CONTRACT NO. LE807

BETWEEN

FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

AND

AMERICAN COMPLIANCE TECHNOLOGIES DBA A-C-T ENVIRONMENTAL & INFRASTRUCTURE, INC.

THIS CONTRACT is entered into between the Department of Environmental Protection (Department), an agency of the State of Florida, and American Compliance Technologies dba A-C-T Environmental & Infrastructure, Inc. 1875 West Main Street, Bartow, Florida, 33830, (Contractor), a Corporation, to provide emergency response cleanup services.

NOW, THEREFORE, the parties agree as follows:

SERVICES AND PERFORMANCE

1. SERVICES. Department does hereby retain, and Contractor agrees to provide emergency response cleanup services (Services) for the Northwest, Northeast, Central and South Regions. These Services shall require the Contractor to respond to any situation determined by the Department to represent a threat to the public or the environment of the State of Florida. The Contractor shall provide these Services on an “as needed” basis, twenty-four (24) hours a day, seven (7) days a week, fifty-two (52) weeks a year. The Contractor shall provide all labor, supervision, equipment, materials, expertise, technical assistance, and expert witness services as required under this Contract. (Services), as described in 2020002 (“Solicitation”) and Contractor’s response thereto, incorporated herein by reference, and in accordance with Attachment A, Statement of Work (Scope) and all exhibits and Attachments named and incorporated herein by reference. Contractor has been determined to be a vendor to the Department under this Contract.

2. WORK.

A. Contractor shall provide the services specified in the Scope (“Work”). Department shall authorize all work assignments by Work Authorization Form (WAF)/Supplemental Form (WASF) (“Work Authorization”) (copies attached hereto and made a part hereof as Attachment C).

B. Contractor, or its subcontractors if authorized under this Contract, shall not commence Work until either 1) a WAF/WASF has been fully executed, by both Department and Contractor.

C. In the event services are required that are within the general description of services but are not specifically set out in the Scope or identified on the Rate Schedule (Attachment B), Department and Contractor reserve the right to negotiate the Work Authorizations covering performance of those required services. Refer to the Scope, Section 1.06 for cost plus fees.

D. There is no minimum amount of Work guaranteed as a result of this Contract. Any and all Work assigned will be at the sole discretion of the Department.

E. Department reserves the right to not authorize any Work and may suspend or terminate for cause any Work assigned to Contractor under this or any other contract, if and in the event that the 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 shall perform as an independent contractor and not as an agent, representative, or employee of the Department.

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

C. Contractor shall provide competent, suitably qualified personnel. Contractor must notify the Department’s Contract Manager of any changes in the personnel identified in this Contract.

Notification shall include a detailed explanation of the need to change personnel and the Contractor’s documentation that proposed replacement personnel have equal or greater qualifications and experience.

D. Contractor shall perform the services in a manner consistent with that level of care and skill ordinarily exercised by other contractors performing the same or similar services under similar circumstances at the time performed.

4. TERM OF CONTRACT.

A. Initial Term. This Contract shall begin upon execution by both parties and shall remain in effect for a period of five (5) years, inclusive.

B. Renewal Term. An “X” beside the correct provision in this section signifies that the provision is applicable to the Contract.

☒ This Contract may be renewed, in writing, on the same terms and conditions as the original

Contract and any amendments thereto, for five (5) years. All renewals are contingent upon satisfactory performance by Contractor. Renewals may be for the entire period or in increments.

☐ This Contract may not be renewed.

COMPENSATION

5. COMPENSATION.

A. As consideration for the Services rendered by Contractor under the terms of this Contract, the Department shall pay the Contractor on a fixed cost (as specified in the Attachment B, Rate Schedule) /cost reimbursement combination basis for the completion of Work as specified in the Scope per Region and the resulting Work Authorization.

B. Contractor shall not be compensated for Services performed prior to execution of this Contract and Work Authorization, nor for Services that exceed the funding amount specified herein, in the Work Authorization, or in any amendment to this Contract.

6. ANNUAL APPROPRIATION. Department's performance and obligation to pay under this Contract is contingent upon an annual appropriation by the Florida Legislature. Authorization for continuation and completion of Work and payment associated therewith may be rescinded with proper notice at the discretion of the Department if state or federal appropriations are reduced or eliminated.

