DEP Contract No. WQ035, Page 1 of 26

DEP Contract No. WQ035

CONTRACT

THIS CONTRACT is entered into between the FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION (hereinafter referred to as the "Department") and Dynamic Solutions, LLC whose address is 6421 Deane Hill Drive, Suite 1, Knoxville, Tennessee 37919 (hereinafter referred to as the "Contractor"), a Limited Liability Company, to provide support services for Total Maximum Daily Load (TMDL) Pollutant Modeling Development Support and Related Services. The support services will provide expert skills and experience in applications of hydrology and water quality modeling for watersheds and hydraulics, hydrodynamics, and water quality modeling for receiving waters used by the Water Quality Evaluation and TMDL Program in developing TMDLs. Services will also support development of the following: applying models for evaluation of alternative pollutant management actions and development of Basin Management Action Plans (BMAPs) in support of the Water Quality Restoration Program, evaluation of water quality criteria, and development of Site Specific Alternative Criteria (SSAC), Water Quality Based Effluent Limitations (WQBELs), and non-TMDL alternatives such as Reasonable Assurance (RA) Plans.

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 provide support services for TMDL Pollutant Modeling Development Support and Related Services, as defined herein and the Contractor does hereby agree to perform such services as outlined in Department Solicitation No. 2016004C and Contractor’s response thereto, incorporated herein by reference, and in accordance with Attachment A, Scope of Services, attached hereto and made a part hereof. Any terms and conditions of this Contract which vary from those contained in the Solicitation or Contractor’s response thereto shall have precedence. The Contractor does hereby agree to conduct these services for the Department upon the terms and conditions set forth in this Contract and all attachments named herein which are attached hereto and incorporated by reference. The Contractor has been determined to be a vendor to the Department under this Contract.

2. 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.

3. Term of Contract.

A. Initial Term. This Contract shall begin upon execution by both parties and remain in effect for two

(2) years, inclusive. In accordance with Section 287.058(2), Florida Statutes (F.S.), the Contractor shall not be eligible for reimbursement for services rendered prior to the execution date of the Contract.

B. Renewal Term. This Contract may be renewed, in writing, on the same terms and conditions for a period no greater than three (3) years or the original term of the Contract. All renewals are contingent upon satisfactory performance by the Contractor and the availability of funds.

4. Work Assignment.

A. The Department shall authorize all work assignments utilizing a Task Assignment Form or Task

Assignment Change Order Form (copies attached hereto and made a part hereof as Attachment C and D, respectively) for the products and services to be provided under this Contract.

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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. In the event that services are required to be performed that are not specifically set out in Attachment A, but are within the general scope of the services, the Department and the Contractor hereby reserve the right to negotiate task assignments covering the required services.

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 confirmation in writing, within three (3) business days of receipt of a Task Assignment Form, of the Contractor’s decision.

5. Compensation.

A. The Department does not guarantee any minimum or maximum compensation under the Contract.

The Department will authorize payments to the Contractor on an invoice-by-invoice basis.

B. As consideration for the services rendered by the Contractor under the terms of this Contract, the Department shall pay the Contractor on a combination fee schedule, fixed price, and cost reimbursement basis as specified in each Task Assignment/Task Assignment Change Order Form (Attachment C and D). Funding under this Contract shall be authorized by and for each Task Assignment as issued by the Department. The Contractor is not authorized to perform services that exceed the funding amount issued for each Task Assignment. Upon completion and final payment of each Task Assignment, all funds remaining from that particular Task Assignment shall be unencumbered by the Department. The Contractor hereby agrees that the Contractor or its subcontractors shall not commence work on a Task Assignment, or continue additional work under an Authorization for a Change in Scope of Work, until said Task Assignment, and additional Authorization(s) for a Change in Scope of Work, if required, has/have been fully executed by both the Department and the Contractor.

C. On those task assignments or portions thereof, in which the Contractor is to be compensated on a cost reimbursement basis, the Contractor shall notify the Department when the Contractor believes that the services cannot be completed for the estimated cost established for the task assignment.

