2017 PJM Demand Response ITQ - Part IV Terms and Conditions.pdf

CONTRACT FOR

PJM DEMAND RESPONSE SERVICES

BETWEEN

COMMONWEALTH OF PENNSYLVANIA,

Acting by and through the

DEPARTMENT OF GENERAL SERVICES

AND

<COMPANY NAME>

CONTRACT NO. 4400016352

THIS CONTRACT, made at Harrisburg, Pennsylvania, in the county of Dauphin, Commonwealth of Pennsylvania, by and between the COMMONWEALTH OF PENNSYLVANIA, acting by and through the Department of General Services, with offices at Harrisburg, Pennsylvania, hereinafter called the Commonwealth and <COMPANY NAME>, hereinafter called the Contractor, acting through its proper officials;

WITNESSETH THAT:

WHEREAS, the Commonwealth has need for PJM Demand Response Services (the “Services”);

and

WHEREAS, the Commonwealth issued an Invitation to Qualify (ITQ) for the PJM Demand

Response Services ITQ through an Invitation for Bids (IFB) and the Contractor submitted a bid in response to the ITQ; and

WHEREAS, the Commonwealth has the authority to enter into this Contract for the Services on a multiple award basis according to Section 517 of the Commonwealth Procurement Code, 62 Pa.C.S.

§517; and

WHEREAS, the Commonwealth has evaluated the Contractor’s Proposal and determined that the

Contractor has met the qualification requirements of the ITQ.

NOW, THEREFORE, for and in consideration of the foregoing premises and mutual promises hereinafter set forth, the parties hereto agree, with the intention of being legally bound, as follows:

1. GENERAL

a. Upon determination that the Contractor meets the ITQ requirements, the Commonwealth will issue a contract to the Contractor in accordance with Section 55 hereof.

b. Upon receipt of a Purchase Order (PO) issued under this Contract, the Contractor agrees to furnish the requested services to the Commonwealth agency issuing the PO.

2. COST

The total cost for Services provided for each PO under this Contract shall be the amount stated in each PO. The Issuing Agency will establish a payment schedule with the Contractor and the

Contractor agrees that payment shall be made in accordance with such payment schedule. No separate reimbursement will be made for travel, lodging or subsistence. All costs for travel, lodging or subsistence must be included in the costs provided to the Issuing Agency and incorporated into the PO.

3. OVERVIEW

The purpose of this multiple award Contract is to provide agencies of the Commonwealth with the Services that are within the scope of this Contract.

4. DEFINITIONS

a. Contact Person. The individual designated by the Issuing Agency to administer and monitor POs issued by the Issuing Agency under this Contract. The Contact Person is authorized to issue POs and amendments to POs and to terminate POs.

-2-

b. Contracting Officer. The person authorized to administer this Contract for the

Commonwealth and to make written determinations with respect to the Contract (as opposed to individual POs, which shall be administered and monitored by the Issuing

Agency) is the DGS Chief Procurement Officer. The Contracting Officer is NOT authorized to sign this Contract or any amendment, but is authorized to terminate this

Contract.

c. Days. Unless specifically indicated otherwise, days mean Commonwealth business days.

d. Developed Materials or Developed Works. Except for Contractor’s work papers and internal communications related to the Services of this Contract and that are not delivered to the Commonwealth, which shall remain the exclusive property of the Contractor, all documents, data, records, software, samples or any other literary works or other works of authorship produced by Contractor in carrying out the obligations and Services under this

Contract, without limitation, and delivered by the Contractor as the work product for the

Project (“Deliverables” or “Delivered Materials”). All Project Deliverables shall be explicitly identified in the Statement of Work (SOW) for each Purchase Order (PO).

e. Documentation. A term used to refer to all materials required to support and convey information about the services required by this Contract. It includes, but is not necessarily restricted to, written reports and analyses, diagrams, maps, logical and physical designs, system designs, computer programs, flow charts, disks, and/or other machine-readable storage media.

f. Contract Effective Date. The date that the Contract has been fully executed by the

Contractor and by the Commonwealth and all approvals required by Commonwealth contracting procedures have been obtained.

g. Issuing Agency. The Commonwealth agency issuing the PO under the terms and conditions of this Contract.

h. Proposal. Contractor’s response to a Request for Quotations (RFQ) issued by the Issuing

Agency.

i. Services. All Contractor activity necessary to satisfy the PO as defined by the Issuing

Agency in the Statement of Work (SOW) incorporated into the PO.

5. CONTRACT SCOPE

This Contract will include various PJM Demand Response Services service categories.

All of the categories are described more fully via the ITQ web site at http://www.dgs.internet.state.pa.us/ITQ/Default.aspx

b. The ITQ web site is the place that shows the specific service categories for which the

Contractor has been found qualified.

c. If the Contractor must perform work outside of the daily operational hours set forth by the

Issuing Agency, it must make arrangements with the Issuing Agency to assure access to the facility and equipment has been arranged. The Contractor must take such access into consideration when it is putting together its Proposal. No additional payment will be made on the basis of lack of access unless the Issuing Agency fails to provide access as agreed to between the Issuing Agency and the Contractor.

