABOVE IS FOR THAT PUBLIC ENTITY ONLY AND,
THAT THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED. I
ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO
A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA
STATUTES, FOR CATEGORY TWO OF ANY, CHANGE IN THE INFORMATION CONTAINED IN THIS FORM.
By:
______________________________________
(Signature)
______________________________________
(PrintedName)
______________________________________
(Title)
Sworn to and subscribed before me this ______ day of_______________________, 20_____, by
__________________________________________________.
(AFFIX NOTARY STAMP HERE) ______________________________________
Signature:
______________________________________
roduced
________________________________10/1998
cation __________
Personally Known __________ OR Produced Identifi
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Telephone: (305) 947-0606 Fax: (305) 949-3113
D ECEMBER 28,2010
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Telephone: (305) 947-0606 Fax: (305) 949-3113
The award of any contract hereunder is subject to the provisions of Chapter 112, Florida State Statutes. Proposers must
disclose with their Bids, the name of any officer, director, partner, associate or agent who is also an officer or employee of the
City of Sunny Isles Beach or its agencies.
STATE OF FLORIDA
COUNTY OF ___________________
BEFORE ME, the undersigned authority, personally appeared _____________________________, who was duly sworn,
deposes, and states:
I am the _________________________________________________ of
__________________________________with a local office in _____________________________ and principal office in
_____________________.
The above named entity is submitting a Bid for the City of Sunny Isles Beach, Bid No. ______________ described
as: . The Affiant has made diligent inquiry and provides the information contained in this
Affidavit based upon his own knowledge.
The Affiant states that only one submittal for the above Bid is being submitted and that the above named entity has
no financial interest in other entities submitting Bids for the same project.
Neither the Affiant nor the above named entity has directly or indirectly entered into any agreement, participated in
any collusion, or otherwise taken any action in restraints of free competitive pricing in connection with the entity’s submittal for
the above Bid. This statement restricts the discussion of pricing data until the completion of negotiations if necessary and
execution of the Contract for this project.
Neither the entity nor its affiliates, nor any one associated with them, is presently suspended or otherwise ineligible from
participation in contract letting by any local, State, or Federal Agency.
Neither the entity, nor its affiliates, nor any one associated with them have any potential conflict of interest due to any
other clients, contracts, or property interests for this project.
I certify that no member of the entity’s ownership or management is presently applying for any employee position or
actively seeking an elected position with the City of Sunny Isles Beach.
I certify that no member of the entity’s ownership or management, or staff has a vested interest in any aspect of the City
of Sunny Isles Beach.
In the event that a conflict of interest is identified in the provision of services, I, on behalf of the above named entity, will
immediately notify the City of Sunny Isles Beach.
Dated this _________ day of _____________________________________, 20.
_________________________________ _________________________________
AFFIANTPrint or Type Name and Title
Sworn to and subscribed before me this _____ day of ______________________, 20.
Personally Known ________ OR
Produced Identification ________; Type of Identification _________________________
__________________________________
D ECEMBER 28,2010
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Telephone: (305) 947-0606 Fax: (305) 949-3113
D ECEMBER 28,2010
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Telephone: (305) 947-0606 Fax: (305) 949-3113
D ECEMBER 28,2010
CONTRACTOR ANTI-BOYCOTT CERTIFICATION
\[PURSUANT TO FLORIDA STATUTE § 215.4725\]
PERFORMANCE BOND
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Telephone: (305) 947-0606 Fax: (305) 949-3113
FORM OF PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
That, pursuant to the requirements of Florida Statute 255.05, we,
___________________________________________________________, as Principal, hereinafter called
Contractor, and ________________________, as Surety, are bound to the City of Sunny
Isles Beach, Florida, as Obligee, hereinafter called City, in the amount of ________________________________
Dollars ($ _____________) for the payment whereof Contractor and Surety bind themselves, their heirs,
executors, administrators, successors and assigns, jointly and severally.
WHEREAS, Contractor has by written agreement entered into a Contract, Bid/Contract No, awarded the
day of , 20 , with in accordance with contract documents prepared by the City
of Sunny Isles Beach, which Contract is by reference made a part hereof, and is hereafter referred to as the
Contract;
THE CONDITION OF THIS BOND is that if the Contractor:
1.Fully performs the Contract between the Contractor and the City for services described within (Bid No.
_______________) within calendar days after the date of Contract commencement as specified in the
Notice to Proceed and in the manner prescribed in the Contract; and
2.Indemnifies and pays City all losses, damages (specifically including, but not limited to, damages for
delay and other consequential damages caused by or arising out of the acts, omissions or negligence of
Contractor), expenses, costs and attorney's fees including attorney's fees incurred in appellate proceedings, that
City sustains because of default by Contractor under the Contract; and
3.Upon notification by the Citycorrects any and all defective or faulty Work or materials which appear within
one and one half (1 1/2) years, and:
4.Performs the guarantee of all Work and materials furnished under the Contract for the time specified in
the Contract, then this Bond is void, otherwise it remains in full force. Whenever Contractor shall be, and
declared by City to be, in default under the Contract, the City having performed City’s obligations thereunder, the
Surety may promptly remedy the default, or shall promptly:
4.1.Complete the Contract in accordance with its terms and conditions; or
4.2.Obtain a Bid or Bids for completing the Contract in accordance with its terms and conditions,
and upon determination by Surety of the best, lowest, qualified, responsible and responsive
Proposers, or, if the City elects, upon determination by the City, and Surety jointly of the best,
lowest, qualified, responsible and responsive Proposers, arrange for a Contract between such
Proposers and City, and make available as Work progresses (even though there should be a
default or a succession of defaults under the Contract or Contracts of completion arranged
under thisparagraph) sufficient funds to pay the cost of completion less the balance of the
Contract Price; but not exceeding, including other costs and damages for which the Surety
may be liable hereunder, the amount set forth in the first paragraph hereof. The term "balance
of the Contract Price." as used in this paragraph, shall mean the total amount payable by City
to Contractor under the Contract and any amendments thereto, less the amount properly paid
by City to Contractor.
No right of action shall accrue on this Bond to or for the use of any person or corporation other than the City
named herein.
9 OF 10
The Surety hereby waives notice of and agrees that any changes in or under the Contract Documents and
compliance or noncompliance with any formalities connected with the Contract or the changes do not affect
Surety's obligation under this Bond.
Signed and sealed this day of, 20 .
WITNESS:BY:
(Name of Corporation)
_________________________
Secretary
(Signature)
(CORPORATE SEAL)
(Type Name and Title Signed Above)
IN THE PRESENCE OF; INSURANCE COMPANY:
BY:
*Agent and Attorney-in-Fact
*(Power of Attorney must be attached)
(Address)
______________________________
(City/State/Zip Code)
______________________________
(Telephone)
STATE OF FLORIDA
COUNTY OF _________________________
The foregoing instrument was acknowledged before me this _____ day of __________________,
20____, by _________________________________________________________ \[name of person\], as
__________________________________ \[type of authority\], for ________________________________ \[name
of party on behalf of whom instrument was executed\].
AFFIX NOTARY STAMP HERE: ______________________________________
Signature: Notary Public – State of Florida
______________________________________
Print or Type Commissioned Name
Personally Known __________ OR Produced Identification __________
Type of Identification Produced ________________________________
10 of 10
BIDBOND
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Telephone: (305) 947-0606 Fax: (305) 949-3113
STATE OF FLORIDA )
)
COUNTY OF ____________)
KNOW ALL MEN BY THESE PRESENTS, that we,_______________________________ as Principal, and
_______________________________________________________, as Surety, are held and firmly bound unto the City of Sunny Isles
Beach, a municipal corporation of the State of Florida in the sum of _______________________________ Dollars ($ __________), lawful
money of the United States, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors, administrators
and successors jointly and severally, firmly by these presents.
THE CONDITION OF THISOBLIGATION ISSUCH that whereasthe Principal has submitted the accompanying Bid dated,
______________20 for:
______________________________________________________________________.
WHEREAS, it was a condition precedent to the submission of said Bid that a cashier’s check or Bid Bond in the amount of five percent (5%) of
the Base Bid be submitted with said Bid as a guarantee that the Proposers would, if awarded the Contract, enter into a written Contract with
the City for the performance of said Contract, within ten (10) consecutive calendar days after written notice having been given of the Award of
the Contract.