7. PAYMENT METHOD. Contractor(s) shall submit invoices upon the completion of each Work Authorization assignment using the Contractual Services Invoice Form (Attachment E). The final invoice shall be submitted within thirty (30) days of completion of the assignment. All invoices must be submitted in detail sufficient for a proper pre-audit and post-audit. The invoice submission shall consist of the following documentation, as well as any additional documents and/or event specific guidelines.

A. One (1) copy of the invoice must be submitted by email to the Department Contract Manager.

B. Backup documentation to include the executed Work Authorization Form/Supplemental Form (Attachment C), all test results, profiles, manifest, certificates of disposal, DEP Office of Emergency Response Daily Report Form (Attachment D), and any other documents applicable to the Event.

C. One (1) hard copy of each invoice must be submitted by mail to the Department Contract Manager at the designated DEP address and it shall include the same backup documentation as the emailed version sent to the Contract Manager.

D. The Subcontractor Utilization Report Form (Attachment H) shall be included in both the emailed and hard copy mailed invoice submissions. Failure to provide a Subcontractor Utilization Report Form with an invoice shall result in a delay in processing the invoice for payment until such time as the appropriate information is provided to the Department. Subcontractors rates shall NOT exceed those identified in the Rate Schedule (Attachment B).

E. Due to different disposal timeframes, the Contractor may submit invoices for sub-work assignments completed in their entirety prior to the overall completion of an authorized work assignment. This must be authorized by the Department Contract Manager on a case-by-case basis.

F. In the event that a Work Authorization assignment will exceed six (6) months to complete, the Contractor may submit invoices on a monthly basis. The Department must approve in writing prior to signing the original Work Authorization Form an Event. Each monthly invoice shall be submitted as detailed above.

All vehicles, equipment, and supplies shall not exceed the Contract rates identified on the Rate Schedule

(Attachment B). Contractor invoices reflecting rates higher than the agreed upon Contract rates on the

Rate Schedule shall be rejected for payment and an amended invoice will be required.

8. INVOICING REQUIREMENTS FOR COST REIMBURSEMENT CONTRACTS. The following provisions apply to any cost reimbursement payments. The State of Florida DFS Reference Guide to State Expenditures requires detailed supporting documentation of all costs under a cost reimbursement contract. Contractor shall comply with the minimum Contract Payment Requirements (attached hereto and made a part hereof as Attachment J). 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 the Rate Schedule (Attachment B), must be substantiated by copies of invoices with backup documentation identical to that required from the Contractor. Invoices for reimbursement of fixed price subcontracts shall be documented by copies of the paid invoices.

B. Equipment – Purchase of equipment is NOT permitted on this Contract.

C. Rental/Lease of Equipment – Include copies of invoices or receipts to document charges. Any rental/lease of equipment not identified on the Rate Schedule (Attachment B), MUST be approved in https://www.myfloridacfo.com/Division/AA/Manuals/Auditing/Reference_Guide_For_State_Expenditures.pdf https://www.myfloridacfo.com/Division/AA/Manuals/Auditing/Reference_Guide_For_State_Expenditures.pdf

ADVANCE by the Department Contract Manager, or delegate, in writing or by verbal approval. These charges should not be common and will be listed by the Department delegate on the DEP Daily Form

D. Handling Fee – No markups or handling fees (fixed or percentage) will be allowed on subcontracted work or purchased equipment.

E. Travel – Travel costs shall be paid on a cost reimbursement basis in accordance with Section 112.061, Florida Statutes (F.S.). Travel shall be approved IN ADVANCE by the Department. These charges should not be common and will be listed by the Department delegate on the DEP Daily Form

F. Other Expenses –ANY EXPENSE not included on the Rate Schedule (Attachment B) or approved IN ADVANCE by the Department and notated on the DEP Daily Form shall not be reimbursed to the Contractor. Additionally, independent of the Contractor’s contract obligations to its subcontractor, the Department shall not reimburse any of the following types of charges: cell phone usage, attorney’s fees, civil or administrative penalties, or handling fees, such as set percent overages associated with purchasing supplies or equipment.

9. TRAVEL. An “X” beside the correct provision in this section signifies that the provision is applicable to the Contract.

☐ Travel is not authorized under this Contract.

☐ Travel costs are included in the fixed cost amounts of this Contract.

☒ Travel costs, if preapproved by the Department in writing, shall be paid on a cost-reimbursement basis in accordance with the paragraph contained herein of this Contract (Attachment J).

