CN-370000-SW232.pdf

DEP Contract No. SW232

CONTRACT

THIS CONTRACT is entered into between the FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, whose address is 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000 (hereinafter referred to as the "Department") and INDUSTRIAL DIVERS CORP. INC., whose address is 2901 SW 3rd Avenue, # 5, Fort Lauderdale, Florida 33315 (hereinafter referred to as the "Contractor"), a Florida Corporation, to provide Osborne Reef Tire Abatement Services.

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

1. Services. The Department does hereby retain the Contractor to perform Osborne Reef Tire Abatement Services on a Task

Assignment Basis (copies of the Task Assignment Notification form and Task Assignment Change Order form are attached hereto and made a part hereof as Attachments A and B, respectively) as outlined in DEP Solicitation No. 2013012C and the Contractor’s response thereto, incorporated herein by reference, and in accordance with Attachment C, Scope of Services, attached hereto and made a part hereof. Any terms and conditions of the Contract which vary from those contained in the solicitation or the Contractor’s response thereto shall have precedence. The Contractor does hereby agree to perform such services upon the terms and conditions set forth in this Contract and all attachments and exhibits named herein which are attached hereto and incorporated by reference.

2. Work Assignment.

A. The Department shall authorize all work assignments utilizing a Task Assignment Notification Form or Task Assignment Change Order Form for the services to be provided under this Contract.

i. For purposes of this Contract, the following representatives identified herein are delegated the authority to execute Task Assignment and Task Assignment Change Order Forms for or on behalf of the Department.

a. For Task Assignments whose total value does not exceed $35,000:

Bureau Chief, Program Administrator

b. For Task Assignments whose total value is in excess of $35,000, but does not exceed $100,000:

Assistant Division Director

c. For Task Assignments whose total value is in excess of $100,000, but does not exceed $250,000:

Division Director

d. For Task Assignments whose total value is in excess of $250,000, but does not exceed $500,000:

Deputy Secretary, Chief of Staff

e. For Task Assignments whose total value is in excess of $500,000:

Secretary

B. The Contractor hereby agrees that the Contractor or its subcontractors shall not commence any work assignment until a Task Assignment has been fully executed by both the Department and the Contractor.

C. 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.

D. Notwithstanding any other provisions of this Contract, the Contractor may, at its sole discretion, elect not to participate in a proposed task assignment. Such election shall not preclude the Contractor from participating in other task assignments as the Department may request. The Contractor shall notify the Department orally, with

DEP Contract No. SW232, Page 1 of 12 confirmation in writing, within three (3) business days of receipt of a Task Assignment Notification Form, of the Contractor’s decision.

3. Standard of Care for Performance.

A. The Contractor shall perform as an independent contractor and not as an agent, representative, or employee of the Department.

B. The 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 Contactor.

C. The Contractor shall provide competent, suitably qualified personnel. The Contractor must provide notification to the Department Contract Manager of any changes in the Personnel identified in their response to the solicitation and/or upon execution of this Contract. Such notification shall include a detailed reason(s) for the need to change personnel and the Contractor’s documentation that proposed replacement personnel have equal or greater qualifications and experience.

4. Term of Contract. This Contract shall begin upon execution by both parties and remain in effect for a period of three (3) years, inclusive. In accordance with Section 287.058(2), Florida Statutes, the Contractor shall not be eligible for reimbursement for services rendered prior to the execution date of this Contract and the execution of Task Assignment Notification or Task Assignment Change Orders. Task Assignment/Task Assignment Change Order performance periods may not extend beyond the completion date of the Contract established above. This Contract may be renewed for a period that may not exceed three (3) years. Renewal of this Contract shall be in writing and subject to the same terms and conditions of this Contract. Renewal is contingent upon satisfactory performance by the Contractor and the availability of funds.

5. Annual Appropriation. The State of Florida's performance and obligation to pay under this Contract is contingent upon an annual appropriation by the Legislature.

