CN-370000-MV267.pdf

DEP Contract No. MV267, Page 1 of 20 (Approved Template 02/02/2017)

DEP Contract No. MV267

CONTRACT

THIS CONTRACT is entered into between the FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (hereinafter referred to as "Department"), whose address is 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000 and MONROE COUNTY BOARD OF COUNTY COMMISSIONERS whose address is 500 Whitehead Street, Key West, Florida, 33040 (hereinafter referred to as "County"), a local government, to provide funding for the Monroe County Mobile Vessel Pumpout Service (“Service”).

WHEREAS, pursuant to line item 1567 of FY2017-2018 General Appropriations Act, funding has been appropriated by the Florida Legislature for the Monroe County Marine Sewage Pilot Program.

NOW, THEREFORE, the parties agree as follows:

SERVICES AND PERFORMANCE

1. SERVICE. Department does hereby retain, and County agrees to provide the Service in accordance with Attachment A, Scope of Work (the “Scope”) and all exhibits and Attachments named and incorporated herein by reference.

A. Department may suspend or terminate for cause payment for Service performed by the County or its Contractor under this or any other contract or agreement, if and in the event that the Department and County (or any of its affiliates or authorized contractor(s) 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 of competent jurisdiction.

B. The Service performed by the County or its Contractor under this Contract shall be performed in conjunction with, not in lieu of, other services provided under DEP Grant Agreement No. MV266.

2. WORK.

A. County, through separate contract with its Contractor, shall provide the Service specified in the Scope (“Work”) for the Service Period identified in Attachment A.

B. 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.

C. Department reserves the right to not authorize any Work, and may suspend or terminate for cause any Work assigned to County or its Contractor under this or any other contract or agreement, if and in the event that the Department and County (or any of its affiliates or authorized contractor(s)) 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. County and its Contractor, shall perform as an independent contractor and not as an agent, representative, or employee of the Department.

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

C. County, and its Contractor, shall provide competent, suitably qualified personnel. County 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 County’s documentation that proposed replacement personnel have equal or greater qualifications and experience.

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D. County, and its Contractor, shall perform the Service 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 until June 30, 2018.

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 a period no greater than the term above, or three

(3) years, whichever is longer. All renewals are contingent upon satisfactory performance by County. Renewals may be for the entire period or in increments.

☒ This Contract may not be renewed.

COMPENSATION

5. COMPENSATION.

A. As consideration for the Service rendered by the County, and its Contractor, under the terms of this Contract, the Department shall pay the County on a fixed fee basis up to a maximum of $500,000 for the completion of Work as specified in the Scope. Compensation for Service is payable in quarterly payments of $125,000, as further described in the Scope.

B. County shall not be compensated for Service performed outside of the Service Period defined in Attachment A, nor for Service that exceeds the funding amount specified herein or in any amendment to this Contract.

C. County shall not be compensated for any Service reported and compensated under this Contract that is reported for compensation under DEP Agreement No. MV266 or any other contract or agreement.

D. In no event shall the County, or its Contractor, continue to perform Services to be compensated for under this Contract once the authorized funding amount has been reached. The County, or its Contractor, shall not commence any work on any service the cost of which exceeds the balance of the current incremental funding amount until notice is received by the County of an increase in funding. It is the County’s responsibility to determine when the authorized incremental funding amount will be reached.

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 Scope 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.

A. County shall submit invoices as specified in the Scope. If subcontractors are used, the County shall complete and submit Attachment B, 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.

B. County shall submit the required Deliverables, as outlined in Paragraph B of the Scope (“Deliverables”), for the Department’s review and approval prior to reimbursement for its quarterly invoice.

C. County shall submit the required quarterly invoices, as outlined in Paragraph C of the Scope (“Cost and Invoicing”). All invoices submitted must be sufficient in detail for a proper pre-audit and post-audit review.

D. Department must approve the final Deliverable(s) before the County may submit final invoice and any forms.

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E. Deliverables and quarterly invoices, including appropriate supporting documentation as required herein, shall be submitted via email to the following:

Florida Department of Environmental Protection Clean Vessel Program Attn: Jessica Chui Email address: jessica.chui@dep.state.fl.us

F. County shall submit invoices to the Department by the 30th day following the close of each quarter.

G. After the close of each quarter for provision of the Service outlined in the Scope, County’s failure to submit invoices within this timeframe may result in forfeiture, suspension or termination of the remaining Service, or the County’s forfeiture of any unpaid balance for such Deliverables.

