2024-K12 Exh D V2-Contract - Sample.docx

CONTRACT

NO. OMWBE 2024-K12

FOR

CONSULTANT SERVICES FOR GOVERNMENT CONTRACTING MENTORSHIP PROGRAM

REGIONS/CATEGORIES: [INSERTED AT TIME OF AWARD]

By and Between

STATE OF WASHINGTON

OFFICE OF MINORITY AND WOMEN’S BUSINESS ENTERPRISES

and

(LEGAL NAME OF AWARDED CONTRACTOR)

Dated _____________________, 2024

CONTRACT

NO. OMWBE 2024-K12

CONSULTANT SERVICES FOR GOVERNMENT CONTRACTING MENTORSHIP PROGRAM

This Contract (“Contract”) is made and entered into by and between the State of Washington acting by and through the Washington State Office of Minority & Women’s Business Enterprises, a Washington State governmental agency (“OMWBE”) and ____________________, a ________________ (“Contractor”) and is dated and effective as of _______________ __, 2024.

R E C I T A L S A. Pursuant to Legislative direction codified in RCW 39.26, OMWBE is authorized to competitively solicit and award contracts for goods and/or services for use by OMWBE.

B. OMWBE issued Solicitation No. OMWBE-2024-K12 dated August 7, 2024, for the purpose of obtaining contractors to provide coaching, training and mentoring in government contracting and to provide program administration in accordance with its authority under RCW 39.26.

C. OMWBE evaluated all responses to the Competitive Solicitation and identified Contractor as the apparent successful bidder.

D. OMWBE has determined that entering into this Contract will meet the identified needs and be in the best interest of the State of Washington.

A G R E E M E N T NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto hereby agree as follows:

1. TERM. The initial term of this Contract is eight (8) months, commencing November 1, 2024 ending June 30, 2025; Provided, however, that if Contractor is not in default and if, by March 31, 2025, in OWMBE’s reasonable judgment, Contractor satisfactorily has met the performance-based goals for contract extension, OMWBE may extend the term of this Contract, by written amendment, for up to twelve (12) additional months. A second twelve (12) month amendment may be offered if the Contractor is not in default by March 31, 2026, in OWMBE’s reasonable judgment, Contractor satisfactorily has met the performance-based goals for contract extension. Such extension amendment(s) shall be on the same terms and conditions as set forth in this Contract. To earn the performance-based Contract term extension, Contractor must achieve the following performance-based metrics:

CATEGORY 1 – MENTORS [TO BE INSERTED AT TIME OF AWARD]

throughout the duration of the program:

A. Providing government procurement and business training sessions.

B. Assisting Proteges in creating business plans.

C. One-on-one procurement consulting.

D. Supporting each Protégé in research potential and submitting actual “live” bid submission.

CATEGORY 2 – PROGRAM ADMINISTRATION [TO BE INSERTED AT TIME OF AWARD]

A. Assist OMWBE with pairing Mentors & Protégés.

B. Monitor and manage program for compliance.

C. Serve as liaison between Mentors/ Protégés /OMWBE D. Resolve conflicts if and when they arise, escalate to OMWBE as necessary.

E. Meet with OMWBE at least once every other month starting the second month to review program progress.

F. Meet with Mentors bi-monthly to collect feedback and data to include hours spent, topics covered, bids submitted, project walkthroughs/visits if applicable.

G. Collect monthly feedback from Protégés using a scheduled survey.

H. Approve advance travel plans, authorization, and other reimbursement requests.

I. Submit invoices to OMWBE for payment on a monthly basis.

J. Promote Mentorship Program.

K. Create and submit monthly summary report to OMWBE on program performance, detailing Protégé progress and Mentors’ results L. Attend (audit) a meeting/training with each Mentor and their Protege at least once during the course of the program. Can be virtually or in person.

2. SCOPE – INCLUDED GOODS AND/OR SERVICES AND PRICE.

2.1. CONTRACT SCOPE. Pursuant to this Contract, Contractor is authorized to sell and provide only those goods and/or services set forth in Exhibit A – Included Services for the prices set forth in Exhibit B – Prices for Services.

(a) Goods. For purposes of this Contract, “Goods” means all equipment, materials, supplies, ancillary parts, accessories, components and other items purchased as defined in this Contract.

(b) Services. For purposes of this Contract, “Services” means all services of any nature ordered by OMWBE pursuant to this Contract.

(c) Specifications. Where applicable, specifications for Goods and/or Services as detailed in this Contract. Unless otherwise specified, all Goods and/or Services provided shall be new and unused of the latest model or design.

2.2. STATE’S ABILITY TO MODIFY SCOPE OF CONTRACT. Subject to mutual agreement between the parties, OMWBE reserves the right to modify the goods and/or services included in this Contract; Provided, however, that any such modification shall be effective only upon ten (10) days advance written notice; and Provided further, that any such modification must be within the scope of the Competitive Solicitation for this Contract.

