DEP.RFR.BWSC.ERIRA.2017.14.Attach 1.ER.IRA.SUPP.TERMS.CONDITIONS.docx

SUPPLEMENTAL TERMS & CONDITIONS TO THE CONTRACT

ER/IRASS MASTER SERVICES AGREEMENT

RFR NO.: DEP-BWSC-ERIRA-2017-14

Article I: Statement of Services

At the Direction of the Massachusetts Department of Environmental Protection (MassDEP or the Department), the Contractor shall provide those services necessary to respond to emergency situations involving releases or threats of release of oil and/or hazardous materials into the environment, and/or to perform preliminary response actions to abate, prevent, or eliminate imminent and/or other hazards due to a release or threatened release of oil and/or hazardous materials, as authorized pursuant to Chapter 21E of the Massachusetts General Laws and the Massachusetts Contingency Plan and other environmental laws and regulations within the scope and jurisdiction of the Massachusetts Department of Environmental Protection.

Article II: Documents Forming the Contract

The Contract Documents comprising the Agreement between MassDEP and the Contractor shall include: The Commonwealth Terms and Conditions; The Standard Contract Form, including the instructions and Contractor Certifications; The Department’s Request for Response (RFR), including all Attachments and Appendices, any addenda or Amendments to the RFR issued by MassDEP prior to the date of receipt of the Contractor’s Response to the RFR, and the Contractor’s Response to the RFR, excluding any language stricken by the Department as unacceptable, but including any negotiated terms and conditions allowable pursuant to law or regulation.

Article III: Services of the Contractor/General Performance Requirements

1. In General: The Contractor shall provide all labor, equipment, materials, utilities, transportation, sampling, testing and analysis, supervision, and all other related services and facilities necessary to implement and complete Emergency Response (ER) Services and/or Immediate Response Action (IRA) Support Services activities in a timely, efficient and effective manner, and to assist the Department in any subsequent enforcement and/or cost recovery action brought under Chapter 21E. Such services may include, but shall not be limited to:

a. The removal, treatment, recovery, containment, packaging, transport, storage (off-site, if necessary) or disposal of oil products and/or hazardous materials;

b. The testing and analysis of oil products and/or hazardous materials, and the preservation of such analyses and samples in accordance with chain-of-custody procedures required by law and/or approved by the Department;

c. The maintenance of security and safety at or near sites and vessels from or at which there is or has been a release or threat of release of oil products and/or hazardous materials;

d. The performance of hydrogeologic investigations and analyses;

e. The preparation for and attendance at meetings and presentations with personnel of the Department, other federal, state, or local government agencies, and/or with the public;

f. The preparation of all reports, submittals, plans, drawings, designs and/or other written materials as required by the MCP, MassDEP, or other federal, state and/or local entities in connection with the documentation of the ER Service and/or IRA Support Service activities;

g. The preparation and presentation of testimony in administrative and judicial proceedings in matters pertinent to response, assessment, containment and removal actions undertaken by the Department, including, but not limited to, legal proceedings relating to cost recovery claims pursued by the Department;

h. The development of measures to assist the Department in identifying, locating and communicating with persons responsible for releases and threats of release of oil and/or hazardous materials; and

i. Any other related ER/IRA Support Services within the scope of the ER/IRASS Contract, as may be required by the Department.

2. Contractor Performance Requirements: In providing the ER Services and/or IRA Support Services under this Contract, the Contractor shall comply with the following general performance requirements:

a. Performance of All Services Within Specified Time Periods: Time is of the essence in the performance of all services required under this Contract. The Contractor shall proceed with the required services at a rate of progress that ensures full cooperation within a reasonable time and/or within the time period specified in the Work and Cost Plan, taking into consideration the nature and amount of oil and/or hazardous materials to be addressed through the ER Service or IRA Support Service activities, the Commonwealth’s interest in abating threats to the public health, safety, welfare and the environment at the lowest cost to the public, and the necessity of undertaking all response activities with maximum assurance of safety and security.

b. Performance of All Work Activities in a Professional and Competent Manner: The Contractor is responsible for ensuring that all work activities performed under this Contract, by either the Contractor and/or its subcontractors, are implemented and completed in a highly professional, technically competent, and efficient manner. The Contractor has a specific responsibility to ensure that all work activities performed under the Contract conforms to all best management engineering, technical, and/or scientific practices applicable, as well as to any pertinent Quality Control/Quality Assurance requirements or guidance relevant to the work activities.

c. Contractor’s Personnel and Subcontractor Obligations: The Contractor is responsible for ensuring the efficient management and control of all its personnel and the personnel of any of its subcontractors under this Contract. As required by the Department, the Contractor shall make its personnel and its subcontractors’ personnel available to the Department to discuss and review the status of ER Service and/or IRA Support Service activities, and to review, discuss and establish administrative and technical procedures and practices for the efficient delivery of services under this Contract.

