DEP Restated Agency Term Contract No. GC871, Page 2 of 28

In consideration of the mutual benefits to be derived herefrom, Department and Contractor do hereby agree as follows:

1. Services. Department does hereby retain Contractor to provide petroleum contamination site response action services (Services) in accordance with the procedures outlined below and, as defined herein. The services are described in DEP Solicitation No. 2014004C (Solicitation) and Contractor’s response thereto (Response) (the terms of both of which are incorporated herein by reference), and in accordance with Attachment A (V2.0), Scope of Services

(Scope), attached hereto and made a part hereof. The terms and conditions set out in the paragraphs below shall take precedence and will control over any terms contained in the

Solicitation or Response which are in conflict with or in variance hereto. This Restated

Contract shall be subject to applicable procedures, laws, rules and DEP guidance – including but not limited to those listed in Attachment A (V2.0), Appendix I, the provisions of which are incorporated herein by reference (Constraints). Contractor acknowledges and accepts that the Constraints are subject to periodic revision. This Restated Contract is subject to all revised Constraints without the need for written amendment. Contractor agrees to provide the described services for Department upon the terms and conditions set forth in this Restated

Contract and all exhibits and attachments named herein which are attached hereto and incorporated by reference.

2. Work Assignment.

A. Department shall assign and authorize all Services to Contractor under this Restated

Contract through one of the following methods (Work Assignments):

i. Both Department and Contractor may execute a Task Assignment Notification

Form (“TA”) or Task Assignment Change Order Form (“TACO”) (copies attached hereto and made a part hereof as Attachments B (V2.0) and C (V2.0), respectively); or

ii. Issuance by the Department of a MyFloridaMarketPlace (MFMP) Purchase Order

(“PO”) or PO Change. However, the Department may approve a request for an expedited change for activities which need to be performed while the Contractor is in the field to avoid additional costs for the requested activities. This expedited change is limited in funding amount and activities which can be performed pursuant to the Expedited Field Change Order Process available on the Petroleum

Restoration Program website.

iii. Contractor and its subcontractors shall not commence any Work Assignment until either 1) a TA/TACO has been fully executed by both Department and

Contractor, or 2) a PO or PO Change (“POC”) has been issued.

B. Department shall follow the process outlined in the current version of the Petroleum

Restoration Program ATC Selection Process for assignment of Services under this

Contract. The current assignment process is available at:

http://www.dep.state.fl.us/waste/quick_topics/publications/pss/pcp/RCI_final.pdf.

Department may revise the assignment process at any time upon not less than five (5) business days’ notice. Notice shall be posted on the Petroleum Restoration Program website. For good cause, Department may assign Services to an ATC contractor http://www.dep.state.fl.us/waste/quick_topics/publications/pss/pcp/RCI_final.pdf

DEP Restated Agency Term Contract No. GC871, Page 3 of 28 outside its contracted region. Rates for all assignments shall be at or below Contractor’s rates, provided as Attachment D (V2.0) (Rate Schedule).

C. Contractor shall also be assigned work as specified in 62-772.401, F.A.C.

D. In the event services are required that are not specifically set out in Attachment A

(V2.0), but are within the Scope, Department and Contractor may negotiate Work

Assignments covering the required services and establishing applicable rate(s) for compensation.

E. THERE IS NO MINIMUM AMOUNT OF WORK GUARANTEED AS A

RESULT OF THIS CONTRACT. Any and all Work Assignments will be at the sole discretion of Department. Department reserves the right to assign different phases of

Services on a specific site to different contractors.

F. Notwithstanding any other provisions of this Contract, Contractor may, at its sole discretion, elect not to accept or compete for a proposed Work Assignment. Such election shall not preclude Contractor from participating in other Work Assignments as

Department may request. Contractor shall notify Department orally, within three (3) business days of receipt of a Work Assignment, of Contractor’s decision not to perform or participate, which notification shall be memorialized in writing by Contractor within five (5) business days thereafter to Department’s Contract Manager.

G. Department shall not authorize any Work Assignment, and may suspend or terminate for cause any work assigned to Contractor, if and in the event that Department and

Contractor (or any of its affiliates or authorized subcontractors) are adverse in any litigation, administrative proceeding or alternative dispute resolution, until such adverse relationship is resolved either by agreement or by final non-appealable order of a court.

H. The terms and conditions of the DEP Agency Term Contract (ATC) apply to and control all work assigned, awarded or authorized to Contractor thereunder. DEP will not accept, agree to, or incorporate any terms and conditions, proposed, contained or referenced in any document or instrument which are not within the ATC. Any terms and conditions proposed by or agreed to by or between Contractor and any subcontractors or suppliers that supplement, or are in conflict with, the ATC, will not amend or modify Contractor and DEP’s obligations under the ATC. Contractor will assume all risk that additional terms and conditions in agreements with subcontractors or suppliers will delay, interfere with or frustrate its performance, and Contractor shall indemnify DEP therefrom.