2.3. ECONOMIC ADJUSTMENT. Beginning twelve (12) months after the effective date of this Contract and for every annual anniversary thereafter, the prices set forth in Exhibit B – Prices shall be adjusted, based upon the percent changes (whether up or down) in the United States Department of Labor, Bureau of Labor and Statistics (BLS) indices described below, for the most recent year. Economic adjustment will lag one (1) calendar quarter past the Contract commencement date to allow for publication of BLS data. All calculations for the index shall be based upon the latest version of data published as of December 31 each year. Prices shall be adjusted on April 1. If an index is recoded (i.e., the recoded index is a direct substitute for the prior index according to the BLS), this Contract will use the recoded index, as applicable. If an index becomes unavailable, OMWBE shall substitute a proxy index. If there is not a direct substitute, the next higher aggregate index available will be used. The economic adjustment shall be calculated as follows:

New Price = Old Price x (Current Period Index/Base Period Index).

Index to be used for Category 1 PCU5416-5416 Management and Technical Consulting Services

Index to be used for Category 2 PCU5416105416101 Management and Consulting Services – Administrative

2.4. PRICE CEILING. Although Contractor may offer lower prices to OMWBE, during the term of this Contract, Contractor guarantees to provide the Goods and/or Services at no greater than the prices set forth in Exhibit B - Prices for Services.

2.5. TRAVEL COSTS. Travel, depending upon the location of in-person training or meetings, may be necessary as part of this scope of services. Travel costs (per diem, mileage, ferries, tolls, and other related items) will only be paid at the behest/discretion of OMWBE for work performed for this scope of work, and in accordance with the Washington Office of Financial Management’s State Administrative & Accounting Manual (SAAM), Chapter 10. Contractor shall provide a detailed itemization of expenses, including description, amounts and date, and receipts for amounts of fifty (50) dollars or more when requesting reimbursement. Travel costs will not be included as part of this contract but will be billed separately to OMWBE.

3. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following representations and warranties as of the effective date of this Contract and at the time of performance pursuant to this Contract. If, at the time of performance, Contractor cannot make such representations and warranties, Contractor shall not perform and shall, within three (3) business days notify OMWBE, in writing, of such breach.

3.1. QUALIFIED TO DO BUSINESS. Contractor represents and warrants that Contractor is (a) in good standing; (b) qualified to do business in the State of Washington; and (c) registered with the Washington State Department of Revenue and the Washington Secretary of State.

3.2. TAXES. Contractor represents and warrants that Contractor is current, in full compliance, and has paid all applicable taxes owed to the State of Washington.

3.3. LICENSES; CERTIFICATIONS; AUTHORIZATIONS; & APPROVALS. Contractor represents and warrants that Contractor possesses and shall keep current during the term of this Contract all required licenses, certifications, permits, authorizations, and approvals necessary for Contractor’s proper performance of this Contract.

3.4. SUSPENSION & DEBARMENT. Contractor represents and warrants as previously certified in Contractor’s Bidder’s Certification, that neither Contractor nor its principals or affiliates presently are not have ever been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any governmental Contract by any governmental department or agency within the United States.

3.5. WAGE VIOLATIONS. Contractor represents and warrants as previously certified in Contractor’s Bidder’s Certification, that during the term of this Contract and the three (3) year period immediately preceding the award of the Contract, Contractor has not been determined, by a final and binding citation and notice of assessment issued by the Washington Department of Labor and Industries or through a civil judgement entered by a court of limited or general jurisdiction, to be in willful violation of any provision of Washington state wage laws set forth in RCW 49.46, 49.48, or 49.52.

3.6. CIVIL RIGHTS. Contractor represents and warrants that Contractor complies with all applicable requirements regarding civil rights. Such requirements prohibit discrimination against individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin.

3.7. EXECUTIVE ORDER 18-03 – WORKERS’ RIGHTS [IF APPLICABLE]. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

3.8. WASHINGTON SMALL BUSINESS [IF APPLICABLE]. Contractor represents and warrants, as previously certified in Contractor’s Bidder Certification, that Contractor qualifies as a Washington Small Business pursuant to RCW 39.26.010.

3.9. CERTIFIED VETERAN-OWNED BUSINESS [IF APPLICABLE]. Contractor represents and warrants, as previously certified in Contractor’s Bidder Certification, that Contractor qualifies as a Certified Veteran-Owned Business pursuant to RCW 43.60A.190.

3.10. PUBLIC CONTRACTS AND PROCUREMENT FRAUD. Contractor represents and warrants that, within the three (3) year period prior to this Contract, neither Contractor nor its principals or affiliates: (a) have been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offence in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) contract under a public contract; (b) have been in violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; (c) are presently indicted for or otherwise criminally or civilly charged by a government entity (federal, state or local) with commission of any of the offense enumerated in subsection (b) of this provision; or (d) had one or more public contracts (federal, state or local) terminated for cause or default.

