**PAY FOR PERFORMANCE CONTRACT FOR**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ CITY, UTAH**

**RELEASE SITE \_\_\_\_, FACILITY ID \# 4000\_\_\_**

**Parties:**

This three party agreement is entered into between the Executive
Secretary (UST) of the Utah Solid and Hazardous Waste Control Board,
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ (Claimant), and
Claimant's Consultant \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
(Consultant) pursuant to Utah Admin. Code R311-207-4(h).

**Purpose:**

The purpose of this agreement is to pay a Petroleum Storage Tank Fund
(PST Fund) claim for cleanup on a fixed price schedule as measurable
contaminant level goals are reached.

**Terms:**

A. CONTRACT AMOUNT

It is agreed between the Executive Secretary, Claimant, and Consultant
that this agreement is the exclusive means of approving reimbursement
from the PST Fund and making payment for work performed in conformance
with the approved work plan No. \_\_ for the total fixed price of
\$\_\_\_\_\_\_\_\_\_\_.00. This total fixed price is supported by
competitive bidding, sole source justification or an analysis of
reasonable, customary and legitimate costs.

B. EXECUTIVE SECRETARY'S OBLIGATIONS

1\. Following review and processing of payment request letters, payment
vouchers, and required data, the Executive Secretary shall pay the total
fixed price from the PST Fund directly to Consultant as provided in
section E below.

2\. The Executive Secretary may withdraw approval of reimbursement of
PST Funds with its resulting payment to Consultant and withdraw the
approval of the work plan if the Consultant fails to pursue the cleanup
in accordance with the schedule submitted and approved with the work
plan, or if the Consultant fails to continuously operate the remediation
system as specified in the corrective action plan for a period longer
than thirty (30) days. Upon written request, the Executive Secretary may
grant an extension at his discretion.

C. CLAIMANTS OBLIGATIONS

1\. Claimant assigns its right to payment from the PST Fund for the work
performed by the Consultant to the Consultant. Claimant shall review the
correspondences from the Consultant and shall promptly notify the
Executive Secretary of any mistakes.

2\. Claimant shall maintain communication with Consultant, monitor the
work, and ensure that Consultant is diligently pursuing corrective
action in accordance with the approved work plan and this agreement.
Claimant shall be cooperative and facilitate Consultant's ability to
pursue the work. Claimant shall not interfere with or hinder
Consultant's ability to implement the work plan. Claimant remains
responsible for cleanup of site regardless of Consultant's performance
or effectiveness of original approved work plan.

3\. Claimant grants the Executive Secretary access to Claimant's
property described in the work plan to view work progress, obtain split
samples, conduct final site walk through, retrieve surplus equipment or
for any other purpose to satisfy the Executive Secretary's statutory
obligations. Claimant grants and shall allow its Consultant all
necessary access in order for Consultant to perform the work as provided
for in this agreement.

D. CONSULTANT'S OBLIGATIONS

1\. Consultant shall achieve the specified cleanup levels referenced in
section E below by performing the corrective action set out in work plan
No.\_\_, or other corrective action approved by the Executive Secretary
and the Clamant.

2\. Consultant agrees to accept payment of the fixed price as provided
in section E below. Consultant agrees that this will be the full and
exclusive compensation paid to the Consultant for performance of the
work plan or other corrective action approved by the Executive
Secretary, including bonding and insurance.

3\. As provided in section E below, Consultant shall submit to the
Executive Secretary on behalf of Claimant, payment request letters, PST
payment vouchers, water and soil sample analysis, reports, lab or test
results, and any other necessary or agreed to submittals as Consultant
performs the work plan. When Consultant submits correspondences to the
Executive Secretary, Consultant shall also send copies of the
correspondences to Claimant.

4\. During the work, Consultant shall work in a manner as far as is
practicable to minimize interfering with business operations. Consultant
shall maintain the work site free of debris and in good condition. Upon
completion of the work, Consultant shall perform site restoration and
ensure the work site is left in good condition.

5\. The Consultant shall hold harmless and indemnify the Claimant and
the Executive Secretary against any patent infringements and third party
liability from injury, loss or damage caused wholly or in part by the
Consultant.

6\. If Consultant abandons the project prior to completion of
remediation or the end of the warranty period, whichever occurs first,
that Consultant and any consulting firm in which he/she is a principal
will not be considered by the Executive Secretary for any future fixed
price performance based work pertaining to PST Fund sites.