3. Standard of Care for Performance.

A. Contractor represents that its Services shall be performed in a manner consistent with that level of care and skill ordinarily exercised by other professionals under similar circumstances at the time the Services are performed.

B Contractor shall perform as an independent contractor and not as an agent, representative, or employee of Department, unless otherwise specifically stated herein.

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C. Contractor shall perform the Services in a proper and satisfactory manner as determined by Department. Any and all such equipment, products or materials necessary to perform these Services, or requirements as further stated herein, shall be supplied by

Contractor.

D. Contractor is responsible for the professional quality, technical accuracy, timely completion and coordination of all designs, drawings, specifications, reports and other services furnished by Contractor under this Contract. Contractor shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in its designs, drawings, reports and other services.

E. Contractor shall provide competent, suitably qualified personnel. Contractor shall notify Department’s Contract Manager of any changes in the Key Personnel identified in Contractor’s Response. Such notification shall include Contractor’s reason(s) for change in personnel and Contractor’s documentation that its proposed replacement Key Personnel have qualifications and experience equal to or greater than that of those no longer part of Contractor’s team.

4. Term of Contract.

A. Initial Term. The term of this Restated Contract shall expire five (5) years following execution by both parties of the Source Contract, inclusive. No new Work

Assignments shall be issued after the initial Term. However, the Restated Contract shall continue in effect until the latest completion date of any Work Assignment authorized during the five year term above. Work Assignments, completion of which that extends beyond the five (5) year term above shall continue to be subject to change, as appropriate.

B. Renewal term. This Restated Contract may be renewed on the same terms and conditions for a period no greater than five years. All renewals are contingent upon satisfactory performance by Contractor.

5. Compensation.

A. Department shall pay Contractor on a combination fee schedule, fixed price, and cost reimbursement basis as specified in each Work Assignment. Payment shall be authorized by and for each Work Assignment. Contractor shall not be compensated for Services performed prior to authorization, or for Services that exceed the funding amount issued for each Work Assignment.

B. Department reserves the right to award some of the Services on a “pay for performance” basis. A Pay for Performance Cleanup (PFP) is one in which payments are made to

Contractor based upon a negotiated schedule of cleanup progress. A PFP will require negotiations between Department and Contractor to develop goals, target levels, milestones, payment structure and any additional terms and conditions under which the

PFP will be performed. For those Work Assignments issued as PFP assignments, Contractor acknowledges that such work shall be subject to the terms and conditions set forth in the Work Assignment. Terms and conditions of the PFP Work Assignment which conflict with those contained in either the Source Contract or Restated Contract, as applicable, shall have precedence and control.

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6 . Annual Appropriation. Department’s performance and obligation to pay under the Source

Contract or this Restated Contract is contingent upon an annual appropriation by the

Legislature. Authorization for continuation and completion of Work Assignments and payment associated therewith may be suspended, rescinded and/or terminated at the discretion of Department, if Legislative appropriations are reduced, restricted or eliminated.

In such event, Department shall provide notice pursuant to the suspension or termination provisions contained herein.

7. Payment Method.

A. Contractor shall submit invoices as specified in each Work Assignment. Each invoice shall be itemized in accordance with the authorized budget categories listed below and in Attachment D (V2.0), attached hereto and made a part hereof, or shall be accompanied by a copy of an executed Work Assignment evidencing a fixed price.

Contractor shall complete and submit Attachment E, Subcontractor Utilization

Report Form (Subcontractor Report) with each invoice. Failure to provide

Subcontractor Report with an invoice shall result in a delay in processing the invoice for payment. All invoices must be submitted in detail sufficient for a proper pre-audit and post-audit review thereof, using the Invoice Form provided in the Work

Assignment.

B. Review for approval of the final deliverable(s) will be completed within thirty (30) days of receipt of final invoice and forms. However, Department reserves the right to specify a higher number of days for specific Work Assignments. Contractor’s request for payment of retainage will be included on the final invoice for each Work

Assignment. Contractor will submit the final invoice for each Work Assignment after approval of the final deliverable(s).

C. Each invoice, including appropriate supporting documentation as required below, shall be submitted to the following address:

Florida Department of Environmental Protection

Petroleum Restoration Program

Attn: PRP Accounting, MS#4575

2600 Blair Stone Road

Tallahassee, Florida 32399-2400 Email address: prp_acctinginvoices@dep.state.fl.us

D. Contractor shall submit invoices to Department within thirty (30) days after the date of Department’s written approval of each interim deliverable or the final deliverable specified in each Work Assignment. Contractor’s failure to submit interim invoices within this timeframe may result in forfeiture of retainage and its failure to submit the final invoice within the timeframe may result in automatic cancellation, termination or suspension of the Work Assignment and Contractor’s forfeiture of any unpaid balance for such deliverables.