3.11. PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that Contractor complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to State employees.

3.12. WASHINGTON’S STATEWIDE PAYEE DESK. Contractor represents and warrants that Contractor is registered with Washington’s Statewide Payee Desk, which registration is a condition to payment.

3.13. ADVERTISING AND ENDORSEMENT. Contractor understands and acknowledges that neither OMWBE nor the State of Washington are endorsing Contractor’s goods and/or services or suggesting that such goods and/or services are the best or only solution to their needs. Accordingly, Contractor further represents and warrants that Contractor shall make no reference to OMWBE or the State of Washington in any promotional material without the prior written consent of OMWBE.

3.14. CONTINGENT FEES. Contractor represents and warrants that no person or selling agent has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established agents as defined in the Federal Acquisition Regulations.

3.15. FINANCIALLY SOLVENT. Contractor represents and warrants that Contractor has not commenced bankruptcy proceedings and that there are no judgment, liens, or encumbrances of any kind affecting title to any Goods and/or Services that are the subject of this Contract.

3.16. OPERATIONAL CAPABILITY. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor has the operational and financial capability to perform the Contract.

3.17. CONTRACT TRANSITION. Contractor represents and warrants that, in the event this Contract is transitioned to another contractor (e.g., Contract expiration or termination), Contractor shall use commercially reasonable efforts to assist OMWBE for a period of sixty (60) days to effectuate a smooth transition to another contractor to minimize disruption of service and/or costs to the State of Washington.

4. QUALITY; WARRANTY; REMEDIES.

4.1. GOODS WARRANTY. Contractor warrants that, for a period of twelve (12) months from the date when the Goods are put into use, or eighteen (18) months after delivery of the Goods, whichever is later (“Goods Warranty Period”), the Goods: (a) are free from defects in design, material, and workmanship; (b) are fit and safe for the intended purposes and appropriate for the specified application(s) (if any); (c) are consistent with recognized industry quality standards; (d) comply with the requirements, specifications, drawings, standards, and descriptions included in this Contract; and (e) are produced and delivered in full compliance with applicable law (“Goods Warranty”). Contractor further warrants that it has good and marketable title to the Goods and shall keep OMWBE’s property free of liens. If OMWBE receives notice of a lien caused by Contractor, OMWBE may withhold any payment otherwise due Contractor until Contractor submits proof, in a form satisfactory to OMWBE, that all lienable claims have been fully paid or waived.

4.2. GOODS REMEDY. If Goods do not comply with the Goods Warranty or any defects develop during the Goods Warranty Period under normal use, at OMWBE election, Contractor promptly shall remedy the defect by removing, repairing, correcting, or replacing, and/or reinstalling any defective Goods. Contractor’s Goods Warranty support shall include, at Contractor’s sole expense, all technical support, parts, materials and equipment, and labor, including freight and “in/out” costs required to address the defect. If, in OMWBE’s judgment, repair or replacement is inadequate, or fails of its essential purpose, Contractor shall refund the full amount of any payments that have been made. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs.

4.3. SERVICES WARRANTY. Contractor warrants that: (a) Services will be performed in a timely, efficient, professional, and workmanlike manner; (b) all Contractor personnel assigned to perform Services will have the necessary skill and training; and (c) Services will be performed in a manner consistent with the standard of care in the industry (“Services Warranty”). The Services Warranty will survive for a period of twelve (12) months after the date when Services are completed (“Services Warranty Period”).

4.4. SERVICES REMEDY. If Services do not comply with the Services Warranty or are in any manner found to be nonconforming during the Services Warranty Period, Contractor promptly shall remedy the non-conformance, or at OMWBE’s election, Contractor shall re-perform or correct the nonconforming Services at no additional cost to OMWBE or refund the amounts paid for the Services.

4.5. IT WARRANTY. Contractor warrants, that all hardware, software, and firmware associated with Goods or Services (“IT Goods” and “IT Services”, respectively) will not: (a) contain any viruses, malicious code, Trojan horse, worm, time bomb, self-help code, back door, or other software code or routine designed to: (i) damage, destroy, or alter any software or hardware; (ii) reveal, damage, destroy, or alter any data; (iii) disable any computer program automatically; or (d) permit unauthorized access to any software or hardware; (b) contain any third party software (including software that may be considered free software or open source software) that (i) may require any software to be published, accessed, or otherwise made available without the consent of OMWBE, or (ii) may require distribution, copying, or modification of any software free of charge; and (c) infringe on any patent, copyright, trademark, or other proprietary or intellectual property right of any third party or misappropriate any trade secret of any third party (“IT Warranty”). The IT Warranty will expire twelve (12) months after the date IT Goods are delivered or IT Services are complete, as applicable.