- 3 -

d. Unless specifically provided for in the PO, the Contractor shall not offer for sale or provide Commonwealth agencies with any hardware or software (i.e., personal computers, file servers, laptops, personal computer packaged software, etc.). If the PO does not specifically include the provision of software, Contractors may recommend the use of hardware and software, without requiring agencies to purchase the recommended hardware and software. Software and hardware that is NOT on statewide contract will be acquired through separately procured purchase agreements, and the Contractor shall not be considered for award of such agreements.

e. Contractor shall comply with the IT standards and policies issued by the Governor’s

Office of Administration, Office for Information Technology (OA/OIT) (located at:

http://www.portal.state.pa.us/portal/server.pt?open=512&objID=416&PageID=210791& mode=2), including the accessibility standards set out in IT Bulletin ACC001, IT

Accessibility Policy. The Contractor shall ensure that Services procured under this

Contract comply with the applicable standards. In the event such standards change during Contractor’s performance of a PO, and the Issuing Agency requests that

Contractor comply with the changed standard, then any incremental costs incurred by

Contractor to comply with such changes shall be paid for pursuant to a change order to the PO.

6. ORDER OF PRECEDENCE

a. If any conflicts or discrepancies should arise in the terms and conditions of this Contract, or the interpretation thereof, the order of precedence shall be:

i. This Contract;

ii. The data resident on the ITQ web site at http://www.dgs.internet.state.pa.us/ITQ/Default.aspx and incorporated herein by reference at the date of execution of the Contract or issuance of an

RFQ off of this Contract, whichever is later, including but not limited to the promises and certifications the Contractor made in qualifying for the Contract;

b. If any conflicts or discrepancies should arise in the interpretation of a PO, the order of precedence shall be:

i. The PJM Demand Response Services service category definitions, descriptions, qualification requirements, and contract terms and conditions set forth in the RFQ;

ii. This Contract;

iii. The PO and any attachment thereto, including: (1) the Contractor’s Proposal, as accepted by the Commonwealth; (2) the RFQ.

7. CONTRACT INTEGRATION

a. This Contract, including the Contract signature pages, together with the data resident on the ITQ web site at http://www.dgs.internet.state.pa.us/ITQ/Default.aspx as described in Section 6, constitutes the final, complete, and exclusive Contract between the parties containing all the terms and conditions agreed to by the parties. The Contract itself contemplates the issuance of RFQs and POs, and Technical and Cost proposal responses by the Contractor, the content of which will augment the Contract when issued and executed as anticipated under this Contract.

- 4 -http://www.portal.state.pa.us/portal/server.pt?open=512&objID=416&PageID=210791&mode=2 http://www.portal.state.pa.us/portal/server.pt?open=512&objID=416&PageID=210791&mode=2

b. All representations, understandings, promises, and agreements pertaining to the subject matter of this Contract made prior to or at the time this Contract is executed are superseded by this Contract.

c. There are no conditions precedent to the performance of this Contract except as expressly set forth herein.

8. PURCHASE ORDERS (POs)

a. Prior to issuing a PO against this Contract, Issuing Agencies must follow the solicitation requirements and evaluation process established for this Contract and available at http://www.itqrp.state.pa.us/ITQ/ITQ/Default.aspx. DGS may modify these procedures by posting revised procedures at the website specified above and which will become effective for subsequent projects not already in the solicitation process.

b. All documents issued by the Issuing Agency and all responses submitted by the

Contractors must be in electronic format and that format must be compatible with

Microsoft™ Office. Documents may be read only, but may not be in .pdf format. The

Issuing Agency may, at its option, also require that all documents be submitted in paper format.

c. Issuing agencies may issue POs against this Contract. A PO constitutes the Contractor’s authority to perform Services. Each PO will be deemed to incorporate the terms and conditions set forth in this Contract. In no event will the performance time period specified in a Purchase Order extend longer than ninety (90) days after the expiration date of the Contract term. The Contractor will be required to adhere to the requirements and/or specifications of the PO.

d. Purchase Orders under ten thousand dollars ($10,000) in total amount may also be made in person or by telephone using a Commonwealth Procurement VISA Card. When an order is placed by telephone, the Commonwealth agency shall provide the agency name, employee name, credit card number, and expiration date of the card. The Contractor agrees to accept payment through the use of the Commonwealth Procurement VISA card.

9. PERIOD OF PERFORMANCE

The Contractor, for the life of this Contract, shall complete all services as specified under the terms of this Contract and any PO resulting from this Contract. In no event shall the

Commonwealth be responsible or liable to pay for any services provided by the Contractor prior to the Effective Date, and the Contractor hereby waives any claim or cause of action for any such services.

10. TERM OF CONTRACT

The term of the Contract shall commence on June 1, 2017 and shall end when terminated by the

Commonwealth pursuant to Section 23 of Part IV, Termination Provisions.

11. OPTION TO EXTEND

The Commonwealth reserves the right to extend this Contract or any part of this Contract up to three (3) months, or as necessary to prevent a lapse in Contract coverage.