mailto:prp_acctinginvoices@dep.state.fl.us

DEP Restated Agency Term Contract No. GC871, Page 6 of 28

8. Invoicing Requirements. The State of Florida (State) Chief Financial Officer requires detailed supporting documentation of all costs under a cost reimbursement contract. In accordance with the Contract Payment Requirements, (attached hereto and made a part hereof as Attachment F), Contractor shall comply with the minimum requirements set forth therein. Invoices shall be accompanied by supporting documentation and other requirements as follows:

A. Contractual (Subcontractors) - Reimbursement requests for payments to subcontractors associated with activities not included in Attachment D (V2.0), must be substantiated by copies of invoices with backup documentation identical to that required from Contractor. Invoices for reimbursement of fixed price subcontracts approved by Department shall be documented by copies of the paid invoices.

B. Travel - Travel expenses associated with the pay item schedule shall be paid using per diem, prorated in quarter day increments (6 hrs.) within each 24 hour day under travel status in accordance with Section 112.061, Florida Statutes. However, in cases involving Contractor travel for specific meetings or legal proceedings required by

Department, hotel and subsistence (meals) may be paid in accordance with Section

112.061, F.S., rather than per diem.

C. Equipment - (Capital outlay $1,000 or more in value) – Capital equipment purchased under this Restated Contract shall be limited to replacement parts for pre-existing

State-owned equipment (when determined to be cost effective), and must be pre-approved in writing by Department, and shall remain the property of Department upon completion of this project. The use of remediation system equipment provided under the Restated Contract shall be at the unit costs for time as identified in

Attachment D (V2.0). Reimbursement for the purchase of non-expendable equipment costing $1,000 or more is not authorized under this Contract. However, Department may authorize the purchase of capital equipment through amendment of this Contract.

D. Rental/Lease of Equipment – Equipment usage rental rates apply to use in the field only and not transportation time. The rental rates charged for equipment usage shall be invoiced to Department in the most favorable terms (i.e., the sum of the hourly rental rate for a given day shall not exceed the daily rental rate; the sum of the daily rental rate for up to a seven (7) day period shall not exceed the weekly rental rate; the sum of the weekly rental rate for up to a four (4) week period shall not exceed the monthly rental rate) as specified in Attachment D (V2.0). Include copies of invoices or receipts to document charges.

E. Handling Fee – The Contractor shall be reimbursed a handling fee of 6% applied to all

Cost Reimbursable pay items for each project by task. The handling fee covers all costs, including administrative and MFMP transaction fees, incurred by the Contractor in obtaining the required goods or services. The handling fee will be included on each project as a separate pay item with each invoice, as appropriate. For all other pay item types, no markups or handling fees will be allowed.

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F. Analyses – Maximum analytical turnaround time shall be three (3) weeks. The cost for performing sample analyses shall be charged in accordance with the rates contained in Attachment D (V2.0). Blanks and duplicates shall be run as required but not invoiced to Department.

G. Drilling - All rates for mud rotary, hollow stem auger, sonic, and direct push technology drilling, shall be charged in accordance with the rates contained in Attachment D

(V2.0).

H. Health and Safety – Health and safety equipment and supplies for in-field personnel protection shall be charged in accordance with the rates contained in Attachment D

(V2.0), and treated as equipment identified in paragraph C above. For each project the

Contractor, at a minimum, must have a site specific Health and Safety Plan (HASP) in place that complies with the requirements of 29 CFR 1910-120.

I. Recovered Products –Contractor shall actively seek vendors to market petroleum by-products recovered from petroleum contamination sites. The proceeds from the sale of petroleum and petroleum products recovered during the remediation of a petroleum contamination site shall be credited to Department, offset against Contractor’s receivables, and supported by appropriate receipts.

J. Retainage

i. Department reserves the right to establish the amount and application of retainage on a Work Assignment basis to a maximum of 25%. Retainage shall be withheld from each payment to Contractor pending satisfactory completion of a Work Assignment and approval of all deliverables.

ii. Department reserves the right to withhold payment of retainage for Contractor’s failure to respond to or correct identified deficiencies within the timeframe stipulated in the Work Assignment. Department shall provide written notification to Contractor of identified deficiencies and Department’s intent to withhold retainage on the Work Assignment. Contractor’s failure to rectify the identified deficiency within the timeframe stated in Department’s notice will result in forfeiture of retainage by Contractor.

iii. If Contractor fails to perform the requested scope of work, or fails to perform the work in a satisfactory manner, Contractor shall forfeit its right to payment for the work and the retainage called for in each individual task under the entire Work Assignment (as described in 2.A.). Failure to perform includes, but is not limited to, failure to submit the required deliverables by the specified due date or failure to provide adequate documentation that the work was actually performed.

a. For deliverables (reports and response to comments) submitted one (1) to seven (7) calendar days past the required due date, retainage will be forfeited on the amount of the Deliverable (report) pay item.