E. PAYMENT TERMS

1\. Claimant's reimbursement of the total fixed price assigned as direct
payment to Consultant shall only be made as Consultant achieves the
performance criteria of this agreement as follows:

> a\. **50%** of the total fixed price will be processed for payment
> when all of the following are satisfied:

i\. the system has been installed and functionally tested,

ii\. an as-built diagram has been submitted, and

> iii\. as specified in Appendix "A", a groundwater sample has been
> taken from each key monitoring well and lab results have been
> submitted for inclusion in the baseline sample;

iv\. the average concentration of all the groundwater samples from each
key monitoring well have been calculated to define the "baseline data";

v\. if this baseline sampling shows that all of the baseline wells are
already at or below the contaminant levels specified in Appendix "A"
(specified cleanup levels), the Executive Secretary may terminate this
agreement without making further reimbursement;

vi\. the Executive Secretary shall be given 48 hours notice of
opportunity to observe the installed functioning system.

> b\. **10%** of the total fixed price will be processed for payment
> upon receipt from the Consultant of a payment request letter, PST
> payment voucher, and analytical data verifying that all key monitoring
> wells have reached a 25% reduction in contamination from the "baseline
> data" toward reaching the specified cleanup levels. The percent
> reduction will be calculated by the method presented in Appendix "A".
>
> c\. **10%** of the total fixed price will be processed for payment
> upon receipt from the Consultant of a payment request letter, PST
> payment voucher, and analytical data verifying that all key monitoring
> wells have reached a 50% reduction in contamination from the "baseline
> data" toward reaching the specified cleanup levels. The percent
> reduction will be calculated by the method presented in Appendix "A".
>
> d\. **10%** of the total fixed price will be processed for payment
> upon receipt from the Consultant of a payment request letter, PST
> payment voucher, and analytical data verifying that all key monitoring
> wells have reached a 75% reduction in contamination from the "baseline
> data" toward reaching the specified clean up levels. The percent
> reduction will be calculated by the method presented in Appendix "A".
>
> e\. **10%** of the total fixed price will be processed for payment
> upon receipt from the Consultant of a payment request letter, PST
> payment voucher, and analytical data verifying that **all** key
> monitoring wells have reached the specified cleanup levels.

f\. i. The final **10%** of the total fixed price will be processed for
payment upon receipt from the Consultant of a payment request letter,
PST payment voucher, and analytical data verifying that **all** key
monitoring wells have reached the specified cleanup levels and
maintained those levels for a period of six (6) months with the system
turned off. If the levels are not maintained for six (6) months, the
system shall be restarted until the specified cleanup levels can be
maintained for six (6) months after the system is turned off.

> ii\. Before the final payment, three (3) soil borings shall be made
> within the boundaries of the remediation system to verify that the
> specified soil cleanup levels have been reached. The locations and
> depths of sampling will be selected by the Executive Secretary after
> consultation with the Claimant and Consultant. The cost of this
> verification sampling is included in the fixed price.
>
> iii\. If the verification sampling indicates the specified cleanup
> level has not been achieved in the soil, remediation shall continue
> under the performance terms stated in the approved work plan until
> such levels are reached or warranty period (see section E.2 below) has
> been exhausted.
>
> iv\. Upon confirmation by the verification sampling that cleanup
> levels have been reached and maintained in the soil; the completion of
> decommissioning; well abandonment; submission of the inventory list
> discussed in section H.1 below; Executive Secretary and Claimant site
> walk through then approval of site restoration; and receipt of lien
> releases or waivers from all subcontractors; the final 10% of the
> approved amount shall be processed and paid.

2\. Performance Product and Warranty.

All items in the approved performance based corrective action are
necessary for reimbursement and payment. These may include, but are not
limited to: submitting all reports required by regulation, all reports
necessary to obtain payment, all equipment purchase and installation,
all operating, maintenance, repair and replacement cost, site
restoration, and a warranty of meeting the cleanup level within **48
months** of startup of the system. If cleanup levels are not achieved
within **48 months**, the Consultant will continue to operate and
maintain the system without being entitled to additional payment beyond
the fixed approved price for up to **24 additional months** or until
cleanup levels are reached, whichever comes first. At the end of the
additional **24 month** period, unless an extension is granted pursuant
to section B.2, if cleanup levels have still not been reached the final
**10%** shall not be payable to Consultant, and **Consultant forfeits
all rights** to payment of the final **10%.** Claimant shall then hire
another consultant to finish the cleanup.

F. WORK PLAN

Work Plan No.\_\_ is incorporated by reference as part of this
agreement.