8. 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 shall be paid on a cost-reimbursement basis in accordance with the paragraph contained herein of this Contract.

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

A. County, 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 County receives less than full payment from the Department for the services or goods of the subcontractors or vendors, the County 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. County shall submit, with each quarterly invoice a statement provided by its Contractor performing Service under this Contract, confirming that the Contractor was paid by the County for the services performed during the prior invoice period. The statement should include the total number of pump-outs performed and the total amount of compensation received during the prior invoice period.

10. 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 Deliverables 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 County for correction(s) will result in an uncompensated delay in payment. A Vendor Ombudsman has been established within DFS who may be contacted if the County 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 County 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 the County 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, or the Department's Procurements Section at (850) 245-2361, per section 215.422, F.S.

mailto:jessica.chui@dep.state.fl.us

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11. REPORTS.

A. County shall utilize Attachment C, Quarterly Progress Report Form, to describe the Service performed during the reporting period, problems encountered, problem resolutions, scheduled updates, and proposed work for the next reporting period. Quarterly progress reports shall be submitted to the Department’s Contract Manager no later than thirty (30) calendar days following the completion of the quarterly reporting period. It is hereby understood and agreed by the parties that the term “quarterly” shall reflect the calendar quarters ending September 30, December 31, March 31, and June 30. The Department’s Contract Manager shall have five (5) business days to review the required reports and Deliverables submitted by the County.

B. County will identify the expected return on investment for this project and provide this information to the Governor’s Office of Policy and Budget (OPB) within three (3) months of execution of this Contract.

For each full calendar quarter thereafter, the County will provide quarterly update reports directly to OPB, no later than 20 calendar days after the end of each quarter, documenting the positive return on investment to the state that results from the County’s project and its use of funds provided under this Contract.

Quarterly Return on Investment Reports will continue until the County is instructed by OPB that no further reports are needed, or until the end of this Contract, whichever occurs first. All reports shall be submitted electronically to OPB at env.roi@laspbs.state.fl.us, and a copy of the same shall also be submitted to the Department at legislativeaffairs@dep.state.fl.us.

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

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

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

PARTY REPRESENTATIVES

13. 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.

14. 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 County Contract Managers and contact information are provided below:

County Department

Monroe County Board of County Commissioners Department of Environmental Protection 500 Whitehead Street Clean Vessel Program Key West, Florida 33040 3900 Commonwealth Blvd., MS# 30 Attn: Richard Jones Tallahassee, Florida 32399-2400 Phone: (305) 289-2805 Attn: Jessica Chui or successor Email: Jones-Rich@monroecounty-fl.gov Phone Number: (850) 245-2100 Email: jessica.chui@dep.state.fl.us mailto:env.roi@laspbs.state.fl.us mailto:legislativeaffairs@dep.state.fl.us mailto:Jones-Rich@monroecounty-fl.gov mailto:jessica.chui@dep.state.fl.us

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15. CHANGE ORDERS AND AMENDMENTS. Department may at any time, by written order designated to be a Change Order, make any change in the Scope of 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 County’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

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

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 County 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 County. 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.

17. 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 County shall re-perform the Service 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) request from the County agreement to a reduction in the amount payable; 2) suspend all Service until satisfactory performance is achieved, or 3) terminate the Contract for failure to perform.

18. 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 County 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 County in writing whether the CAP proposed has been accepted. If the CAP is not accepted, the County shall have ten (10) calendar

DEP Contract No. MV267, Page 6 of 20 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 County 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 County of any of its obligations under the Contract. In the event the CAP fails to correct or eliminate performance deficiencies by the County, 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 County shall estop the Department from subsequently asserting any deficiencies in performance. County 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.

19. 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 $____________.

☐ 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.

20. Liquidated Damages. An “X” beside the correct provision in this section signifies that the provision is applicable to the Contract.

☒ No liquidated damages will be assessed.