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b. For deliverables (reports and response to comments) submitted more than seven (7) calendar days past the required due date, retainage will be forfeited on the amount of the entire task associated with the deliverable.

c. No retainage shall be released or paid for work on an uncompleted Work

Assignment while this Restated Contract is suspended.

d. Except as otherwise provided above, Contractor shall be paid the retainage associated with a Work Assignment, provided Contractor has completed the work and submits an invoice for retainage held in accordance with paragraph 7.B. above.

9. Subcontractor Payments. Contemporaneous with all payments from Department, excluding the final payment for a Work Assignment, Contractor shall pay all subcontractors and vendors under this Restated Contract within seven (7) working days from the date of receipt of payment from Department. If Contractor receives less than full payment from

Department for the services or goods of the subcontractors or vendors, Contractor shall pay subcontractors and vendors in at least the same proportion as that paid by Department.

Penalties for non-compliance and provisions for legal assistance for subcontractors are included in Subsection 287.0585(1), F.S.

10. Release and Waiver of Claims and Liens

A. Under the terms of the Petroleum Restoration Program and the authority for the expenditures hereunder, neither the Department, nor its agents, contractors or their subcontractors, have or acquire legal or equitable interest in the property on which

Work Assignment is conducted pursuant to the Source Contract or this Restated

Contract (the “Contracts”), the Department has no direct contract with the owner of the properties upon which work is being performed, and Contractor shall not by virtue of the Contracts have or be in privity of contract with the owners of the properties upon which Work Assignment is being performed or with the person responsible for site rehabilitation.

i. In consideration of the Work Assignments hereunder, the value and sufficiency of which is acknowledged, to the extent allowed by law Contractor shall not have or assert, and hereby expressly waives, discharges, and releases, any and all liens, claims, and rights to liens against the property upon which such Work Assignment is performed, and against any and all other property owned by or the title to which is in the name of the owner of such property, for payment of amounts due from

Department under the Contracts. Such waiver shall extend to any such rights which

Contractor may have or may hereafter acquire or possess as a result of the furnishing of labor, materials, and/or equipment in the performance of Work

ii. Contractor shall include this provision in any subcontract and shall, if requested, provide to Department lien waivers by its subcontractors and suppliers as to any liens, claims, and rights to liens against the property for amounts owed by the

Department for the furnishing of labor, materials, and/or equipment, in the performance of Work Assignment.

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iii. This waiver shall not limit or affect any rights of Contractor or subcontractors arising under separate agreements with an owner of property.

11. Rates.

A. Charges for rates or expenses which are not included in Attachment D (V2.0), but which are required by Department on a Work Assignment, shall be compensated at rates agreed to by Department and Contractor, and which rates shall be evidenced by an executed Work Assignment. If Department determines that such rates should become a part of the rate schedule attached to this Contract, Department shall initiate an amendment to this Restated Contract evidencing the rates mutually agreed to by both parties for inclusion in this Contract.

B. i. The rates in Attachment D (V2.0), which will be viewed as maximum rates, allowed under the Restated Contract. Contractor rates may not be increased for twenty-four (24) months following of effective date of the Source

Contract. Contractor may request such increases annually thereafter.

ii. Requests for rate increases must be submitted at least sixty (60) calendar days prior to the anniversary date of the Source Contract in order for the request to be considered. Rate increases must be requested in writing to Department and must be supported by a detailed justification which warrants the requested increase percentage (up to a maximum of 5% in any one year). Department shall review the request, and supporting documentation, to determine whether an increase is warranted and, if so, what percentage of adjustment (increases not to exceed 5% in any one year) will be authorized by formal amendment to this Contract.

iii. Either party may request a decrease in the rates in Attachment D (V2.0) at any time. Each party shall review the other party’s written request. If an agreement cannot be reached regarding a requested decrease in the rates, this Restated Contract may be terminated pursuant to paragraph 23.B. as a termination for convenience without cost or penalty.

C. Department may, in its sole discretion, make an equitable adjustment in this Contract’s terms or pricing if pricing or availability of supply is affected by extreme and unforeseen circumstances causing volatility in the marketplace. Such circumstances must satisfy all the following criteria: (1) the volatility is due to causes wholly beyond

Contractor’s control, (2) the volatility affects the marketplace or industry, not just the particular Contractor’s source of supply, (3) the effect on pricing or availability of supply is substantial, and (4) the volatility so affects Contractor that continued performance of the Restated Contract under its existing terms would result in a substantial loss.

D. The Rate Schedule in Source Contract’s, Attachment D, shall apply to Work

Assignments issued prior to the Effective Date of this Restated Contract.

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12. Prompt Payment.