- 5 -http://www.itq.state.pa.us/

12. SPECIAL REQUIREMENTS

Within the general scope of this ITQ, and with the prior approval of DGS, Issuing Agencies may modify the PJM Demand Response Services service category definitions, descriptions, qualification requirements, and contract terms and conditions for particular POs if set forth in the RFQ. Such modifications shall take precedence over differing provisions of the ITQ/Contract.

The Commonwealth reserves the right to purchase Services within the scope of this Contract through other procurement methods whenever the Commonwealth deems it to be in its best interest.

13. SUBCONTRACTS

The Contractor may subcontract any portion of the Services described in this Contract to third parties selected by Contractor and approved in writing by the Issuing Agency, whose approval shall not be unreasonably withheld. Notwithstanding the above, if Contractor has disclosed the identity of subcontractor(s) together with the scope of work to be subcontracted in its Proposal, the Issuing Agency’s issuance of a PO is deemed to be approval of all named subcontractors and a separate approval is not required. The existence of any subcontract shall not change the obligations of Contractor to the Issuing Agency under this Contract. Upon request of the Issuing

Agency, the Contractor must provide the Issuing Agency with a copy of the subcontract agreement(s) between the Contractor and the subcontractor(s). Contractor will require all of its subcontractors to adhere to the terms and conditions of this Contract. Contractors may not subcontract more than 49% of the total spend for a project/purchase order unless DGS approves a waiver in advance.

14. OTHER CONTRACTORS

The Commonwealth may undertake or award other contracts or PO’s for additional or related work, and the Contractor shall fully cooperate with other Contractors and Commonwealth employees, and coordinate its Services with such additional work as may be required. The

Contractor shall not commit or permit any act that will interfere with the performance of work by any other Contractor or by Commonwealth employees. This Section shall be included in the

Contracts of all Contractors with which this Contractor will be required to cooperate. The

Commonwealth shall equitably enforce this Section as to all Contractors to prevent the imposition of unreasonable burdens on any Contractor.

15. PRIME CONTRACTOR RESPONSIBILITIES

The Contractor will be responsible for all services required under a PO issued under this Contract whether or not it provides them directly. The Contractor is the sole point of contact with regard to all contractual matters, including payment of any and all charges resulting from the PO.

16. INVOICES

a. Unless otherwise specified in a PO, subject to Issuing Agency review and acceptance, the

Contractor shall invoice the Issuing Agency for Services performed only after acceptance of the Services in accordance with the PO. Invoices will be submitted as specified in the

PO.

For services provided on a time-and-materials basis, the Contractor shall invoice the

Commonwealth on a monthly basis as services are provided.

For services provided on a fixed-price basis, and subject to Commonwealth review and acceptance, the Contractor shall invoice the Commonwealth for services performed only

- 6 -after acceptance of the services in accordance with Section 18 (INSPECTION AND

ACCEPTANCE).

b. At a minimum, the following information shall be furnished on all invoices, as applicable:

(1) A unique invoice number;

(2) The Contract number;

(3) PO number;

(4) The Contractor’s SAP/SRM Vendor Number;

(5) The period covered;

(6) For expenditure of manpower resources, including that of subcontractors (solely related to Time and Materials invoices only; not required for Deliverables invoices):

(i) Position;

(ii) Rate per hour; and

(iii) Hours and cost thereof, itemized by tasks.

(7) Tasks completed by the Contractor during the billing period and approved by the Issuing Agency to the date of the invoice, and percentage of the phase represented thereby;

(8) Amounts invoiced to date and approved to date;

(9) Location, including address to which payment is to be made; and

(10) Invoices received by the Contractor from any subcontractor.

c. The Issuing Agency shall use its best efforts to pay all properly prepared and submitted invoices within forty five (45) calendar days from the date of receipt of such invoice by the Issuing Agency. Interest on late payments may only be paid if the contractor qualifies for such payment pursuant to the provisions of 4 Pa. Code § 2.31, et seq.

d. The Commonwealth or Issuing Agency may deduct from amounts due under an invoice any amounts owed to the Commonwealth under Section 29, Offset Provision for

Commonwealth Contracts and Section 52, Liquidated Damages.

e. Electronic Payments

(1) The Commonwealth will make contract payments through the

Automated Clearing House (ACH). Within 10 days of award of the

Contract or PO, the Contractor must submit or must have already

- 7 -submitted its ACH information within its user profile in the

Commonwealth’s procurement system (SRM).

(2) The Contractor must submit a unique invoice number with each invoice submitted. The unique invoice number will be listed on the

Commonwealth of Pennsylvania’s ACH remittance advice to enable the

Contractor to properly apply the state agency’s payment to the invoice submitted.

(3) It is the responsibility of the Contractor to ensure that the ACH information contained in SRM is accurate and complete. Failure to maintain accurate and complete information may result in delays in payments.