4.6. IT REMEDY. If IT Goods or IT Services do not comply with the IT Warranty, or if any defect or non-conformance develops during the IT Warranty Period, Contractor, at OMWBE’s election, promptly will: (a) remedy the defect by removing, repairing, correcting or replacing, and/or reinstalling any defective IT Goods; (b) re-perform or correct the non-conforming IT Services at no additional cost to OMWBE; or (c) refund the amounts paid for IT Services and IT Goods.

4.7. FAILURE TO REMEDY. If Contractor does not remedy a defect or nonconformity within ten (10) calendar days after receipt of written notice from OMWBE, or if an emergency exists rendering it impossible or impractical for OMWBE to have Contractor provide a remedy, OMWBE may, without prejudice to any other rights or remedies available to it, make or cause to be made required modifications, adjustments, or repairs, or may replace Goods, Services, IT Goods, or IT Services, in which case Contractor shall reimburse OMWBE for its actual costs or, at OMWBE’s option, OMWBE will offset the costs incurred from amounts owing to Contractor.

5. SAFETY; SECURITY. Contractor’s failure to comply with any of the requirements in this Section shall be cause for termination.

5.1. REGULATORY REQUIREMENTS/SAFETY. Goods and/or Services supplied by Contractor shall meet all OSHA and other safety-related federal, state, and/or local regulatory agency requirements applicable to the Goods and/or Services.

5.2. CLEAN-UP. If Contractor, its agents, employees, or subcontractors perform onsite Services, Contractor, at its cost, will remove all excess materials, equipment, packaging, and garbage within the scope of its performance of Services and leave that portion of the premises in which the work was performed in a clean condition. Should Contractor fail to clean up a Site after completion of work, OMWBE will have the right to remove the materials and set off the cost of clean up against amounts owed to Contractor.

5.3. ACCIDENT AND INJURY REPORTING. If Contractor, its agents, employees, or subcontractors are present at OMWBE’s premises, Contractor promptly will report in writing all injuries, accidents, property damage, near-miss incidents, or any claims regarding damages or injury involving Contractor, its agents, employees, or subcontractors occurring at such premises. Contractor agrees to cooperate and assist in any OMWBE investigation of incidents.

5.4. ON SITE REQUIREMENTS. While on OMWBE’s premises and the premises of the location(s) where the work shall be performed, Contractor, its agents, employees, or subcontractors shall comply, in all respects, with OMWBE’s physical, fire, access, safety, and other security requirements, and the same or similar requirements of other location(s) where the work shall be performed, and shall not interfere with OMWBE’s operations nor the operations of location(s) where the work shall be performed. Contractor represents and warrants that Contractor, its agents, employees, or subcontractors who access OMWBE’s premises will be adequately trained and at all times comply with OMWBE’s requirements and the requirements of locations where the work shall be performed.

5.5. IT SECURITY POLICIES. Contractor, its agents, employees, or subcontractors shall comply with all Washington State IT security policies and standards which will be made available to Contractor upon request.

6. DELIVERY & INSTALLATION.

6.1. DELIVERY REQUIREMENTS. Con tractor must ensure that the Goods and/or Services are delivered or provided as required by this Contract, including the requirements set forth in Exhibit A, or as otherwise mutually agreed in writing between OMWBE and Contractor. The following apply to all deliveries:

(a) Contractor shall make all deliveries to the applicable delivery location specified herein. Such delivers shall occur during OMWBE’s normal work hours and within the time period mutually agreed in writing between Contractor and OMWBE.

(b) Contractor shall ship all Goods and/or Services purchased pursuant to this Contract, freight charges prepaid by Contractor, FOB OMWBE’s specified destination with all transportation and handling charges included. Contractor shall bear all risk of loss, damage, or destruction of the Goods and/or Services ordered hereunder that occurs prior to delivery and installation, except loss or damage attributable solely to OMWBE’s fault or negligence.

(c) All packing lists, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this Contract shall be identified by the Contract number set forth on the cover of this Contract.

6.2. RECEIPT AND INSPECTION OF GOODS AND/OR SERVICES. Goods and/or Services purchased under this Contract are subject to OWMBE’s reasonable inspection, testing, and approval at OWMBE’s destination. OMWBE reserves the right to reject and refuse acceptance of goods and/or services that are not in accordance with this Contract. If there are any apparent defects in the Goods and/or Services at the time of delivery, OMWBE promptly will notify Contractor. At [OWMBE’s] option, and without limiting any other rights, OMWBE may require Contractor to repair or replace, at Contractor’s expense, any or all of the damaged goods and/or services or, at OWMBE’s option, OWMBE may note any damage to the goods and/or services on the receiving report, decline acceptance, and deduct the cost of rejected goods and/or services from final payment.