A. Department's Contract Manager shall have five (5) business days, unless otherwise specified herein or under a Work Assignment, to inspect and approve the services for payment. Department shall submit a request for payment to the Florida Department of

Financial Services (DFS) within twenty (20) business days; and DFS shall issue warrant within ten (10) business days thereafter. Days are calculated from the latter date the invoice is received or services received, inspected, and approved. Invoice payment requirements do not start until a proper and correct invoice has been received. Invoices which have to be returned to Contractor for correction(s) will result in an uncompensated delay in payment. A Vendor Ombudsman has been established within

DFS who may be contacted if Contractor is experiencing problems in obtaining timely payment(s) from a State agency. The Vendor Ombudsman may be contacted at 850-

413-5516, per Section 215.422, Florida Statutes.

B. Department shall pay Contractor interest at a rate as established by Section 55.03(1), Florida Statutes, on the unpaid balance of an invoice, if a warrant in payment of an invoice is not issued within forty (40) business days after receipt of a correct invoice and receipt, inspection, and approval of the goods and services. Interest payments of less than $1 will not be enforced unless Contractor requests payment. The interest rate for each calendar year for which the term of this Restated Contract is in effect can be obtained from DFS’ Vendor Ombudsman at the telephone number provided above, or Department's Procurement Section at 850-245-2361, per Section 215.422, Florida Statutes.

13. Notice. All allowed or required notices and written communication between the parties shall be sent by email, U.S. Mail, or a courier delivery service. Notices shall be considered delivered when reflected by an electronic mail delivery receipt, a courier service delivery receipt, other mail service delivery receipt or when acknowledged by recipient.

The address for all allowed or required Notices shall be as follows:

Contractor Department

Kimberly Ann Brown

Kimberly Ann Brown and Associates, Inc.

Department of Environmental Protection

Petroleum Restoration Program

2600 Blair Stone Road, MS#4545

Tallahassee, Florida 32399-2400

Use Contract Manager (paragraph 14, below), for Electronic Notices

2841 N Ocean Boulevard, Suite 905

Fort Lauderdale, Florida 33308 kabainc@bellsouth.net

14. Identification of Contract Managers.

A. The Department’s Contract Manager and Contact Email shall be identified on the List of Contract Mangers (the “CM List”) associated with a Department ATC Contract

Number. The CM List shall be maintained on the Petroleum Restoration Website, which will be posted at the following URL:

http://www.dep.state.fl.us/waste/quick_topics/publications/pss/pcp/procurement/AT

C-Manager-List.pdf. Changes to the Contract Managers will be reflected on the CM

List. (The Department may maintain a history of Contract Managers by ATC. Any such list will also be made available on the website.)

http://www.dep.state.fl.us/waste/quick_topics/publications/pss/pcp/procurement/ATC-Manager-List.pdf http://www.dep.state.fl.us/waste/quick_topics/publications/pss/pcp/procurement/ATC-Manager-List.pdf

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B. The Department’s and/or Contractor’s ATC Contract Manager may be changed by notice in writing, without amending this Restated Contract, (Such notice shall include any changes in physical or email addresses and/or contact phone numbers). Notice shall be given as provided in paragraph 13 of this Restated Contract.

C. Contractor may request to change its Contract Manager by written request to the

Department’s Contract Manager. Such request must be made by an officer of

Contractor, on its letterhead, and include any reason and support for the request. The

Department shall exercise its sole discretion with regard to the requested change.

15. Financial Consequences for Unsatisfactory Performance. No payment will be made for unsatisfactory deliverables. Department shall notify Contractor of all unsatisfactory deliverables. Contractor shall re-perform the services needed for submittal of a satisfactory deliverable, at no additional cost to Department, within thirty (30) days of being notified of the unsatisfactory deliverable. If a satisfactory deliverable is not submitted within the specified timeframe, Department may, in its sole discretion, either: 1) terminate the Work

Assignment for failure to perform, or 2) request that a proposed Corrective Action Plan

(CAP) be submitted by Contractor to Department (such request shall be by letter from

Department’s Contract Manager specifying the failure of performance under the Contract).

CAPs must be able to be implemented and performed in no more than sixty (60) days following submittal.

A. A CAP shall be submitted within ten (10) calendar days of the date of the letter request from Department Contract Manager. The CAP shall be sent to Department’s Contract

Manager for review and approval. Within ten (10) calendar days of receipt of a CAP, Department shall notify Contractor in writing whether the CAP proposed has been accepted. If the CAP is not accepted, Contractor shall have ten (10) calendar days from receipt of Department’s notice rejecting the proposed CAP to submit a revised proposed

CAP. Failure to obtain Department approval of a CAP as specified above shall result in Department’s termination of the Work Assignment for cause as authorized in the

Contract.