10. SUBCONTRACTOR PAYMENTS AND RELEASES. In addition to the invoicing requirements above, the following requirements for payment of invoices for Services shall apply if subcontractors are utilized:

A. Contractor shall pay all subcontractors and vendors under this Contract within seven (7) working days from the date of receipt of payment from the Department, excluding the final payment. If the Contractor receives less than full payment from the Department for the services or goods of the subcontractors or vendors, the Contractor shall pay subcontractors and vendors in at least the same proportion as that paid by the 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 previous invoice period, lien waivers or other documentation of payment from each subcontractor or supplier for Work done during the previous invoice period.

11. PROMPT PAYMENT.

A. Department's Contract Manager shall have five (5) business days, unless a greater period is specified herein, to inspect and approve an invoice. Department shall submit a request for payment to DFS within twenty (20) business days; and DFS shall issue a warrant within ten (10) business days thereafter. Days are calculated from the latter of the 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 the 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 a 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, F.S.

B. 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, the Department shall pay the Contractor interest at a rate as established by Section 55.03(1), F.S., on the unpaid balance of the invoice. Interest payments of less than $1 will not be issued unless Contractor requests such payment. The interest rate for each calendar year for which the term of this Contract is in effect can be obtained from DFS’ Vendor Ombudsman at the telephone numbers provided above, per Section 215.422, F.S.

12. RELEASE OF CLAIMS. Upon payment for satisfactory completion of any portion of the Work, the Contractor shall execute and deliver to the Department a release of all claims against the Department arising under, or by virtue of, the Work, except claims which are specifically exempted by the Contractor to be set forth therein (Contractor Release, using Attachment K, Contractor Affidavit/Release of Claims).

Receipt by the Department of the Contractor’s Release is a condition of final payment under this Contract.

Unless otherwise provided in this Contract, by State law or otherwise expressly agreed to by the parties to this Contract, final payment or settlement upon termination of this Contract shall not constitute a release or waiver of the Department’s claims against the Contractor, or the Contractor’s sureties, subcontractors, successors or assigns under this Contract or as against applicable performance and payment bonds.

13. PHYSICAL ACCESS AND INSPECTION. As applicable, the Department personnel shall be given access to and may observe and inspect Work being performed under this Contract, including by any of the following methods:

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

B. Contractor shall permit inspection of any facility, equipment, practices, or operations required in performance of any Work; and, C. 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 or legal requirements.

PARTY REPRESENTATIVES

14. NOTICE. All notices and written communication between the parties shall be sent by electronic mail, U.S. Mail, a courier delivery service, or delivered in person. Notices shall be considered delivered when reflected by an electronic mail read receipt, a courier service delivery receipt, other mail service delivery receipt, or when receipt is acknowledged by recipient.

15. IDENTIFICATION OF CONTRACT MANAGERS. All matters shall be directed to the Contract Managers for appropriate action or disposition. Any changes to the Contract Manager information identified below must be noticed, in writing, to the other party within ten (10) calendar days of the change. Either party may provide notice to the other party by email identifying a change of a designated Contract Manager and providing the new contact information for the newly designated Contract Manager. Such notice is sufficient to effectuate this change without requiring a written amendment to the Contract. Department and the Contractor Contract Managers and contact information are provided below:

Contractor Contract Manager Department Contract Manager

American Compliance Technologies dba A-C-T Environmental & Infrastructure, Inc.

1875 W. Main Street Bartow, Florida 33830 Attn: Ben Hilton Phone Number: (863) 533-2000, Ext. 247 Email: BHilton@A-C-T.com

Department of Environmental Protection Office of Emergency Response 3900 Commonwealth Blvd., MS 659 Tallahassee, Florida 32399-3000 Attn: Melissa Woehle Phone Number: (850) 245-2873 Email: Melissa.woehle@Florida DEP.gov

16. CHANGE ORDERS AND AMENDMENTS. Department may at any time, by written order designated to be a Change Order, make any change in the Work within the general scope of this Contract (e.g., specifications, method or manner of performance, requirements, etc.). All Change Orders are subject to the mutual agreement of both parties as evidenced in writing. Any change which causes an increase or decrease in Contractor’s cost or time shall require an appropriate adjustment and modification by Amendment to this Contract. Following execution of this Contract, any future Amendments or Change Orders may be executed by the Department representative with appropriate delegated authority.