17. ASSIGNABILITY

a. Subject to the terms and conditions of this Section, the Contract is binding upon the parties and their respective successors and assigns.

b. The Contractor may not assign, in whole or in part, the Contract or its rights, duties, obligations, or responsibilities hereunder without the prior written consent of the

Commonwealth, which consent may be withheld at the sole and absolute discretion of the

Commonwealth.

c. Notwithstanding the foregoing, the Contractor may, without the consent of the

Commonwealth, assign its rights to payment to be received under the Contract or a PO, provided that the Contractor provides written notice of such assignment to the Issuing

Agency together with a written acknowledgement from the assignee that any such payments are subject to all of the terms and conditions of the Contract.

d. For the purposes of the Contract, the term “assign” shall include, but shall not be limited to, the sale, gift, assignment, pledge, or other transfer of any ownership interest in the

Contractor provided, however, that the term shall not apply to the sale or other transfer of stock of a publicly traded company.

e. Any assignment consented to by the Commonwealth shall be evidenced by a written assignment agreement executed by the Contractor and its assignee in which the assignee agrees to be legally bound by all of the terms and conditions of the Contract and to assume the duties, obligations, and responsibilities being assigned. The assignment form is provided via the ITQ web site at http://www.itqrp.state.pa.us/ITQ/ITQ/Default.aspx.

f. A change of name by the Contractor, following which the Contractor’s federal identification number remains unchanged, is not considered to be an assignment. The

Contractor shall give the Issuing Agency and the Contracting Officer written notice of any such change of name.

18. INSPECTION AND ACCEPTANCE

a. Acceptance of Developed Materials will occur in accordance with the Deliverable

Approval Plan and/or criteria set forth in the SOW. For PO’s where the development of software, the configuration of software, or the modification of software is the deliverable,

- 8 -http://www.itq.state.pa.us/ the Deliverable Approval Plan must include an Acceptance Test Plan. The Acceptance

Test Plan will provide for a Final Acceptance Test, and may provide for Interim

Milestone Acceptance Tests. Each Acceptance Test will be designed to demonstrate that the Developed Materials conform with the functional specifications for the Developed

Materials, if any, and/or the requirements of the SOW. Contractor shall notify the

Issuing Agency when the deliverable is completed and ready for acceptance testing. The

Issuing Agency will not unreasonably delay commencement of acceptance testing.

(1) For Projects that require software integration a the end of the Project, as set out in the PO, the Commonwealth’s acceptance of a deliverable or milestone shall be final unless at the time of Final Acceptance, the

Developed Materials do not meet the acceptance criteria set forth in the

SOW.

(2) For Projects that do not require software integration at the end of the

Project as set out in the PO, the Commonwealth’s acceptance of a deliverable or milestone shall be complete and final.

b. Contractor shall certify, in writing, to the Issuing Agency when a particular milestone, interim or final, is completed and ready for acceptance (hereinafter Acceptance). Unless otherwise set out in a SOW or PO, the Acceptance period shall be ten (10) days for interim milestones and thirty (30) days for final milestones. On or before the 10th day for interim milestones or 30th day for the final milestone, following receipt by the Issuing

Agency of Contractor’s certification of completion of a particular milestone, the Issuing

Agency shall, subject to Section 18(a) either: (1) provide the Contractor with its written acceptance of the Developed Materials in the completed milestone; or (2) identify to

Contractor, in writing, the failure of the Developed Materials to comply with the specifications, listing all such errors and omissions with reasonable detail.

c. If the Issuing Agency fails to notify the Contractor in writing of any failures in the

Developed Materials within the applicable Acceptance period, the Developed Materials shall be deemed accepted.

d. If the Developed Materials do not meet an accessibility standard as set out in Section

5(e), the Contractor must provide written justification for its failure to meet the standard.

The justification must provide specific details as to why the standard has not been met.

The Issuing Agency may either waive the requirement as not applicable to the Issuing

Agency’s business requirements or require that the Contractor provide an acceptable alternative. Any waiver of the requirement must be in writing.

e. Upon Contractor’s receipt of the Issuing Agency’s written notice of rejection, which must identify the reasons for the failure of the Developed Materials in a completed milestone to comply with the specifications, the Contractor shall have fifteen (15) days, or such other time as the Issuing Agency and Contractor may agree is reasonable, within which to correct all such failures, and resubmit the corrected Developed Materials, certifying to the

Issuing Agency, in writing, that the failures have been corrected, and that the Developed

Materials have been brought in compliance with the specifications. Upon receipt of such corrected and resubmitted Developed Materials and certification, the Issuing Agency shall have thirty (30) days to test the corrected Developed Materials to confirm that they are in compliance with the specifications. If the corrected Developed Materials are in

- 9 -compliance with the specifications, then the Issuing Agency shall provide the Contractor with its acceptance of the Developed Materials in the completed milestone.

f. If, in the opinion of the Issuing Agency, the corrected Developed Materials still contain material failures, the Issuing Agency shall have the option either to:

(1) Repeat the procedure set forth above; or

(2) Proceed with its rights under Section 25 (DISPUTES).

19. NOTICE OF DELAYS

Whenever the Contractor encounters any difficulty which is delaying or threatens to delay the timely performance of this Contract or any PO issued under this Contract (including actual or potential labor disputes), the Contractor shall promptly give notice thereof in writing to the

Contact Person stating all relevant information with respect thereto. Such notice shall not in any way constitute a basis for an extension of the delivery schedule or be construed as a waiver by the

Commonwealth or the Issuing Agency of any rights or remedies to which it is entitled by law or pursuant to provisions of this Contract. Failure to give such notice, however, may be grounds for denial of any request for an extension of the delivery schedule because of such delay.