In such event and after a review of the explanation provided to the Department, the Department and the Contractor shall mutually agree upon the extent to which (1) the Scope of Services shall be adjusted so that the task assignment may be completed for the estimated cost, or (2) the estimated cost shall be increased in order to complete the task assignment, or (3) the task assignment shall be completed at the original estimated cost. In no event, however, shall the Contractor continue to provide services once the estimated cost for the task assignment has been reached.

D. Charges for rates or expenses which are not included in Attachment B, but which are required by the Department on a Task Assignment Form, shall be compensated at rates mutually acceptable to the Department and the Contractor, and shall be evidenced by an executed Task Assignment Form. In the event that the Department determines that such rates should become a part of the rate schedule attached to this Contract, the Department shall initiate a change order evidencing the rates mutually agreed to by both parties for inclusion in this Contract.

E. 1. The rates in Attachment B, which will be viewed as maximum rates, shall be current and effective for the first twenty-four (24) months of the Contract. The Contractor may request an increase in rates each year after the initial twenty-four (24) month term of the Contract, including the possible renewal period(s).

2. Requests 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 (up to a maximum of 5% in any one year).

The Department shall review the request, and supporting documentation, to determine whether

DEP Contract No. WQ035, Page 3 of 26 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.

3. 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 requested decrease in the rates, the Contract may be terminated pursuant to paragraph 19. B. as a termination for convenience.

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

7. Payment Method.

A. The Contractor shall submit invoices as specified in each executed Task Assignment/Task

Assignment Change Order Form. Each invoice shall be itemized in accordance with the authorized budget categories listed below and in Attachment B, Rate Schedule, for the costs listed therein, as provided in the Contractor’s response to Department Solicitation No. 2016004C, or shall be accompanied by an executed copy of the Task Assignment Form/Task Assignment Change Order Form evidencing a fixed price. Attachment F, Subcontractor Utilization Report Form, shall be completed and submitted with each invoice when applicable. Failure to provide Attachment F with an invoice shall result in a delay in processing the invoice for payment. All invoices must be submitted in detail sufficient for a proper pre-audit and post-audit review thereof.

B. The review for approval of the final deliverable(s) will be completed within thirty (30) days of receipt.

The final invoice will be submitted after approval of the final deliverable(s).

8. Invoicing Requirements.

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

1. Salaries/Wages - List personnel involved, salary rates in accordance with those listed in Attachment B, Rate Schedule, and hours/time spent on the project.

2. Overhead/Indirect/General and Administrative Costs - All multipliers used (i.e. fringe benefits, overhead, and/or general and administrative rates) are included in the hourly rates and shall not be charged separately. If the Department determines that multipliers charged by the Contractor exceeded the rates supported by audit, the Contractor shall be required to reimburse such funds to the Department within thirty (30) days of written notification. Interest on the excessive charges will be calculated based on the prevailing rate used by the State Board of Administration. Multipliers included are as follows:

a. Fringe Benefits - Shall be calculated at 29.1% of Direct Labor.

b. Overhead - Shall be calculated at 106.3% of Direct Labor.

c. Fee – Shall be calculated at 10% of total labor cost (defined for the purposes of this Contract as direct labor + fringe benefits + overhead).

d. Subcontractor / Handing Fee - Shall be calculated at 5% of Direct Labor.

3. Contractual (Subcontractors) - Reimbursement requests for payments to subcontractors must be substantiated by copies of invoices with backup documentation identical to that required from the Contractor. Subcontracts which involve payments for direct salaries shall clearly identify the personnel involved, salary rate per hour, and hours/time spent on the project. All multipliers used (i.e. fringe benefits, overhead, and/or general and administrative rates) shall be supported by audit. If the Department determines that multipliers charged by any subcontractor exceeded the rates supported by audit, the Contractor shall be required to reimburse such funds to the Department within thirty (30) days of written notification. Interest

DEP Contract No. WQ035, Page 4 of 26 on the excessive charges shall be calculated based on the prevailing rate used by the State Board of Administration. Invoices for reimbursement of fixed price subcontracts approved by the Department shall be documented by copies of the paid invoices.