CONSEQUENCES FOR FAILURE TO PERFORM

17. DISPUTE RESOLUTION. Any dispute concerning performance of the Contract shall be decided as follows:

A. All claims or disputes (Claims) must be presented to the Department in writing within thirty (30) days of the date such Claim arises (Notice of Dispute). The Notice of Dispute shall set out in detail all aspects of the disputed matters to be resolved, including the specific relief sought by the Contractor.

Claims not presented by Notice of Dispute to Contract Manager shall be deemed waived by the Contractor.

B. The parties shall make a good faith attempt to resolve Claims which may arise from time to time by informal conference within ten (10) days of the Notice of Dispute.

C. Within ten (10) days of the informal conference, the Department shall provide Contractor a detailed written response to the Claim. A formal conference of the parties shall be convened no later than thirty (30) days following the Department’s response to the Notice of Dispute, unless the parties mutually agree in writing to a longer period of time within which to schedule a formal conference.

1) All persons necessary to resolution of the claim or disputed matter shall attend the formal conference.

2) Minutes of the formal conference shall be taken, recorded, transcribed, and signed by the Department and the Contractor. Any terms of settlement and/or resolution reached shall be signed by all persons authorized to resolve the Claim.

D. Either party may request mediation of unresolved Claims, with the party seeking mediation to bear the expense of mediation.

E. Any Claim not resolved at formal conference or mediation, may be the subject of a complaint filed in a court of competent jurisdiction in Leon County, Florida.

mailto:BHilton@A-C-T.com mailto:BHilton@A-C-T.com mailto:Melissa.woehle@Florida mailto:Melissa.woehle@Florida

18. FINANCIAL CONSEQUENCES FOR UNSATISFACTORY PERFORMANCE.

A. No payment will be made for deliverables deemed unsatisfactory by the Department. In the event that a deliverable is deemed unsatisfactory by the Department, the 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.

B. If a satisfactory deliverable is not submitted within the specified time frame, the Department may, in its sole discretion: 1) assess liquidated damages as specified in the Contract and/or its attachments;

2) request from the Contractor agreement to a reduction in the amount payable; 3) suspend all Work until satisfactory performance is achieved, or 4) terminate the Contract for failure to perform.

19. CORRECTIVE ACTION PLAN. In the event that deliverables are unsatisfactory or are not submitted within the specified timeframe, the Department Contract Manager may, by letter specifying the failure of performance under the Contract, request that a proposed Corrective Action Plan (CAP) be submitted by the Contractor to the Department. All CAPs must be able to be implemented and performed in no more than sixty (60) days.

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

Within ten (10) calendar days of receipt of a CAP, the Department shall notify the Contractor in writing whether the CAP proposed has been accepted. If the CAP is not accepted, the Contractor shall have ten (10) calendar days from receipt of the Department letter rejecting the proposal to submit a revised proposed CAP. Failure to obtain the Department approval of a CAP as specified above shall result in the Department’s termination of the Contract for cause as authorized in the Contract.

B. Upon the Department’s notice of acceptance of a proposed CAP, the Contractor shall have ten

(10) calendar days, or longer if specified in the approved CAP, to commence implementation of the accepted plan. Acceptance of the proposed CAP by the Department does not relieve the Contractor of any of its obligations under the Contract. In the event the CAP fails to correct or eliminate performance deficiencies by the Contractor, the Department shall retain the right to require additional or further remedial steps, or to terminate the Contract for failure to perform. No actions approved by the Department or steps taken by the Contractor shall estop the Department from subsequently asserting any deficiencies in performance. Contractor shall continue to implement the CAP until all deficiencies are corrected. Reports on the progress of the CAP will be made to the Department as requested by the Department Contract Manager.

C. Failure to respond to a Department request for a CAP shall result in suspension or termination of the Contract.

20. PAYMENT AND PERFORMANCE BONDS. An “X” beside the correct provision in this section signifies that the provision is applicable to the Contract.

☒ No Payment or Performance bonds are required.

☐ Contractor shall provide executed Payment and Performance Bonds naming the Department as obligee, issued by a surety acceptable to the Department, in the amount(s) of $ insert amount.

☐ Contractor may be required to provide executed Payment and/or Performance Bonds naming the Department as obligee, issued by a surety acceptable to the Department, in an amount of up to one hundred and twenty percent (120%) of the total anticipated cost of any Work.