d. Contractor and Subcontractor Licensing Requirements: Through execution of this Contract, the Contractor certifies that both the Contractor and all approved subcontractors possess any and all currently valid state and federal licenses, permits and/or certificates that are required in connection with the performance of any ER Service and/or IRA Support Service activity, and shall ensure that both the Contractor and all subcontractors are and remain in full compliance with all such requirements throughout the performance of the activities required under this Contract.

e. Contractor as Transporter/Generator: The Contractor shall bear full responsibility for and shall properly remove, package, transport, and dispose of all oil and/or hazardous materials generated and/or shipped/transported as a result of any action under this Contract. With respect to the transport of any oil and/or hazardous materials off-site as a result of activities covered by the scope of this Contract, the Contractor shall ensure that the transporting entity has all current and valid licenses required for the transport of oil and/or hazardous materials. The Prime Contractor also has the responsibility for signing all hazardous waste manifests as “generator” in connection with any activities performed under this Contract. The Prime Contractor cannot delegate the responsibility of signing manifests as generator.

f. Contractor Analytical Obligations: The Contractor is responsible for accurate measurements of weight and volumes, and accurate sampling, testing, and analysis of all oil or hazardous materials produced as a result of ER Services or IRA Support Services under this Contract. As applicable, all Contractor’s activities shall comply with 310 CMR 40.0017 and the Response Action Performance Standards (RAPS) set forth in 310 CMR 40.0191, together with any other federal or MassDEP statutory or regulatory requirements, policies or guidance pertinent to the site-specific work activities at issue.

g. Compliance With All Laws: The Contractor shall comply with all applicable provisions of federal, state, and local laws, rules, regulations, by-laws, and ordinances in the performance of all services under this Contract. In particular, the Contractor shall comply with any MassDOT state-wide requirements, including but not limited to obtaining MassDOT’s “annual state wide blanket work permit” when applicable, and complying with MassDOT’s Work Zone Safety Guidelines for Massachusetts Municipalities. The Contractor shall also obtain any municipal street opening permits required to perform work activities.

h. Submission of Reports, Submittals, Plans, Drawings, Designs, and Other Written Materials: As required by the MCP or other federal and/or state statutes or regulations, or by MassDEP personnel, and/or other federal, state or local authorities, the Contractor shall ensure that all reports, submittals, plans, drawings, designs, and any other written materials necessary to perform and/or document the ER Service and/or IRA Support Services activities are prepared, completed, and submitted in a timely manner to MassDEP for its review and approval. In submitting any form of documentation, the Contractor remains fully responsible for the professional quality, technical accuracy, timely completion and coordination of all work activities, whether or not previously documented under this Contract. Upon request of the Department, the Contractor shall correct any errors, omissions or other deficiencies identified in any submitted written materials without seeking additional compensation from MassDEP. MassDEP’s approval of any written documentation from the Contractor shall not relieve the Contractor of the responsibility for technical adequacy, timely performance, and full completion of all requirement work activities, nor shall MassDEP’s payment for these documentation services be construed as a waiver of any legal or equitable claim arising out of the Contractor’s performance under this Contract.

i. Contractor Coordination of Activities; Preservation of Evidence/Chain of Custody Requirements; Responsibility to Prepare and Provide Testimony and Documentation in Support of Commonwealth Enforcement and/or Cost Recovery Actions:

i. The Contractor shall fully cooperate and coordinate work with and assist other Contractors in the planning, scheduling, and implementation of ER Services, IRA Support Service activities, and/or other remedial or response action activities undertaken by the Department, by other federal or state agencies, or by any private party in compliance with the Department’s requirements and instructions.

ii. MassDEP and the Contractor shall mutually plan and properly document their respective roles and actions in connection with ER Service and/or IRA Support Service activities in order to provide any evidentiary support and documentation required for subsequent enforcement actions that may be commenced by the Commonwealth, including but not limited to any action for recovery of costs for any ER Service and/or IRA Support Service activities performed pursuant to this Contract. The Contractor will employ properly certified technical methods for sampling and analysis of site conditions when performing all activities required by this Contract, and will provide MassDEP with a reliable chain-of-custody documented procedure to ensure the integrity of the evidence necessary to support Commonwealth enforcement actions.

iii. The Contractor may be called upon either during and/or after the ER Service or the IRA Support Service activities have been completed and/or after the Contract has expired, to prepare and provide documentation and/or testimony associated with the Commonwealth’s enforcement actions, including but not limited to cost recovery actions. The Contractor agrees that, by accepting MassDEP’s Mobilization Order for ER Services, or agreeing to perform IRA Support Services in accordance with any approved Work and Cost Plan, the obligations to provide appropriate documentation, chain-of-custody evidence, and testimony as described in more detail in this subsection are within the scope of services the Contractor is providing to MassDEP.

j. Contractor’s Responsibility for Health and Safety: The Contractor is fully responsible for ensuring the health and safety of its personnel, of any subcontractor personnel, and of any person working on or within reasonable proximity of the Contractor’s work activities on a site. In accordance with Article VIII, the Contractor shall develop and submit to MassDEP for its review a Health and Safety Plan for each ER Service and/or IRA Support Services work assignment assigned to the Contractor by MassDEP in accordance with the provisions of Article IV.