☐ In addition to other remedies elsewhere in this Contract, and as provided by law, unless otherwise stipulated in the Scope, the Contractor hereby covenants and agrees to pay liquidated damages to the Department as follows:

A. Contractor acknowledges that time is of the essence for all Service provided under this Contract, and whereas the actual damages to be suffered by late performance are incapable of accurate calculation, the parties agree to the following as a reasonable estimation thereof as liquidated damages. In addition to any other provisions of this Contract, in the event that the deliverable identified in the Scope, is not completed and submitted by the close of business on the date the deliverable is due, the compensation amount stated for that portion of the Work may be reduced by five percent (5%) per week for each week the deliverable is late, with the total amount of the liquidated damages not to exceed the total compensation amount of the Scope deliverable.

B. The date of submission shall be the date of receipt by the Department.

C. If no Department receipt date appears or the date is illegible, the date of submission shall be deemed to be five (5) days prior to receipt by the Contract Manager.

D. If completion is or will be justifiably delayed due to reasons as set out in paragraph contained herein, the Department may grant an extension of time as evidenced by a properly executed Amendment.

E. If the deliverable(s) fail to comply with the requirements of this Contract, or if questions arise from review and the Contractor is so notified and requested to respond, the Contractor shall furnish the required additions, deletions, or revisions in accordance with the Scope at no additional cost to the Department.

DEP Contract No. MV267, Page 7 of 20

F. If the additions, deletions, and revisions are not submitted to the Department's Contract Manager in accordance with the Scope, the compensation stated for that portion of the Work may be reduced by five percent (5%) for each week that the requested deliverable is late, as specified. The total reduction shall not exceed the total amount of the Work.

G. Contractor’s failure to respond to a request to correct the deliverables will result in termination of the Work and forfeiture of any unpaid balance for such deliverables. Additionally, the Department, at its discretion, may re-assign future 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. To the extent required by law, the County will be self-insured against, or will secure and maintain during the life of this Contract and any renewals, Workers' Compensation Insurance for all of its employees connected with the Service of this project. The County shall require any and all subcontractors, if authorized under this Contract, to provide Workers' Compensation Insurance for all employees unless such employees are covered by the protection afforded by the County. 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, the County shall provide, and cause each subcontractor to provide, adequate insurance satisfactory to the Department, for the protection of its employees not otherwise protected.

B. County shall secure and maintain, or provide evidence of self-insurance, and require any subcontractors, if authorized under this Contract, to secure and maintain the following types of insurance in the specified amounts during the life of the Contract and any renewals: An “X” beside the correct provision in this section signifies that the provision is applicable to the Contract.

☐ Comprehensive general liability coverage with limits of not less than $_______ per occurrence and $_________ annual aggregate

☒ Comprehensive general liability coverage is not required, if self-insured.

☐ Comprehensive automobile liability coverage with limits of not less than $___________ per occurrence and $___________ annual aggregate.

☒ Comprehensive automobile liability coverage is not required, if self-insured.

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☐ Professional liability coverage with limits of not less than $_________ per claim and $_________ per annual aggregate.

☒ Professional liability coverage is not required, if self-insured.

☐ Marine Insurance. Longshoremen’s and Harbormaster’s Insurance and Jones Act insurance in an amount sufficient to cover Contractor’s forces.

☒ Marine Insurance is not required, if self-insured.

C. County shall provide a certificate of insurance that contains a provision that the insurance will not be canceled for any reason on less than thirty (30) days written notice with the exception of non-payment of premium which requires a ten (10) day notice to the Department's Contract Manager and shall reference the Contract Number. In the event that the statutory insurance requirements are changed, coverage limits specified herein will change concurrently. Such insurance shall include the State of Florida, the Department, and the Program Area as the certificate holder for the entire length of the Contract and any renewals.

For additional risks, the State of Florida Board of Trustees of the Internal Improvement Trust Fund shall be added as Additional Insureds for the entire length of the Contract and any renewals. This provision does not apply to governmental entities which are self-insured.

23. INDEMNIFICATION. County and the Department shall each be solely responsible for the negligent or wrongful acts of its respective employees and agents acting within the scope of their employment.

Further, each party shall bear its own 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 its employees and agents acting within the scope of their employment.

However, nothing contained herein shall constitute a waiver by the Contractor or the Department of its sovereign immunity or waiver or modification of section 768.28, F.S.

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. County 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. County 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. County 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 the County.