6. Dispute Resolution. Any dispute concerning performance of the Contract shall be decided by the Department’s designated Contract Manager, who shall reduce the decision to writing and serve a copy on the Contractor. The decision shall be final and conclusive unless within ten (10) days from the date of receipt, the Contractor files with the Department a petition for administrative hearing. The Department’s decision on the petition shall be final, subject to the Contractor’s right to review pursuant to Chapter 120 of the Florida Statutes. Exhaustion of administrative remedies is an absolute condition precedent to the Contractor's ability to pursue any other form of dispute resolution;

provided, however, that the parties may employ the alternative dispute resolution procedures outlined in Chapter 120.

7. Project Management. The Department may contract, at its sole discretion, with a county government, municipality, or any other third party for the purpose of site security, supervision, project management and project oversight of specific sites. In the event that a third party contract exists, the third party’s Project Manager will act as the agent of the Department Contract Manager within the terms of their contract with the Department. Any dispute between the Contractor and the third party that involves Department contracts will be resolved by the Department Contract Manager. The Contractor shall report and communicate with the third party’s designated Project Manager. All reports, invoices, correspondence, written materials and communications shall be forwarded through the third party’s Project Manager to the Department’s Contract Manager. The Department shall designate and identify the name of the third party Project Manager and provide this information to the Contractor.

8. Compensation.

A. As consideration for the services rendered by the Contractor under the terms of this Contract, the

Department shall pay the Contractor on a fee schedule basis as specified each Task Assignment/Task Assignment Change Order form. It is hereby understood and agreed that the ceiling amount of this Contract shall not exceed $1,593,200.00 for the three (3) year term of the Contract. The initial funding increment under this Contract is set at $1,593,200.00. Based upon continued satisfactory performance and annual appropriations by the Legislature, the Department reserves the right to provide increments on funding on an “as needed” basis. The Contractor shall be notified, by certified letter from the Director, Division of Waste

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Management or the Program Administrator, Waste Permitting and Compliance Assistance Program, of any additional funding increments.

B. In no event shall the Contractor continue to perform services once the authorized funding increment amount of the Contract has been reached. It is understood and agreed that the Contractor shall not commence work on any task assignment that will exceed the balance of the current funding increment level until notice is received by the Contractor of an increase in funding. It is the Contractor’s responsibility to know when the authorized funding increment level has been reached. The Contractor hereby agrees that the Contractor or its subcontractors shall not commence work on a Task Assignment until said Task Assignment has been fully executed by both the Department and the Contractor.

C. If the Department exercises the renewal option as provided under paragraph 4 above, the Department reserves the right to increase the ceiling amount of the Contract to provide for the renewal period.

9. Payment Method.

A. The Contractor shall submit invoices in accordance with the schedule in each executed Task Assignment/Task

Assignment Change Order Form. Each invoice shall be itemized in accordance with Attachment D, Rate Schedule, attached hereto and made a part hereof. All invoices must be submitted in detail sufficient for a proper pre-audit and post-audit thereof. Attachment E, Subcontractor Utilization Report Form, shall be completed and submitted with each invoice. Failure to provide Attachment E with an invoice shall result in a delay in processing the invoice for payment. Final task invoices must be submitted within sixty (60) days of the completion of each task assignment. A final Contract invoice must be submitted to the Department no later than thirty (30) days following the completion date of the Contract, to assure the availability of funds for payment.

B. All rates contained in Attachment D, Schedule of Rates, shall be current and effective during the first twelve (12) months of the Contract. Thereafter, request for increases must be submitted at least sixty (60) calendar days prior to the anniversary date of the Contract in order for the request to be considered. Rate increases must be requested in writing to the Department and must be supported by a detailed justification which warrants the requested increase percentage (a maximum of 5% in any one year). The Department shall review the request, and supporting documentation, to determine whether an increase is warranted and, if so, what percentage of adjustment (increases not to exceed 5% in any one year) will be authorized by formal amendment to the Contract.

At any time either party may request a decrease in the rates. Each party shall review the other party’s written request. If an agreement cannot be reached regarding a decrease in the rates, the Contract may be terminated pursuant to paragraph 13, termination for convenience.

Failure to initiate a renegotiation of rates prior to the established time fame shall result in the continuation of the rates contained in the Contract until the next scheduled renegotiation date. The Department reserves the right to terminate renegotiations and continue work under existing rates or terminate the Contract if agreement is no reached by the renegotiation date.