Article IV: Initiation, Duration and Completion of ER Services and IRA Support Services; PRP’s Assumption of ER Service and/or IRA Support Services Activities The Contractor shall provide services under this Contract in accordance with the following procedure set forth in this Article.

1. Initiation of ER Services: The Contractor shall initiate ER Services upon receipt of a Mobilization Order from an authorized Department employee. Upon receipt of such an Order, the Contractor shall promptly initiate mobilization and deployment of such personnel, equipment, and other resources as directed by the Department. If the Department’s call to a Contractor is picked up electronically or by an answering service, the Contractor must call the MassDEP field representative back within 10 minutes of receiving notification, or the Department will cancel the Mobilization Order and call another Contractor.

2. Commencement of ER Services: The Contractor shall commence ER Services as soon as possible, and, unless otherwise authorized by MassDEP, in no case later than two (2) hours following receipt of the Mobilization Order, except in the case where the ER Service activities are either on Nantucket, Martha’s Vineyard, or the Elizabeth Islands, in which case the Contractor shall commence the ER Services as soon as possible but not later than three (3) hours following receipt of the Mobilization Order. The ER Services shall not be deemed to commence until all necessary personnel and equipment are at the location and have begun working as determined by the Department’s Field Representative, unless MassDEP authorizes an earlier commencement based on an agreed-upon sequence of arrival of personnel and equipment. The Commonwealth shall not be liable for any costs incurred by the Contractor without authorization prior to the stated commencement of the ER Services, as determined by MassDEP. If a Contractor commits to meeting the response time established by MassDEP in a Mobilization Order, and then fails to meet that response time, the Department may impose sanctions, including reducing payment to the Contractor for that day’s work by 10% or every half-hour the Contractor is late, and/or cancelling the Mobilization Order and calling another Contractor to obtain ER Services. A pattern of failure to meet response times may result in the imposition of future sanctions, including suspension or termination of the Contractor from the Contractor rotation schedule.

3. Duration of ER Services: ER Services shall continue for only that minimum period of time necessary to control and/or stabilize the release and/or threat of release that required the initiation of ER Service activities through the Mobilization Order. While most releases and/or threats of releases, as a general rule, can be controlled and/or stabilized within twenty-four (24) hours after the commencement of ER Services, it is presumed by MassDEP (and written into its Mobilization Order) that the ER Services by the Contractor are not authorized beyond seventy-two (72) hours after the Contractor’s commencement of ER Services. Once 72 hours from the commencement of the ER Services has elapsed, the Contractor must notify MassDEP of the completion of ER Services, and request MassDEP authorization to transition to IRA Support Services through submission of a Work and/or Cost Plan (if required) for MassDEP approval, in accordance with the provisions below. The Contractor’s request for authorization to transition to IRA Support Services shall not be construed to obligate MassDEP to retain the ER Services Contractor for any subsequent IRA Support Services that may be required at the Site.

4. Contractor’s Request For Extension of ER Services: Procedure: In the event that the Contractor determines, in its professional judgment, that ER Services must be extended beyond the 72 hour period authorized by MassDEP’s Mobilization Order, this procedure shall apply. The Contractor shall make a written request for an extension of the time period for ER Services (Extension Request), and provide to the MassDEP Field Representative, with a copy to the Contract Administrator. The Extension Request must include the following information: (i) the reasons why ER Services must continue at the Site, including why the release and/or threat of release has not yet been controlled and/or stabilized; (ii) the types of additional ER Services required in order to control and/or stabilize the release and/or threat of release; (iii) a reasonable estimate of the personnel and/or equipment necessary to complete the proposed additional ER Services, including an estimate of the costs associated with such personnel and/or equipment; and (iv) a reasonable estimate of the additional time necessary to complete the additional ER Services. Upon submission of the Extension Request, the MassDEP Field Representative must determine, and indicate in writing, the reasons why the Extension Request should be approved or denied. In the event that the Extension Request is approved by the MassDEP Field Representative, the Field Representative’s approval of the Extension Request shall be submitted immediately to the MassDEP Contract Administrator for review. The Extension Request must be approved by the MassDEP Contract Administrator in writing before the Contractor is authorized to proceed with additional ER Services as proposed by the Extension Request. If the Contractor proceeds, without advance written authorization from the MassDEP Contract Administrator, to perform additional ER Services, MassDEP reserves the right to not compensate the Contractor for any costs incurred prior to the MassDEP Contract Administrator’s official approval of the Extension Request in accordance with these provisions.