21. RETAINAGE

A. Department reserves the right to establish the amount and application of retainage on the Work to a maximum of 10%. Any retainage to be applied shall be specified in the Scope. Retainage shall be withheld from each payment to the Contractor pending satisfactory completion of Work and approval of all deliverables.

B. Department reserves the right to withhold payment of retainage for the Contractor’s failure to respond to or correct identified deficiencies within the timeframe stipulated in the Scope.

Department shall provide written notification to the Contractor of identified deficiencies and the Department’s intent to withhold retainage on the Work. Contractor’s failure to rectify the identified deficiency within the timeframe stated in the Department’s notice will result in forfeiture of retainage by the Contractor.

C. If the Contractor fails to perform the requested Scope 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 Scope. 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.

D. No retainage shall be released or paid for uncompleted Work while a Contract is suspended.

E. Except as otherwise provided above, the Contractor shall be paid the retainage associated with the Work, provided the Contractor has completed the work and submits an invoice for retainage held in accordance with paragraph contained herein above.

LIABILITY

22. INSURANCE.

A. Required Coverage. At all times during the Contract the Contractor, at its sole expense, shall maintain insurance coverage of such types and with such terms and limits described below. The limits of coverage under each policy maintained by the Contractor shall not be interpreted as limiting the Contractor’s liability and obligations under the Contract. All insurance policies shall be through insurers licensed and authorized to issue policies in Florida, or alternatively, Contractor may provide coverage through a self-insurance program established and operating under the laws of Florida.

Additional insurance requirements for this Contract may be required elsewhere in this Contract, or may be added to the Work Authorization Form, however the minimum insurance requirements applicable to this Contract are:

i. Commercial General Liability Insurance. The Contractor shall provide adequate commercial general liability insurance coverage and hold such liability insurance at all times during the Contract. The Department of Environmental Protection, its employees, and officers shall be named as an additional insured on any general liability policies. The minimum limits shall be $200,000 each individual’s claim and $300,000 each occurrence.

ii. Workers’ Compensation and Employer’s Liability Coverage. The Contractor shall provide workers’ compensation, in accordance with Chapter 440, F.S., and employer’s liability insurance with minimum limits of $100,000 per accident, $100,000 per person, and $500,000 policy aggregate. Such policies shall cover all employees engaged in any work under the Contract.

iii. Commercial Automobile Insurance. If the Contractor’s duties include the use of a commercial vehicle, the Contractor shall maintain automobile liability, bodily injury, and property damage coverage. Insuring clauses for both bodily injury and property damage shall provide coverage on an occurrence basis. The Department of Environmental Protection, its employees, and officers shall be named as an additional insured on any automobile insurance policy. The minimum limits shall be as follows:

• $200,000/300,000 Automobile Liability Combined Single Limit for Company-Owned Vehicles, if applicable

• $200,000/300,000 Hired and Non-owned Automobile Liability Coverage

iv. Other Insurance. Additional insurance may be required by federal law, where applicable, if any work proceeds over or adjacent to water, including but not limited to Jones Act, Longshoreman’s and Harbor Worker’s, or the inclusion of any applicable rider to worker’s compensation insurance, and any necessary watercraft insurance, with limits of not less than $300,000 each. Questions concerning required coverage should be directed to the U.S.

Department of Labor (http://www.dol.gov/owcp/dlhwc/lscontac.htm) or to the parties’ insurance carrier.

B. Insurance Requirements for Sub-Contractors. Department shall not be liable to any subcontractor for any expenses or liabilities incurred under any subcontract, regardless of whether the 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 contained herein), and shall include a release of any rights, claims or liabilities against the Department. The level of insurance to be carried by subcontractors performing work under this Contract shall be at the discretion of Contractor.

C. Exceptions to Additional Insured Requirements. If the Contractor’s insurance is provided through an insurance trust, the Contractor shall instead add the Department of Environmental Protection, its employees, and officers as an additional covered party everywhere the Contract requires them to be added as an additional insured. Further, notwithstanding the requirements above, if Contractor is self-insured, then the Department of Environmental Protection, its employees, and officers do not need to be listed as additional insureds.

D. Deductibles. The Department shall be exempt from, and in no way liable for, any sums of money representing a deductible in any insurance policy. The payment of such deductible shall be the sole responsibility of the Contractor providing such insurance.