NOW, THEREFORE, the conditions of this obligation are such that if the Principal within ten (10) consecutive calendar days after written
notice of such acceptance, enters into a written Contract with the City of Sunny Isles Beach and furnishes the Performance Bond, satisfactory
to the City, each in an amount equal to one hundred percent (100%) of the Contract Price, and provides all required Certificates of Insurance,
then this obligation shall be void; otherwise the sum herein stated shall be due and payable to the City of Sunny Isles Beach and the Surety
herein agrees to pay said sum immediately, upon demand of the City, in good and lawful money of the United States of America, as liquidated
damages for failure thereof of said Principal.
IN WITNESS WHEREOF, the above bonded parties have executed this instrument under their several seals this_____________day
of________________________,20 , the name and the corporate seal of each corporate party being hereto affixed and these presents
being duly signed by its undersigned representative.
DOCUMENT CONTINUES ONNEXTPAGE
IN PRESENCEOF:
__________________________________ _________________
Individual or Partnership PrincipalAffixCorporate Seal
_________________________________
Business Address
_________________________________
City, State, and Zip Code
________________________________________________________________
Business TelephoneBusiness Facsimile
ATTEST:
___________________________________ ______________________________ Secretary
(CorporateSurety)*
By:
*Impress Corporate Seal
IMPORTANT
Surety companies executing bonds must appear on the Treasury Department's most current list (circular 570 as amended) and be authorized
to transact business in the State of Florida.
D ECEMBER 28,2010
E-VerifyAffidavit
each
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NotaryPublicInformation
INSTRUCTIONS FOR COMPLETION OF SF-LLL, DISCLOSURE OF LOBBYING ACTIVITIES
This disclosure form shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the initiation or
receipt of a covered Federal action, or a material change to a previous filing, pursuant to title 31 U.S.C. section 1352. The filing of a
form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence
an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with a covered Federal action. Complete all items that apply for both the initial filing and material change
report. Refer to the implementing guidance published by the Office of Management and Budget for additional information.
1.Identify the type of covered Federal action for which lobbying activity is and/or has been secured to influence the outcome
of a covered Federal action.
2.Identify the status of the covered Federal action.
3.Identify the appropriate classification of this report. If this is a followup report caused by a material change to the
information previously reported, enter the year and quarter in which the change occurred. Enter the date of the last
previously submitted report by this reporting entity for this covered Federal action.
4.Enter the full name, address, city, State and zip code of the reporting entity. Include Congressional District, if known.
Check the appropriate classification of the reporting entity that designates if it is, or expects to be, a prime or subaward
recipient. Identify the tier of the subawardee, e.g., the first subawardee of the prime is the 1st tier. Subawards include but
are not limited to subcontracts, subgrants and contract awards under grants.
5.
code of the prime Federal recipient. Include Congressional District, if known.
6.Enter the name of the federal agency making the award or loan commitment. Include at least one organizational level
below agency name, if known. For example, Department of Transportation, United States Coast Guard.
7.Enter the Federal program name or description for the covered Federal action (item 1). If known, enter the full Catalog of
Federal Domestic Assistance (CFDA) number for grants, cooperative agreements, loans, and loan commitments.
8.Enter the most appropriate Federal identifying number available for the Federal action identified in item 1 (e.g., Request for
Proposal (RFP) number; Invitations for Bid (IFB) number; grant announcement number; the contract, grant, or loan award
number; the application/proposal control numbe-19-90-
9.For a covered Federal action where there has been an award or loan commitment by the Federal agency, enter the Federal
amount of the award/loan commitment for the prime entity identified in item 4 or 5.
10.(a) Enter the full name, address, city, State and zip code of the lobbying registrant under the Lobbying Disclosure Act of
1995 engaged by the reporting entity identified in item 4 to influence the covered Federal action.
(b)Enter the full names of the individual(s) performing services, and include full address if different from 10(a). Enter Last
Name, First Name, and Middle Initial (MI).
11.The certifying official shall sign and date the form, print his/her name, title, and telephone number.
According to the Paperwork Reduction Act, as amended, no persons are required to respond to a collection of information unless it displays a valid
OMB control Number. The valid OMB control number for this information collection is OMB No. 0348-0046. Public reporting burden for this
collection of information is estimated to average 10 minutes per response, including time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the
burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management
and Budget, Paperwork Reduction Project (0348-0046), Washington, DC 20503
BYRD ANTI-LOBBYING AMENDMENT CERTIFICATION
(To be submitted with each proposal or offer exceeding $100,000)
The undersigned, \[Company\] ______________________________ certifies, to the best of his or her
knowledge, that:
1.No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any
person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress,
anofficer or employee of Congress, or an employee of a Member of Congress in connection with the awarding
of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of
any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any
Federal contract, grant, loan, or cooperative agreement.
2.If any funds other than Federal appropriated funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer
oremployee of Congress, or an employee of a Member of Congress in connection with this Federal contract,
grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form -LLL,
3.The undersigned shall require that the language of this certification be included in the award documents for
all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and
cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was
made or entered into. Submission of this certification is a prerequisite for making or entering into this
transaction imposed by 31, U.S.C. § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person
who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not
more than $100,000 for each such failure.
The Contractor, \[Company\] ______________________, certifies or affirms the truthfulness and accuracy of
each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees
that the provisions of 31 U.S.C. § 3801 et seq., apply to this certification and disclosure, if any.
_____________________________________
_________________________________________
__________________
Date
Approved by OMB
0348-0046
Disclosure of Lobbying Activities
Complete this form to disclose lobbying activities pursuant to 31 U.S.C. 1352
(See reverse for public burden disclosure)
1.Type of Federal Action:2.Status of Federal Action:3.Report Type:
a.contracta.offer/applicationa.initial filing
____ b. grant _____ b. initial award _____ b. material change
c.cooperative agreementc.post-award
d.loan
For material change only:
e.loan guaranteeYear _______ quarter _______
f.loan insuranceDate of last report___________
4.Name and Address of Reporting Entity:5.If Reporting Entity in No. 4 is Subawardee,
____ Prime _____ Subawardee Enter Name and Address of Prime:
Tier______, if Known:
Congressional District,if known:Congressional District,if known:
6.Federal Department/Agency:7.Federal Program Name/Description:
CFDA Number, if applicable: ____________
8.Federal Action Number, if known:9.Award Amount,if known:
$
b.Individuals Performing Services (including address if
10.a. Name and Address of Lobbying Registrant
(if individual, last name, first name, MI): different from No. 10a)
(last name, first name, MI):
11.Information requested through this form is authorized by
title 31 U.S.C. section 1352. This disclosure of lobbying Signature: __________________________________
activities is a material representation of fact upon which
reliance was placed by the tier above when this transaction
Print Name: _____
was made or entered into. This disclosure is required
pursuant to 31 U.S.C. 1352. This information will be reported
Title: _____
to the Congress semi-annually and will be available for public
inspection. Any person who fails to file the required
Telephone No.: ____________ Date: _______
disclosure shall be subject to a civil penalty of not less than
$10,000 and not more than $100,000 for each such failure.
Authorized for Local Reproduction
Federal Use Only
Standard Form -LLL (Rev. 7-97)
BUYAMERICACERTIFICATION
CertificationRequirementfor23CFR635.410BuyAmericaonServiceAgreements
Thisprojectwillbeutilizingfederalfunds.PleasecompleteeithertheBuyAmericaCertificationorthe
MinimalUseCertificationandreturnwithyoursignedserviceagreement.
BuyAmericaCertification
Icertifythatallmaterialsusedonthisprojectwillmeettherequirementsof23CFR635.410BuyAmericaand
anyamendmentsthereto.AnywaiverstothisrequirementthathavebeenapprovedbytheFHWAare
attachedtothiscertification.
Signature_____________________________________________________________________
Name________________________________________________________________________
Title_________________________________________________________________________
CompanyName________________________________________________________________
Date_________________________________________________________________________
MinimalUseCertification
Icertifythataminimalamountofforeignsteelandironmaterialswillbeusedonthisproject.Thecostof
suchmaterialsdoesnotexceedonetenthofonepercent(0.1percent)ofthetotalcontractcostor$2,500,
whicheverisgreater.Allothermaterialsusedonthisprojectwillmeettherequirementsof23CFR635.410
BuyAmericaandanyamendmentsthereto.Anywaiverstothisrequirementthathavebeenapprovedbythe
FHWAareattachedtothiscertification.