6.3. CUSTOMER SERVICE. [TO BE INSERTED AT TIME OF AWARD BASED ON BIDDER’S RESPONSES TO COMPETITIVE SOLICITATION EXHIBIT B-2 – PERFORMANCE REQUIREMENTS]

7. PERFORMANCE OF SERVICES

7.1. OWNERSHIP OF DELIVERABLES. Notwithstanding any provision to the contrary, the parties understand and agree that OMWBE shall own all rights to any plans, reports, or other deliverables provided to OMWBE pursuant to this Contract. The copyright in all works of authorship created pursuant to this Contract shall be owned by the State of Washington. All such works or portions of works created by the Contractor are hereby agreed to be "works made for hire" within the meaning of 17 U.S.C. § 201. If, however, the State of Washington is not able to obtain copyright ownership under the statutory provisions for "works made for hire," then Contractor hereby assigns to State of Washington all right, title, and interest in: (a) the copyright to Contractor’s work of authorship ("Work") and contribution to any such Work ("Contribution"); (b) any registrations and copyright applications, along with any renewals and extensions thereof, relating to the Contribution or the Work; (c) all works based upon, derived from, or incorporating the Contribution or the Work; (d) all income, royalties, damages, claims and payments now or hereafter due or payable with respect to the Contribution or the Work; (e) all causes of action, either in law or in equity, for past, present, or future infringement of copyright related to the Contribution or the Work, and all rights corresponding to any of the foregoing, throughout the world. In addition, to the extent any applicable law or treaty prohibits the transfer or assignment of any moral rights or rights of restraint the Contractor has in the Contribution or the Work, the Contractor waives those rights as to State of Washington, its successors, licensees, and assigns.

7.2. CONTRACTOR KEY STAFF CHANGES. Except in the case of a leave of absence, sickness, death, termination of employment or unpaid or paid leave of absence, agreed upon Key Staff must not be changed during the term of this contract. Otherwise, any change in Key Staff must be agreed in writing between the parties. During the term of the Contract, OMWBE reserves the right to approve or disapprove of Contractor and Subcontractor Key Staff assigned to perform services as required by this contract, or to require the removal or reassignment of any Contractor or Subcontractor Key Staff found unacceptable by OMWBE, subject to OMWBE ’s compliance with applicable laws and regulations. Contractor must provide OMWBE with a resume of any member of its Key Staff or a Subcontractor’s Key Staff assigned to or proposed for any aspect of performance under this Contract prior to commencing any Services.

In the event that proposed Contractor resources are unavailable to deliver the work, Contractor must staff the project with resources with equal or greater skills and capabilities, subject to approval from OMWBE.

OMWBE must be notified of any change in Contractor Key Staff as soon as practicable but in no event less than five (5) working days after removal of such staff from their duties in support of this Contract. Contractor must provide resumes and describe the roles and responsibilities of any replacement staff to OMWBE as soon as practicable but in no event less than five (5) working days prior to the date that such staff begin work under this Contract. OMWBE reserves the right, in its sole judgement, to approve or reject such replacement staff. OMWBE ’s approval of such staff will not be unreasonably withheld.

8. INVOICING & PAYMENT

8.1 CONTRACTOR INVOICE. Contractor shall submit properly itemized invoices to OMWBE’s designated invoicing contact for Goods and/or Services delivered under this Contract. Such invoices shall itemize the following:

(a) Contract No.OMWBE-2024-K12;

(b) Contractor name, address, telephone number, and email address for billing issues (i.e., Contractor Customer Service Representative);

(c) Contractor’s Federal Tax Identification Number;

(d) Date(s) of delivery;

(e) Description of Services and Deliverables provided;

(f) Net invoice Price for each Service or Deliverables;

(g) Applicable taxes;

(h) Total invoice amount; and

(i) Payment terms, including any available prompt payment discounts.

8.2. CONTRACTOR’S INVOICES FOR PAYMENT SHALL REFLECT ACCURATE CONTRACT PRICES. Invoices will not be processed for payment until receipt of a complete invoice as specified herein. OMWBE shall have no obligation to pay Contractor for any services that do not comply with this Contract Payment. Payment is the sole responsibility of, and will be made by, OMWBE. Payment is due within thirty (30) days of invoice. If OMWBE fails to make timely payment(s), Contractor may invoice OMWBE in the amount of one percent (1%) per month on the amount overdue or a minimum of $1. Payment will not be considered late if a check or warrant is mailed within the time specified.

8.3. Overpayments. Contractor promptly shall refund to OMWBE the full amount of any erroneous payment or overpayment. Such refunds shall occur within thirty (30) calendar days of written notice to Contractor; Provided, however, that OMWBE shall have the right to elect to have either direct payments or written credit memos issued. If Contractor fails to make timely refunds of overpayment(s) (either directly or by such credit memo), Contractor shall pay OMWBE interest at a rate of one percent (1%) per month on the amount overdue thirty (30) calendar days after notice to Contractor.