20. CONDUCT OF SERVICES

a. Following the acceptance of Contractor’s Proposal and the issuance of a PO, Contractor shall proceed diligently with all Services and shall perform such Services with qualified personnel, in accordance with the completion criteria set forth in the PO.

b. In determining whether or not the Contractor has performed with due diligence hereunder, it is agreed and understood that the Issuing Agency may measure the amount and quality of the Contractor’s effort against the representations made in any Contractor

Proposal accepted by way of a PO resulting from this Contract. The Contractor’s

Services hereunder shall be monitored by the Issuing Agency and designated representatives. If the Issuing Agency determines that the Contractor has not performed with due diligence, the Issuing Agency and the Contractor will attempt to reach agreement with respect to such matter. Failure of the Issuing Agency or the Contractor to arrive at such mutual determinations shall be a dispute concerning a question of fact within the meaning of Section 25 (DISPUTES) of this Contract.

21. CHANGES

a. At any time during the performance of a PO, the Issuing Agency or the Contractor may request a change to the PO, including the SOW, within the scope of the PO. Contractor will make reasonable efforts to investigate the impact of the change request on the price, timetable, specifications, and other terms and conditions of the PO. If the Issuing

Agency is the requestor of the change, the Contractor will inform the Issuing Agency if there will be any charges for the Contractor’s services in investigating the change request prior to incurring such charges. If the Issuing Agency and the Contractor agree on the results of the investigation and any necessary amendments to the PO, the parties must complete and execute the Change Notice Form, which is attached hereto as Appendix B,

- 10 -to modify the PO and implement the change. The Issuing Agency and Contractor will only request changes to the PO by way of the Change Notice Form. If the parties cannot agree upon the results of the investigation or the necessary amendments to the PO, the change request will not be implemented and, if the Contractor initiated the change request it may elect to handle the matter in accordance with Section 25 (DISPUTES) of this

b. Changes outside the scope of a PO shall be accomplished through the Commonwealth’s normal procurement procedures, and may result in an amended PO or a new PO (if the additional services are awarded to the Contractor).

22. DEFAULT

a. The Commonwealth may, subject to the provisions of Section 53, Force Majeure, and in addition to its other rights under the Contract, declare the Contractor in default by written notice thereof to the Contractor, and terminate (as provided in Section 23, Termination

Provisions) the whole or any part of this Contract or any PO for any of the following reasons:

(1) Failure to begin Services within the time specified in the Contract or

Purchase Order or as otherwise specified;

(2) Failure to perform the Services with sufficient labor, equipment, or material to cause the completion of the specified Services in material accordance with the Contract or Purchase Order terms;

(3) Unsatisfactory performance of the Services;

(4) Failure to deliver the awarded item(s) within the time specified in the

Contract or PO or as otherwise specified;

(5) Failure to provide an item(s) which is in conformance with the specifications referenced in the Contract or PO;

(6) Failure or refusal to remove material, or remove, replace or perform any

Services rejected as defective or noncompliant;

(7) Discontinuance of Services without approval or as otherwise allowed pursuant to the Contract or PO;

(8) Failure to resume work, which has been discontinued, within a reasonable time after notice to do so (unless the failure to resume is pursuant to the Contract or PO);

(9) Insolvency;

(10) Assignment made for the benefit of creditors;

(11) Failure or refusal within 10 days after written notice by the Contracting

Officer, to make payment or show cause why payment should not be made, of any amounts due subcontractors for materials furnished, labor

- 11 -supplied or performed, for equipment rentals, or for utility services rendered;

(12) Failure to protect, to repair, or to make good any damage or injury to property;

(13) Material breach of any provision of the Contract;

(14) Failure to comply with representations made in the Contractor's bid/Proposal; or

(15) Failure to comply with applicable industry standards, customs, and practice.

23. TERMINATION

a. For Convenience

(1) The Commonwealth may terminate this Contract and any or all POs issued under it without cause by giving Contractor thirty (30) days prior written notice (Notice of Termination) whenever the Commonwealth shall determine that such termination is in the best interest of the

Commonwealth (Termination for Convenience). The Notice of

Termination shall specify which, if any, POs will terminate with termination of the Contract. Any such termination shall be effected by delivery to the Contractor of a Notice of Termination specifying the extent to which performance under this Contract is terminated either in whole or in part and the date on which such termination becomes effective. Any PO not so specified in the Notice of Termination shall continue in effect for the term stated in the PO.

Any Issuing Agency may terminate any PO issued by that agency, without cause, by giving Contractor Notice of Termination prior to the effective date of termination.

In the event of termination hereunder, Contractor shall receive payment for:

(i) All Services performed consistent with the terms of the PO prior to the effective date of termination;

(ii) All actual and reasonable costs incurred by Contractor in terminating the PO; and

In no event shall the Contractor be paid for any loss of anticipated profit (by the

Contractor or any subcontractor), loss of use of money, or administrative or overhead costs.

Failure to agree on any termination costs shall be a dispute handled in accordance with Section 25 (DISPUTES) of this Contract.