C. Five (5) copies of each invoice, including appropriate backup documentation, shall be submitted to:

Department of Environmental Protection Bureau of Solid and Hazardous Waste

Attn: Michell Smith MS # 4565 2600 Blair Stone Road

Tallahassee, FL 32399-2400

D. In the event that a third party management contract is utilized, a deliverable or an invoice shall not be considered delivered to the Department until such time as it is received by the Department from the third party management contractor. Third party management contractors shall review and forward to the Department all invoices or deliverables received from the Contractor within fourteen (14) days of receipt. A final invoice shall be submitted to the Department no later than thirty (30) days following the completion date of the Contract to assure the availability of funding for final payment.

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10. Prompt Payment.

A. Pursuant to Section 215.422, Florida Statutes, the Department's Contract Manager shall have five (5) working days, unless otherwise specified herein, to inspect and approve the services for payment; the Department must submit a request for payment to the Florida Department of Financial Services within twenty (20) days; and the Department of Financial Services is given ten (10) days to issue a warrant. Days are calculated from the latter date the invoice is received or services received, inspected, and approved. Invoice payment requirements do not start until a proper and correct invoice has been received. Invoices which have to be returned to a contractor for correction(s) will result in a delay in the payment. A Vendor Ombudsman has been established within the Florida Department of Financial Services who may be contacted if a contractor is experiencing problems in obtaining timely payment(s) from a State of Florida agency. The Vendor Ombudsman may be contacted at 850-413-5516.

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

11. Subcontractor Payments and Releases. In addition to the invoicing requirements above, the following shall apply:

A. For all payments, excluding the final payment for a work assignment, the Contractor agrees to be responsible for the prompt payment of all subcontractors and vendors under this Contract within seven (7) working days from the date of receipt of payment from the Department. If the Contractor receives less than full payment from the Department for the services or goods of the subcontractors or vendors, the Contractor shall be required to disburse only the funds to the subcontractors and vendors in the same proportion as paid by the Department. Penalties for non-compliance and provisions for legal assistance are included in Subsection 287.0585(1), F.S.

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

C. The Contractor shall submit invoices to the Department within thirty (30) days after the date of the

Department’s written approval of each interim deliverable or the final deliverable specified in each Task Assignment. The Department shall have sixty (60) days for review of deliverables. It is understood and agreed by the Contractor that failure to submit interim invoices within this timeframe may result in forfeiture of retainage and failure to submit the final invoice within the timeframe may result in automatic closure of the Task Assignment and forfeiture of the unpaid balance of the Task Assignment.

12. Indemnification. The Contractor shall save and hold harmless and indemnify the State of Florida and the

Department against any and all liability, claims, judgments or costs of any kind and nature for injury to, or death of any person or persons and for the loss or damage to any property resulting from the use, service, operation or performance of work under the terms of this Contract, resulting from a negligent act or failure to act by the Contractor, or any of the employees, agents or representatives of the Contractor to the extent allowed by law.

13. Termination.

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

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

14. Financial Consequences for Unsatisfactory Performance. 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 the Department, within thirty (30) days of being notified of the unsatisfactory deliverable. If a satisfactory deliverable is not submitted within the specified timeframe, the Department may, in its sole discretion, either: 1) terminate the Contract for failure to perform, or 2) 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 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 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. The 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 or failure to correct a deficiency in the performance of the Contract as specified by the Department may result in termination of the Contract.

The remedies set forth above are not exclusive and the Department reserves the right to exercise other remedies in addition to or in lieu of those set forth above, as permitted by the Contract.

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

Contractor Department

Rocco Galletta Michell Smith (MS#4565) Industrial Divers Corp., Inc. Division of Waste Management 2901 SW 3rd Avenue, # 5 Florida Department of Environmental Protection Fort Lauderdale, Florida 33315 2600 Blair Stone Road idc@bellsouth.net Tallahassee, Florida 32399-2600 Michell.m.smith@dep.state.fl.us

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16. Identification of Contract Managers. The Department's Contract Manager Michell Smith, phone 850-245-8721.

The Contractor's Contract Manager is Rocco Galletta, phone 954-931-9245. All matters shall be directed to the Contract Managers for appropriate action or disposition.