Signature_____________________________________________________________________
Name________________________________________________________________________
Title_________________________________________________________________________
CompanyName________________________________________________________________
Date_________________________________________________________________________
CITY OF SUNNY ISLES BEACH
CITY OF SUNNY ISLES BEACH
18070 Collins Ave. | Sunny Isles Beach, FL 33160
18070 Collins Ave. | Sunny Isles Beach, FL 33160
305.792.1707 | sibfl.net |Purchasing@sibfl.net
305.792.1707 | sibfl.net | Purchasing@sibfl.net
AFFIDAVITS/FORMS
CITY OF NORTH MIAMI BEACH
Re-bid City of Sunny Isles Beach & NMB Water| Drainage Improvements & Watermain Replacement 51
CITY OF NORTH MIAMI BEACH AFFIDAVITS
Themust be completed by an official having legal authorization to contractually bind the company or firm. Each signature
represents a binding commitment upon the Bidder to provide the goods and/or services offered to the City if the Bidder is
determined to be the most responsive and responsible Bidder.
5.1 Drug Free Workplace Program
5.2 Solicitation, Giving, and Acceptance of Gifts Policy
5.3 Indemnification Clause
5.4 Sworn Statement pursuant to section 287.133(3)(a) Florida Statutes on Public Entity Crimes
5.5 Anti-Kickback Affidavit
5.6 Non-Collusive Affidavit
5.7 Bidder Questionnaire
5.8 Trench Safety Act Compliance
5.9 E-Verify Affirmation Statement
5.10 Living Wage
5.11 Contract Provisions for Non-Federal Entity Contracts Under Federal Awards
5.1 DRUG-FREE WORKPLACE PROGRAM
In order to have a drug-free workplace program, a business shall:
1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or
use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against
employees for violations of such prohibition.
2. Inform employees about the dangers of drug abuse in the workplace, the business’s policy of maintaining drug-free
workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties
that may be imposed upon employees for drug abuse violations.
3. Give each employee engaged in providing the commodities or contractual services that are under bid a copy of the
statement specified in subsection (1).
4. In the statement specified in subsection (1), notify the employee that, as a condition of working on the commodities
or contractual services that are under bid, the employee will abide by the terms of the statement and will notify the
employer of any conviction of, or plea of guilty or nolo contendere to, any violation of chapter 893 or of any controlled
substance law of the United States or any state, for a violation occurring in the workplace no later than five (5) days
after such conviction.
5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if
such is available in the employee’s community, by any employee who is so convicted.
6. Make a good faith effort to continue to maintain a drug-free workplace through implementation of this section.
As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements.
Name:
Title:
Date:
5.2 SOLICITATION, GIVING, AND ACCEPTANCE OF GIFTS POLICY
Florida Statute 112.313 prohibits the solicitation or acceptance of Gifts. - “No Public officer, employee of an agency, or
candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward,
promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of
the public officer, employee, or candidate would be influenced thereby.”“... The term ‘public officer’ includes any person
elected or appointed to hold office in any agency, including any person serving on an advisory body.”
The City of North Miami Beach policy prohibits all public officers, elected or appointed, all employees, and their families
from accepting any gifts of any value, either directly or indirectly, from any contractor, vendor, consultant, or business
with whom the City does business. Only advertising office stationery or supplies of small value are exempt from this policy
- e.g. calendars, note pads, pencils.
The State of Florida definition of “gifts” includes the following:
Real property or its use,
Tangible or intangible personal property, or its use,
A preferential rate of terms on a debt, loan, goods, or services,
Forgiveness of indebtedness,
Transportation, lodging, or parking,
Membership dues,
Entrance fees, admission fees, or tickets to events, performances, or facilities,
Plants, flowers or floral arrangements.
Services provided by persons pursuant to a professional license or certificate. Other personal services for which
a fee is normally charged by the person providing the services.
Any other similar service or thing having an attributable value not already provided for in this section.
To this list, the City of North Miami Beach has added food, meals, beverages, and candy.
Any contractor, vendor, consultant, or business found to have given a gift to a public officer or employee, or his/her family, will
be subject to dismissal or revocation of contract.
As the person authorized to sign the statement, I certify that this firm will comply fully with this policy.
Name:
Title:
Date:
5.3 INDEMNIFICATION CLAUSE
The Contractor shall indemnify, defend and hold harmless the City Commission, the City of North Miami Beach and their
agents and employees from and against all claims, damages, losses and expenses (including attorney’s fees) arising out
of or resulting from the contractor’s performance of the work, provided that any such claim, damage, loss or expense (1) is
attributable to bodily injury, sickness, disease or death, or to injury to or damage to or destruction of property including the
loss of use resulting there from, and (2) is caused in whole or in part by any breach or default by Contractor or negligent act
or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose
acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder.
As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements.
Name:
Title:
Date:
5.4 SWORN STATEMENT PURSUANT TO SECTION 287.133 (3) (a), FLORIDA STATUTES, ON PUBLIC ENTITY
CRIMES
1. This sworn statement is submitted to the CITY OF NORTH MIAMI BEACH, FLORIDA
By:
Name:
Title:
For: Legal business name:
Federal Employer I.D. no. (FEIN):
(If the entity has no FEIN, include the Social Security Number of the individual signing this sworn statement: _____ -
_____ - ______).
Whose business address is:
2. I understand that a “public entity crime” as defined in Paragraph 287.133 (1)(g), Florida Statutes, means a violation of
any state or federal law by a person with respect to and directly related to the transaction of business with any public
entity or with an agency or political subdivision of any other state or of the United States, including but not limited to,
any bid or contract for goods or services to be provided to any public entity or an agency or political subdivision of any
other state or of the United States and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or
material misrepresentations.
3. I understand that “convicted” or “conviction” as defined in Paragraph 287.133 (1) (b), Florida Statutes, means a finding
of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court
of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, non-
jury trial, or entry of a plea of guilty or non contendere.
4. I understand that an “affiliate” as defined in Paragraph 287.133(1)(a), Florida Statutes, means:
1. A predecessor or successor of a person convicted of a public entity crime; or
2. An entity under the control of any natural person who is active in the management of the entity and who has been
convicted of a public entity crime. The term “affiliate” includes those officers’ directors, executives, partners,
shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership
by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income
among persons when not for fair market value under an arm’s length agreement, shall be a prima facie case that
one person controls another person. A person who knowingly enters into a joint venture with a person who has
been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an affiliate.
5. I understand that a “person” as defined in Paragraph 287.133(1) (e), Florida Statutes, means any natural person or
entity organized under the laws of any state or of the United States with legal power to enter into a binding contract and
which bids or applies to bid on contracts for the provision of goods or services let by a public entity, or which otherwise
transacts or applies to transact business with a public entity. The term “person” includes those officers, directors,
executives, and partners, shareholders, employees, members, and agents who are active in management of an entity.
6. Based on information and belief, the statement, which I have marked below, is true in relation to the entity submitting
this sworn statement. (Indicate which statement applies).
Neither the entity submitting this sworn statement, nor any of its officers, directors, executives, partners,
shareholders, employees, members, or agents who are active in the management of the entity, nor any affiliate of
the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989.
The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners,
shareholders, employees, members, or agents who are active in the management of the entity, or an affiliate of the
entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989.
The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners,
shareholders, employees, members, or agents who are active in the management of the entity, or an affiliate of the
entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. However, there
has been a subsequent proceeding before a Hearing Officer of the State of Florida, Division of Administrative
Hearings and the final Order entered by the Hearing Officer determined that it was not in the public interest to place
the entity submitting this sworn statement on the convicted vendor list (attach a copy of the final order).
I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC
ENTITY IDENTIFIED IN PARAGRAPH 1 ABOVE IS FOR THAT PUBLIC ENTITY ONLY AND THAT THIS FORM IS
VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I
AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE
THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR CATEGORY TWO OF ANY
CHANGE IN THE INFORMATION CONTAINED IN THIS FORM.
As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements.
Name:
Title:
Date:
5.5 ANTI-KICKBACK AFFIDAVIT
I, the undersigned, say that no portion of the sum herein bid will be paid to any employees of the City of North Miami
Beach, as a commission, kickback, reward or gift, directly or indirectly by me or any member of my firm or by an officer of
the corporation.
As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements.