B. Contractor shall have ten (10) calendar days to commence implementation of an accepted proposed CAP. Acceptance of a proposed CAP by Department does not relieve Contractor of any of its obligations under the Contract. If the CAP fails to correct or eliminate performance deficiencies by Contractor, Department retains the right to require additional or further remedial steps, or to terminate the Work

Assignment for failure to perform. No actions approved by Department, or remedial actions taken by Contractor, shall estop Department from asserting any other or subsequent deficiencies in performance under this Restated Contract or any Work

Assignment. Contractor 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 Contract Manager.

C. Contractor’s failure to supply a requested CAP or failure to correct a deficiency in the performance of the Work Assignment as specified by Department shall be a basis for termination of the Work Assignment for cause.

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16. Performance Bond. In lieu of retainage, Department may require Contractor furnish an executed Performance Bond written by a surety acceptable to Department, in an amount up to one hundred and twenty percent (120%) of the total anticipated cost of any Work

17. Insurance.

A. To the extent required by law, Contractor will be self-insured against, or will secure and maintain during the life of this Contract, Workers' Compensation Insurance for all of its employees connected with the work of this project. Contractor shall require any and all subcontractors to provide Workers' Compensation Insurance for all employees unless such employees are covered by the protection afforded by Contractor.

Such self-insurance program or insurance coverage shall comply fully with the Florida

Workers' Compensation law. In case any class of employees engaged in hazardous work under this Restated Contract is not protected under the Workers' Compensation statute, Contractor shall provide, and cause each subcontractor to provide, adequate insurance satisfactory to Department, for the protection of its employees not otherwise protected.

B. Contractor shall secure and maintain during the life of the Restated Contract comprehensive general liability coverage with limits of not less than $1,000,000 per occurrence and $1,000,000 annual aggregate, comprehensive automobile liability coverage with limits of not less than $1,000,000 per occurrence and $1,000,000 annual aggregate, and professional liability coverage with limits of not less than $1,000,000 per claim and $1,000,000 per annual aggregate. Contractor's current certificate of insurance shall contain a provision that the insurance will not be canceled for any reason except after thirty (30) days written notice (with the exception of non-payment of premium which requires a ten (10) day notice) sent to Department's Procurement

Administrator and shall reference the DEP Contract No. In the event that the insurance requirements in statute are changed, the coverage limits specified herein will also be changed.

18. Indemnification.

A. Contractor shall be fully liable for the actions of its agents, employees, partners, or subcontractors and shall fully indemnify, defend, and hold harmless the State and

Department, and their officers, agents, and employees, from suits, actions, damages, and costs of every name and description, including attorneys’ fees, arising from or relating to personal injury and damage to real or personal tangible property alleged to be caused in whole or in part by Contractor, its agents, employees, partners, or subcontractors, provided, however, that the Contractor shall not indemnify for that portion of any loss or damages proximately caused by the negligent act or omission of the State or Department.

B. Further, Contractor shall fully indemnify, defend, and hold harmless the State and

Department from any suits, actions, damages, and costs of every name and description, including attorneys’ fees, arising from or relating to violation or infringement of a trademark, copyright, patent, trade secret or intellectual property right, provided, however, that the foregoing obligation shall not apply to Department’s misuse or

DEP Restated Agency Term Contract No. GC871, Page 13 of 28 modification of Contractor’s products or Department’s operation or use of

Contractor’s products in a manner not contemplated by this Contract. If any product is the subject of an infringement suit, or in Contractor’s opinion is likely to become the subject of such a suit, the Contractor may at its sole expense procure for Department the right to continue using the product or to modify it to become non-infringing. If

Contractor is not reasonably able to modify or otherwise secure Department the right to continue using the product, Contractor shall remove the product and refund

Department the amounts paid in excess of a reasonable rental for past use. Department shall not be liable for any royalties.

C. Contractor’s obligations under the preceding two paragraphs with respect to any legal action are contingent upon the State or Department giving the Contractor (1) written notice of any action or threatened action, (2) the opportunity to take over and settle or defend any such action at Contractor’s sole expense, and (3) assistance in defending the action at Contractor’s sole expense. Contractor shall not be liable for any cost, expense, or compromise incurred or made by the State or Department in any legal action without the Contractor’s prior written consent, which shall not be unreasonably withheld.

D. The Department is an agency of the State of Florida as that term is used in Section

768.28, F.S. and does not indemnify any person, including but not limited to

Contractors, subcontractors, third parties, property owners, easement holders, or tenants upon whose property or easement Contractor may perform work. Pursuant to paragraphs 18.A – C above, Contractor indemnifies the Department from certain liabilities or loss. The Contractor shall not enter into any separate agreement with any person, including but not limited to subcontractors, third parties, property owners, easement holders, or tenants that conflicts with its contractual obligations to the

Department. Where no conflicts exist, any subsequent indemnification by the

Contractor to any party associated with the Work is subject, subservient and subordinate to the Contractors indemnification of the Department. Contractor may not and is not acting as an agent of or representative for the Department with regard to the

Work in any agreement to which the Department is not a party (e.g. an indemnification agreement).