17. Public Records.

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

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

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

D. The Contractor shall meet all requirements for retaining public records and transfer, at no cost, to the

Department all public records in possession of the Contractor upon termination of the Contract. The Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public disclosure requirements. All records that are stored electronically must be provided to the Department in a format that is compatible with the information technology systems of the Department.

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

18. Change Orders. The 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, time, method or manner of performance, requirements, etc.). Changes to Task Assignment Notification forms issued by the Department shall be evidenced by use of the Task Assignment Change Order form. All change orders are subject to the mutual agreement of both parties as evidenced in writing. Any change order, excluding Task Assignment Change Orders, which causes an increase or decrease in the Contractor's cost or time shall require formal amendment to this

19. P.R.I.D.E. It is expressly understood and agreed that any articles which are the subject of, or required to carry out, this Contract shall be purchased from the corporation identified under Chapter 946, Florida Statutes, if available, in the same manner and under the same procedures set forth in Section 946.515(2), (4), Florida Statutes; and for purposes of this Contract the person, firm or other business entity carrying out the provisions of this Contract shall be deemed to be substituted for this agency insofar as dealings with such corporation are concerned.

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

P.R.I.D.E.

12425 28th Street, North St. Petersburg, FL 33716-1826 Toll Free: 1-800-643-8459

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

20. RESPECT of Florida. It is expressly understood and agreed that any articles that are the subject of, or required to carry out, this Contract shall be purchased from a nonprofit agency for the blind or for the severely handicapped that is qualified pursuant to Chapter 413, Florida Statutes, in the same manner and under the same procedures set forth in Section 413.036(1) and (2), Florida Statutes; and for purposes of this Contract the person, firm, or other business entity carrying out the provisions of this Contract shall be deemed to be substituted for the state agency insofar as dealing with such qualified nonprofit agency are concerned.

DEP Contract No. SW232, Page 6 of 12 http://www.pride-enterprises.org/

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

RESPECT of Florida.

2475 Apalachee Parkway, Suite 205 Tallahassee, Florida 32301-4946 Telephone: (850) 487-1471 Website: www.respectofflorida.org

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

22. Conflict of Interest. The Contractor covenants that it presently has no interest and shall not acquire any interest which would conflict in any manner or degree with the performance of services required.

23. Forum Selection and Choice of Law. This Contract has been delivered in the State of Florida and shall be construed in accordance with the 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 hereon or in connection herewith shall be brought in Leon County, Florida.

24. Document Retention and Audit. The Contractor shall maintain books, records and documents directly pertinent to performance under this Contract in accordance with generally accepted accounting principles consistently applied. The Department, the State, or their authorized representatives shall have access to such records for audit purposes during the term of this Contract and for five (5) years following Contract completion. In the event any work is subcontracted, the Contractor shall similarly require each subcontractor to maintain and allow access to such records for audit purposes.

25. 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, Florida Statutes. The Contractor shall not copyright any material and products or patent any invention developed under this Contract.

26. Non-Waiver of Rights. No delay or failure to exercise any right, power or remedy accruing to either party upon breach or default by either 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.

27. Tax Exemption. The Contractor recognizes that the State of Florida, by virtue of its sovereignty, is not required to pay any taxes on the services or goods purchased under the terms of this Contract. The State does not pay Federal excise or sales taxes on direct purchases of tangible personal property. The State will not pay for any personal property taxes levied on the Contractor or for any taxes levied on employees’ wages. Any exceptions to this paragraph shall be explicitly noted by the Customer on a purchase order or other special contract condition.

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

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29. Nondiscrimination.

A. No person, on the grounds of race, creed, color, national origin, age, sex, 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. An entity or affiliate who has been placed on the discriminatory vendor list may not submit a bid on a contract to provide any 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 be awarded or 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. The Florida Department of Management Services 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.

30. Nonassignability and Subcontracting.

A. The Contractor shall not subcontract, assign, or transfer any work under this Contract, with the exception of Gold Coast Crane Service, Inc, without the prior written consent of the Department's Contract Manager.

Regardless of any subcontract, the Contractor is ultimately responsible for all work to be performed under this Contract. The Contractor agrees to be responsible for the fulfillment of all work elements included in any subcontract consented to by the Department and agrees to be responsible for the payment of all monies due under any subcontract. It is understood and agreed by the Contractor that the Department shall not be liable to any subcontractor for any expenses or liabilities incurred under the subcontract and that the Contractor shall be solely liable to the subcontractor for all expenses and liabilities incurred under the subcontract.