5. Initiation and Commencement of IRA Support Services: Procedure: In the event that IRA Support Services are required following the completion of ER Services, this procedure shall apply. The Contractor will submit, for MassDEP’s approval, a Work and Cost Plan (if required), and request authorization from the Department to proceed with the IRA Support Services. The Work and Cost Plan shall include: (1) a statement of the technical approach and the methods/equipment to be used to achieve the goals and objectives of the Task Assignment; (2) a statement of the intended task results with a list of deliverables and milestones and an identification of major problems anticipated in the performance of the Task Assignment; and (3) a detailed work schedule for performance of all tasks/sub-tasks within the Task Assignment and a detailed cost schedule for the Task Assignment. In the event that the Contractor’s proposal for IRA Support Services includes a Lump Sum (LS) bid for the specific project, MassDEP reserves the right to require the Contractor to provide basis-of-cost documentation with the LS bid as a pre-condition for MassDEP’s award of the IRA Support Services project to the Contractor. Upon written authorization from MassDEP, the Contractor will proceed to provide IRA Support Services in accordance with the approved Work and Cost Plan.

6. IRA Support Services: Duration, Modification, and Completion: IRA Support Services shall continue for a reasonable time, or the period of time as specified in the approved Work and Cost Plan, to complete the required activities. If the Work and Cost Plan is modified and approved by MassDEP to include additional work activities, the duration of the Contractor’s project assignment shall be for any longer time period only if expressly set forth in the modification. In the event that the Contractor fails to (a) commence the IRA Support Services as specified in the Work and Cost Plan; or (b) fails to continue and/or complete the specified IRA Support Services within the Department’s specified time period, MassDEP reserves the right to suspend or cancel the Contractor’s project assignment, and utilize another Contractor.

7. PRP’s Assumption of ER Services or IRA Support Service Activities: If, following commencement of an ER Service or IRA Support Service activity, the Contractor and any party potentially responsible for the release or threat of release of oil and/or hazardous materials at the Site property (“PRP”) intend to enter into an agreement whereby the Contractor will perform ER Services or IRA Support Services on behalf of the PRP rather than on behalf of MassDEP, the Contractor shall first provide written notice to and obtain the Department’s approval. In the event that the Department agrees to the PRP’s assumption of the ER Services or IRA Support Service activities, and therefore terminates the order under which the Contractor was assigned responsibility for ER Services and/or IRA Support Services under this Contract, the Contractor shall have no recourse under this Contract to the Commonwealth or MassDEP for payment for any of the costs of services previously incurred by the Contractor, and must look solely to the PRP for the payment of both incurred and future costs in connection with the ER Services and/or IRA Support Services activities.

Article V: Conditions Applicable to Equipment, Supplies and Materials

1. Mobilization of Equipment, Supplies and Materials: The Contractor shall bring to and utilize at the location of the ER Service or IRA Support Service activity only such equipment, personnel, or other resources as the Department requires. In the absence of prior instructions from the Department, the Contractor shall bring such equipment, personnel or other resources as it reasonably deems necessary to perform the specified ER Service or IRA Support Service activities.

2. Access to Equipment, Supplies and Materials: The Contractor shall keep equipment and resources stockpiled, and personnel accessible to accomplish prompt and effective response and performance in accordance with the requirements of this Contract. To ensure capability for immediate ER Services required by Mobilization Orders, the Contractor shall maintain an inventory of equipment and other resources at locations within the State appropriate to serve the MassDEP region(s) designated to the Contractor for the purposes of this Contract. The Contractor shall replenish any equipment, supplies or materials provided by MassDEP with the same or similar items; provided, however, that in appropriate circumstances the Contractor and/or its authorized subcontractors may draw upon MassDEP equipment and resources for response actions other than those undertaken pursuant to this Contract, as long as inventory that was utilized by the Contractor is replenished to MassDEP as soon as practicable afterward.

3. Storage of Equipment, Supplies and Materials: The Contractor shall store equipment, supplies and materials in a manner that maintains its good working order and preserves its quality. The Department will not reimburse the Contractor for any costs associated with the storage of equipment, supplies and materials, either on-site or off-site.

4. Unencumbered Equipment, Supplies and Materials: The Contractor shall only utilize equipment, supplies and materials in connection with this Contract that are free from liens or other encumbrances or restrictions that would in any way restrict or limit these items’ availability for use in performing the required services.

5. Adherence to Manufacturers’ Requirements: The Contractor shall operate, maintain, and use all equipment, supplies and materials in accordance with applicable manufacturers’ requirements and instructions.