8.4. ADVANCE PAYMENT PROHIBITED. Except as authorized by law, Contractor shall not request or receive advance payment for any Good and/or Services furnished by Contractor pursuant to this Contract.

8.5. NO ADDITIONAL CHARGES. Unless otherwise specified herein, Contractor shall not include or impose any additional charges including, but not limited to, charges for shipping, handling, insurance, or payment processing.

8.6. TAXES/FEES. Contractor promptly shall pay all applicable taxes on its operations and activities pertaining to this Contract. Failure to do so shall constitute breach of this Contract. Unless otherwise agreed, OMWBE shall pay applicable sales tax imposed by the State of Washington on purchased goods and/or services. Contractor’s invoices shall separately state (a) taxable and non-taxable charges and (b) sales/use tax due by jurisdiction. In regard to federal excise taxes, Contractor shall include federal excise taxes only if, after thirty (30) calendar days written notice to OMWBE, OMWBE has not provided Contractor with a valid exemption certificate from such federal excise taxes.

9. CONTRACT MANAGEMENT

9.1. CONTRACT ADMINISTRATION & NOTICES. Except for legal notices, the parties hereby designate the following contract administrators as the respective single points of contact for purposes of contract administration for this Contract. OMWBE’s contract administrator shall provide contract administrative oversight. Contractor’s contract administrator shall be Contractor’s principal contact for invoice/billing activities under this Contract. The parties may change contract administrators by written notice as set forth below.

Any notices required or desired shall be in writing and sent by U.S. mail, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Attn: Curtis Bennett PO Box 41160 Olympia, WA 98504-1160 Tel: (360) 664-9766 Email: CurtisB@omwbe.wa.gov Attn: _________________________ Tel: (___) __________ Email: _______________

Notices shall be deemed effective upon the earlier of receipt, if mailed, or, if emailed, upon transmission to the designated email address of said addressee.

9.2. CONTRACTOR CUSTOMER SERVICE REPRESENTATIVE. Contractor shall designate a customer service representative (and inform OMWBE of the same) who shall be responsible for addressing OMWBE’s issues pertaining to this Contract.

9.3. LEGAL NOTICES. Any legal notices required or desired shall be in writing and delivered by U.S. certified mail, return receipt requested, postage prepaid, or sent via email, and shall be sent to the respective addressee at the respective address or email address set forth below or to such other address or email address as the parties may specify in writing:

Attn: Curtis Bennett PO Box 41160 Olympia, WA 98504-1160 Email: CurtisB@omwbe.wa.gov Attn: _________________________ Email: _______________

Notices shall be deemed effective upon the earlier of receipt when delivered, or, if mailed, upon return receipt, or, if emailed, upon transmission to the designated email address of said addressee.

10. RECORDS RETENTION & AUDITS

10.1. RECORDS RETENTION. Contractor shall maintain books, records, documents, and other evidence pertaining to this Contract to the extent and in such detail as shall adequately reflect contract performance and administration of purchases, payments, taxes and fees. Contractor shall retain such records for a period of six (6) years following expiration or termination of this Contract or final payment, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

10.2. AUDIT. OMWBE reserves the right to audit, or have a designated third party audit, applicable records to ensure that Contractor properly has invoiced OMWBE. Accordingly, Contractor shall permit OMWBE and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor’s books, documents, papers and records directly pertinent to this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall survive for a period of six (6) years following expiration or termination of this Contract or final payment, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

11. INSURANCE

11.1. REQUIRED INSURANCE. Contractor, at its expense, shall maintain in full force and effect the insurance coverages set forth in Exhibit C– Insurance Requirements. All costs for insurance, including any payments of deductible amounts, shall be considered incidental to and included in the prices for Goods and/or Services and no additional payment shall be made to Contractor.

11.2. WORKERS COMPENSATION. Contractor shall comply with applicable workers compensation statutes and regulations (e.g., RCW Title 51, Industrial Insurance). If Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, OMWBE may terminate this Contract. This provision does not waive any of the Washington State Department of Labor and Industries (L&I) rights to collect from Contractor. If Contractor performs Services on OMWBE’s behalf in the State of Washington, and only to the extent of claims against Contractor by OMWBE under the Indemnity obligations in this Contract, Contractor expressly waives any immunity it may be granted under the Washington State Industrial Insurance Act, Title 51 RCW. Contractor’s indemnification obligation will not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable to or for any third party under workers’ compensation acts, disability benefit acts, or other employee benefit acts. The parties expressly acknowledge and certify that the waiver of immunity under Title 51 RCW was mutually negotiated and agreed upon.