Name:
Title:
Date:
5.6 NON-COLLUSIVE AFFIDAVIT
a) He/she is the , (Owner, Partner, Officer,
Representative or Agent) of __________________________ the Bidder that has submitted the attached Bid;
b) He/she is fully informed respecting the preparation and contents of the attached Bid and of all
pertinent circumstances respecting such Bid;
c) Such Bid is genuine and is not collusive or a sham Bid;
d) Neither the said Bidder nor any of its officers, partners, owners, agents, representatives, employees
or parties in interest, including this affiant, have in any way colluded, conspired, connived or agreed, directly or
indirectly, with any other Bidder, firm, or person to submit a collusive or sham Bid in connection with the Work for
which the attached Bid has been submitted; or to refrain from proposing in connection with such work; or have in
any manner, directly or indirectly, sought by person to fix the price or prices in the attached Bid or of any other
Bidder, or to fix any overhead, profit, or cost elements of the Bid price or the Bid price of any other Bidder, or to
secure through any collusion, conspiracy, connivance, or unlawful agreement any advantage against (Recipient),
or any person interested in the proposed work;
e) The price or prices quoted in the attached Bid are fair and proper and are not tainted by any
collusion, conspiracy, connivance, or unlawful agreement on the part of the Bidder or any other of its agents,
representatives, owners, employees or parties in interest, including this affiant.
As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements.
Name:
Title:
Date:
5.7 BIDDER QUESTIONNAIRE
The completed Vendor Questionnaire should be submitted with the solicitation response.
If a response requires additional information, the Vendor should upload a written detailed response; each response should
be numbered to match the question number. The completed questionnaire and attached responses will become part of the
procurement record. It is imperative that the person completing the form be knowledgeable about the proposing Vendor’s
business and operations.
1. Legal business name:
2. Doing Business As/Fictitious Name (if applicable):
3. Federal Employer I.D. no. (FEIN):
4. Dun and Bradstreet No.:
5. Website address (if applicable):
6.Principal place of business address:):
7. Office location responsible for this project:
8. 8. Telephone no.:
Fax no.:
9. Type of business (check appropriate box):
Corporation (specify the state of incorporation):
Sole Proprietor
Limited Liability Company (LLC)
Limited Partnership
General Partnership (State and County filled in)
Other – Specify
10. AUTHORIZED CONTACT(S) FOR YOUR FIRM:
Name:
Title:
E-mail:
Telephone No.:
Name:
Title:
E-mail:
Telephone No.:
11. List name and title of each principal, owner, officer, and major shareholder:
a)
b)
c)
d)
12. Affiliated Entities of the Principal(s): List the names and addresses of “affiliated entities” of the Vendor’s principal(s)
over the last five (5) years (from the solicitation opening deadline) that have acted as a prime Vendor with the City.
Affiliated entities of the principal(s) are those entities related to the vendor by the sharing of stock or other means of
control, including but not limited to a subsidiary, parent or sibling entity.
a)
b)
c)
d)
13. Has your firm, its principals, officers or predecessor organization(s) been debarred or
Yes No
suspended by any government entity within the last three years? If yes, specify details in an
attached written response.
14. Has your firm, its principals, officers or predecessor organization(s) ever been debarred or
Yes No
suspended by any government entity? If yes, specify details in an attached written response,
including the reinstatement date, if granted.
15. Specify the type of services or commodities your firm offers:
16. How many years has your firm been in business while providing the services and/or products offered within this
solicitation?
17. Is your firm’s business regularly engaged in and routinely selling the product(s) or services
Yes No
offered within this solicitation?
18. Does your firm affirm that it is currently authorized by the manufacturer as a dealer/seller of the
Yes No
product(s) offered herein, and warranty offered is the manufacturer’s warranty with the City
recorded as the original purchaser? The City reserves the right to verify prior to a
recommendation of award.
19. Has your firm ever failed to complete any services and/or delivery of products during the last
Yes No
three (3) years? If yes, specify details in an attached written response.
20. Is your firm or any of its principals or officers currently principals or officers of another
Yes No
organization? If yes, specify details in an attached written response.
21. Have any voluntary or involuntary bankruptcy petitions been filed by or against your firm, its
Yes No
parent or subsidiaries or predecessor organizations during the last three years? If yes, specify
details in an attached written response.
22. Has your firm’s surety ever intervened to assist in the completion of a contract or have
Yes No
Performance and/or Payment Bond claims been made to your firm or its predecessor’s sureties
during the last three years? If yes, specify details in an attached a written response, including
contact information for owner and surety company.
23. If requested, will your firm extend the same price, termsand conditions to other governmental
Yes No
entities during the period covered by this contract?
Questions 24 - 27 are only applicable to service contracts or a construction contracts (repair, maintain or furnish
and install) solicitations:
24. What similar on-going contracts is your firm currently working on? If additional space is required, provide on separate
sheet
.
25.
Has your firm completely inspected the project site(s) prior to submitting response?
Yes No
26. Will your firm need to rent or purchase any equipment for this contract? If yes, please specify
Yes No
details in an attached a written response.
27. What equipment does your firm own that is available for this contract?
28. Indicate registration, license numbers or certificate numbers for the businesses or professions, which are the subject of
this ITB. Please attach certificate of competency and/or State registration.
29. Firm has attached a current Certificate of Liability Insurance?
Yes No
30. If requested, will your firm extend the same price, termsand conditions to other governmental entities during the
period covered by this contract? Check one: Yes No
31. Provide at least three (3) individuals, corporations, agencies, or institutions for which your firm has completed work of
a similar nature or in which your firm sold similar commodities in the past three (3) years. Contact persons shall have
personal knowledge of the referenced project/contract. If any of the following references are inaccessible or not relevant,
additional references may be requested by the City.
Reference 1:
Scope of Work:
Contract/Project Title:
Agency:
Contact Name/Title:
Contact Telephone:
Email:
Contract/Project Dates (Month and Year):
Contract Amount:
Reference 2:
Scope of Work:
Contract/Project Title:
Agency:
Contact Name/Title:
Contact Telephone:
Email:
Contract/Project Dates (Month and Year):
Contract Amount:
Reference 3:
Scope of Work:
Contract/Project Title:
Agency:
Contact Name/Title:
Contact Telephone:
Email:
Contract/Project Dates (Month and Year):
Contract Amount:
____________________________________________________________________________________
32. Disclosure of Conflict of Interest
VENDORSHALL DISCLOSE BELOW, TO THE BEST OFHIS OR HER KNOWLEDGE, ANY CITY OFNORTH MIAMI
BEACHOFFICER OR EMPLOYEE, OR ANY RELATIVE OF ANYSUCHOFFICEROR EMPLOYEE ASDEFINEDIN
SECTION 112.3135,FLORIDASTATUTES, WHO IS ANOFFICER, PARTNER, DIRECTOR OR PROPRIETOR OF,OR
HASAMATERIALINTERESTINTHEVENDOR’SBUSINESSORITSPARENTCOMPANY,ANYSUBSIDIARY,OR
AFFILIATED COMPANY, WHETHER SUCH CITY OFFICIAL OR EMPLOYEE IS IN A POSITION TO INFLUENCETHIS
PROCUREMENT ORNOT.
As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements.
Name:
Title:
Date:
5.8 TRENCH SAFETY ACT COMPLIANCE
Bidder acknowledges that the Florida Trench Safety Act, Section 553.60 et. seq., which became effective October 1, 1990,
shall be in effect during the period of construction of the project. The Bidder, by signing and submitting the bids, in writing,
assuring that it will perform any trench excavation in accordance with applicable trench safety standards. The Bidder further
identifies the following separate item of costs of compliance with the applicable trench safety standards as well as the
methods of compliance:
Methods of Compliance
(fill in methods)
Total _____________
Bidder acknowledges that this cost is included in the applicable items of the Proposal and in the Grand Total Bid Price.
Failure to complete the above will result in the bid being declared non-responsive.
The Bidder is, and the Owner and Engineer are not, responsible to review or assess Bidder's safety precautions, programs
or costs, or the means, methods, techniques or technique adequacy, reasonableness of cost, sequences or procedures of
any safety precaution, program or cost, including but not limited to, compliance with any and all requirements of Florida
Statute Section 553.60 et. seq., cited as the "Trench Safety Act". Bidder is, and the Owner and Engineer are not, responsible
to determine if any safety or safety related standards apply to the project, including but not limited to, the "Trench Safety
Act."
As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements.
Name:
Title:
Date:
5.9 E-VERIFY AFFIRMATION STATEMENT
Contractor/Proposer/Bidder acknowledges and agrees to utilize the U.S. Department of Homeland Security’s E-Verify
System to verify the employment eligibility of,
(a) all persons employed by Contractor/Proposer/Bidder to perform employment duties within Florida during the term
of the Contract, and,
(b) all persons (including subcontractors/vendors) assigned by Contractor/Proposer/Bidder to perform work pursuant
to the Contract.
The Contractor/Proposer/Bidder acknowledges and agrees that use of the U.S. Department of Homeland Security’s E-
Verify System during the term of the Contract is a condition of the Contract.
As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements.