E. Proof of Insurance. Upon execution of this Contract, the Contractor shall provide the Department documentation demonstrating the existence and amount for each type of applicable insurance coverage prior to performance of any work under this Contract. Upon receipt of written request from the Department, the Contractor shall furnish the Department with proof of applicable insurance coverage by standard form certificates of insurance, a self-insured authorization, or other certification of self-insurance.

F. Failure to Maintain Coverage. In the event that any applicable coverage is cancelled by the insurer for any reason, the Contractor shall immediately notify the Department of such cancellation and shall obtain adequate replacement coverage conforming to the requirements herein and provide proof of such replacement coverage within ten (10) calendar days after the cancellation of coverage.

http://www.dol.gov/owcp/dlhwc/lscontac.htm http://www.dol.gov/owcp/dlhwc/lscontac.htm

23. 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 of Florida, the Department, and the State of Florida Board of Trustees of the Internal Improvement Trust Fund, 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 the 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 of Florida, the Department, and the State of Florida Board of Trustees of the Internal Improvement Trust Fund.

B. Further, the 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 the Department’s misuse or modification of the Contractor’s products or the Department’s operation or use of the Contractor’s products in a manner not contemplated by this Contract. If any product is the subject of an infringement suit, or in the Contractor’s opinion is likely to become the subject of such a suit, the Contractor may at its sole expense procure for the Department the right to continue using the product or to modify it to become non-infringing. If the Contractor is not reasonably able to modify or otherwise secure the Department the right to continue using the product, the Contractor shall remove the product and refund the Department the amounts paid in excess of a reasonable rental for past use. Department shall not be liable for any royalties.

C. The Contractor’s obligations under the preceding two (2) paragraphs with respect to any legal action are contingent upon the State or the Department giving Contractor 1) written notice of any action or threatened action, 2) the opportunity to take over and settle or defend any such action at the Contractor’s sole expense, and 3) assistance in defending the action at the Contractor’s sole expense.

THIRD PARTIES

24. SUBCONTRACTING. An “X” beside the correct provision in this section signifies that the provision is applicable to the Contract.

☐ Contractor shall not subcontract any work under this Contract.

☒ A. Contractor shall not subcontract any work under this Contract without the prior written consent of the Department's Contract Manager. Department reserves the right to reject any proposed subcontractor based upon the Department’s prior experience with subcontractor, subcontractor’s reputation, or the 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.

B. Department shall not be liable to any subcontractor for any expenses or liabilities incurred under any subcontract, regardless of whether the 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 contained herein), and shall include a release of any rights, claims or liabilities against the Department. The level of insurance to be carried by subcontractors performing work under this Contract shall be at the discretion of Contractor.

25. NONASSIGNABILITY. Contractor shall not sell, assign or transfer any of its rights, duties or obligations under this Contract (its Rights and Duties), without the prior written consent of the 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 the Department. However, the Department may expressly release the Contractor from any and all Rights and Duties through a novation accompanying an approved assignment. Department may assign the Department’s Rights and Duties but shall give prior written notice of its intent to do so to the Contractor. The foregoing notwithstanding, the 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.

26. 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.

SUSPENSION AND TERMINATION

27. SUSPENSION.

A. Department may order the Contractor in writing to suspend, delay or interrupt all or any part of the Work for failure to perform, or as otherwise specified herein, such period of time as the 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 or subcontractor’s insurer or surety notifies the Department that any of its required insurance or bonds has lapsed or will lapse, and the Contractor fails to provide replacement insurance or bonds acceptable to the Department before the insurance or bond cancellation or termination 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; or

5.) For the convenience of the 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 the Department in administration of the Work, or by the Department’s failure to act within a reasonable time to review or approve an invoice, the Department shall provide an equitable extension of the time allowed to complete the Work and modify the Scope accordingly. 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 the 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.

28. TERMINATION.

A. Department may terminate this Contract at any time for cause, in the event of the failure of the Contractor to fulfill any of its obligations. Prior to termination, the Department shall provide ten (10) calendar days written notice of its intent to terminate for cause, including the reasons for such, and shall provide the Contractor an opportunity to consult with the Department regarding the reason(s) for termination. Contractor may be afforded the possibility of curing any default at the sole discretion of the Department.