12. CLAIMS.

12.1. ASSUMPTION OF RISKS; CLAIMS BETWEEN THE PARTIES. Contractor assumes sole responsibility and all risks of personal injury or property damage to itself and its employees and agents in connection with Contractor’s operations under this Contract. OMWBE has made no representations regarding any factor affecting Contractor’s risks. Contractor shall pay for all damage to any OMWBE’s property resulting directly or indirectly from Contractor’s acts or omissions under this Contract, even if not attributable to negligence by Contractor or its agents.

12.2. THIRD-PARTY CLAIMS; GENERAL INDEMNITY. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold OMWBE and its employees and agents harmless from and against all claims, demands, judgments, assessments, damages, penalties, fines, costs, liabilities or losses including, without limitation, sums paid in settlement of claims, attorneys’ fees, consultant fees, and expert fees (collectively “Claims”) arising out of Contractor’s or its successors’, agents’, and subcontractors’ negligence, other tortious fault, or intentional misconduct under this Contract, ; Provided, however, that no right to indemnity will exist as to that portion of a Claim resulting from the sole negligence, tortious fault, or intentional misconduct of OMWBE. The parties agree that if there are any limitations of Contractor’s liability, including a limitation of liability clause for anyone for whom the Contractor is responsible, such limitations of liability shall not apply to injuries to persons, including death, or to damages to property. Contractor shall take all steps needed to keep OMWBE’s property free of liens arising from Contractor’s activities, and promptly obtain or bond the release of any such liens that may be filed.

12.3. INTELLECTUAL PROPERTY INDEMNITY. To the fullest extent permitted by law, Contractor shall defend, indemnify, and hold OMWBE and their employees and agents harmless from against any and all Claims resulting from allegations of infringement of any patents, copyrights, trade secret, or similar intellectual property rights covering the Goods and/or Services provided, or the use of the Goods and/or Services under this Contract. If OMWBE’s use of Goods and/or Services provided by Contractor is enjoined based on an intellectual property infringement Claim, Contractor shall, at its own expense, either procure for OMWBE the right to continue using the Goods and/or Services or, after consulting with OMWBE and obtaining OMWBE’s consent, replace or modify the Goods and/or Services with substantially similar and functionally equivalent non-infringing Goods and/or Services.

13. DISPUTE RESOLUTION. The parties shall cooperate to resolve any dispute pertaining to this Contract efficiently, as timely as practicable, and at the lowest possible level with authority to resolve such dispute. If, however, a dispute persists and cannot be resolved, it may be escalated within each organization. In such situation, upon notice by either party, each party, within five (5) business days shall reduce its description of the dispute to writing and deliver it to the other party. The receiving party then shall have three (3) business days to review and respond in writing. In the event that the parties cannot then agree on a resolution of the dispute, the parties shall schedule a conference between the respective senior manager of each organization to attempt to resolve the dispute. In the event the parties cannot agree, either party may resort to court to resolve the dispute.

14. SUSPENSION; EXPIRATION; TERMINATION; REMEDIES.

14.1. TERMINATION. This Contract may be terminated: (a) upon the mutual written agreement of the parties; (b) by the non-breaching party where the breach is not cured within thirty (30) calendar days after written notice of breach is delivered to the breaching party, unless a different time for cure is otherwise stated in this Contract; and (c) as otherwise expressly provided for in this Contract. This Contract shall terminate automatically and without further action if a party becomes insolvent or is placed in receivership, reorganization, liquidation, or bankruptcy. In addition to any other available remedies, the non-breaching party may terminate this Contract as provided in subsection (b) above without further liability by written notice to the breaching party. A termination for breach will not affect rights or obligations accrued or owed before the effective date of the termination notice.

14.2. TERMINATION FOR NONAPPROPRIATION OR REDUCTION OF FUNDS OR CHANGES IN LAW. OMWBE may suspend or terminate this Contract, at the sole discretion of OMWBE or, as applicable, if OMWBE reasonably determines that: (a) a change in Federal or State legislation or applicable laws materially affects the ability of either party to perform under the terms of this Contract; or (b) that a change in available funds affects OWMBE’s ability to pay Contractor. A change of available funds as used in this section includes, but is not limited to, a change in Federal or State funding, whether as a result of a legislative act or by order of the President or the Governor. If a written notice is delivered under this provision, OMWBE will reimburse Contractor for Goods properly ordered and/or Services properly performed until the effective date of said notice. Except as stated in this provision, in the event of termination for nonappropriation or reduction of funds or changes in law, OMWBE will have no obligation or liability to Contractor.

14.3. TERMINATION FOR PUBLIC CONVENIENCE. OMWBE, for public convenience, may terminate this Contract; Provided, however, that such termination for public convenience must, in OWMBE’s judgment, be in the best interest of the State of Washington; and Provided further, that such termination for public convenience shall only be effective upon sixty (60) days prior written notice; and Provided further, that such termination for public convenience shall not relieve OMWBE from payment for Goods and/or Services already ordered as of the effective date of such notice. Except as stated in this provision, in the event of such termination for public convenience, OMWBE shall not have any obligation or liability to Contractor.