Article VI: Rights Reserved to the Department

1. MassDEP’s Right to Limit/Alter Scope of Contractor’s ER Service and/or IRA Support Service Activities: While the Contractor remains principally responsible for the development and implementation of the techniques and methods for performance of response actions associated with ER Services and/or IRA Support Service activities, MassDEP reserves the right to limit or otherwise determine the ultimate extent and level of effort to be applied by the Contractor in the performance of ER actions, and to restrict or otherwise control the Contractor’s level of effort in IRA Support Service activities, in compliance with federal and state laws and statutes, the MCP, and Department policies and procedures. Upon receiving notice of MassDEP’s limitation or determination, the Contractor shall perform all services under this Contract as directed by MassDEP.

2. MassDEP’s Right to Remove Non-Performing Contractor and/or Subcontractor Personnel: The Department reserves the right to order, at its discretion, the Contractor to remove any Contractor personnel and/or subcontractor personnel from any work project assignment whom MassDEP determines is incompetent, intoxicated, impaired, incapacitated, ill, in violation of health and/or safety requirements, or otherwise fails and/or refuses to comply with or meet the Contract’s general performance requirements and/or fails or refuses to perform any work activities required by this Contract.

3. MassDEP’s Right to Suspend and/or Terminate ER Services and/or IRA Support Service Activities: The Department in its sole discretion reserves the right to order, at any time, the suspension and/or termination of any ER Service or IRA Support Service activity. Upon receipt of MassDEP’s notice of suspension and/or termination, the Contractor’s entitlement to payment for any ER Service and/or IRA Support Service activities shall cease except with respect to payment for services rendered prior to receipt of MassDEP’s suspension or termination notice. In the event that MassDEP’s notice of suspension and/or termination is verbal, written confirmation of the notice shall be provided to the Contractor by MassDEP as soon as reasonably possible. Upon receipt of MassDEP’s verbal or written notice, the Contractor shall immediately cease all work activities and shall remove from the site all personnel, equipment, supplies and/or materials as directed by the Department.

4. MassDEP’s Right to Utilize Multiple Contractors/Substitute Contractors: MassDEP reserves the right to utilize more than one Contractor for a particular ER Service and/or IRA Support Service activity, and/or to suspend or terminate one Contractor and substitute one or more Contractors for the required ER Service and/or IRA Support Service activities.

5. MassDEP’s Right to Suspend or Terminate the Contractor for Performance Problems and/or Violation of Legal Requirements: MassDEP reserves the right to suspend or terminate a Contractor based upon evidence of performance problems on one or more assigned projects, failure to meet and/or comply with the General Performance Requirements, fraud in the submission of invoices or with respect to other dealings with the Department, violation of any federal, state, or local laws, regulations or requirements, failure to remain current on all fees/taxes/payments owed to the Commonwealth or MassDEP and/or failure to meet any other Contractual requirement. This provision shall be interpreted in a manner consistent with the requirements set forth in the Commonwealth’s Terms and Conditions.

6. MassDEP’s Right to Require Removal/Replacement of Equipment, Materials or Supplies: MassDEP reserves the right to order the Contractor’s removal, repair or replacement of any equipment, materials or supplies it determines to be defective, damaged, unnecessary, or otherwise unsuitable for the performance of services under this Contract.

Article VII: Availability of Personnel to Perform ER Service and/or IRA Support Service Activities; Changes and Substitutions

1. Contractor and Subcontractor Personnel: The Contractor acknowledges that MassDEP’s determination to award the Contractor this Contract is based in part upon material representations made by the Contractor in its Response to the RFR regarding the availability of the Contractor’s personnel and the personnel of the Contractor’s approved subcontractors to perform the required ER Service and/or IRA Support Service activities. Through execution of this Contract, the Contractor warrants and certifies the ongoing availability of both the Contractor’s personnel and subcontractor’s personnel to perform all services required by this Contract.

2. Assignment of Personnel to Work Assignments; Personnel Substitution Procedure and Requirements

a. Personnel Assignment to ER Service and/or IRA Support Service Activities: Upon MassDEP’s assignment of an ER Service and/or IRA Support Service activity in accordance with the procedure set forth in Article IV, the Contractor shall only utilize its personnel and/or the personnel of the assigned subcontractor(s) as identified in the Response to the RFR to perform the required activities.

b. No Substitution of Personnel Without Prior MassDEP Approval: The Contractor is not authorized to substitute its personnel, or the personnel of its approved subcontractor(s), on work assignments without the prior, written approval of MassDEP. In the event that the Contractor (either directly, or through its subcontractors) utilizes any non-personnel on any ER Service and/or IRA Support Service activities without first obtaining MassDEP approval, all costs associated with the work of non-personnel will be disallowed.

c. Substitution of Personnel on ER and/or IRA Work Assignments: In the event that the Contractor seeks to substitute its personnel, or the personnel of its subcontractor(s), for any services within the scope of this Contract, this procedure and requirements shall apply.