4. Travel - Travel expenses and per diem must be documented by a State of Florida Travel Voucher with appropriate receipts. Reimbursement will be made in accordance with Section 112.061, F.S.

5. Equipment - (Capital outlay over $1,000 in value) – Include copies of invoices or receipts to document charges and all other documentation as required in paragraph 23 of this Contract.

6. Rental/Lease of Equipment - Include copies of invoices or receipts to document charges.

7. Handling Fee – A markup or handling fee of 5 % (as identified in Attachment B) will be allowed on subcontracted work or purchased capital equipment used to provide or perform the scope of work, identified in Attachment A, if identified and approved by the Department.

8. Other Expenses - e.g., Materials, supplies, phone, reproduction, mailing, must be documented by itemizing and including copies of receipts or invoices.

B. Fixed Price Task Assignments - All materials and products, identified as part of a task assignment, or specific sub-task, must be accepted in full by the Department’s contract manager and any technical manager, and meet all the Department requirements prior to invoicing. No partial submittals for any task or sub-task will be acceptable for invoicing. Invoicing should only follow the timeline, products, and requirements set in each task assignment. Acceptance of deliverables for each fixed fee subtask must be in full prior to invoicing. Acceptance of deliverables will be based upon review by the Department’s contract and technical mangers, in accordance with specifics identified. Upon acceptance of deliverables, the Contractor may invoice the Department.

9. Prompt Payment.

A. Pursuant to Section 215.422, F.S., 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) 410-9724 or 1-800-848-3792.

B. In accordance with Section 215.422, F.S., the Department shall pay the Contractor interest at a rate as established by Section 55.03(1), F.S., 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 Procurements Section at (850) 245-2361.

10. Notice. Any notices or other written communication, except invoices, between the parties shall be considered delivered when posted by Certified Mail, return receipt requested, electronic mail, read receipt requested or delivered in person to the Contract Managers at the following addresses:

Contractor Department Dynamic Solutions, LLC Department of Environmental Protection Water Quality Evaluation and TMDL Program Attn: Julie A. Wallen Attn: Kevin Petrus 6421 Deane Hill Drive, Suite 1 2600 Blair Stone Road, MS 3555

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Knoxville, Tennessee 37919 Tallahassee, Florida 32399-2400 j-wallen@dsllc.com kevin.petrus@dep.state.fl.us

11. Identification of Contract Managers. The Department's Contract Manager is Kevin Petrus, Phone

(850) 245-8459. The Contractor's Contract Manager is Julie A. Wallen, Office Phone (865) 212-3331 Ext 22, Cell Phone 865-604-9325. All matters shall be directed to the Contract Managers for appropriate action or disposition.

12. 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, 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; 2) suspend all work until a satisfactory deliverable is received; 3) request a reduction in payment amount; or 4) 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 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, 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 Department’s notice of acceptance of a proposed CAP, Contractor shall have ten (10) calendar days to commence implementation of the accepted plan. Acceptance of the proposed CAP by 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 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 Department or steps taken by Contractor shall estop the Department from subsequently asserting any deficiencies in performance.

Contractor shall continue to implement the CAP until all deficiencies are corrected. Reports on the progress of the CAP will be made to the Department as requested by the Department Contract Manager.

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.

13. 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 and, in case any work is subcontracted, the Contractor shall require the subcontractor similarly to provide Workers' Compensation Insurance for all of its employees unless such employees are covered by the protection afforded by the Contractor. Such self-insurance program or insurance coverage shall comply fully with the Florida Workers' Compensation law. In case any class of employees engaged in hazardous work under this Contract is not protected under the Workers' Compensation statute, the Contractor shall provide, and cause each subcontractor to provide, adequate insurance satisfactory to the Department, for the protection of his employees not otherwise protected.