Name:
Title:
Date:
5.10 LIVING WAGE
As applicable, Contractor/Proposer/Bidders acknowledges and agrees to provide Living Wage as set forth in Sec. 5-3.2
Living Wage in the City Code of Ordinances. A copy of this Code Section may be obtained online at City of North Miami
Beach Code of Ordinance Section 5-3 A copy of the living wages to be paid by the contractor may be obtained online at
City of North Miami Beach Code of Ordinance Section 5-3.2 or by contacting the City of North Miami Beach Human
Resource Department.
If the contract is for both goods and services, it shall apply only to the services portion of such contract. This requirement
shall not apply to contracts which are primarily for the sale or leasing of goods.
As the person authorized to sign the statement, I certify that this firm complies fully with the above requirements.
Name:
Title:
Date:
5.11 CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY CONTRACTS UNDER FEDERAL AWARDS
All purchases for goods, services, construction or repairs to be provided as a result of contract or purchase order, are
funded, in whole or in part, by Federal assistance in the form of grant, sub-grant, loan or reimbursement either directly to
the CITY as a recipient or as a subrecipient of funding provided from the Federal government to an agency of the State of
Florida or to another pass-through agency, the following Federal provisions shall apply pursuant to 2 CFR § 200.326 and
2 CFR Part 200, Appendix II, as applicable.
GENERAL CONDITIONS
1. No Government Obligation to Third Parties. The CONTRACTOR agrees that, notwithstanding any concurrence by the
Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written
consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to
any obligations or liabilities to the Recipient, CONTRACTOR, or any other party (whether or not a party to that contract)
pertaining to any matter resulting from the underlying Contract. The CONTRACTOR agrees to include the above clause
in each subcontract related in whole or in part with this contract.
2. Termination for Convenience or Default. If this solicitation is valued at $10,000 or greater (with the exception of
contracts with nonprofit organizations and institutions of higher education, for which the applicable threshold is
$100,000), the CITY may terminate the contract, in whole or in part, at any time by written notice to the CONTRACTOR
when it is in the Government’s best interest. The CONTRACTOR shall be paid its costs, including contract close-out
costs, and profit on work performed up to the time of termination. The CONTRACTOR shall promptly submit its
termination claim to the CITY. If the CONTRACTOR has any property in its possession belonging to the CITY, the
CONTRACTOR will account for the same, and dispose of it in the manner the CITY directs.
If the CONTRACTOR fails to deliver supplies or to perform the services within the time specified in the contract or any
extension, or if the CONTRACTOR fails to comply with any other provisions of the contract, the CITY may terminate
the contract for default. The CITY shall terminate the contract by default by delivering to the CONTRACTOR a Notice
of Termination specifying the nature of the default. The CONTRACTOR will only be paid the contract price for supplies
delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract.
If the contract is terminated while the CONTRACTOR has possession of CITY-owned goods, the CONTRACTOR shall,
upon direction of the CITY’s contract administrator, protect and preserve the goods until surrendered to the CITY or its
agent. The CONTRACTOR and the CITY shall agree on payment for the preservation and protection of goods. Failure
to agree on an amount will be resolved under the Dispute clause. If, after termination for failure to fulfill contract
obligations, it is determined that the CONTRACTOR was not in default, the rights and obligations of the parties shall be
the same as if the termination had been issued for the convenience of the CITY.
The CONTRACTOR agrees to include the above clause in each subcontract related in whole or in part with this contract.
3. Equal Employment Opportunity. “During the performance of this contract, the contractor agrees as follows:
(a) 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 take affirmative action to
ensure that applicants are employed, and that employees are treated during employment without regard to their
race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be
limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff
or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The
contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to
be provided setting forth the provisions of this nondiscrimination clause.
(b) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor,
state that all qualified applicants will receive consideration for employment without regard to race, color, religion,
sex, sexual orientation, gender identity, or national origin.
(c) 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.
(d) The contractor will send to each labor union or representative of workers with which he has a collective bargaining
agreement or other contract or understanding, a notice to be provided advising the said labor union or workers'
representatives of the contractor's commitments under this section, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(e) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules,
regulations, and relevant orders of the Secretary of Labor.
(f) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965,
and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his
books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation
to ascertain compliance with such rules, regulations, and orders.
(g) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the
said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and
the contractor may be declared ineligible for further Government contracts or federally assisted construction
contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such
other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24,
1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(h) The contractor will include the portion of the sentence immediately preceding paragraph (a) and the provisions of
paragraphs (a) through (h) in every subcontract or purchase order unless exempted by rules, regulations, or orders
of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that
such provisions will be binding upon each subcontractor or vendor.
4. Davis-Bacon and Copeland Anti-Kickback Acts. If this purchase order or contract involves a construction project
over $2,000, the CONTRACTOR agrees to comply with Davis-Bacon and Copeland Act requirements at 40 USC
3141, et seq., and 18 USC 874. The Acts apply to construction contracts and subcontracts that “at least partly are
financed by a loan or grant from the Federal Government and, for the purposes of the Acts, include “actual
construction, alteration and/or repair, including painting and decorating.” The requirements of both Acts are
incorporated into a single clause (see 29 CFR 3.11) and are enumerated at 29 CFR 5.5a. In accepting this order
or contract, the CONTRACTOR further agrees to include a similar requirement in all subcontracts financed in whole
or in part.
5. Contract Work Hours and Safety Standards Act Requirements. If the solicitation exceeds $100,000 and involve the
employment of mechanics or laborers, the CONTRACTOR agrees to comply with the Contract Work Hours and
Safety Standards Act, codified at 40 USC 3701, et seq, as supplemented by the Department of Labor regulations
at 29 C.F.R. part 5. The CONTRACTOR also agrees to include a similar requirement in all subcontracts.
“Compliance with the Contract Work Hours and Safety Standards Act.
(a) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may
require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic
in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek
unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the
basic rate of pay for all hours worked in excess of forty hours in such workweek.
(b) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in
paragraph (b)(1) of this section the contractor and any subcontractor responsible therefor shall be liable for the
unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of
work done under contract for the District of Columbia or a territory, to such District or to such territory), for
liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or
mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (b)(1) of
this section, in the sum of $27 for each calendar day on which such individual was required or permitted to work
in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause
set forth in paragraph (b)(1) of this section.
(c) Withholding for unpaid wages and liquidated damages. The (insert name of grant recipient or subrecipient) shall
upon its own action or upon written request of an authorized representative of the Department of Labor withhold
or cause to be withheld, from any moneys payable on account of work performed by the contractor or
subcontractor under any such contract or any other federal contract with the same prime contractor, or any
other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held
by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of
such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth
in paragraph (b)(2) of this section.
(d) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph
(b)(1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any
lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower
tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this section.”
6. Clean Air. The Clean Air requirements apply to all contracts exceeding $150,000, including indefinite quantities where
the amount is expected to exceed $150,000 in any year. The CONTRACTOR agrees to comply with the Clean Air Act
(42 U.S.C. §§ 7401 – 7671q.), as amended-contracts and subgrants of amounts in excess of $150,000 must contain a
provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act (42 U.S.C. §§ 7401 – 7671q). The CONTRACTOR agrees to include the above
clause in each subcontract related in whole or in part with this contract.
7. Clean Water. If this solicitation is valued at $150,000 or more, the CONTRACTOR agrees to comply with all applicable
standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 USC
1251 et seq. The CONTRACTOR agrees to report each violation to the CITY and agrees that the CITY will, in turn,
report each violation as required to assure notification to the CITY and the appropriate EPA regional office. The
CONTRACTOR agrees to include the above clause in each subcontract related in whole or in part with this contract.
8. Government-wide Debarment and Suspension
If this contract or purchase order has a value of $25,000 or more, this contract or purchase order is a covered transaction
for purposes of 2 C.F.R. Part 180 and 2 C.F.R. Part 3000. As such, the contractor is required to verify that none of the
contractor’s 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.
Part 180, subpart C and 2C.F.R. Part 3000, subpart C, and must include a requirement to comply with these regulations
in any lower tier covered transaction it enters into. This certification is a material representation of fact relied upon by
(insert name of recipient/subrecipient/applicant). If it is later determined that the contractor did not comply with 2 C.F.R.
Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, in addition to remedies available to (insert name of
recipient/subrecipient/applicant), the federal government may pursue available remedies, including but not limited to
suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. Part 180,
subpart C and 2 C.F.R. Part 3000, subpart C while this offer is valid and throughout the period of any contract that may
arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower
tier covered transactions.”
