AGREEMENT between BROWARD COUNTY and Cummings ...

Exhibit 2
Page 74 of 379
Terminal 4 Gate Replacement – Western Expansion
OESBD without the prior approval of the OESBD (or designee).
32.2.4 CONTRACTOR understands that it is the responsibility of the CA and the Broward
County OESBD to monitor compliance with the CBE requirements. In that regard,
CONTRACTOR agrees to furnish monthly reports in the form attached as Form 6,
CBE Monthly Utilization Report, to both the CA and the OESBD on the progress
of CBE participation commencing with the first payment application. All reports
shall include the name and business address of each CBE firm solicited by
CONTRACTOR to work as a Subcontractor in this Agreement and the responses
received by CONTRACTOR to such solicitation; the name and business address
of each CBE firm actually involved in this Agreement, a description of the work
performed or product or service supplied by the CBE firms; the date and amount
of each expenditure; the CBE status of any contractor performing any portion of
this Agreement; and any other information requested by COUNTY which may
assist COUNTY in determining the CONTRACTOR’s compliance with its
contractual obligations, or may assist in the implementation and enforcement of
the Act. The submission of the report required by this subparagraph shall be a
condition of payment to CONTRACTOR.
32.2.5 In the event of CONTRACTOR’s noncompliance with its participation commitment
to a CBE firm (including without limitation the unexcused reduction of CBE
participation), the affected CBE firm shall have the right to exercise the following
remedies if the noncompliance is or was due to no fault of the CBE firm, and due
to the willful action or omission of CONTRACTOR:
32.2.5.1 The affected CBE firm shall be entitled to damages pursuant to its
agreement with CONTRACTOR
32.2.5.2 If a Subcontractor or other similarly-situated person institutes an
arbitration proceeding claiming non-compliance with the Act by
CONTRACTOR, then only in such event shall the remedies include an
undertaking by CONTRACTOR to submit any dispute concerning such
damages to binding arbitration by an independent arbitrator. However,
binding arbitration shall not be available as to any dispute between
CONTRACTOR and COUNTY; nor shall COUNTY incur any cost, fee,
or liability relative to any arbitration proceedings. An arbitrator may
award reasonable attorney's fees and costs against a non-prevailing
party.
32.2.5.3 Nothing under this subsection 32.2.5 shall be construed to limit the
rights of and remedies available to COUNTY, including the right to seek
its own damages pursuant to this Agreement.
32.2.6 CONTRACTOR agrees that nonpayment of a CBE Subcontractor, as required by
Section 32.3.2 below, shall be a material breach of this Agreement and that
COUNTY’s CA may, at its option, increase allowable retainage or withhold
progress payments unless and until CONTRACTOR demonstrates timely
payments of sums due to such Subcontractors. CONTRACTOR agrees that the
presence of a "pay when paid" provision in a subcontract shall not preclude
CM @ Risk Agreement R0787918R1 Page 73 of 85