25. NONASSIGNABILITY. County 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.

County 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 County from any and all Rights and Duties through a novation

DEP Contract No. MV267, Page 9 of 20 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 County. The foregoing notwithstanding, the County 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 County in writing to suspend, delay or interrupt all or any part of the

Service 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.) County fails to timely and properly correct deficiencies in or performs unsatisfactory work;

2.) County’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 County fails to provide replacement insurance or bonds acceptable to the Department before the insurance or bond cancellation or termination date;

3.) County 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 Service is suspended, delayed or interrupted for an unreasonable period of time by an act of the Department in administration of this Contract, 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 Service 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 County; or

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

C. County shall not be compensated for Service performed subsequent to a notice of suspension by Department unless the Department later issues to the County a written notice that the County has corrected the basis or bases for the earlier suspension, after which the County shall be compensated.

28. TERMINATION.

A. Department may terminate this Contract at any time for cause, in the event of the failure of the

County 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 County an opportunity to consult with the Department regarding the reason(s) for termination. The County 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 County. Termination for convenience shall not entitle either party to any indirect, special or resulting damages, lost profits, costs or penalties, and the County 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 Service in process).

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GENERAL CONDITIONS

29. 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.

30. CONFLICT OF INTEREST. County 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 Service required hereunder.

31. COMPLIANCE WITH APPLICABLE LAW. County shall comply with all applicable federal, state and local rules and regulations in providing Service 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.

32. DISQUALIFICATION.

A. The employment of unauthorized aliens by the County is considered a violation of Section

274A(e) of the Immigration and Nationality Act. If the County knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this Contract. County shall be responsible for including this provision in all subcontracts with private organizations issued as a result of this Contract.

B. County 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 County under this Contract, pursuant to State of Florida Executive Order No.: 11-116. Also, the County shall include in related subcontracts, if authorized under this Contract, a requirement that subcontractors performing work or providing Service 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 Service.

C. If Contract value exceeds one (1) million dollars, County certifies that it and any of its affiliates are not scrutinized companies as identified in section 287.135, F.S. In addition, County agrees to observe the requirements of section 287.135, F.S., for applicable sub-agreements entered into for Service under this Contract. Pursuant to section 287.135, F.S., the Department may immediately terminate this Contract for cause if the County, its affiliates, or its subcontractors are found to have submitted a false certification;

or if the County, its affiliates, or its subcontractors are placed on any applicable scrutinized companies list or engaged in prohibited contracting activity during the term of the Contract. As provided in Subsection 287.135(8), F.S., if federal law ceases to authorize these contracting prohibitions then they shall become inoperative.

33. 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.

34. FORCE MAJEURE. County shall not be responsible for delay resulting from its failure to perform if neither the fault nor the negligence of the County 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 County’s control, or for any of the foregoing that affect subcontractors or suppliers if no alternate source of supply is available to the County. In case of any delay the County believes is excusable, the County 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 County 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 County first had reason to believe that a delay could result. THE FOREGOING SHALL CONSTITUTE THE COUNTY’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 County against the Department. County shall not be entitled to an increase in the price or

DEP Contract No. MV267, Page 11 of 20 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 County 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 County, provided that the County 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 County 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.

35. 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.

36. GOVERNMENTAL RESTRICTIONS. If the County believes that any governmental restrictions require alteration of the material, quality, workmanship or performance of the Service offered under this Contract, the County 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. County’s failure to timely notify the Department of its asserted belief shall constitute a waiver of such claim.

37. 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.

38. 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 County. 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. No oral agreements or representations shall be valid or binding upon the Department or the County. No alteration or modification of the Contract terms, including substitution of product, shall be valid or binding against the Department. County may not unilaterally modify the terms of this Contract by affixing additional terms to product upon delivery (e.g., attachment or inclusion of standard preprinted forms, product literature, “shrink wrap” terms accompanying or affixed to a product, whether written or electronic) or by incorporating such terms onto the County’s order or fiscal forms or other documents forwarded by the County for payment. Department's acceptance of product or processing of documentation on forms furnished by the County for approval or payment shall not constitute acceptance of the proposed modification to terms and conditions.