9. Byrd Anti-Lobbying Amendment
Contractors who apply or bid for an award of more than $100,000 shall file the required certification. Each tier certifies
to the tier above that it will not and has not used federally 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 awarding agency.”
10. Procurement of Recovered Materials
In the performance of this contract or purchase order, the Contractor shall make maximum use of products containing
recovered materials that are EPA-designated items unless the product cannot be acquired—Competitively within a
timeframe providing for compliance with the contract performance schedule; Meeting contract performance
requirements; or at a reasonable price. Information about this requirement, along with the list of EPA-designated items,
https://www.epa.gov/smm/comprehensive-
is available at EPA’s Comprehensive Procurement Guidelines webpage:
procurement-guideline-cpg-program The Contractor also agrees to comply with all other applicable requirements of
Section 6002 of the Solid Waste Disposal Act.”
11.Prohibition on Contracting for Covered Telecommunications Equipment or Services
Prohibitions.
(a) Section 889(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-
232, and 2 C.F.R. § 200.216 prohibit the head of an executive agency on or after Aug.13, 2020, from obligating or
expending grant, cooperative agreement, loan, or loan guarantee funds on certain telecommunications products or
from certain entities for national security reasons.
(b) Unless an exception in paragraph (c) of this clause applies, the contractor and its subcontractors may not use grant,
cooperative agreement, loan, or loan guarantee funds from the Federal Emergency Management Agency to:
i. Procure or obtain any equipment, system, or service that uses covered telecommunications equipment or
services as a substantial or essential component of any system, or as critical technology of any system.
ii. Enter into, extend, or renew a contract to procure or obtain any equipment, system, or service that uses covered
telecommunications equipment or services as a substantial or essential component of any system, or as critical
technology of any system.
iii. Enter into, extend, or renew contracts with entities that use covered telecommunications equipment or services
as a substantial or essential component of any system, or as critical technology as part of any system; or
iv. Provide, as part of its performance of this contract, subcontract, or other contractual instrument, any equipment,
system, or service that uses covered telecommunications equipment or services as a substantial or essential
component of any system, or as critical technology as part of any system.
(c) Exceptions. This clause does not prohibit contractors from providing—
(i) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection
arrangements; or
(ii) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user
data or packets that such equipment transmits or otherwise handles. (2) By necessary implication and
regulation, the prohibitions also do not apply to: (i) Covered telecommunications equipment or services that: i.
Are not used as a substantial or essential component of any system; and ii. Are not used as critical technology
of any system. (ii) Other telecommunications equipment or services that are not considered covered
telecommunications equipment or services.
(d) Reporting requirement. (1) In the event the contractor identifies covered telecommunications equipment or services
used as a substantial or essential component of any system, or as critical technology as part of any system, during
contract performance, or the contractor is notified of such by a subcontractor at any tier or by any other source, the
contractor shall report the information in paragraph (d)(2) of this clause to the recipient or subrecipient, unless
elsewhere in this contract are established procedures for reporting the information. (2) The Contractor shall report
the following information pursuant to paragraph (d)(1) of this clause: (i) Within one business day from the date of
such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier
unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand;
model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item
description; and any readily available information about mitigation actions undertaken or recommended. (ii) Within
10 business days of submitting the information in paragraph (d)(2)(i) of this clause: Any further available information
about mitigation actions undertaken or recommended. In addition, the contractor shall describe the efforts it
undertook to prevent use or submission of covered telecommunications equipment or services, and any additional
efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or
services. (e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e), in
all subcontracts and other contractual instruments.”
12. Domestic Preferences for Procurements
Domestic Preference for Procurements As appropriate, and to the extent consistent with law, the contractor should,
to the greatest extent practicable, provide a preference for the purchase, acquisition, or use of goods, products, or
materials produced in the United States. This includes, but is not limited to iron, aluminum, steel, cement, and other
manufactured products. For purposes of this clause: 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 mean 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.
13. Access to Records
The Contractor agrees to provide the City of North Miami Beach, the State of Florida Division of Emergency
Management, 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 authorized representatives access to
construction or other work sites pertaining to the work being completed under the contract.
14. Program Fraud and False or Fraudulent Statements.
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.
15. Federal Changes.
The CONTRACTOR shall at all times comply with all applicable Federal regulations, policies, procedures and
directives, as they may be amended or promulgated from time to time during the term of the resulting contract or
purchase order. The CONTRACTOR agrees to include the above clause in each subcontract related in whole or
in part with this contract.
16. Affirmative Socioeconomic Steps
If subcontracts are to be let, the prime contractor is required to take all necessary steps identified in 2 C.F.R. §
200.321(b)(1)-(5) to ensure that small and minority businesses, women’s business enterprises, and labor surplus
area firms are used when possible.
By signing below, I confirm that I have read, understand, and agree to comply with the GENERAL CONDITIONS –
APPLICABLE TO THIS CONTRACT OR PURCHASE ORDER.
COMPANY NAME:
ADDRESS:
CITY/ STATE/ ZIP CODE:
SIGNATURE:
TYPE NAME: DATE:
CONTRACTOR SHALL FULLY COMPLETE INFORMATION AS REQUIRED BY THIESE CONTRACT PROVISIONS,
INCLUDING THE EXHIBITS. IF APPLICABLE, THE FOLLOWING EXHIBITS AND ATTACHMENTS SHALL BE SIGNED
AND RETURNED WITH OFFER. FAILURE TO DO SO SHALL RENDER YOUR RESPONSE NON-RESPONSIVE.
EXHIBIT 1
RESTRICTIONS ON LOBBYING CERTIFICATION----ONLY APPLICABLE IF CONTRACT IS IN EXCESS OF $100,000
EXHIBIT 2
FEDERAL TAX LIABILITY AND RECENT FELONY CONVICTIONS DISCLOSURE
EXHIBIT 1
RESTRICTIONS ON LOBBYING CERTIFICATION
FOR ALL PROCUREMENTS OVER $100,000
The undersigned certifies, to the best of his or her knowledge and belief, that:
1. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for
influencing or attempting to influence an officer or employee of an agency, a member of Congress, an officer of employee
of Congress, or an employee of a member of Congress in connection with the awarding of any federal contract, the making
of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement.
2. If any funds other than federal appropriated funds have been paid or will be paid to any person for making lobbying
contacts to an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an
employee of a member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form—LLL, “Disclosure Form to Report Lobbying,” in accordance with its
instructions \[as amended by “Government-wide Guidance for New Restrictions on Lobbying,” 61 Fed. Reg. 1413 (1/19/96).
Note: Language in paragraph 2 herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of
1995 (P.L. 104-65, to be codified at 2 USC 1601, et seq.)\]
3. The undersigned shall require that the language of this certification be included in the award documents for all subawards
at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all
subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or
entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31
USC §1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification
shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
“The Contractor, _______________, certifies or affirms the truthfulness and accuracy of each statement of its certification
and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38,
Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.
____________________ __________________________________________________
(Date) (Signature)
__________________________________________________
(Print Name)
__________________________________________________
(Title)
__________________________________________________
(Company)
Note: This certification must accompany each bid or offer exceeding $100,000. Pursuant to 31 USC §3801(c)(1)-(2)(A),
any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be
subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.
EXHIBIT 2
FEDERAL TAX LIABILITY AND RECENT FELONY CONVICTIONS DISCLOSURE
The CONTRACTOR certifies that:
1. The CONTRACTOR does not have any unpaid Federal tax liability that has been assessed, for which all judicial and
administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an
agreement with the authority responsible for collecting the tax liability; and
2. The CONTRACTOR was not convicted of the felony criminal violation under any Federal law within the preceding 24
months.
3. The CONTRACTOR agrees to flow this requirement down to all lower tier participants (subcontractors), without regard
of the value of any sub agreement.
____________________ __________________________________________________
(Date) (Signature)
__________________________________________________
(Print Name)
__________________________________________________
(Title)
__________________________________________________
(Company)
Page1
CONTRACT OR PURCHASE ORDER #_____
City of North Miami Beach
REVISED February 11, 2022
CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY
CONTRACTSUNDER FEDERAL AWARDS
All purchases for goods, services, construction or repairs to be provided as a result of contract or purchase order, are
funded, in whole or in part, by Federal assistance in the form of grant, sub-grant, loan or reimbursement either directly to
the CITY as a recipient or as a subrecipient of funding provided from the Federal government to an agency of the State of
Florida or to another pass-through agency, the following Federal provisions shall apply pursuant to 2 CFR § 200.326 and
2 CFR Part 200, Appendix II, as applicable.
GENERAL CONDITIONS
1. No Government Obligation to Third Parties. The CONTRACTOR agrees that, notwithstanding any concurrence by the
Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written
consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to
any obligations or liabilities to the Recipient, CONTRACTOR, or any other party (whether or not a party to that contract)
pertaining to any matter resulting from the underlying Contract. The CONTRACTOR agrees to include the above clause
in each subcontract related in whole or in part with this contract.