i. Written Substitution Requests; Contents: The Contractor shall submit all requests for personnel substitutions to the Contract Administrator. The substitution request shall contain the following information: (a) a detailed explanation of the circumstances necessitating the proposed substitution(s); (b) the complete resume(s) of all proposed substitute(s); and (c) verification documentation regarding the substitute’s employment by the Contractor or subcontractor involved. MassDEP also reserves the right to require any additional written information from the Contractor necessary to approve or disapprove the substitution request.

ii. Substitutions; Requirements: All proposed substitutes shall have (a) qualifications that are equal to or higher than the qualifications of the personnel being replaced; (b) classification in the same labor category for purposes of payment; and (c) all licenses, trainings, and certifications required to perform the work activities involved. MassDEP reserves the right to verify these requirements through documentation from the Contractor and/or subcontractor(s).

iii. Substitutions; Approvals: Upon the Contractor’s submission of its substitution request, together with any additional documentation required by MassDEP, the Contract Administrator will review the request and notify the Contractor in writing as to whether the substitution request is approved or disapproved.

3. Changed Circumstances Substitution of Contractor and/or Subcontractor Personnel; Procedure and Requirements: In the event that the Contractor seeks to substitute its personnel, or the personnel of its subcontractor(s) during the course of the Contract due to changed circumstances, such as employee separation from the company, employee retirement or resignation, or employee death or disability, the Contractor shall follow the process outlined in subsection 2(c), and upon receipt of the substitution request and review of all pertinent information, MassDEP will notify the Contractor in writing as to whether the substitution request has been approved or disapproved.

4. Contractor and Subcontractor Personnel; List Update: Upon request of MassDEP, the Contractor shall submit an updated list of all Contractor and subcontractor personnel to the Contract Administrator, which will include, if applicable, any MassDEP approved personnel substitution changes. MassDEP reserves the right to require the Contractor to provide supporting documentation (including, but not limited to, verification of employment documentation) regarding any personnel identified on the updated list.

Article VIII: Record-Keeping and Invoicing Requirements; Health And Safety Plan Requirements

1. Record-Keeping; General Requirements: The Contractor and all subcontractors rendering services pursuant to this Contract shall comply with all legal requirements regarding Record-Keeping and the Retention and Inspection of Records as set forth in Article 7 of the Commonwealth’s Terms and Conditions. In addition, the Contractor shall establish and maintain a financial management and audit system that reflects costs and expenditures incurred and payments and reimbursements received pursuant to this Contract. The Contractor shall ensure that all subcontractors also comply with the requirements of this paragraph. The Department shall have the right to inspect and audit, or have inspected and audited, such books, records, and data prior to and following submittal of an invoice for payment by the Contractor for any work activities performed pursuant to this Contract.

2. Invoicing: Format Requirements and Contractor Certifications: The Department reserves the right to specify the format for Contractor invoices and the amount, types, and nature of the information required to substantiate all invoices. By submitting invoices, the Contractor certifies that (a) all billings, including any billings from subcontractors, are true and correct; (b) the invoices submitted are an accurate representation of the work activities performed; and (c) all billings are in accordance with the Payment Conditions and Rate Schedules set forth in the Contract.

3. Withholding of Retainage: The Department reserves the right to withhold a ten percent (10%) retainage of the billing for each ER Service or IRA Support Service activity performed under this Contract pending the Department’s receipt of any report, submittal or deliverable requested or required of the Contractor.

4. Withholding of Payments to Correct Deficient or Defective Work: In the event that the Department determines the Contractor has failed to perform work activities in accordance with the requirements of the Contract, MassDEP reserves the right to hold back from payments to the Contractor those amounts reasonably necessary for the Contractor to correct the deficient and/or defective work to the satisfaction of the Department. Upon the Department’s written acceptance of the corrected work activities, the Contractor shall be paid all amounts reasonably withheld.

5. Health and Safety Program Plan: Upon execution of this Contract, the Contractor must provide MassDEP with a copy of the Contractor’s general Health and Safety Program Plan, which, at a minimum, must comply with the requirements of 310 CMR 40.0018. In addition, upon request of MassDEP, the Contractor shall prepare a site-specific Health and Safety Program Plan (HSPP) for MassDEP’s review prior to the Contractor’s initiation of site-specific ER Service and/or IRA Support Services activities. The Contractor must comply with the requirements of the HSPP throughout the course of the site-specific ER Services and/or IRA Support Services activities. The HSPP shall specify the manner in which the Contractor will ensure the health, safety and protection of its personnel, its subcontractor personnel and the general public while performing the required services under the Contract. At a minimum, the HSPP shall comply with the following requirements:

a. The HSPP shall comply with the requirements and guidance provided for health and safety protection of workers under OSHA 1910.120, HAZWOPER;

b. The HSPP shall specify the health and safety objectives and the general principles, management practices and the procedures for achieving those objectives;

c. The HSPP shall specify the criteria by which the appropriate level of protection for a task or site will be chosen, including the criteria for making this decision when there is little or no information on the nature of the hazards involved;

d. The HSPP shall address procedures by which the public health, safety and the environment will be protected from exposures during remedial activities, and how the Contractor will abate or control the exposures in the event of a release or threat of release of oil and/or hazardous material;

e. The HSPP shall contain a medical monitoring system compliant with OSHA 1910.120 HAZWOPER for the Contractor’s personnel and all subcontractor personnel; and

f. The HSPP shall contain provisions to ensure that a Contractor’s subcontractors are compliant with provisions a-e above, and that all subcontractor safety records are within acceptable limits for the subcontractor’s particular business classification.