- 12 -

(2) The Contractor shall cease Services as of the date set forth in the Notice of Termination, and shall be paid only for such Services as have already been satisfactorily rendered up to and including the termination date set forth in said notice, or as may be otherwise provided for in said Notice of Termination, and for such services performed during the thirty (30) day notice period, if such services are requested by the Issuing Agency under any POs being terminated, for the collection, assembling, and transmitting to the Commonwealth of at least all materials, manuals, magnetic media, studies, drawings, computations, maps, supplies, and survey notes including field books, which were obtained, prepared, or developed as part of the Services required under the terminating POs.

(3) The above shall not be deemed to limit the Commonwealth’s right to terminate this Contract for any reason as permitted by the other provisions of this Contract, or under applicable statuary law or regulations.

b. Non-Appropriation

Any payment obligation or portion thereof of the Commonwealth created by this Contract or any PO issued pursuant to this Contract is conditioned upon the availability and appropriation of funds. When funds (state or federal) are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal year period, the Commonwealth shall have the right to terminate the PO. The Contractor shall be reimbursed in the same manner as that described in this section related to Termination for

Convenience to the extent that appropriated funds are available.

c. Default

The Commonwealth may, in addition to its other rights under this Contract, terminate this

Contract or any PO in whole or in part by providing written notice of default to the

Contractor if the Contractor materially fails to perform its obligations under a PO and does not cure such failure within the time specified in the PO or, if no time is specified in the PO, within thirty (30) days or, if a cure within such period is not practical, commence a good faith effort to cure such failure to perform within the specified period or such longer period as the Commonwealth may specify in the written notice specifying such failure, and diligently and continuously proceed to complete the cure. For POs, the

Contact Person shall provide any notice of default or written cure notice for the Issuing

Agency. The Issuing Agency is authorized to terminate only a PO issued by the agency pursuant to this Contract. Termination of a PO for default shall not affect work on other

POs under which the Contractor is not in default. The Contracting Officer shall provide any notice of default or written cure notice for Contract terminations.

(1) Subject to the Limitation of Liability in Section 31 of this Contract, in the event the Commonwealth terminates this Contract in whole or in part as provided in this Subsection (c), the Commonwealth may procure services similar to those so terminated, and the Contractor, in addition to liability for any liquidated damages, shall be liable to the

Commonwealth for the difference between the Contract price for the terminated portion of the services and the actual and reasonable cost

(but in no event greater than the fair market value) of producing

- 13 -substitute equivalent services for the terminated services, provided that the Contractor shall continue the performance of this Contract to the extent not terminated under the provisions of this Section.

(2) Except with respect to defaults of subcontractors, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises out of causes beyond the control of the Contractor. Such causes may include, but are not limited to, acts of God or of the public enemy, fires, floods, epidemics, quarantine restrictions, strikes, work stoppages, freight embargoes, acts of terrorism, and unusually severe weather. The

Contractor shall notify the Contracting Officer and the Issuing Agency promptly in writing of its inability to perform because of a cause beyond the control of the Contractor.

(3) Nothing in this Subsection (c) shall abridge the Commonwealth’s right to suspend, debar, or take other administrative action against the

Contractor.

(4) If it is later determined that the Commonwealth erred in terminating the

Contract for default, then, at the Commonwealth’s discretion, the

Contract shall be deemed to have been terminated for convenience under Subsection (a).

d. If this Contract or a PO is terminated as provided by this Subsection (c), the

Commonwealth may, in addition to any other rights provided in this Subsection, and subject to Section 37 (OWNERSHIP RIGHTS) of this Contract, require the Contractor to deliver to each Issuing Agency in the manner and to the extent directed by the Contact

Person, such reports and other documentation as the Contractor has specifically produced or specifically acquired for the performance of such part of the Contract or PO as has been terminated. Payment for such reports and documentation will be made consistent with the Contract or PO.

e. The rights and remedies of the Commonwealth provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

f. The Commonwealth’s failure to exercise any rights or remedies provided in this Section shall not be construed to be a waiver by the Commonwealth of its rights and remedies in regard to the event of default or any succeeding event of default.

g. Following exhaustion of the Contractor’s administrative remedies as set forth in Section

25, the Contractor's exclusive remedy shall be to seek damages in the Board of Claims.

24. BACKGROUND CHECKS

The Contractor is to, at its expense, arrange for a background check for each of its employees, as well as for the employees of its subcontractors, who will have access to Commonwealth facilities, either through on site or remote access. Background checks are to be conducted via the Request for Criminal Record Check form and procedure found at

- 14 -http://www.portal.state.pa.us/portal/server.pt?open=512&objID=4451&&PageID=458621&level=

2&css=L2&mode=2 The background check is to be conducted prior to initial access by

Contractor and annually thereafter.