B. The Department of Environmental Protection supports diversity in its procurement program and requests that all subcontracting opportunities afforded by this Contract embrace diversity enthusiastically. The award of subcontracts should reflect the full diversity of the citizens of the State of Florida. The Department will be glad to furnish a list of minority owned businesses for consideration in subcontracting opportunities.

C. This Contract is an exclusive contract for services and may not be assigned in whole or in part without the written approval of the Department.

31. Insurance.

A. To the extent required by law, the Contractor will be self-insured against, or will secure and maintain during the life of this Contract, Workers' Compensation Insurance for all of his employees connected with the work of this project. Such self-insurance program or insurance coverage shall comply fully with the Florida Workers' Compensation law. Longshoremen’s and Harbormaster’s Insurance, Jones Act insurance, and comprehensive watercraft liability coverage, including protection and indemnity, with limits of not less than $1,000,000 each, shall be secured. Any contractor personnel working on or over water must provide certificates of workers compensation insurance including Longshoremen’s and Harbormaster’s Insurance and Jones Act insurance. In case any class of employees engaged in hazardous work under this Contract is not protected under the Workers' Compensation statute, the Contractor shall provide adequate insurance satisfactory to the Department, for the protection of his employees not otherwise protected.

B. The Contractor shall secure and maintain comprehensive general liability coverage with limits of not less than $1,000,000 per occurrence and $3,000,000 annual aggregate for bodily injury and property damage;

and comprehensive automobile liability coverage with limits of not less than $1,000,000 combined single limit. The Contractor's current certificate of insurance shall contain a provision that the insurance will not be canceled for any reason except after thirty (30) days written notice to the Department's Contracts Administrator and shall reference the DEP Contract No. (SW232).

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C. The Contractor shall provide an irrevocable letter of credit or performance bond in the amount of 50% of the task amount for each specific task assignment. Such instrument shall be provided at the time of submission, by the Contractor, of a signed task assignment notification forma and shall remain in force until the task assignment has been completed to the written satisfaction of the Department. If the Contractor fails to provide an irrevocable letter of credit or performance boned, the Department shall pursue contracting Osborne Reef Tire Abatement Services with another contractor.

32. Suspension.

A. The Department may order the Contractor in writing to suspend, delay or interrupt all or any part of the work for such period of time as the Department may determine to be appropriate for the convenience of the Department.

B. If the performance of all or any part of the work is suspended, delayed or interrupted for three (3) consecutive days during a task assignment by an act of the Department in administration of a task assignment, by the Department’s failure to act within the time specified in this agreement (or if no time is specified, within a reasonable time), or by a force majeure event, the Contractor shall be equitably compensated for non-operational costs associated with maintaining its work force and equipment during the interruption, or at the option of the Department for such similar charges for demobilization and subsequent remobilization as evidenced by a written amendment (task assignment change order form) to the task assignment such costs must be documented by the Contractor). The Department must be notified by Certified Mail, return receipt requested, of the date and time that standby rates begin to apply.

However, no adjustments shall be made under this clause for any suspension, delay or interruption to the extent:

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

2. For which an equitable adjustment is provided for or excluded under any other provision of this Contract.

B. No Claim for this clause shall be allowed:

1. For any costs incurred more than twenty (20) days before the Contractor notified the Department in writing of the act, or failure to act, involved (this requirement does not apply to a claim resulting from a suspension order), and

2. Unless the amount claimed is asserted in writing as soon as practicable after the termination of such suspension, delay or interruption, but not later than the date of final payment under the Contract.

33. Compliance with Applicable Law. The Contractor shall comply with all applicable federal, state and local rules and regulations in providing services to the Department under this Contract. The Contractor acknowledges that this requirement includes, but is not limited to, compliance with all applicable federal, state and local health and safety rules and regulations. The Contractor further agrees to include this provision in all subcontracts issued as a result of this Contract.

34. Public Entity Crimes. A person or affiliate 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 provided in Section 287.017, Florida Statutes, for Category Two, for a period of 36 months from the date of being placed on the convicted vendor list.

