DEP Contract No. GC871, Page 2 of 21

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, 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 Contract shall be subject to applicable procedures, laws, rules and DEP guidance – including but not limited to those listed in Appendix I of the Solicitation, the provisions of which are incorporated herein by reference (Constraints). Contractor acknowledges and accepts that the Constraints are subject to periodic revision. This 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 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 Contract through one of the following methods (Work Assignments):

i. Both Department and Contractor may execute a Task Assignment Notification Form (“Assignment Form”) or Task Assignment Change Order Form (“Change Order Form”) (copies attached hereto and made a part hereof as Attachments B and C, respectively); or

ii. issuance of a MyFloridaMarketPlace (MFMP) purchase order (“PO”).

Contractor and its subcontractors shall not commence any Work Assignment until either 1) an

Assignment Form/Change Order Form has been fully executed by both Department and Contractor, or

2) an MFMP PO has been issued.

B. Department shall follow the process outlined in the current version of the Relative Capacity Index (RCI) for direct assignments of Services under this Contract. The current RCI is available at http://www.dep.state.fl.us/waste/categories/pcp/pages/selection_RCI.htm. Department may revise the RCI at any time upon not less than five (5) business notice. Notice shall be posted on the Petroleum Restoration Program website. For good cause, Department may assign Services to an ATC contractor outside its contract region. Rates for all direct assignments shall be at or below Contractor’s rates, provided as Attachment D (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, 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 http://www.dep.state.fl.us/waste/categories/pcp/pages/selection_RCI.htm

DEP Contract No. GC871, Page 3 of 21 participating in other Work Assignments as Department may request. Contractor shall notify Department orally, within three (3) business days of receipt of an Assignment Form or PO, 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.

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.

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. This Contract shall begin upon execution by both parties and shall authorize issuance of

Work Assignments by Department to Contractor for five (5) years from the date of execution, inclusive.

No Work Assignments shall be issued after the initial five (5) year period. However, the completion date of the Contract shall be determined by the latest completion date of any Work Assignment authorized during the five year term above.

B. Renewal term. This 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 Assignment Form, Change Order Form or PO. Payment shall be authorized by and for each Assignment Form, Change Order Form or PO. Contractor shall not be compensated for Services performed prior to authorization, or for Services that exceed the funding amount issued for each Assignment Form, Change Order Form or PO.

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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 either the executed Assignment Form or the PO. Terms and conditions of the PFP Work Assignment which conflict with those contained in this Contract shall have precedence and control.

6. Annual Appropriation. Department’s performance and obligation to pay under this 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 executed Assignment Form/Change Order

Form/PO. Each invoice shall be itemized in accordance with the authorized budget categories listed below and in Attachment D, attached hereto and made a part hereof, or shall be accompanied by an executed copy of the Task Assignment Notification Form/Task Assignment Change Order Form 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 Assignment Form or PO.

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 task assignment or PO. Contractor will submit the final invoice for each task assignment or PO 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.

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

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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, 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 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 Contract shall be at the unit costs for time as identified in Attachment D. 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. Include copies of invoices or receipts to document charges.

E. Handling Fee – No markups or handling fees will be allowed on subcontracted work or purchased capital equipment, though subcontractors may be used to provide or perform the scope of work identified in the Attachment D if identified and approved by Department.

F. Laboratory 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.

Blanks and duplicates shall be run as required but not invoiced to Department.

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

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, and treated as equipment identified in paragraph C above.

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.

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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 task assignment.

Department shall provide written notification to Contractor of identified deficiencies and Department’s intent to withhold retainage on the task 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 under the entire Work Assignment. 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.

iv. No retainage shall be released or paid for work on an uncompleted Work Assignment while a

Contract is suspended.

v. 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 and Releases. In addition to the invoicing requirements above, the following requirements for payment of invoices for Services shall apply:

A. Contemporaneous with all payments from Department, excluding the final payment for a Work

Assignment, Contractor shall pay all subcontractors and vendors under this 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.

B. Contractor shall submit, with each invoice for work where subcontractors or suppliers performed work during the invoice period on-site, lien waivers from each subcontractor or supplier for work done during the invoice period at the site.

10. Release of Claims. Upon satisfactory completion of each Work Assignment, Contractor shall execute and deliver to Department a release of all claims against Department arising under, or by virtue of, the Work Assignment, except claims which are specifically exempted by Contractor to be set forth therein (Contractor Release, using Attachment G - Contractor Affidavit/Release of Claims). Receipt by Department of Contractor’s Release is a condition of final payment under a Work Assignment. Unless otherwise provided in this Contract, by State law or otherwise expressly agreed to by the parties to this Contract, final payment under a Work Assignment or settlement upon termination of this Contract shall not constitute a release or waiver of Department’s claims against Contractor, or Contractor’s sureties, subcontractors, successors or assigns under this Contract or as against applicable performance and payment bonds.