Before the Commonwealth will permit Contractor access to Commonwealth facilities, the

Contractor is to provide written confirmation to the office designated by the agency that the background check has been conducted. If, at any time, it is discovered that an employee of the

Contractor or an employee of a subcontractor of the Contractor has a criminal record that includes a felony or misdemeanor involving terrorist threats, violence, use of a lethal weapon, or breach of trust/fiduciary responsibility; or which raises concerns about building, system, or personal security, or is otherwise job-related, the Contractor is not to assign that employee to any

Commonwealth facilities, is to remove any access privileges already given to the employee, and is not to permit that employee remote access to Commonwealth facilities or systems, unless the agency consents, in writing, prior to the access being provided. The agency may withhold its consent at its sole discretion. Failure of the Contractor to comply with the terms of this paragraph may result in default of the Contractor under its contract with the Commonwealth.

The Commonwealth specifically reserves the right to conduct or require background checks over and above that described herein.

25. DISPUTES

a. Contract Disputes

(1) In the event of a controversy or claim arising from the Contract, the

Contractor must, within six months after the cause of action accrues, file a written claim with the Contracting Officer for a determination. The claim shall state all grounds upon which the Contractor asserts a controversy exists. If the Contractor fails to file a claim or files an untimely claim, the Contractor is deemed to have waived its right to assert a claim in any forum.

(2) The contracting officer shall review timely-filed claims and issue a final determination, in writing, regarding the claim. The final determination shall be issued within 120 days of the receipt of the claim, unless extended by consent of the contracting officer and the Contractor. The

Contracting Officer shall send his/her written determination to the

Contractor. If the contracting officer fails to issue a final determination within the 120 days (unless extended by consent of the parties), the claim shall be deemed denied. The Contracting Officer's determination shall be the final order of the Commonwealth.

(3) Within fifteen (15) days of the mailing date of the determination denying a claim, or within 135 days of filing a claim if no extension is agreed to by the parties, whichever occurs first, the Contractor may file a statement of claim with the Commonwealth Board of Claims.

Pending a final judicial resolution of a controversy or claim, the

Contractor shall proceed diligently with performance under the Contract in a manner consistent with the determination of the Contracting Officer and the Commonwealth shall compensate the Contractor pursuant to the terms of the Contract.

- 15 -http://www.portal.state.pa.us/portal/server.pt?open=512&objID=4451&&PageID=458621&level=2&css=L2&mode=2 http://www.portal.state.pa.us/portal/server.pt?open=512&objID=4451&&PageID=458621&level=2&css=L2&mode=2

b. PO Disputes

(1) In the event of a controversy or claim arising from a PO, the Contractor must, within six months after the cause of action accrues, file a written claim with the Issuing Agency for a determination. The claim shall state all grounds upon which the Contractor asserts a controversy exists.

If the Contractor fails to file a claim or files an untimely claim, the

Contractor is deemed to have waived its right to assert a claim in any forum.

(2) The Issuing Agency shall review timely-filed claims and issue a final determination, in writing, regarding the claim. The final determination shall be issued within 120 days of the receipt of the claim, unless extended by consent of the Issuing Agency and the Contractor. The

Issuing Agency shall send his/her written determination to the

Contractor. If the Issuing Agency fails to issue a final determination within the 120 days (unless extended by consent of the parties), the claim shall be deemed denied. The Issuing Agency's determination shall be the final order of the Issuing Agency.

(3) Within fifteen (15) days of the mailing date of the determination denying a claim or within 135 days of filing a claim if, no extension is agreed to by the parties, whichever occurs first, the Contractor may file a statement of claim with the Commonwealth Board of Claims. Pending a final judicial resolution of a controversy or claim, the Contractor shall proceed diligently with the performance of the Contract in a manner consistent with the determination of the Issuing Agency and the Issuing

Agency shall compensate the Contractor pursuant to the terms of the

PO.

c. The Issuing Agency will provide the Contracting Officer with a copy of all determinations made by the Issuing Agency. The Contractor will provide the Contracting

Officer with a copy of any appeal of an Issuing Agency decision that is filed by the

26. CONFIDENTIALITY

The Contractor agrees to protect the confidentiality of the Commonwealth’s confidential information. The Commonwealth agrees to protect the confidentiality of Contractor’s confidential information. In order for information to be deemed confidential, the party claiming confidentiality must designate the information as “confidential” in such a way as to give notice to the other party (notice may be communicated by describing the information, and the specifications around its use or disclosure, in the SOW). Neither party may assert that information owned by the other party is such party’s confidential information. The parties agree that such confidential information shall not be copied, in whole or in part, or used or disclosed except when essential for authorized activities under this Contract and, in the case of disclosure, where the recipient of the confidential information has agreed to be bound by confidentiality requirements no less restrictive than those set forth herein. Each copy of such confidential information shall be marked by the party making the copy with any notices appearing in the original. Upon termination or cancellation of this Contract or any license granted hereunder, the receiving party will return to the disclosing party all copies of the confidential information in the

- 16 -receiving party’s possession, other than one copy, which may be maintained for archival purposes only. Both parties agree that a material breach of these requirements may, after failure to cure within the time frame specified in this Contract, and at the discretion of the non-breaching party, result in termination for default pursuant to Section 23.c (DEFAULT), in addition to other remedies available to the non-breaching party.

