Attachment 3 - JPPM all procurements contract form, sample.pdf

MARYLAND DEPARTMENT OF PLANNING

SERVICES PROCUREMENT CONTRACT

This agreement (the “Contract”) is made by and between [the Maryland Historical Trust, an instrumentality of the State of Maryland (“MHT”) within] the Maryland Department of Planning (“MDP”), a principal Department of the State of Maryland (the "State"), and __________________________ ("Contractor"), a corporation organized and existing under the laws of ____________, registered to do business in Maryland, with a mailing address of _____________________________________________. This Contract is effective as of the date of execution by [MDP] [MHT] (the “Effective Date”).

WHEREAS, [MDP][MHT] published (i) an Invitation for Bids/Request for Proposals No.

___________ on ___________; and (ii) the Project Specifications entitled ___________________________, soliciting offers for the services described therein to benefit [MHT][MDP] (together, the “Solicitation”);

WHEREAS, Contractor submitted the winning proposal dated ______ in response to the Solicitation (the “Proposal”);

WHEREAS, [MDP][MHT] wishes to enter into this Contract with Contractor pursuant to which [MDP][MHT] will purchase and Contractor will furnish the services or products described below; and

NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, [MDP][MHT] and Contractor hereby agree upon the following terms and conditions:

1. Type of Contract.

This Contract shall be a firm fixed-price contract as defined in the Code of Maryland Regulations (COMAR) Section 21.06.03.02. The Contractor certifies that the compensation information set forth in Section 4 below is accurate, complete and current as of the Effective Date.

2. Scope of Work.

2.1 Contractor agrees to provide [MDP][MHT] with the deliverables, programs, goods, or services (the “Services”), as described in the Solicitation and the Proposal, and any amendments thereto.

2.2 The Contractor shall perform the Services with that standard of care, skill, and diligence normally provided by a Contractor in the performance of services similar to the

[Name of Contractor]

All Procurement >$5K (08192020) services hereunder.

2.3 The Contractor shall perform in accordance with this Contract and Exhibits A-C listed below, which are incorporated herein by reference. If there is any conflict between this Contract and the exhibits, the terms of the Contract shall control. If there is any conflict among the exhibits, the following order of precedence shall determine the prevailing provision:

Exhibit A – The Solicitation Exhibit B – The Proposal Exhibit C – The Contract Affidavit

3. Term.

3.1 The term of this Contract shall be for a period of ______ years beginning _________________or upon the Effective Date of this Contract and ending on ____________ , unless extended or earlier terminated pursuant to the terms of the Contract.

3.2 Renewal. This Contract may be renewed for ___ ___-year options, which may be exercised at the sole discretion of [MDP][MHT] at the prices established in the Contract.

4. Compensation.

4.1 [MHT][MDP] agrees to pay Contractor a sum not to exceed _______________ ($___________________) which shall be payable in accordance with the schedule set forth in Section 4.2.

4.2 Compensation Payment Schedule. [MHT][MDP] shall pay Contractor on the following schedule:

4.3 Method of Payment; Payment of State Obligations.

4.3.1 Unless a payment is unauthorized, deferred, delayed, or set-off under COMAR 21.02.07, payments to the Contractor pursuant to this Contract shall be made no later than 30 days after the State’s receipt of a proper invoice from the Contractor as described in Section 4.4..

4.3.2 The Contractor may be eligible to receive late payment interest at the rate of 9% per annum if:

4.3.2.1 The Contractor submits an invoice for the late payment interest within thirty (30) days after the date of the State’s payment of the amount on which the interest accrued; and

4.3.2.2 A contract claim has not been filed under State Finance and Procurement Article, Title 15, Subtitle 2, Annotated Code of Maryland.

4.3.3 The State is not liable for interest:

4.3.3.1 Accruing more than one year after the 31st day after the agency receives the proper invoice; or

4.3.3.2 On any amount representing unpaid interest. Charges for late payment of invoices are authorized only as prescribed by Title 15, Subtitle 1, of the State Finance and Procurement Article, Annotated Code of Maryland.