39. INTERPRETATION OF CONTRACT.

A. Where appropriate: the singular includes the plural and vice versa; references to statutes or regulations include all statutory or regulatory provisions consolidating, amending or replacing the statute or regulation referred to; unless otherwise indicated references to Rules are to the adopted rules in the Florida Administrative Code; the words "including," "includes" and "include" shall be deemed to be followed by the words "without limitation"; unless otherwise indicated references to sections, appendices or schedules are to this Contract; words such as "herein," "hereof" and "hereunder" shall refer to the entire document in which they are contained and not to any particular provision or section; words not otherwise defined which have well-known technical or construction industry meanings, are used in accordance with such recognized meanings; references to Persons include their respective permitted successors and assigns and, in the

DEP Contract No. MV267, Page 12 of 20 case of Governmental Persons, Persons succeeding to their respective functions and capacities; and words of any gender used herein shall include each other gender where appropriate.

B. County acknowledges and agrees that it has independently reviewed this Contract with legal counsel, and that it has the requisite experience and sophistication to understand, interpret and agree to the particular language of the terms. Accordingly, if an ambiguity in (or dispute regarding the interpretation

of) this Contract shall arise, the Contract shall not be interpreted or construed against the Department, and, instead, other rules of interpretation and construction shall be used.

40. MODIFICATIONS REQUIRED BY LAW. Department reserves the right to revise this Contract to include additional language required by Federal agency(ies) or other sources awarding funding to the Department in support of this Contract, if applicable, and to include changes required by Florida Administrative Code rule changes.

41. MYFLORIDAMARKETPLACE TRANSACTION FEE. The State of Florida, through DMS, has instituted MyFloridaMarketPlace, a statewide e-procurement system. Pursuant to Rule 60A-1.031(3), Florida Administrative Code, payments under this Contract are exempt from the MyFloridaMarketPlace transaction fee.

42. NONDISCRIMINATION.

A. County certifies that no person, on the grounds of race, creed, color, religion, national origin, age, gender, or disability, shall be excluded from participation in; be denied the proceeds or benefits of; or be otherwise subjected to discrimination in performance of this Contract.

B. County certifies that neither it nor any affiliate is or has been placed on the discriminatory vendor list. An entity or affiliate who has been placed on the discriminatory vendor list may not submit a bid on a contract to provide goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not award or perform work as a contractor, supplier, subcontractor or consultant under contract with any public entity, and may not transact business with any public entity. The Florida Department of Management Services (“DMS”) is responsible for maintaining the discriminatory vendor list and posts the list on its website. Questions regarding the discriminatory vendor list may be directed to the Florida Department of Management Services, Office of Supplier Diversity at (850) 487-0915.

C. County shall comply with the Americans with Disabilities Act.

43. NON-SOLICITATION. County covenants and warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for the County 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 the County any fee, commission, percentage, gift or other consideration contingent upon or resulting from the award or making of this Contract.

44. NON-WAIVER OF RIGHTS. No delay or failure to exercise any right, power or remedy accruing to either party upon breach or default by the other party under this Contract, shall impair any such right, power or remedy of either party; nor shall such delay or failure be construed as a waiver of any such breach or default, or any similar breach or default thereafter.

45. ORDER OF PRECEDENCE. In the event of a conflict in terms between any of the components of this Contract, the order of precedence for resolving such conflict shall be as follows (1 being the highest precedence):

1. Body of this Contract;

2. Scope;

3. All other attachments to this Contract;

4. Documents, agreements and exhibits incorporated herein by reference;

DEP Contract No. MV267, Page 13 of 20

46. OWNERSHIP OF DOCUMENTS. All plans, specifications, maps, computer files, databases and/or reports prepared or obtained under this Contract, as well as data collected together with summaries and charts derived therefrom, shall be considered works made for hire and shall be and become the property of the Department upon completion or termination of this Contract, without restriction or limitation on their use, and shall be made available upon request to the Department at any time during the performance of such services and/or upon completion or termination of this Contract. Upon delivery to the Department of said document(s), the Department shall become the custodian thereof in accordance with Chapter 119, F.S. County shall not copyright any material and products or patent any invention developed under this Contract.

47. P.R.I.D.E. When possible, the County agrees that any articles which are the subject of, or required to carry out, this Contract shall be purchased from P.R.I.D.E. as specified in Chapter 946, F.S., if available, in the same manner and under the same procedures set forth in section 946.515(2) and (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 P.R.I.D.E. 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/

48. PUBLIC ENTITY CRIMES. A person or affiliate (as defined) who has been placed on the convicted vendor list following a conviction for a public entity crime may not perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount for Category…