B. The Department may terminate this Contract without cause and for its convenience by giving thirty (30) calendar days written notice to the Contractor. Termination for convenience shall not entitle either party to any indirect, special or resulting damages, lost profits, costs or penalties, and the Contractor shall be entitled only to recover those amounts earned by it for authorized deliverables completed up to the date of termination (or as may be agreed to in writing by the Department for completion of all or any portion of the Work in process).

SPECIAL CONDITIONS

29. ADDITIONAL QUANTITIES. For a period not exceeding the term of this contract, the Department reserves the right to acquire additional quantities on an as-needed basis, depending on the availability of funds, at the same unit price(s), terms and conditions.

NOTE: This section supersedes the General Contract Conditions (PUR-1000), Paragraph 5, Additional Quantities.

30. ADDITIONS / DELETIONS. During the term of the Contract resulting from this bid, the Department shall have the right to make product changes that result in additions, deletions, or revisions to awarded items / services. Specifications and prices of items added or revised must be agreed upon in writing by both the Department and Contractor. Prices of added or revised items shall be mutually agreed upon by the Department and Contractor.

31. DISCLOSURE OF LITIGATION. The Contractor shall promptly notify the Department of any criminal litigation, investigations or proceedings which arise during the term involving the Contractor, or, to the extent the contractor is aware, any of the Contractor's subcontractors or any of the foregoing entities' then-current officers or directors. In addition, the Contractor shall promptly notify the Department of any civil litigation, arbitration or proceeding which arises during the term of the contract and extensions thereto, to which the contractor (or, to the extent the Contractor is aware, any Subcontractor hereunder) is a party, and which involves:

A claim or written allegation of fraud against the Contractor or, to the extent the contractor is aware, any subcontractor hereunder by a governmental or public entity arising out of their business dealings with governmental or public entities. All notices under this section must be provided to the Department within thirty (30) business days following the date on which the contractor first becomes aware of any such litigation, investigation, arbitration or other proceeding (collectively, a Proceeding). Details of settlements, which are prevented from disclosure by the terms of the settlement, may be annotated as such.

32. STEP-IN RIGHTS. For noncompliance by the Contractor with Work Authorizations related to unreasonable delays, abandonment of work, failure to resume work (“Abandoned Tasks”) that has been discontinued within a reasonable time after notice to do so, the Department at its option may enforce these provisions by exercising “Step-In” rights as described below:

A. If the Department exercises its Step-In rights, the Contractor must cooperate fully with the

Department (including its personnel and any third parties acting on behalf of the Department) and shall provide, at no additional charge to the Department, all assistance reasonably required by the

Department as soon as possible, including:

1) providing access to all relevant equipment, premises and software under the Contractor’s control as required by the Department (or its nominee); and

2) ensuring that the Contractor personnel normally engaged in the provision of the Abandoned

Tasks are available to the Department to provide assistance which the Department may reasonably request.

B. The Department’s Step-In rights will end, and the Department will hand back the responsibility to the

Contractor, when the Contractor demonstrates to the Department’s reasonable satisfaction that the

Contractor is capable of resuming provision of the affected Abandoned Tasks in accordance with the requirements of the Contract section and that the circumstances giving rise to the Step-In right cease to exist and will not recur.

C. The Contractor must reimburse the Department for all reasonable costs incurred by the Department

(including reasonable payments made to third parties) in connection with the Department’s exercise of

Step-In rights and provision of the affected Tasks (Step-In Costs).

D. The Department will continue to pay the Contractor the charges Contractor will continue to retain its fee as applicable due for the products or services, provided that the Contractor reimburses the

Department for the Step-In Costs. If the Contractor fails to reimburse the Department within 30 days of receipt of the Department’s demand for payment of Step-In Costs, the Department is entitled to set off such Step-In Costs against a subsequent invoice pursue other remedies to receive reimbursement for

Step-In Costs.

33. CONTRACTOR PERSONNEL CHANGES. The Contractor shall have the right to remove its personnel that are currently performing under this Contract and to substitute other qualified personnel provided that the Department Contract Manager is notified of such removal and replacement. The Contractor shall notify the Contract Manager within 30 days of such change, giving the new employee's name, contact information, and technical qualifications. Any removals or replacements for the convenience of the Contractor shall be at no additional cost to the Department.