B. The Contractor shall secure and maintain during the life of the Contract comprehensive general liability coverage with limits of not less than $100,000 per occurrence and $300,000 annual aggregate, comprehensive automobile liability coverage with limits of not less than $300,000 combined single limit. The Contractor's current certificate of insurance shall contain a provision mailto:j-wallen@dsllc.com mailto:kevin.petrus@dep.state.fl.us

DEP Contract No. WQ035, Page 6 of 26 that the insurance will not be canceled for any reason except after thirty (30) days written notice (with the exception of non-payment of premium which requires a ten (10) day notice) to the Department's Contract Manager and shall reference the DEP Contract Number. In the event that the insurance requirements in statute are changed, the coverage limits specified herein will also be increased.

14. 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 whatsoever 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 any negligent act, or failure to act, by the Contractor, its subcontractor, or any of the employees, agents or representatives of the Contractor or subcontractor to the full extent allowed by law.

15. Nonassignability and Subcontracting.

A. The Contractor shall not sell, assign or transfer any of its rights, duties or obligations under the

Contract without the prior written consent of the Department; provided however, the Contractor hereby assigns to the State any and all claims it has with respect to the Contract under the antitrust laws of the United States and the State. In the event of any assignment, the Contractor remains liable for performance of the Contract, unless the Department expressly waives such liability. The Department may assign the Contract but shall give prior written notice of its intent to do so to the Contractor.

B. The Contractor shall not subcontract, assign, or transfer any work under this Contract, with the exception of CDM Smith, SWET, Inc., and Frydenborg EcoLogic, LLC; without the prior written consent of the Department's Contract Manager. The Department reserves the right to reject any subcontractor based upon prior experience. 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.

C. The Department shall not be liable to any subcontractor for any expenses or liabilities incurred under any subcontract, regardless of whether Department has approved such subcontract or subcontractor. Contractor shall be solely liable to its subcontractor(s) for all expenses and liabilities incurred under any subcontract. Any subcontracts made under or in performance of this Contract must include the same conditions specified in this Contract, with the exception of insurance requirements (paragraph 13), and shall include a release of any rights, claims or liabilities against Department. The level of insurance to be carried by subcontractors performing work under this Contract shall be at the discretion of Contractor.

16. Access and Inspection. The Contractor specifically agrees to allow authorized Department personnel to observe and inspect the work being performed under any work assignment under this Contract, including:

A. Access to any public records that must be kept under this Contract; and, B. Access to any location or facility on which the Contractor is performing work, or storing or staging equipment, materials or documents.

17. 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.

18. 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 any of the following reasons:

1. the Contractor fails to timely and properly correct deficiencies or faulty work;

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

3. the Contractor or subcontractor materially violates safety laws;

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

5. for the convenience of the Department.

B. If the performance of all or any part of the work is suspended, delayed or interrupted for an unreasonable period of time by an act of the Department in administration of the Scope of Services, or by the Department’s failure to act within a reasonable time, the Department shall make an adjustment for any increase in the cost of performance of those services (excluding profit) necessarily caused by such unreasonable suspension, delay or interruption and modify the Scope of Services. However, no adjustment shall be made under this clause for any suspension, delay or interruption to the extent:

1. That performance would have been 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 or excluded under any other provision of this Contract.

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

19. 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.

B. The Department may terminate this Contract without cause and for its convenience by giving thirty

(30) calendar days written notice to the Contractor.

C. The Department reserves the right to terminate this Contract for convenience in the event that, during the term of this Contract, there is a merger or acquisition by the Contractor of any other entity or the Contractor is acquired by or merged with any other entity under DEP Solicitation No.

2016004C. In the event of termination for convenience under this paragraph, the Contractor shall be compensated for work satisfactorily performed and irrevocable commitments made under outstanding purchase orders, without liability for anticipated profits for work not yet performed.

20. 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, F.S. 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 F.S.