35. Disqualification.

A. The employment of unauthorized aliens by any 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. The Contractor shall be

DEP Contract No. SW232, Page 9 of 12 responsible for including this provision in all subcontracts with private organizations issued as a result of this Contract.

B. Pursuant to State of Florida Executive Orders Nos.: 11-02 and 11-116, Contractor is required to utilize the

U.S. Department of Homeland Security’s E-Verify system to verify the employment of all new employees hired by the Contractor during the contract term. Also, the Contractor shall include in related subcontracts a requirement that subcontractors performing work or providing services pursuant to the state contract utilize the E-Verify system to verify employment of all new employees hired by the subcontractor during the contract term.

36. Governmental Restrictions. If the Contractor believes that any governmental restrictions have been imposed that require alteration of the material, quality, workmanship or performance of the products offered under the Contract, the Contractor shall immediately notify the Customer in writing, indicating the specific restriction. The Customer reserves the right and the complete discretion to accept any such alteration or to cancel the Contract at no further expense to the Customer.

37. Modifications Required by Law. The 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; or to include changes necessitated by DEP rule changes.

38. Attorneys Fees. In the event of any legal action to enforce the terms of this Contract, each party shall bear its own attorneys fees and costs.

39. Remedies. All rights and remedies provided in this Contract are cumulative and not exclusive of any other rights or remedies that may be available to the Department, whether provided by law, equity, statute, in any other agreement between the parties or otherwise. Department shall be entitled to injunctive and other equitable relief, including, but not limited to, specific performance, to prevent a breach, continued breach or threatened breach of this Agreement. No remedy or election hereunder shall be deemed exclusive. A failure to exercise or a delay in exercising, on the part of the Department, any right, remedy, power or privilege hereunder shall not operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

40. 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 Agreement; 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 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. Unless otherwise specified, lists contained in the Contract shall not be deemed all-inclusive. Contractor acknowledges and agrees that it had the opportunity and obligation, prior to submission of its Response, to review the terms and conditions of the Contract and to bring to the attention of the Department any conflicts or ambiguities contained therein. Contractor further acknowledges and agrees that it has independently reviewed the 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) the Contract shall arise, the Contract shall not be

DEP Contract No. SW232, Page 10 of 12 interpreted or construed against the Department, and, instead, other rules of interpretation and construction shall be used.

41. 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.

42. Execution in Counterparts. This Contract 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.

43. MyFloridaMarketPlace Transaction Fee.

A. The State of Florida, through the Department of Management Services, has instituted MyFloridaMarketPlace, a statewide e-procurement system. Pursuant to Section 287.057(22)(c), Florida Statutes (2002), all payments shall be assessed a Transaction Fee of one percent (1%), which the Contractor shall pay the State.

B. For payments within the State accounting system (FLAIR or its successor), the Transaction Fee shall, when possible, be automatically deducted from payments to the vendor. If automatic deduction is not possible, the Contractor shall pay the Transaction Fee pursuant to Rule 60A-1.031(2), F.A.C. By submission of these reports and corresponding payments, the Contractor certifies their correctness. All such reports and payments shall be subject to audit by the State or its designee.

C. The Contractor shall receive a credit for any Transaction Fee paid by the vendor for the purchase of any item(s) if such item(s) are returned to the Contractor through no fault, act, or omission of the Contractor.

Notwithstanding the foregoing, a Transaction Fee is non-refundable when an item is rejected, returned, or declined, due to the Contractor’s failure to perform or comply with specifications or requirements of the

D. Failure to comply with these requirements shall constitute grounds for declaring the Contractor in default and recovering reprocurement costs from the Contractor in addition to all outstanding fees. VENDORS

DELINQUENT IN PAYING TRANSACTION FEES MAY BE EXCLUDED FROM CONDUCTING FUTURE

BUSINESS WITH THE STATE.

44. Hazardous Waste. The Contractor, or its subcontractors shall not be regarded as the generator or owner of hazardous waste, waste tires, waste tire materials or other substances unless those wastes were actually generated by the Contractor or its subcontractors or unless the Contractor and the Department specifically agree that the Contractor shall take possession or responsibility for the above referenced materials/wastes.