2. Termination for Convenience or Default. If this solicitation is valued at $10,000 or greater (with the exception of
contracts with nonprofit organizations and institutions of higher education, for which the applicable threshold is
$100,000), the CITY may terminate the contract, in whole or in part, at any time by written notice to the CONTRACTOR
when it is in the Government’s best interest. The CONTRACTOR shall be paid its costs, including contract close-out
costs, and profit on work performed up to the time of termination. The CONTRACTOR shall promptly submit its
termination claim to the CITY. If the CONTRACTOR has any property in its possession belonging to the CITY, the
CONTRACTOR will account for the same, and dispose of it in the manner the CITY directs.
If the CONTRACTOR fails to deliver supplies or to perform the services within the time specified in the contract or any
extension, or if the CONTRACTOR fails to comply with any other provisions of the contract, the CITY may terminate
the contract for default. The CITY shall terminate the contract by default by delivering to the CONTRACTOR a Notice
of Termination specifying the nature of the default. The CONTRACTOR will only be paid the contract price for supplies
delivered and accepted, or services performed in accordance with the manner of performance set forth in the contract.
If the contract is terminated while the CONTRACTOR has possession of CITY-owned goods, the CONTRACTOR shall,
upon direction of the CITY’s contract administrator, protect and preserve the goods until surrendered to the CITY or its
agent. The CONTRACTOR and the CITY shall agree on payment for the preservation and protection of goods. Failure
to agree on an amount will be resolved under the Dispute clause. If, after termination for failure to fulfill contract
obligations, it is determined that the CONTRACTOR was not in default, the rights and obligations of the parties shall be
the same as if the termination had been issued for the convenience of the CITY.
The CONTRACTOR agrees to include the above clause in each subcontract related in whole or in part with this contract.
3. Equal Employment Opportunity. “During the performance of this contract, the contractor agrees as follows:
(a) 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 take affirmative action to
ensure that applicants are employed, and that employees are treated during employment without regard to their
race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be
limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff
or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The
contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to
be provided setting forth the provisions of this nondiscrimination clause.
(b) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor,
state that all qualified applicants will receive consideration for employment without regard to race, color, religion,
sex, sexual orientation, gender identity, or national origin.
(c) 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
Page2
CONTRACT OR PURCHASE ORDER #_____
City of North Miami Beach
REVISED February 11, 2022
CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY
CONTRACTSUNDER FEDERAL AWARDS
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.
(d) The contractor will send to each labor union or representative of workers with which he has a collective bargaining
agreement or other contract or understanding, a notice to be provided advising the said labor union or workers'
representatives of the contractor's commitments under this section, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(e) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules,
regulations, and relevant orders of the Secretary of Labor.
(f) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965,
and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his
books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation
to ascertain compliance with such rules, regulations, and orders.
(g) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the
said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and
the contractor may be declared ineligible for further Government contracts or federally assisted construction
contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such
other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24,
1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
(h) The contractor will include the portion of the sentence immediately preceding paragraph (a) and the provisions of
paragraphs (a) through (h) in every subcontract or purchase order unless exempted by rules, regulations, or orders
of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that
such provisions will be binding upon each subcontractor or vendor.
4. Davis-Bacon and Copeland Anti-Kickback Acts. If this purchase order or contract involves a construction project
over $2,000, the CONTRACTOR agrees to comply with Davis-Bacon and Copeland Act requirements at 40 USC
3141, et seq., and 18 USC 874. The Acts apply to construction contracts and subcontracts that “at least partly are
financed by a loan or grant from the Federal Government and, for the purposes of the Acts, include “actual
construction, alteration and/or repair, including painting and decorating.” The requirements of both Acts are
incorporated into a single clause (see 29 CFR 3.11) and are enumerated at 29 CFR 5.5a. In accepting this order
or contract, the CONTRACTOR further agrees to include a similar requirement in all subcontracts financed in whole
or in part.
5. Contract Work Hours and Safety Standards Act Requirements. If the solicitation exceeds $100,000 and involve the
employment of mechanics or laborers, the CONTRACTOR agrees to comply with the Contract Work Hours and
Safety Standards Act, codified at 40 USC 3701, et seq, as supplemented by the Department of Labor regulations
at 29 C.F.R. part 5. The CONTRACTOR also agrees to include a similar requirement in all subcontracts.
“Compliance with the Contract Work Hours and Safety Standards Act.
(a) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may
require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic
in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek
unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the
basic rate of pay for all hours worked in excess of forty hours in such workweek.
(b) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in
paragraph (b)(1) of this section the contractor and any subcontractor responsible therefor shall be liable for the
unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of
work done under contract for the District of Columbia or a territory, to such District or to such territory), for
liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or
mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (b)(1) of
this section, in the sum of $27 for each calendar day on which such individual was required or permitted to work
Page3
CONTRACT OR PURCHASE ORDER #_____
City of North Miami Beach
REVISED February 11, 2022
CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY
CONTRACTSUNDER FEDERAL AWARDS
in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause
set forth in paragraph (b)(1) of this section.
(c) Withholding for unpaid wages and liquidated damages. The (insert name of grant recipient or subrecipient) shall
upon its own action or upon written request of an authorized representative of the Department of Labor withhold
or cause to be withheld, from any moneys payable on account of work performed by the contractor or
subcontractor under any such contract or any other federal contract with the same prime contractor, or any
other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held
by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of
such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth
in paragraph (b)(2) of this section.
(d) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph
(b)(1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any
lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower
tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this section.”
6. Clean Air. The Clean Air requirements apply to all contracts exceeding $150,000, including indefinite quantities where
the amount is expected to exceed $150,000 in any year. The CONTRACTOR agrees to comply with the Clean Air Act
(42 U.S.C. §§ 7401 – 7671q.), as amended-contracts and subgrants of amounts in excess of $150,000 must contain a
provision that requires the non-Federal award to agree to comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act (42 U.S.C. §§ 7401 – 7671q). The CONTRACTOR agrees to include the above
clause in each subcontract related in whole or in part with this contract.
7. Clean Water. If this solicitation is valued at $150,000 or more, the CONTRACTOR agrees to comply with all applicable
standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 USC
1251 et seq. The CONTRACTOR agrees to report each violation to the CITY and agrees that the CITY will, in turn,
report each violation as required to assure notification to the CITY and the appropriate EPA regional office. The
CONTRACTOR agrees to include the above clause in each subcontract related in whole or in part with this contract.
8. Government-wide Debarment and Suspension
If this contract or purchase order has a value of $25,000 or more, this contract or purchase order is a covered transaction
for purposes of 2 C.F.R. Part 180 and 2 C.F.R. Part 3000. As such, the contractor is required to verify that none of the
contractor’s 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.
Part 180, subpart C and 2C.F.R. Part 3000, subpart C, and must include a requirement to comply with these regulations
in any lower tier covered transaction it enters into. This certification is a material representation of fact relied upon by
(insert name of recipient/subrecipient/applicant). If it is later determined that the contractor did not comply with 2 C.F.R.
Part 180, subpart C and 2 C.F.R. Part 3000, subpart C, in addition to remedies available to (insert name of
recipient/subrecipient/applicant), the federal government may pursue available remedies, including but not limited to
suspension and/or debarment. The bidder or proposer agrees to comply with the requirements of 2 C.F.R. Part 180,
subpart C and 2 C.F.R. Part 3000, subpart C while this offer is valid and throughout the period of any contract that may
arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower
tier covered transactions.”
9. Byrd Anti-Lobbying Amendment
Contractors who apply or bid for an award of more than $100,000 shall file the required certification. Each tier certifies
to the tier above that it will not and has not used federally 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 awarding agency.”
Page4
CONTRACT OR PURCHASE ORDER #_____
City of North Miami Beach
REVISED February 11, 2022
CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY
CONTRACTSUNDER FEDERAL AWARDS
10. Procurement of Recovered Materials
In the performance of this contract or purchase order, the Contractor shall make maximum use of products containing
recovered materials that are EPA-designated items unless the product cannot be acquired—Competitively within a
timeframe providing for compliance with the contract performance schedule; Meeting contract performance
requirements; or at a reasonable price. Information about this requirement, along with the list of EPA-designated items,
is available at EPA’s Comprehensive Procurement Guidelines webpage: https://www.epa.gov/smm/comprehensive-
procurement-guideline-cpg-program The Contractor also agrees to comply with all other applicable requirements of
Section 6002 of the Solid Waste Disposal Act.”