14.4. EXPIRATION – OWMBE’s Obligations. Upon expiration of this Contract, OMWBE shall accept and take delivery of all outstanding and not yet fulfilled orders and pay Contractor the price as set out in the Contract.

14.5. EXPIRATION OR TERMINATION – Contractor’s Obligations. Upon expiration or termination of this Contract, Contractor shall: (a) continue to fulfill its warranty obligations with respect to any Goods and/or Services sold hereunder and all provisions of the Contract that, by their nature, would continue beyond the expiration, termination, or cancellation of the Contract shall so continue and survive; and (b) promptly return to OMWBE all keys, badges, and other materials supplied by OMWBE pursuant to this Contract.

14.6. DEFAULT. Any of the following events shall constitute cause for OMWBE to declare Contractor in default of this Contract:

(a) Contractor fails to perform or comply with any of the terms or conditions of this Contract;

(b) Contractor fails to maintain the insurance coverages specified herein or timely provide to Procuring Agency the Certificate of Insurance and updates thereto specified herein;

(c) Contractor breaches any representation or warranty provided herein; or

(d) Contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary.

14.7. SUSPENSION & TERMINATION FOR DEFAULT. OMWBE may suspend Contractor’s operations under this Contract immediately by written cure notice of any default. Suspension shall continue until the default is remedied to [OWMBE’s] reasonable satisfaction; Provided, however, that, if after twenty (20) days from such a suspension notice, Contractor remains in default, OMWBE may terminate Contractor’s rights under this Contract. All of Contractor’s obligations to OMWBE survive termination of Contractor’s rights under this Contract, until such obligations have been fulfilled.

14.8. REMEDIES FOR DEFAULT.

(a) OMWBE’s rights to suspend and terminate Contractor’s rights under this Contract are in addition to all other available remedies.

(b) In the event of termination for default, OMWBE may exercise any remedy provided by law including, without limitation, the right to procure replacement goods and/or services. In such event, Contractor shall be liable to OMWBE for damages as authorized by law including, but not limited to, any price difference between the Contract price and the replacement or cover price as well as any administrative and/or transaction costs directly related to such replacement procurement – e.g., the cost of the competitive procurement.

14.9. LIMITATION ON DAMAGES. Notwithstanding any provision to the contrary, the parties agree that in no event shall any party be liable to the other for exemplary or punitive damages; Provided, however, that nothing contained in this Section will in any way exclude or limit: (a) a party’s liability for all damages arising out of that party’s intentional acts or omissions; (b) the operation of any Goods and/or Services warranty provided in this Contract; or (c) damages subject to the Intellectual Property Indemnity section of this Contract. Any limitation of either party’s obligations under this Contract, by delivery slips or other documentation is void.

14.10. SUSPENSION/TERMINATION PROCEDURE. Regardless of basis, in the event of suspension or termination (in full or in part), the parties shall cooperate to ensure an orderly and efficient suspension or termination. Accordingly, Contractor shall deliver to OMWBE all Goods and/or Services that are complete (or with approval from OMWBE, substantially complete) and OMWBE shall inspect, accept, and pay for the same in accordance with this Contract. Unless directed by OMWBE to the contrary, Contractor shall not process any orders after notice of suspension or termination inconsistent therewith.

15. PUBLIC INFORMATION & PUBLIC RECORDS DISCLOSURE REQUESTS.

15.1. WASHINGTON’S PUBLIC RECORDS ACT. Unless statutorily exempt from public disclosure, this Contract and all related records are subject to public disclosure as required by Washington’s Public Records Act, RCW 42.56.

15.2. CONTRACTOR OBLIGATION. Contractor shall identify and mark the precise portion(s) of the relevant page(s) of any records provided to OMWBE that Contractor believes are statutorily exempt from disclosure and identify the precise statutory basis for exemption from disclosure. In addition, if, in Contractor’s judgment, certain portions of such records are not statutorily exempt from disclosure but are sensitive because particular portions of Contractor’s records (NOT including pricing) include highly confidential, proprietary, or trade secret information (or the equivalent) that Contractor protects through the regular use of confidentiality or similar agreements and routine enforcements through court enforcement actions, Contractor shall identify and mark the precise portion(s) of the relevant page(s) of any records that include such sensitive information.

15.3. OWMBE’S OBLIGATION. In the event that OMWBE receives a public records disclosure request pertaining to records that Contractor has submitted and marked either as (a) statutorily exempt from disclosure; or (b) sensitive OMWBE, prior to disclosure, will do the following: OWMBE’s Public Records Officer will review any records marked by Contractor as statutorily exempt from disclosure.