Insofar as information is not otherwise protected by law or regulation, the obligations stated in this Section do not apply to information:

a. Already known to the recipient at the time of disclosure;

b. Independently generated by the recipient and not derived from the information supplied by the disclosing party;

c. Known or available to the public, except where such knowledge or availability is the result of unauthorized disclosure by the recipient of the proprietary information;

d. Disclosed to the recipient without a similar restriction by a third party who has the right to make such disclosure; or

e. Required to be disclosed by the recipient by law, regulation, court order, or other legal process.

There shall be no restriction with respect to the use or disclosure of any ideas, concepts, know-how, or data processing techniques developed alone or jointly with the Commonwealth in connection with services provided to the Commonwealth under this Contract.

27. INSURANCE

a. The Contractor shall procure and maintain at its expense and/or require its subcontractors to procure and maintain, as appropriate, the following types of insurance, issued by companies acceptable to the Commonwealth and authorized to conduct such business under the laws of the Commonwealth of Pennsylvania:

(1) Worker’s Compensation Insurance for all of the Contractor’s employees and those of any subcontractor engaged in performing Services in accordance with the Worker’s Compensation Act of 1915 and any supplements or amendments thereof.

(2) Public liability and property damage insurance to protect the

Commonwealth, the Contractor, and any and all subcontractors from claims for damages for personal injury (including bodily injury), sickness or disease, accidental death, and damage to property, including loss of use resulting from any property damage which may arise from its operations under this Contract, whether such operation be by the

Contractor, by any subcontractor, or by anyone directly or indirectly employed by either. The limits of such insurance shall be in an amount not less than $500,000 each person and $2,000,000 each occurrence, personal injury and property damage combined. Such policies shall be occurrence based rather than claims-made policies and shall name the

Commonwealth of Pennsylvania as an additional insured, as its interests

- 17 -may appear. The insurance shall not contain any endorsements or any other form designed to limit and restrict any action by the

Commonwealth as an additional insured against the insurance coverages in regard to the Services performed for the Commonwealth.

b. Prior to commencing Services under any PO, the Contractor shall provide the Issuing

Agency with a copy of each current certificate of insurance. These certificates shall contain a provision that coverages afforded under the policies will not be canceled or changed until at least thirty (30) days prior written notice has been given to the

Commonwealth.

c. The Contractor agrees to maintain such insurance for the life of any PO under which it is working.

d. Contractor’s self-insurance of the types and amounts of insurance set for the above shall satisfy the requirements of this Section 27 (INSURANCE).

28. CONTRACTOR RESPONSIBILITY PROGRAM AND PROVISIONS

As indicated in Management Directive 215.9, Contractor Responsibility Program, the

Commonwealth of Pennsylvania has established a system to monitor Contractor performance.

If a Contractor has not performed as required by the Contract or PO, the Issuing Agency will notify the Contracting Officer. The information provided will be reviewed, and if deemed to be appropriate, will be entered in the central Contractor Responsibility File. This information will be used by the Commonwealth to assist in determining if a Contractor is responsible. If it is determined a Contractor is not responsible, it will be ineligible for contract awards.

For the purpose of these provisions, the term contractor is defined as any person, including, but not limited to, a bidder, offeror, loan recipient, grantee or lessor, who has furnished or performed or seeks to furnish or perform, goods, supplies, services, leased space, construction or other activity, under a contract, grant, lease, purchase order or reimbursement agreement with the Commonwealth of Pennsylvania (Commonwealth). The term contractor includes a permittee, licensee, or any agency, political subdivision, instrumentality, public authority, or other public entity in the

Commonwealth.

a. The Contractor certifies, in writing, for itself and its subcontractors required to be disclosed or approved by the Commonwealth, that as of the date of its execution of this Bid/Contract, that neither the Contractor, nor any such subcontractors, are under suspension or debarment by the Commonwealth or any governmental entity, instrumentality, or authority and, if the

Contractor cannot so certify, then it agrees to submit, along with its Bid/Contract, a written explanation of why such certification cannot be made.

b. The Contractor also certifies, in writing, that as of the date of its execution of this

Bid/Contract it has no tax liabilities or other Commonwealth obligations, or has filed a timely administrative or judicial appeal if such liabilities or obligations exist, or is subject to a duly approved deferred payment plan if such liabilities exist.

- 18 -

c. The Contractor's obligations pursuant to these provisions are ongoing from and after the effective date of the Contract through the termination date thereof. Accordingly, the

Contractor shall have an obligation to inform the Commonwealth if, at any time during the term of the Contract, it becomes delinquent in the payment of taxes, or other

Commonwealth obligations, or if it or, to the best knowledge of the Contractor, any of its subcontractors are suspended or debarred by the Commonwealth, the federal government, or any other state or governmental entity. Such notification shall be made within 15 days of the date of suspension or debarment.

d. The failure of the Contractor to notify the Commonwealth of its suspension or debarment by the Commonwealth, any other state, or the federal government shall constitute an event of default of the Contract with the Commonwealth.

e. The Contractor agrees to reimburse the Commonwealth for the reasonable costs of investigation incurred by the Office of State Inspector General for investigations of the

Contractor's compliance with the terms of this or any other agreement between the

Contractor and the Commonwealth that results in the suspension or debarment of the contractor. Such costs shall include, but shall not be limited to, salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees.

The Contractor shall…