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11. Rates.

A. Charges for rates or expenses which are not included in Attachment D, but which are required by

Department on an Assignment Form, shall be compensated at rates agreed to by Department and Contractor, and which rates shall be evidenced by an executed Assignment Form or PO. 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 Contract evidencing the rates mutually agreed to by both parties for inclusion in this Contract.

B. i. The rates in Attachment D, which will be viewed as maximum rates, shall be current and effective for the first twenty-four (24) months of this Contract. Contractor may request an increase in rates each year after the initial twenty-four (24) month term of this Contract, including during any renewal period(s).

ii. Requests for increases must be submitted at least sixty (60) calendar days prior to the anniversary date of this 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 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 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 Contract under its existing terms would result in a substantial loss.

12. Prompt Payment.

A. Department's Contract Manager shall have five (5) business days, unless otherwise specified herein, 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 Contract is in effect can be obtained

DEP Contract No. GC871, Page 8 of 21 from DFS’ Vendor Ombudsman at the telephone numbers provided above, or Department's Procurements Section at 850-245-2361, per Section 215.422, Florida Statutes.

13. Notice. All 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 read receipt, a courier service delivery receipt, other mail service delivery receipt or when acknowledged by recipient.

14. Identification of Contract Managers. Department and Contractor Contract Managers and contact information is provided on page 1 of this Contract. All matters shall be directed to the Contract Managers for appropriate action or disposition. Any changes to the Contract Manager information identified on page 1 must be noticed, in writing, to the other party within ten (10) calendar days of the 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) Department Contract Manager, by letter specifying the failure of performance under the Contract, request that a proposed Corrective Action Plan (CAP) be submitted by Contractor to Department.

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 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.

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 Assignment.

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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 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 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) 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 increased.

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 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.

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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 Task Assignment or Purchase Order issued pursuant to this 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 Contract under the antitrust laws of the United States and the State.

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

Department reserves the right to reject any proposed subcontractor based upon Department’s prior experience with subcontractor, subcontractor’s reputation, or Department’s lack of adequate assurance of performance by subcontractor. 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.

C. 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 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 level of insurance to be carried by subcontractors performing work under this Contract shall be at the discretion of Contractor.

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 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.

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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 safety laws 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.

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 Assignment Form, Change Order Form or PO. 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 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 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).

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C. Department may terminate this 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.

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 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 Fla.Stat.), 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.

DEP Contract No. GC871, Page 13 of 21

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. All records that are stored electronically must be provided to Department in a format that is accessible by and compatible with the information technology systems of Department.

E. This Contract may be unilaterally canceled by Department for Contractor’s failure or refusal to comply with any of the foregoing provision, or to allow public access to all documents, papers, letters, or other material made or received by Contractor in conjunction with this Contract, unless the records are claimed and determined to be exempt from Section 24(a) of Article I of the State Constitution and Section 119.07(1), Florida Statutes.

26. Change Orders. Changes to the quantities of units described in a Work Assignment, which changes do not require an increase in the compensable quantity of units authorized in a specific line item of a task on the site specific rate sheet of the Work Assignment, such changes may be requested in writing, reflected by email to, and email confirmation and acceptance by, DEP’s Site Manager. Any change which does require an increase in the compensable quantity of units authorized in a specific line item of a task on the site specific rate sheet of the Work Assignment or requires a change in the specified duration of a Work Assignment must be reflected in a Task Assignment Change Order Form or a PO Change Order in MFMP.

27. P.R.I.D.E. It is not anticipated by Department that any articles produced by P.R.I.D.E. will be necessary for

Contractor to carry out this Contract. However, it is Contractor’s responsibility to review available articles and comply with the following provision.

Any articles which are the subject of, or required to carry out, this Contract shall be purchased from the corporation identified under Chapter 946, F.S., if available, in the same manner and under the same procedures set forth in Section 946.515(2), (4), F.S.; and for purposes of this Contract the person, firm or other business entity carrying out the provisions of this Contract shall be deemed to be substituted for this agency insofar as dealings with such corporation are concerned.

The "Corporation identified" is PRISON REHABILITATIVE INDUSTRIES AND DIVERSIFIED ENTERPRISES, INC. (P.R.I.D.E.) which may be contacted at:

P.R.I.D.E.

12425 28th Street, North St. Petersburg, Florida 33716-1826 Toll Free: 1-800-643-8459 Website: http://www.pride-enterprises.org/

28. RESPECT of Florida. It is not anticipated by Department that any articles produced by RESPECT of Florida will be necessary for Contractor to carry out this Contract. However, it is Contractor’s responsibility to review available articles and comply with the following provision.