Article IX: Insurance and Indemnification

A. INSURANCE: GENERAL REQUIREMENTS

1. The Contractor shall obtain and maintain throughout the term of the Contract the insurance coverage of the kinds and amounts specified below. Such coverage shall be provided by insurance companies acceptable to MassDEP. The insurer(s):

2. The Contractor shall request in writing to each insurer that its insurance policy(ies) be endorsed to provide MassDEP with thirty (30) days written notice prior to cancellation. The Contractor shall provide MassDEP with a copy of the request to its insurer and either a copy of the policy with endorsement or a letter from the insurer denying the request.

3. Upon signing this Contract, the Contractor shall furnish to MassDEP a certificate or certificates of insurance in a form satisfactory to MassDEP showing that it has complied with this article. The Contractor shall not seek to cancel any of the required insurance policies. The Contractor shall also notify MassDEP in writing immediately if the Contractor receives any notices of cancellation on any of the required insurance policies.

The bankruptcy or insolvency of the insured Contractor shall not relieve any of the insurers of their obligations with regard to the insurance being provided. The insurers shall also be liable for the payments of any amounts within any deductible obligations under any policy with no right of recourse against any additional insured.

4. The premium for any insurance required hereunder shall not be charged as a direct cost.

5. MassDEP reserves the right to require the Contractor to furnish the terms and conditions of any policy of insurance under this Contract.

6. Failure to procure or maintain the insurance coverage in the amounts, coverage and endorsements required shall be considered a breach of this Contract resulting in immediate termination of the Contract.

7. MassDEP reserves the right to require the contractor to require of its subcontractors and/or sub-consultants insurance in the kinds and amounts required by this Contract.

8. MassDEP reserves the right to require the Contractor, in appropriate circumstances, to include property owners upon whose land the Contract work is being performed to be added as additional insureds to the Contractor’s commercial general liability and umbrella liability or excess insurance liability insurance, and the Contractor shall furnish certificates of insurance evidencing the addition of these insureds.

B. INSURANCE: SPECIFIC REQUIREMENTS AND LIMITS: The Contractor shall obtain and maintain the following insurance with limits not less than those described below:

1. Workers Compensation Insurance and Employers Liability Insurance including Occupational Disease Benefits in compliance with Massachusetts law covering all directors, officers, employees and agents doing work in the Commonwealth of Massachusetts or in connection with this Contract. The policy shall provide for Employers Liability Insurance limits of not less than $1,000,000 each accident; $1,000,000 each disease, each employee and $1,000,000 disease aggregate.

The Workers Compensation insurer shall provide a Waiver of Subrogation in favor of the Commonwealth of Massachusetts, MassDEP and their officials and employees.

2. Commercial General Liability Insurance providing limits of not less than $1,000,000 each occurrence; $2,000,000 Per Project General Aggregate; $1,000,000 Products/Completed Operations Aggregate. Such insurance shall be written on an occurrence basis subject to the Insurance Service Office’s (ISO) form CG00 01 or equivalent. The insurance shall include coverage for Liability Assumed in an Insured Contract, Broad Form Property Damage, Independent Contractors Coverage, Personal and Advertising Liability, Cross Liability and Explosion, Collapse, Underground Hazard (XCU) coverage.

The Commonwealth of Massachusetts, MassDEP and their officials and employees shall be added as additional insureds for Commercial General Liability. With regard to this Contract the insurance shall be primary and non-contributory, without regarding to any other insurance available to the Commonwealth or MassDEP. The insurer shall also agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

3. Business Automobile Liability Insurance written to provide coverage for at least all owned automobiles, non-owned and hired automobiles. The policy shall provide limits of not less than $1,000,000 each accident on a combined single limit basis.

Contractors responsible for the transportation of pollution or hazardous waste in a covered automobile must also have broadened pollution coverage for covered autos ISO form (CA 99 48) or its equivalent and a Motor Carrier Act Endorsement (MCS-90).

The Commonwealth of Massachusetts, MassDEP and their officials and employees shall be added as additional insureds for Business Automobile Liability. The insurer shall also agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

4. For contractors providing environmental consulting, design, testing, monitoring, sampling or other engineering services, Professional Liability/Errors and Omissions Insurance with limits of not less than $1,000,000 each claim and in the aggregate covering the Contractor’s rendering or failure to render professional services under the Contract. This insurance shall provide at a minimum coverage for all professional services assumed by the Contractor under this Contract. Such insurance shall apply to negligent acts, errors or omissions committed by the Contractor and cover the Contractor’s liability for the negligent acts, errors or omissions of anyone for whom the Contractor is legally liable.