19. Nonassignability and Subcontracting.

A Contractor shall not sell, assign or transfer any of its rights, duties or obligations under this Contract, or under any Work Assignment issued pursuant to this Restated

Contract (Rights and Duties), without the prior written consent of Department.

Contractor shall remain liable for performance of its Rights and Duties, regardless of any assignment to or assumption by any third party, notwithstanding any approval thereof by Department. However, Department may expressly release Contractor from any and all Rights and Duties through a novation accompanying an approved assignment. Department may assign Department’s Rights and Duties, but shall give prior written notice of its intent to do so to Contractor. The foregoing notwithstanding, Contractor hereby assigns to the State any and all claims it has with respect to the Restated Contract under the antitrust laws of the United States and the

State.

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1 . Contractor shall not subcontract any work under this Contract, with the exception of those subcontractors authorized by the Department, without the prior written consent of Department's Contract Manager.

2. Contractor may request to add or remove a subcontractor(s) by submitting the name of the proposed subcontractor change (and identifying the FEIN) in writing (by email or otherwise) to the Department’s ATC Contract Manager and copy

PRP.Contracts@dep.state.fl.us. Such a request shall specify whether the proposed subcontractor change involves a related party (as that term is defined by the

Financial Accounting Standards Board), and/or whether the Contractor proposes to add, as a subcontractor, an ATC contractor that is authorized to perform petroleum contamination site response action services in the same region as the affected ATC

Requests must be submitted by an officer of the Contractor, on its letterhead.

3. The Department shall have ten (10) business days to review and respond to the request in writing. Proposed subcontractor changes to which the Department does not withhold consent within the time set out above, will have been deemed to be added or removed. The list of Subcontractors authorized by the Department to perform work for Contractor appears on the Petroleum Restoration Program’s website (“Authorized Subcontractor List”) at the following website:

http://www.dep.state.fl.us/waste/quick_topics/publications/pss/pcp/procurement/A

TC-Subcontractor-List.pdf

4. Regardless of authorization to retain subcontractors or assign work, Contractor remains responsible for all Work Assignments under this Contract.

5. The Department may reject a proposed subcontractor change for cause including, but not limited to, Department’s prior experience with subcontractor, subcontractor’s legal status, or the subcontractor’s reputation in the business community. Department shall notify Contractor of its refusal to consent to the request by notice as provided in the ATC. Contractor agrees to be responsible for the fulfillment of all work elements included in any subcontract and agrees to be responsible for the payment of all monies due under any subcontract.

6. With regard to Work Assignments supported by quotes – subcontractors listed in such quotes will not be automatically added to the Authorized Subcontractor List

(in paragraph 19.A.2). Upon issuance of any Work Assignment based on such quote, all proposed subcontractors which have not previously been added to the Authorized

Subcontractor List shall be provisionally authorized to work on the subject Work

Assignment. Contractor shall require all such subcontractors to comply with requirements in paragraph 19 B. and 2.H.

B. Department shall not be liable to any subcontractor for any expenses or liabilities incurred under any subcontract, regardless of whether Department has approved such subcontract or subcontractor. Contractor shall be solely liable to its subcontractor(s) for all expenses and liabilities incurred under any subcontract. Any subcontracts made under or in performance of this Restated Contract must include the same conditions specified in this Contract, with the exception of insurance requirements (paragraph 17), and shall include a release of any rights, claims or liabilities against Department. The http://www.dep.state.fl.us/waste/quick_topics/publications/pss/pcp/procurement/ATC-Subcontractor-List.pdf http://www.dep.state.fl.us/waste/quick_topics/publications/pss/pcp/procurement/ATC-Subcontractor-List.pdf

DEP Restated Agency Term Contract No. GC871, Page 15 of 28 level of insurance to be carried by subcontractors performing work under this Restated

Contract shall be at the discretion of Contractor.

C. The terms of paragraph 2.H. above apply to any and all subcontracts for the performance of work under this Contract.

20. Access and Inspection. Department personnel, and personnel of a contracted Local Program or Team, shall be given access to and may observe and inspect work being performed under any Work Assignment under this Contract, including by any of the following methods:

A. Contractor shall provide access to any public records (as that term is used herein and

Chapter 119 Fla. Stats) created by or at the direction of Contractor under this Contract;

B. Contractor shall provide access to any location or facility on which Contractor is performing work, or storing or staging equipment, materials or documents;

C. Contractor shall permit inspection of any facility, equipment, practices, or operations required under any Work Assignment; and, D. Contractor 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 Assignment or Constraints.

21. Third Party Beneficiaries. This Restated Contract is neither intended nor shall it be construed to grant any rights, privileges or interest in any third party without the mutual written agreement of the parties hereto.