4.3.4 Final payment under this Contract will not be made until after certification is received from the Comptroller of the State that all taxes have been paid.

4.3.5 Electronic funds transfer shall be used by the State to pay Contractor pursuant to this Contract and any other State payments due Contractor unless the State Comptroller’s Office grants Contractor an exemption.

4.4 Contractor's Invoices.

4.4.1 A satisfactory invoice shall include separate labor and parts and material costs, and any other documentation requested by [MDP][MHT]. The Contractor shall submit invoices promptly, in no event later than thirty (30) days after the date Services have been performed. All invoices shall be submitted to the ProcurementOfficer: [Anne Raines, Maryland Historical Trust, 100 Community Place, Crownsville, MD 21032-2023] [Fiscal Officer, Nital Goswami, Maryland Department of Planning, 301 West Preston Street, Suite 1101, Baltimore, MD 21201] [JPPM Business Manager: Desiree Smith, 10515 Mackall Rd., St. Leonard MD 20685].

4.4.2 Contractor agrees to include on the face of all invoices billed to [MDP][MHT], its Federal Taxpayer Identification Number, which is the Social Security Number for individuals and sole proprietors, and the Federal Employer Identification Number for all other types of organizations.

4.4.3. The Contractor’s Federal Tax Identification Number is

___________________, and its eMaryland Marketplace Advantage (eMMA) Vendor Identification Number is _____________________.

5. Remedies; Termination.

5.1 Multi-Year Contract; Termination for Non-appropriation. If funds are not appropriated or otherwise made available by the State to support continuation of the Contract in any fiscal year succeeding the first fiscal year, this Contract shall be terminated automatically as of the beginning of the fiscal year for which funds are not available. The Contractor may not recover anticipatory profits or costs incurred after termination.

5.2 Termination for Default. If the Contractor does not fulfill obligations under this Contract or violates any provision of this Contract, [MDP][MHT] may, at its option, either withhold payment of Contractor’s compensation, demand repayment of compensation already paid to Contractor, or terminate the Contract by giving the Contractor written notice of termination.

Termination under this Section does not relieve the Contractor from liability for any damages caused to [MDP][MHT]. Failure on the part of a Contractor to fulfill contractual obligations shall be considered just cause for termination of the Contract, and the Contractor is not entitled to recover any costs incurred by the Contractor up to the date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of

COMAR 21.07.01.11B.

5.3 Termination for Convenience. Upon written notice to the Contractor specifying the extent and the effective date of the termination, [MDP][MHT] may terminate this Contract, in whole or in part, whenever [MDP][MHT] shall determine that such termination is in the best interest of the State. [MDP][MHT] shall pay all reasonable costs incurred up to the date of termination and all reasonable costs associated with termination of the Contract. However, the Contractor may not be reimbursed for anticipatory profits which have not been earned up to the effective date of termination. Termination hereunder, including the determination of the rights and obligations of the parties, shall be governed by the provisions of COMAR 21.07.01.12A(2).

6. Tax Exemption.

[MDP][MHT] is generally exempt from federal excise taxes, Maryland sales and use taxes, District of Columbia sales taxes, and transportation taxes. Exemption certificates shall be completed upon request. Where a Contractor is required to furnish and install material in the construction or improvement of real property in performance of a contract, the Contractor shall pay the Maryland Sales Tax and the exemption does not apply.

7. Specifications.

All materials, equipment, supplies or services shall conform to federal and State laws and regulations and to the specifications contained in the Solicitation.

8. Delays and Extensions of Time.

8.1 The Contractor agrees to prosecute the work continuously and diligently and no charges or claims for damages shall be made by it for any delays or hindrances from any cause whatsoever during the progress of any portion of the work specified in this Contract.

8.2 Time extensions will be granted only for excusable delays that arise from unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including but not restricted to, acts of God, acts of the public enemy, acts of the State in either its sovereign or contractual capacity, acts of another contractor in the performance of a contract with the State, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, or delays of subcontractors or suppliers arising from unforeseeable causes beyond the control and without the fault or negligence of either the Contractor or the subcontractors or suppliers.