G. MONITORING

> 1\. a. All key monitoring well locations used to monitor the progress
> of the reduction of the contamination levels will be chosen by the
> Executive Secretary, with input from the Claimant and Consultant, and
> shall be identified by the Executive Secretary on the site map
> submitted with the corrective action plan which contains the drawing
> of the proposed remediation system. The Executive Secretary will
> denote the chosen locations by placing an "X" where they are located
> and by initialing and dating each selected location. There will be no
> less than four (4) and not more than eight (8) key monitoring wells.
>
> b\. Monitoring wells other than the key monitoring wells will be
> sampled as described in the work plan. The cost of all sampling is
> included in the total fixed price.
>
> 2\. a. The Consultant shall submit water sample analysis results to
> the Executive Secretary. The report need only include a transmittal
> letter and a table with current and historical results. Water sample
> reports used to support performance base criteria for payment must
> also include the laboratory data sheets. Payment verification reports
> shall include tables for all contaminants showing total percent
> reduction in contamination from baseline data.
>
> b\. The Executive Secretary shall be given 48 hours notice prior to
> any sampling event that will be used for performance payment
> verification to allow the Executive Secretary or its representative
> the opportunity to take split samples. If notification and opportunity
> for the Executive Secretary to obtain split samples is not given, the
> Executive Secretary may reject the sample results.

H. MISCELLANEOUS

1\. Ownership of Equipment.

All remediation equipment installed on site is the property of the
Petroleum Storage Tank Fund. At the time of site decommissioning, the
Consultant shall provide the Executive Secretary with an inventory
listing of all items and their remaining monetary value. The Utah State
Agency for Surplus Property will arrange for disposition of all items
not reusable on other PST Fund sites. At the option of the Utah Agency
for Surplus Property, title to remaining items may be transferred to
Claimant for disposal without any change to the total fixed price. The
costs for decommissioning, well abandonment and site restoration are
included in the total fixed price.

2\. Scope of Agreement.

This agreement covers only the contamination found on the Claimant's
property (on site). Contamination, if any, not on the Claimant's
property (off site), must be successfully dealt with in accordance with
Utah Admin. Code R311-211, Corrective Action Clean-up Standards Policy,
before a no further action letter for the release may be issued.

> 3\. Termination/Force Majeure.
>
> a\. This agreement may be terminated or renegotiated in the best
> interest of accomplishing the cleanup at a reasonable cost under the
> following circumstances:
>
> i\. in the event of conclusive evidence of a secondary release,
> continuing release, or migration of off-site contamination onto the
> subject site,

ii\. acts of god.

> b\. This shall not be construed to allow Consultant to terminate this
> agreement or allow for renegotiation of the total fixed price simply
> on account of contamination being more extensive or at higher
> concentrations than originally estimated.

4\. No Waiver.

> a\. By signing this agreement the Parties do not waive or compromise
> any right which they may have except as specifically set forth herein.
>
> b\. The failure of Executive Secretary to insist in any one or more
> instances upon strict compliance with any provision of this Contract,
> or to exercise any option herein conferred, shall not be construed as
> a waiver or relinquishment of the right of Executive Secretary
> thereafter to require compliance with such provision of this Contract,
> or a waiver of the right of Executive Secretary thereafter to exercise
> such option, but such provision or option will remain in full force
> and effect.

5\. Jurisdiction.

This contract shall be governed by the laws of the State of Utah and
applicable federal law. Court action, if any, shall be filed in an
appropriate state court located in Salt Lake County, State of Utah.

6\. Complete Agreement/Modifications.

This contract will be effective the day of signing by all parties and
may only be canceled in accordance with the terms written above and with
written notice to all parties. This contract constitutes the entire
agreement between the Executive Secretary, Claimant, and Claimant's
Consultant. No prior statements, promises, or inducements, either
written or oral, made by any party or agent of the parties which are not
contained within this contract are valid or binding. This contract can
only be modified by written amendment, agreed to and signed by all
parties.

7\. Correspondence.

Required and other correspondence between the parties of this agreement
shall be deemed sufficiently given if sent by regular mail addressed to
the other parties at the addresses set forth below. If the project
manager for the Executive Secretary changes during the term of this
agreement, upon the Executive Secretary notifying the three parties, the
other parties will insert the new project manager's name in place of the
former project manager in the Executive Secretary's address below.

Executive Secretary.

Division of Environmental Response and Remediation (PST Fund)

Attn: \_\_\_\_\_\_\_\_\_\_\_\_\_\_, Project Manager

168 North 1950 West, First Floor

Salt Lake City, Utah 84116

Claimant: Consultant:

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Claimant Date Consultant Date

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Executive Secretary Date