Any articles that are the subject of, or required to carry out, this Contract shall be purchased from a nonprofit agency for the blind or for the severely handicapped that is qualified pursuant to Chapter 413, Florida Statutes, in the same manner and under the same procedures set forth in Section 413.036(1) and (2), Florida Statutes;

and for purposes of this Contract the person, firm, or other business entity carrying out the provisions of this Contract shall be deemed to be substituted for the state agency insofar as dealing with such qualified nonprofit agency are concerned.

http://www.pride-enterprises.org/

DEP Contract No. GC871, Page 14 of 21

The "nonprofit agency” identified is RESPECT of Florida which may be contacted at:

RESPECT of Florida.

2475 Apalachee Parkway, Suite 205 Tallahassee, Florida 32301-4946

(850) 487-1471 Website: www.respectofflorida.org

29. Non-solicitation. Contractor warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for Contractor to solicit or secure this Contract and that it has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for Contractor any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award or making of this Contract.

30. Conflict of Interest.

A. Contractor covenants that it presently has no interest, and shall not acquire any interest, which would conflict in any manner or degree with its performance of this Contract or the Services required hereunder.

B. Department may seek recovery of the costs of cleanup of specific sites from any and all parties responsible for site contamination, and must anticipate the possibility of litigation arising from such efforts. To avoid a conflict-of-interest, or the appearance of a conflict-of-interest, Contractor shall notify Department in writing within five (5) days of Contractor’s discovery of any present or anticipated contractual or other business relationship between Contractor, or any of its subcontractors, and any of the persons or entities who are, or may be, responsible for contamination of a site on which it is assigned work. Department may notify Contractor of potentially responsible parties for site contamination, if such information is available to Department.

C. Following notice by Contractor of a potential conflict of interest, or discovery by Department of same, Department shall notify Contractor within ten (10) days of receipt of such notification whether or not it has identified a conflict or appearance of a conflict of interest with regard to the site.

D. Contractor or a subcontractor is deemed to have had a business relationship with one of the responsible parties for site contamination if it has had a relationship with a parent organization, or subsidiary, a predecessor or a successor of such party, or if it has been engaged by independent legal representatives on behalf of any such parties. In addition, Contractor will be conclusively determined to have a conflict of interest with regard to any site, if it has given or offered remuneration, in cash or in kind, directly or indirectly, to the site owner or operator, or his or her designee to obtain the work associated with such site.

E. Contractor shall describe all actions it has taken, or proposes to take, to avoid or to mitigate actual or apparent conflicts-of-interest. Department retains the right to investigate and determine whether Contractor has a conflict or appearance of a conflict of interest with regard to any site. Department may terminate this Contract if Department deems such termination to be in the best interest of the Department, or may terminate Contractor’s Work Assignment as to a particular site or sites, based upon its assessment of the potential conflict-of-interest.

F. 1. All owners, parties responsible for site rehabilitation, Contractors and subcontractors shall provide a statement executed under oath that no compensation, remuneration, or gift, of any kind, directly or indirectly, has been solicited, offered, accepted, paid, or received in exchange for the selection, designation or employment of Contractor or subcontractor in connection with the cleanup of an http://www.respectofflorida.org/

DEP Contract No. GC871, Page 15 of 21 eligible site, except for the compensation paid by the Department to Contractor pursuant to this

2. Contractor and its subcontractors shall provide a statement executed under oath that they have never paid, offered, or provided any compensation in exchange for being designated or hired to perform cleanup work, except for the compensation for the cleanup work paid by Department.

Such statements shall be provided to Department concurrent with the execution of the task assignments, work orders or contracts, pursuant to Chapter 2013-41, Section 29, Laws of Florida, effective through June 30, 2014.

31. Force Majeure. Contractor shall not be responsible for delay resulting from its failure to perform if neither the fault nor the negligence of Contractor or its employees, subcontractors or agents contributed to the delay and the delay is due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, hurricanes, or other similar cause wholly beyond Contractor’s control, or for any of the foregoing that affect subcontractors or suppliers if no alternate source of supply is available to Contractor. In case of any delay Contractor believes is excusable, Contractor shall notify Department in writing of the delay or potential delay and describe the cause of the delay either (1) within ten

(10) days after the cause that creates or will create the delay first arose, if Contractor could reasonably foresee that a delay could occur as a result, or (2) if delay is not reasonably foreseeable, within five (5) days after the date Contractor first had reason to believe that a delay could result. THE FOREGOING SHALL CONSTITUTE CONTRACTOR’S SOLE REMEDY OR EXCUSE WITH RESPECT TO DELAY. Providing notice in strict accordance with this paragraph is a condition precedent to such remedy.