8.3 [MDP][MHT] unilaterally may order the Contractor in writing to suspend, delay, or interrupt all or any part of its performance under the Contract for such period of time as [MDP][MHT] may determine to be appropriate.

9. Delivery and Acceptance.

Delivery shall be made in accordance with the Solicitation. [MDP][MHT] reserves the right to test, sample or inspect any materials, equipment, supplies, or services delivered to determine if the specifications have been met. The materials listed in the Solicitation or Proposal shall be delivered FOB to the point or points specified prior to or on the date specified in the Solicitation. Any material that is defective or fails to meet the terms of the Solicitation specifications shall be rejected. Rejected materials shall be promptly replaced. [MDP][MHT] reserves the right to purchase replacement materials in the open market. Contractors failing to promptly replace materials lawfully rejected shall be liable for any excess price paid for the replacement, plus applicable expenses, if any.

10. Non-Hiring of Officials and Employees.

No official or employee of the State, as defined under General Provisions Article, §5-101, Annotated Code of Maryland, whose duties as such official or employee include matters relating to or affecting the subject matter of this Contract, shall during the pendency and term of this Contract and while serving as an official or employee of the State become or be an employee of the Contractor or any entity that is a subcontractor on this Contract.

11. Commercial Nondiscrimination Clause.

11.1 The Contractor shall comply with the nondiscrimination provisions of federal and State law. As a condition of entering into this Contract, Contractor represents and warrants that it will comply with the State's Commercial Nondiscrimination Policy, as described under State Finance and Procurement Article, Title 19, Annotated Code of Maryland. As part of this compliance, Contractor may not discriminate on the basis of race, color, religion, ancestry or national origin, sex, age, marital status, sexual orientation, or disability or other unlawful forms of discrimination in the solicitation, selection, hiring, or commercial treatment of subcontractors, vendors, suppliers, or commercial customers, nor shall Contractor retaliate against any person for reporting instances of such discrimination. Contractor shall provide equal opportunity for subcontractors, vendors, and suppliers to participate in all of its public sector and private sector subcontracting and supply opportunities, provided that this Section does not prohibit or limit lawful efforts to remedy the effects of marketplace discrimination that have occurred or are occurring in the marketplace. Contractor understands that a material violation of this clause shall be considered a material breach of this Agreement and may result in termination of this Agreement, disqualification of Contractor from participating in State contracts, or other sanctions. This clause is not enforceable by or for the benefit of, and creates no obligation to, any third party.

11.2 The Contractor shall include the provision in Section 11.1 above in all subcontracts to the Contract.

11.3 As a condition of entering into this Contract, upon the request of the Maryland Commission on Civil Rights, and only after the filing of a complaint against Contractor under State Finance and Procurement Article, Title 19, Annotated Code of Maryland, as amended from time to time, Contractor agrees to provide within 60 days after the request, a complete list of the names of all subcontractors, vendors, and suppliers that Contractor has used in the past 4 years on any of its contracts that were undertaken within the State of Maryland, including the total dollar amount paid by Contractor on each subcontract or supply contract. Contractor further agrees to cooperate in any investigation conducted by the State pursuant to the State's Commercial Nondiscrimination Policy as set forth under State Finance and Procurement Article, Title 19, Annotated Code of Maryland, and to provide any documents relevant to any investigation that is requested by the State. Contractor understands that violation of this Section is a material breach of this Contract and may result in Contract termination, disqualification by the State from participating in State contracts, and other sanctions.

12. Financial Disclosure.

The Contractor shall comply with State Finance and Procurement Article, §13-221, Annotated Code of Maryland, which requires that every business that enters into contracts, leases or other agreements with the State and receives in the aggregate $200,000 or more during a calendar year shall, within thirty (30) days of the time when the $200,000 is reached, file with the Secretary of State certain specified information to include disclosure of beneficial ownership of the business.