21. 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, F.S. or as otherwise provided by law.

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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), F.S.

22. 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.). All change orders are subject to the mutual agreement of both parties as evidenced in writing. Any change order which causes an increase or decrease in the Contractor’s cost or time shall require an appropriate adjustment and modification (formal amendment) to this Contract.

23. Purchase of Equipment. The purchase of non-expendable personal property or equipment costing $1,000 or more purchased for purposes of this Contract remains the property of the Department. The Department's Contract Manager shall be responsible for any required documentation and reporting.

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

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

P.R.I.D.E.

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

25. 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, F.S., in the same manner and under the same procedures set forth in Section 413.036(1) and (2), 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 the State agency insofar as dealing with such qualified nonprofit agency are concerned.

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

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

(850) 487-1471 Website: www.respectofflorida.org http://www.pride-enterprises.org/ http://www.respectofflorida.org/

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26. 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.

27. 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.

Contractor’s Duty of Loyalty and Fidelity. Contractor, during the term of and in performing services under the Contract, shall act honestly and in good faith in all matters involving the Contract and with the Department, and with a view to the best interests of the Department. Contractor shall at all times avoid any acts, agreements or affiliations which would or could adversely affect the financial, legal or other interests of the Department with regard to the subject matter of this Contract. Contractor shall not knowingly place its interests in conflict with those of the Department and, upon discovering any such conflict, shall immediately report such circumstances to the Department. Failure to report a conflict of its interests with those of the Department, or to immediately attempt to remove, mitigate or reconcile such conflict, shall be grounds for suspension and/or termination of the Contract for cause. Contractor shall not disclose non-public information obtained in the course of performing the Contract (or any Task thereunder), and shall not use any such information for its own advantage or purposes if, and to the extent that, such use shall result in loss, liability or disadvantage to the Department.

28. 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 suspended or delayed, in whole or in part, due to any of the causes described in this paragraph, after the causes have ceased to exist the Contractor shall perform at no increased cost, unless the Department determines, in its sole discretion, that the delay will significantly impair the value of the Contract to the State or to the Department, in which case the Department may 1) accept allocated performance or deliveries from the Contractor, provided that the Contractor grants preferential treatment to the Department with respect to products subjected to allocation, or 2) purchase from other sources (without recourse to and by the Contractor for the related costs and expenses) to replace all or part of the products that are the subject of the delay, which purchases may be deducted from the Contract quantity, or 3) terminate the Contract in whole or in part.

29. 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.

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30. 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.

31. 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. The Contractor shall not copyright any material and products or patent any invention developed under this Contract.

32. 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.

33. 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.

34. 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/vendor knowingly employs unauthorized aliens, such violation shall be cause for unilateral cancellation of this Contract. The Contractor shall be 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 Order No. 11-116, Contractor is required to utilize the U.S.

Department of Homeland Security’s E-Verify system to verify the employment eligibility 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.

35. 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, F.S., for Category Two, for a period of thirty-six (36) months from the date of being placed on the convicted vendor list.

36. 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 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

DEP Contract No. WQ035, Page 11 of 26 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 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. The Contractor must comply with the Americans with Disabilities Act (“ADA”).

37. 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.

38. 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.

39. 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), F.S. (2002), all payments shall be assessed a Transaction Fee established in the DMS Rule 60A- 1.031, F.A.C., and any future amendments thereto, 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 Contract.

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.

40. 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.

41. 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.

42. 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):

1. Body of the Contract;

2. Scope of Services;

3. Specifications;

DEP Contract No. WQ035, Page 12 of 26

4. Price Sheet;

5. All other attachments to the Contract;

6. DEP Solicitation No. 2016004C, inclusive of all attachments, addenda and questions and answers to the Solicitation; and,

7. Contractor’s Response to the Solicitation.

43. 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 interpreted or construed against the Department, and, instead, other rules of interpretation and construction shall be used.

44. 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.

45. Execution in Counterparts. This Contract may be executed in two (2) 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.

46. 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.