22. Suspension.

A. Work may be suspended as specified in Chapter 62-772, F.A.C. Department may also order Contractor in writing to suspend, delay or interrupt all or any part of the work under any Work Assignment for such period of time as Department may determine to be appropriate for any of the following reasons:

1. Contractor fails to timely and properly correct deficiencies in or performs unsatisfactory work;

2. Contractor’s insurer or surety notifies Department that any of its insurance or bonds has lapsed or will lapse, and Contractor fails to provide replacement insurance or bonds acceptable to Department before the cancellation date;

3. Contractor or subcontractor materially violates applicable Health and Safety requirements as specified in 29 CFR 1910.120 or other Constraints;

4. Department determines that there is a threat to the public health, safety or welfare that necessitates such suspension;

5. Contractor fails to maintain its qualified status with Department or to timely take steps to have its qualified status reinstated upon discovery; or

6. For the convenience of Department.

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B. If the performance of all or any part of the work is suspended, delayed or interrupted for an unreasonable period of time by an act of Department in administration of a Work

Assignment, or by Department’s failure to act within a reasonable time to review or approve an invoice, Department shall adjust the price of a Work Assignment

(excluding profit) necessarily caused by such unreasonable suspension, delay or interruption and modify the Work Assignment. However, no adjustment shall be made under this clause for any suspension, delay or interruption if and to the extent that:

1. Performance would have been suspended, delayed or interrupted by any other cause, including the fault or negligence of Contractor; or

2. Equitable adjustment is provided for (or excluded) under any other provision of this Contract.

C. Contractor shall not be compensated for work performed subsequent to a notice of suspension by Department.

23. Termination.

A. Department may terminate this Restated Contract at any time for cause, in the event of the failure of Contractor to fulfill any of its obligations under this Contract. Prior to termination, Department shall provide ten (10) calendar days written notice of its intent to terminate and shall provide Contractor an opportunity to consult with

Department regarding the reason(s) for termination.

B. Department may terminate this Restated Contract without cause and for its convenience by giving thirty (30) calendar days written notice to Contractor.

Termination for convenience shall not entitle either party to any indirect, special or resulting damages, lost profits, costs or penalties, and Contractor shall be entitled only to recover those amounts earned by it for authorized deliverables completed under any Work Assignment up to the date of termination (or as may be agreed to and required by Department for completion of all or any portion of a Work Assignment).

C. Department may terminate this Restated Contract in the event that Contractor merges with, into or acquires or is acquired by another ATC contractor. Such termination shall be a termination for convenience under this section.

24. Dispute Resolution.

A. In the event of any dispute, claim, question, or disagreement arising from or relating to this Contract, Work assigned hereunder, or the breach thereof, the parties hereto shall use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties.

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B. If a dispute develops, either Party may initiate the dispute resolution process by first writing a letter to the other party indicating the issue(s) in dispute and propose a solution by which to settle the dispute. The recipient of the letter shall respond within ten (10) days to the proposed solution. The recipient shall either agree to the proposed solution or propose an alternative solution including the possibility of a cash settlement. Correspondence shall continue in like manner until a settlement is reached or either party concludes that continued correspondence will not settle the dispute.

C. If correspondence does not resolve the dispute, the parties or their representatives shall meet on at least one occasion and attempt to resolve the matter on their own. The time and place, within fourteen (14) days of the last correspondence, shall be mutually agreeable to both parties.

D. If no agreement is reached resolving the dispute, the parties will submit to non-binding mediation to address any controversy or claim arising out of, or relating to this

Contract, changes or addendums to this Restated Contract or relating to any Work

Assignments, change orders or other disputes over deliverables. The mediation shall be conducted according to the Commercial Mediation Rules followed by the

American Arbitration Association, or such other rules as the parties may substitute therefore by agreement.

E. Either party may establish, in advance, the maximum amount of time and shared costs it will contribute for the mediation process. The parties shall be bound by the terms and conditions set forth in any Settlement Agreement executed by both parties. Both parties shall share the cost of the mediation dispute resolution process equally, although each party’s own attorneys and witnesses or specialists are the direct responsibility of that party, and their fees and expenses shall be the responsibility only of the party which retained or engaged them.

F. The parties may resort to judicial resolution only after the above alternate dispute resolution process has been exhausted. No dispute, claim, question, or disagreement arising from or relating to this Contract, any Work assigned hereunder, or any decision by the Department related hereto, shall constitute agency action (as that term is defined in Chapter 120, F.S.), and Contractor waives any right to raise such disputes or challenge such decisions in an administrative forum.

25. Public Records.

A. Contractor shall keep and maintain public records that ordinarily and necessarily would be required by Department in order to perform the services under this Contract.

B. Contractor shall provide the public with access to all records on the same terms and conditions that Department would provide public records thereto and at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes or as otherwise provided by law.

C. Contractor shall ensure that all public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law.

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D. Contractor shall meet all requirements for retaining public records and transfer, at no cost, to Department, all public records in possession of Contractor upon termination of the Contract. Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public disclosure requirements.