13. Political Contribution Disclosure.

The Contractor shall comply with Election Law Article, §§14-101 - 14-108, Annotated Code of Maryland, which requires that every person that enters into contracts, leases, or other agreements with the State, or a political subdivision of the State, including its agencies, during a calendar year in which the person receives in the aggregate $200,000 or more, shall file with the State Administration Board of Elections Laws statements disclosing (a) any contributions made during the reporting period to a candidate for elective office in any primary or general election; and (b) the name of each candidate to whom one or more contributions in a cumulative amount of $500 or more were made during the reporting period. The statement shall be filed with the State Board of Elections: (a) before execution of a contract by the State, a county, a municipal corporation, or other political subdivision of the State, and shall cover the 24 months prior to when a contract was awarded; and (b) if the contribution is made after the execution of a contract, then twice a year, throughout the contract term, on or before: (i) May 31, to cover the six (6) month period ending April 30; and (ii) November 30, to cover the six (6) month period ending October

31. Additional information is available on the State Board of Elections website:

http://www.elections.state.md.us/campaign_finance/index.html.

14. Anti-Bribery.

The Contractor warrants that neither it nor any of its officers, directors, or partners nor any of its employees who are directly involved in obtaining or performing contracts with any public body has been convicted of bribery, attempted bribery, or conspiracy to bribe under the laws of any state or of the federal government or has engaged in conduct since July 1, 1977, which would constitute bribery, attempted bribery, or conspiracy to bribe under the laws of any state or the federal government.

15. Registration.

Pursuant to §7-201 et seq. of the Corporations and Associations Article of the Annotated Code of Maryland, corporations not incorporated in the State shall be registered with the State Department of Assessments and Taxation, at 301 West Preston Street, Baltimore, Maryland 21201, before doing any interstate or foreign business in this State. Before doing any intrastate business in this State, a foreign corporation shall qualify with the Department of Assessments and Taxation.

16. Contingent Fee Prohibition.

The Contractor warrants that it has not employed or retained any person, partnership, corporation, or other entity, other than a bona fide employee or agent working for the Contractor, to solicit or secure this Contract, and that it has not paid or agreed to pay any person, partnership, corporation, or other entity, other than a bona fide employee or agent, any fee or any other consideration contingent on the making of this Contract.

17. Environmental Protection Agency Compliance; Indemnity.

17.1 Materials, supplies, equipment, or Services supplied as a result of this Contract shall comply in all respects with the Federal Noise Control Act of 1972, where applicable.

17.2 Contractor shall perform all Services in compliance with all applicable Federal, State, local or municipal environmental and hazardous materials laws. Contractor will not place or permit any hazardous materials on or about the project site, as described in the Solicitation, at any time. The Contractor shall indemnify and save MHT, MDP and the State harmless for all claims, causes of action, damages, costs and expenses of any nature whatsoever arising out of or resulting from the existence or alleged existence of hazardous materials attributable to the operations of the Contractor. The Contractor further covenants and agrees that, if at any time it is determined that there are hazardous materials, the existence of which is attributable to the operations of the Contractor which require collection, storage, treatment or disposal to be conducted or maintained in a specific or particular manner, the Contractor agrees to take or cause to be taken, at its sole expense, such actions as may be necessary to comply with Federal, State, local or municipal requirements for the collection, storage, treatment or disposal of all hazardous materials.

18. Occupational Safety and Health Act (OSHA).

All materials, supplies, equipment, or services supplied as a result of this Contract shall comply with the applicable U.S. and State Occupational Safety and Health Act standards.

19. Disputes.

This Contract shall be subject to the provisions of Title 15, Subtitle 2, of the State Finance and Procurement Article of the Annotated Code of Maryland and COMAR 21.10 (Administrative and Civil Remedies). Pending resolution of a claim, the Contractor shall proceed diligently with the performance of the Contract in accordance with the Procurement Officer's decision, and as directed by the Procurement Officer identified in Section 30 below. Unless a lesser period is provided by applicable statute, regulation, or the Contract, the Contractor must file a written notice of claim with the Procurement Officer within thirty (30) days after the basis for the claim is known or should have been known, whichever is earlier. Contemporaneously with or within thirty

(30) days of the filing of a notice of claim, but no later than the date of final payment under the Contract, the Contractor must submit to the Procurement Officer its written claim containing the information specified in COMAR 21.10.04.02.