11. Prohibition on Contracting for Covered Telecommunications Equipment or Services
Prohibitions.
(a) Section 889(b) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-
232, and 2 C.F.R. § 200.216 prohibit the head of an executive agency on or after Aug.13, 2020, from obligating or
expending grant, cooperative agreement, loan, or loan guarantee funds on certain telecommunications products or
from certain entities for national security reasons.
(b) Unless an exception in paragraph (c) of this clause applies, the contractor and its subcontractors may not use grant,
cooperative agreement, loan, or loan guarantee funds from the Federal Emergency Management Agency to:
i. Procure or obtain any equipment, system, or service that uses covered telecommunications equipment or
services as a substantial or essential component of any system, or as critical technology of any system.
ii. Enter into, extend, or renew a contract to procure or obtain any equipment, system, or service that uses covered
telecommunications equipment or services as a substantial or essential component of any system, or as critical
technology of any system.
iii. Enter into, extend, or renew contracts with entities that use covered telecommunications equipment or services
as a substantial or essential component of any system, or as critical technology as part of any system; or
iv. Provide, as part of its performance of this contract, subcontract, or other contractual instrument, any equipment,
system, or service that uses covered telecommunications equipment or services as a substantial or essential
component of any system, or as critical technology as part of any system.
(c) Exceptions. This clause does not prohibit contractors from providing—
(i) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection
arrangements; or
(ii) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user
data or packets that such equipment transmits or otherwise handles. (2) By necessary implication and
regulation, the prohibitions also do not apply to: (i) Covered telecommunications equipment or services that: i.
Are not used as a substantial or essential component of any system; and ii. Are not used as critical technology
of any system. (ii) Other telecommunications equipment or services that are not considered covered
telecommunications equipment or services.
(d) Reporting requirement. (1) In the event the contractor identifies covered telecommunications equipment or services
used as a substantial or essential component of any system, or as critical technology as part of any system, during
contract performance, or the contractor is notified of such by a subcontractor at any tier or by any other source, the
contractor shall report the information in paragraph (d)(2) of this clause to the recipient or subrecipient, unless
elsewhere in this contract are established procedures for reporting the information. (2) The Contractor shall report
the following information pursuant to paragraph (d)(1) of this clause: (i) Within one business day from the date of
such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier
unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand;
model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item
description; and any readily available information about mitigation actions undertaken or recommended. (ii) Within
10 business days of submitting the information in paragraph (d)(2)(i) of this clause: Any further available information
about mitigation actions undertaken or recommended. In addition, the contractor shall describe the efforts it
undertook to prevent use or submission of covered telecommunications equipment or services, and any additional
efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or
Page5
CONTRACT OR PURCHASE ORDER #_____
City of North Miami Beach
REVISED February 11, 2022
CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY
CONTRACTSUNDER FEDERAL AWARDS
services. (e) Subcontracts. The Contractor shall insert the substance of this clause, including this paragraph (e), in
all subcontracts and other contractual instruments.”
12. Domestic Preferences for Procurements
Domestic Preference for Procurements As appropriate, and to the extent consistent with law, the contractor should,
to the greatest extent practicable, provide a preference for the purchase, acquisition, or use of goods, products, or
materials produced in the United States. This includes, but is not limited to iron, aluminum, steel, cement, and other
manufactured products. For purposes of this clause: 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 mean 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.
13. Access to Records
The Contractor agrees to provide the City of North Miami Beach, the State of Florida Division of Emergency
Management, 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 authorized representatives access to
construction or other work sites pertaining to the work being completed under the contract.
14. Program Fraud and False or Fraudulent Statements.
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.
15. Federal Changes.
The CONTRACTOR shall at all times comply with all applicable Federal regulations, policies, procedures and
directives, as they may be amended or promulgated from time to time during the term of the resulting contract or
purchase order. The CONTRACTOR agrees to include the above clause in each subcontract related in whole or
in part with this contract.
16. Affirmative Socioeconomic Steps
If subcontracts are to be let, the prime contractor is required to take all necessary steps identified in 2 C.F.R. §
200.321(b)(1)-(5) to ensure that small and minority businesses, women’s business enterprises, and labor surplus
area firms are used when possible.
By signing below, I confirm that I have read, understand, and agree to comply with the GENERAL CONDITIONS – APPLICABLE TO
THIS CONTRACT OR PURCHASE ORDER.
COMPANY NAME:
ADDRESS:
CITY/ STATE/ ZIP CODE:
SIGNATURE:
TYPE NAME: DATE:
Page6
CONTRACT OR PURCHASE ORDER #_____
City of North Miami Beach
REVISED February 11, 2022
CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY
CONTRACTSUNDER FEDERAL AWARDS
CONTRACTOR SHALL FULLY COMPLETE INFORMATION AS REQUIRED BY THIESE CONTRACT PROVISIONS, INCLUDING THE
EXHIBITS. IF APPLICABLE, THE FOLLOWING EXHIBITS AND ATTACHMENTS SHALL BE SIGNED AND RETURNED WITH OFFER.
FAILURE TO DO SO SHALL RENDER YOUR RESPONSE NON-RESPONSIVE.
EXHIBIT 1
RESTRICTIONS ON LOBBYING CERTIFICATION----ONLY APPLICABLE IF CONTRACT IS IN EXCESS OF $100,000
EXHIBIT 2
FEDERAL TAX LIABILITY AND RECENT FELONY CONVICTIONS DISCLOSURE
Page7
CONTRACT OR PURCHASE ORDER #_____
City of North Miami Beach
REVISED February 11, 2022
CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY
CONTRACTSUNDER FEDERAL AWARDS
EXHIBIT 1
RESTRICTIONS ON LOBBYING CERTIFICATION
FOR ALL PROCUREMENTS OVER $100,000
The undersigned certifies, to the best of his or her knowledge and belief, that:
1. No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for
influencing or attempting to influence an officer or employee of an agency, a member of Congress, an officer of employee
of Congress, or an employee of a member of Congress in connection with the awarding of any federal contract, the making
of any federal grant, the making of any federal loan, the entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement.
2. If any funds other than federal appropriated funds have been paid or will be paid to any person for making lobbying
contacts to an officer or employee of any agency, a member of Congress, an officer or employee of Congress, or an
employee of a member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form—LLL, “Disclosure Form to Report Lobbying,” in accordance with its
instructions \[as amended by “Government-wide Guidance for New Restrictions on Lobbying,” 61 Fed. Reg. 1413 (1/19/96).
Note: Language in paragraph 2 herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of
1995 (P.L. 104-65, to be codified at 2 USC 1601, et seq.)\]
3. The undersigned shall require that the language of this certification be included in the award documents for all subawards
at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all
subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or
entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31
USC §1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification
shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
“The Contractor, _______________, certifies or affirms the truthfulness and accuracy of each statement of its certification
and disclosure, if any. In addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap. 38,
Administrative Remedies for False Claims and Statements, apply to this certification and disclosure, if any.
____________________ __________________________________________________
(Date) (Signature)
__________________________________________________
(Print Name)
__________________________________________________
(Title)
__________________________________________________
(Company)
Note: This certification must accompany each bid or offer exceeding $100,000. Pursuant to 31 USC §3801(c)(1)-(2)(A),
any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be
subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.
Page8
CONTRACT OR PURCHASE ORDER #_____
City of North Miami Beach
REVISED February 11, 2022
CONTRACT PROVISIONS FOR NON-FEDERAL ENTITY
CONTRACTSUNDER FEDERAL AWARDS
EXHIBIT 2
FEDERAL TAX LIABILITY AND RECENT FELONY CONVICTIONS DISCLOSURE
The CONTRACTOR certifies that:
1. The CONTRACTOR does not have any unpaid Federal tax liability that has been assessed, for which all judicial and
administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an
agreement with the authority responsible for collecting the tax liability; and
2. The CONTRACTOR was not convicted of the felony criminal violation under any Federal law within the preceding 24
months.
3. The CONTRACTOR agrees to flow this requirement down to all lower tier participants (subcontractors), without regard
of the value of any sub agreement.
____________________ __________________________________________________
(Date) (Signature)
__________________________________________________
(Print Name)
__________________________________________________
(Title)
__________________________________________________
(Company)