GENERAL CONDITIONS

34. ATTORNEY’S FEES. In the event of any legal action to enforce the terms of this Contract, each party shall bear its own attorney’s fees and costs.

35. CONFLICT OF INTEREST. Contractor covenants and warrants 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.

36. COMPLIANCE WITH APPLICABLE LAW. Contractor shall comply with all applicable federal, state and local rules and regulations in providing services to the Department under this Contract including, but not limited to, local health and safety rules and regulations. This provision shall be included in all subcontracts issued as a result of this Contract.

37. DISQUALIFICATION.

A. The employment of unauthorized aliens by the Contractor/vendor is considered a violation of Section 274A(e) of the Immigration and Nationality Act. If the Contractor knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this Contract.

Contractor shall be responsible for including this provision in all subcontracts with private organizations issued as a result of this Contract.

B. Contractor is required to use the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all employees used by the Contractor under this Contract, pursuant to State of Florida Executive Order No.: 11-116. Also, the Contractor shall include in related subcontracts, if authorized under this Contract, a requirement that subcontractors performing work or providing services pursuant to this Contract utilize the E-Verify system to verify employment eligibility of all employees used by the subcontractor for the performance of the Work.

38. EXECUTION IN COUNTERPARTS. This Contract, and any Change Orders or Amendments thereto, may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a ".pdf" format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or ".pdf" signature page were an original thereof.

39. FORCE MAJEURE. Contractor shall not be responsible for delay resulting from its failure to perform if neither the fault nor the negligence of the 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 the Contractor’s control, or for any of the foregoing that affect subcontractors or suppliers if no alternate source of supply is available to the Contractor. In case of any delay the Contractor believes is excusable, the Contractor shall notify the Department in writing of the delay or potential delay and describe the cause of the delay either 1) within five (5) days after the cause that creates or will create the delay first arose, if the Contractor could reasonably foresee that a delay could occur as a result, or 2) if delay is not reasonably foreseeable, within ten (10) days after the date the Contractor first had reason to believe that a delay could result. THE FOREGOING SHALL CONSTITUTE THE 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. No claim for damages, other than for an extension of time, shall be asserted by the Contractor against the Department. Contractor shall not be entitled to an increase in the price or payment of any kind from the Department for direct, indirect, consequential, impact or other costs, expenses or damages, including but not limited to costs of acceleration or inefficiency, arising because of delay, disruption, interference, or hindrance from any cause whatsoever.

If performance is suspended or delayed, in whole or in part, due to any of the causes described in this paragraph, after the causes have ceased to exist the Contractor shall perform at no increased cost, unless the Department determines, in its sole discretion, that the delay will significantly impair the value of the Contract to the State or to the Department, in which case the Department may 1) accept allocated performance or deliveries from the Contractor, provided that the Contractor grants preferential treatment to the Department with respect to products subjected to allocation, or 2) purchase from other sources (without recourse to and by the Contractor for the related costs and expenses) to replace all or part of the products that are the subject of the delay, which purchases may be deducted from the Contract quantity, or

3) terminate the Contract in whole or in part.

40. FORUM SELECTION, SEVERABILITY, AND CHOICE OF LAW. This Contract has been delivered in the State of Florida and shall be construed in accordance with substantive and procedural laws of Florida.

Wherever possible, each provision of this Contract shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Contract shall be prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Contract. Any action in connection with this Contract shall be brought in a court of competent jurisdiction located in Leon County, Florida.

41. GOVERNMENTAL RESTRICTIONS. If the Contractor believes that any governmental restrictions require alteration of the material, quality, workmanship or performance of the products offered under this Contract, the Contractor shall immediately notify the Department so in writing, identifying the specific restriction and alteration. Department reserves the right and the complete discretion to accept any such alteration or to cancel the Contract at no further expense to the Department. Contractor’s failure to timely notify the Department of its asserted belief shall constitute a waiver of such claim.

42. HEADINGS. The headings contained herein are for convenience only, do not constitute a part of this Contract and shall not be deemed to limit or affect any of the provisions hereof.

43. INTEGRATION. This Contract contains all the terms and conditions agreed upon by the parties, which terms and conditions shall govern all transactions between the Department and the Contractor. Any alterations, variations, changes, modifications or waivers of provisions of this Contract shall only be valid when they have been reduced to writing, duly signed by each of the parties hereto, and attached to the original of this Contract, unless otherwise provided herein.