20. Maryland Law Prevails.

The provisions of this Contract shall be construed, interpreted and enforced according to the laws of Maryland.

21. Pre-existing Regulations.

In accordance with the provisions of §11-206 of the State Finance and Procurement Article, Annotated Code of Maryland, the regulations set forth in Title 21 of the Code of Maryland Regulations (COMAR Title 21) in effect on the date of execution of this Contract are applicable to this Contract.

22. Conflicting Terms.

Any proposal for terms in addition to or different from those set forth in this Contract or any attempt by the Contractor to vary any of the terms of this Contract by Contractor's acceptance shall not operate as a rejection of this Contract or of any provision of this Contract, unless such variance is in the terms of the description, quantity, price or delivery schedule, but shall be deemed a material alteration thereof, and this Contract shall be deemed acceptable by the Contractor without the additional or different terms. If this Contract is an acceptance of a prior offer by the Contractor, the acceptance is expressly conditioned upon Contractor's assent to any additional or different terms contained in the Contract. The Contractor understands and agrees that the terms and conditions of this Contract may not be waived by the Contractor.

23. Contract Modifications; Scope of Contract.

23.1 This Contract, together with the exhibits attached hereto and incorporated herein by reference, represents the complete, entire, total and final Contract between [MDP][MHT] and the Contractor. No other understanding or representation, oral or written, regarding the subject matter of this Contract, shall be deemed to exist or to bind [MDP][MHT] and the Contractor hereto, and any such understanding or representation existing prior to the execution of this Contract is hereby specifically and entirely superseded by this Contract. [MDP][MHT] and the Contractor expressly reserve the right to amend, alter, vary, modify or waive any provision of this Contract provided that all amendments or modifications to this Contract must first be approved in writing by the Procurement Officer, subject to any additional approvals required by State law.

23.2 Any amendment or modification to the Contract must be in writing which has been duly signed by the parties to the Contract.

23.3 Amendments or modifications may not significantly change the scope of the Contract (including the Contract price).

23.4 [MDP][MHT] has the unilateral right to order, in writing, changes in the work within the scope of the Contract. If any change under this Section causes an increase or decrease in the Contractor’s cost of, or the time required for, the performance of any part of the work, whether or not changed by the order, an equitable adjustment in the Contract price shall be made and the Contract modified in writing accordingly. The Contractor must assert in writing its right to an adjustment under this Section within thirty (30) days of receipt of written change order and shall include a written statement setting forth the nature and cost of such claim. No claim by the Contractor shall be allowed if asserted after final payment under this Contract. Failure to agree to an adjustment under this Section shall be a dispute under the Disputes clause. Nothing in this Section shall excuse the Contractor from proceeding with the Contract as changed.

24. Drug and Alcohol Free Workplace.

The Contractor warrants that the Contractor shall comply with COMAR 21.11.08, and that the Contractor shall remain in compliance throughout the term of this Contract.

25. Compliance with Laws.

The Contractor hereby represents and warrants that:

25.1 It is qualified to do business in the State of Maryland, as either a domestic or foreign corporation., and that it will take such action as, from time to time hereafter, may be necessary to remain so qualified;

25.2 It is not in arrears with respect to the payment of any monies due and owing the State, or any department or unit thereof, including but not limited to the payment of taxes and employee benefits, and that it shall not become so in arrears during the term of this Contract;

25.3 It shall comply with all federal, State and local laws, regulations, and ordinances applicable to its activities and obligations under this Contract;

25.4 It shall obtain, at its expense, all licenses, permits, insurance and governmental approvals, if any, necessary to the performance of its obligations under this Contract;

and

25.5 Contractor’s affirmation and certifications contained in the Contract Affidavit attached hereto as Exhibit C, and incorporated herein by reference shall remain accurate and true throughout the term of Contract, as may be extended.