The professional liability insurance policy shall not have a pollution, lead, silica or asbestos exclusion. It shall provide prior acts coverage that precedes all services performed by the Contractor under this Contract.

The professional liability insurer shall agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

The Contractor shall continuously maintain this professional liability insurance for a period of three (3) years following substantial completion of all work.

5. Contractors Pollution Liability Insurance, either as part of the Professional Liability Insurance policy or as a stand-alone policy providing no less than $1,000,000 each incident and in the aggregate. Such insurance may be written on either a claims made or occurrence basis. If such coverage is written as claims made, it shall provide prior acts coverage that precedes all services performed by the Contractor under this Contract and the Contract shall maintain this insurance for a period of three (3) years following substantial completion of all work.

The Contractors Pollution Liability Insurance shall not have any exclusion for lead, silica, or asbestos. The policy shall provide coverage for arranging the transportation, storage and disposal of any oil and/or hazardous material, including naturally occurring hazardous substances. The policy shall be endorsed to cover liability for the disposal of oil and/or hazardous materials at approved dump sites.

The Commonwealth of Massachusetts, MassDEP and their official and employees shall be added as additional insureds under the Contractors Pollution Liability. The CPL insurer shall also agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

6. Umbrella Liability or Excess Liability Insurance written on an occurrence basis providing no less than $2,000,000 each occurrence limits of liability. The Umbrella or Excess Liability shall apply at least excess over the Commercial General Liability, Business Automobile Liability and Employers Liability with Broad as Primary coverage.

The Umbrella or Excess Liability insurer shall agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

7. Property Insurance on an “all risk” or “named perils” basis insuring all tools and equipment of the Contractor including any equipment to be installed in the project.

C. ENVIRONMENTAL CONTRACTORS’ INDEMNFICATION (GENERAL AND IP):

1. Indemnification: Unless otherwise exempted by law, the Contractor shall indemnify and hold harmless the Commonwealth of Massachusetts, MassDEP and all of their officials, directors, employees and agents from and against any and all claims, damages, losses and expenses (including cost of defense, settlement and attorneys’ fees) which any or all of them may hereafter suffer, incur, be responsible for, or pay as a result of bodily injury, personal injury, property damage, and/or environmental clean-up costs (including injury to employees of the Contractor or its subcontractors) arising out of, resulting from or in consequence of the performance of this Contract, provided that such claim, damage, loss or expense is caused in whole or in part by any act or omission of the Contractor and/or any of its subcontractors. This indemnification obligation is in addition to and is not limited by any insurance required by this Contract.

2. Intellectual Property Indemnification: Unless otherwise exempted by law, the Contractor shall indemnify and hold harmless the Commonwealth of Massachusetts, MassDEP, and their officials, directors, employees and agents from and against all claims, actions, losses, damages and expenses (including cost of defense, settlement and attorneys’ fees) arising out of any patent, copyright, trademark or secret process infringement by the Contractor and/or its subcontractors in the performance of this Contract.

If the making or using of a design or process referenced in technical specifications drafted by the Contractor for MassDEP under this contract is limited or prohibited because of any infringement, the Contractor agrees to:

(A) Specify within the technical specifications and make clear to MassDEP in writing that the design or process drafted and/or created requires a license or licenses; and

(B) At the Contractor’s sole expense without reimbursement from MassDEP, the Contractor shall obtain any license(s) not referenced in the technical specifications which were drafted and/or created by the Contractor for submittal to MassDEP.

This indemnification obligation shall survive and continue to apply after substantial completion of all work under the Contract.

D. ENVIRONMENTAL CONSULTANTS’ INDEMNFICATION (GENERAL AND IP):

1. Indemnification: Unless otherwise exempted by law, the consultant shall indemnify and hold harmless the Commonwealth of Massachusetts, MassDEP and all of their officials, directors, employees and agents from and against any and all claims, damages, losses and expenses (including cost of defense, settlement and attorneys’ fees) which any or all of them may hereafter suffer, incur, be responsible for, or pay as a result of bodily injury, personal injury, property damage, and/or environmental clean-up costs (including injury to employees of the consultant or its subconsultants) or any other loss to the extent that such are caused by the willful or reckless misconduct or negligence of the consultant, its sub-consultants or anyone from whom either may be legally liable arising out of, resulting from or in consequence of the performance of this Contract. This indemnification obligation is in addition to and not limited by any insurance required by the Contract.

2. Intellectual Property Indemnification: Unless otherwise exempted by law, the consultant shall indemnify and hold harmless the Commonwealth of Massachusetts, MassDEP, and their officials, directors, employees and agents from and against all…