45. Force Majeure. The 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 or agents contributed to the delay and the delay is due directly to acts of God, wars, acts of public enemies, strikes, fires, floods, 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 ten (10) 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 five (5) 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 against the Department. The Contractor shall not be entitled to an increase in the Contract 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

DEP Contract No. SW232, Page 11 of 12

ATTACHMENT A

WASTE TIRE ABATEMENT MANAGEMENT TASK ASSIGNMENT NOTIFICATION

Task Assignment No.: _________________________________________ Assigned by: ___________________________

Site Name: __________________________________________________ Date: _________________________________

Location: ___________________________________________________________________________________________

DEP Contract Project Manager: (insert name) Address: Florida Department of Environmental Protection

2600 Blair Stone Road, MS4565 Tallahassee, Florida 32399-2400

Phone: (insert phone number) Fax: (insert fax number)

DEP Task Project Manager: (insert name) Address: Florida Department of Environmental Protection

2600 Blair Stone Road, MS4565 Tallahassee, Florida 32399-2400

Contractor’s Project Manager: (insert name) Address: (insert address)

Task Description (use additional pages if necessary:

Special Reports or Instructions:

Deliverables:

Performance Measures:

Period of Performance:

Task Assignment Completion Date:

Task Assignment Amount:

Fee Schedule Amount: $

DEP Contract No. SW232, Attachment A, Page 1 of 2

APPROVALS:

Date:

DEP Task Project Manager

Date:

DEP Contract Manager

Date:

DEP Cost Center Administrator

Date:

Contractor Representative

List of Attachments to be provided by the DEP:

SCOPE OF SERVICES (including deliverables & payment schedule)

Specifications

Authorization to Enter Property and Begin Work cc: BS&HW Administrative Assistant DEP Project Manager Bureau of Finance and Accounting, MS#78 (2 copies) Procurement Section, Contracts Office, MS#93

DEP Contract No. SW232, Attachment A, Page 2 of 2

ATTACHMENT B

TASK ASSIGNMENT CHANGE ORDER FORM

Task Assignment Number: ______________________________ Change Order #:_________________________________

Contractor Name: ________________________________________________________________________

Contractor Representative: ________________________________________________________________________

DEP Contract Manager: _______________________________________ Phone #:________________________

DEP Site #: ________________________________________________________________________

Site ID/Facility ID: ________________________________________________________________________

Description of Change (Use additional sheets if necessary):__________________________________________________

CHANGE IN TASK AMOUNT

Item

Fee Schedule

Total

Original task amount:

Task amount prior to this change order:

Net increase/decrease in task amount:

Task amount with all change orders:

CHANGE IN TASK TIME

Original Task Assignment Completion date:

Task Assignment Completion date prior to this Change Order:

Net increase/decrease in task period (days or weeks:

Task Assignment Completion Date with all Change Orders:

APPROVALS: Date

DEP Project Manager:

DEP Contract Manager:

Cost Center Administrator:

Contractor Representative:

cc: Procurement Section, Contracts Office, MS#93 Bureau of Finance & Accounting (MS78) - 2 copies

DEP Contract No. SW232, Attachment B, Page 1 of 1

ATTACHMENT C

SCOPE OF SERVICES

The scope of work described herein consists only of activities related to the removal of waste tires from Priority Area 1 as shown in the attached location map, Exhibit A. Tires will be removed by commercial divers as described in this specification. The Contractor shall provide all materials, labor, and equipment necessary to remove and transport the tires, as specified in the contract documents.

1.0 Responsibilities

1.1 CONTRACTOR

1.1.1 SUPPORT VESSEL, TOW VESSEL(S), and CREW: The Contractor shall provide a support vessel with current certificates of inspection capable of handling seas and such other wind, weather, and sea conditions that are typical for southeast Florida during the late spring through fall for all work offshore. The support vessel shall be equipped with a real-time Differential Global Positioning System (DGPS) able to navigate to a specific site. The support vessel shall be capable of anchoring or spudding for work in 70 ft depth. However, anchoring or spudding on hard bottom is prohibited. The support vessel and the crew shall be licensed and approved by the US Coast Guard for the scope of work required.

1.1.2 The Contractor shall provide all…