26. Bankruptcy.

Upon the filing for any bankruptcy proceeding by or against the Contractor, whether voluntary or involuntary, or upon the appointment of a receiver, trustee, or assignee for the benefit of creditors, the Contractor must notify the [MDP][MHT] immediately. In the event of a filing for Contractor’s voluntary or involuntary bankruptcy, [MDP][MHT] reserves the right at its sole discretion either to cancel the Contract or to affirm the Contract and hold the Contractor responsible for damages. The exercise of this right is in addition to any other rights [MDP][MHT] may have as provided in this Contract or by law.

27. Subcontracting or Assignment.

The benefits and obligations under the Contract shall inure to and be binding upon the parties hereto and neither this Contract nor the Services to be performed hereunder shall be subcontracted, or assigned or otherwise disposed of, either in whole or in part, except with the prior written consent of [MDP][MHT]. [MDP][MHT] has the right to withhold such consent for any reason [MDP][MHT] or the State deems appropriate.

28. Indemnification; Responsibility for Claims and Liability.

28.1 The Contractor shall indemnify and save harmless the State, [MDP][MHT], and all their respective officers, agents, and employees from and against all claims, suits, judgments, expenses, actions, damages and costs of every name and description, including reasonable attorney's fees, whether or not involving a third-party claim, arising out of or relating to the performance of the Contractor or its subcontractors under this Contract. Contractor shall not enter into any settlement involving third-party claims that contains any admission of or stipulation to any guilt, fault, liability or wrongdoing by the State or that adversely affects the State’s rights or interests, without the State’s prior written consent.

28.2 The State has no obligation to provide legal counsel or defense to the Contractor or its subcontractors in the event that a suit, claim or action of any character is brought by any person not party to this Contract against the Contractor or its subcontractors as a result of or relating to the Contractor’s obligations under this Contract.

28.3 [MDP][MHT] and the State have no obligation for the payment of any judgments or the settlement of any claims against the Contractor or its subcontractors as a result of or relating to the Contractor’s obligations under this Contract. The State’s liability arising from or relating to the Contract is subject to the limitations set forth in the Maryland Tort Claims Act, §§ 12- 101, et seq., State Government Article, Annotated Code of Maryland. Nothing contained herein shall be deemed a waiver of any sovereign immunity to which the State may be entitled.

28.4 The Contractor shall immediately notify the Procurement Officer of any claim or suit made or filed against the Contractor or its subcontractors regarding any matter resulting from or relating to the Contractor’s obligations under the Contract, and will cooperate, assist, and consult with the State in the defense or investigation of any claim, suit, or action made or filed against the State as a result of or relating to the Contractor’s performance under this Contract.

28.5 None of MHT, MDP or the State shall assume any obligation to indemnify, hold harmless, or pay attorneys' fees or any of Contractor’s court costs that may arise from or in any way be associated with the performance or operation of this Contract.

28.6 Contractor shall be liable for any loss or damage to the State occasioned by the acts or omissions of Contractor, its subcontractors, agents or employees as follows:

28.6.1 For infringement of patents, trademarks, trade secrets and copyrights as provided in Section 38 of this Contract [Ownership of Documents and Materials];

28.6.2 Without limitation for damages for bodily injury (including death) and damage to real property and tangible personal property;

28.6.3 For all other claims, damages, loss, costs, expenses, suits or actions in any way related to this Contract and regardless of the basis on which the claim is made, Contractor’s liability shall be unlimited; and

28.6.4 In no event shall the existence of a subcontract operate to release or reduce the liability of Contractor hereunder. For purposes of this Contract, Contractor agrees that all subcontractors shall be held to be agents of Contractor.

28.7. Contractor’s indemnification obligations for third-party claims arising under Section 38 of this Contract are included in this limitation of liability only if the State is immune from liability. Contractor’s indemnification liability for third-party claims arising under Section 38 shall be unlimited if the State is not immune from liability for claims arising under Section 38.

29. Retention of Records; Right to Audit.

29.1 The Contractor shall retain and maintain all records and documents relating to this Contract for three (3) years after final payment by the State hereunder or any applicable statute of limitations, whichever is longer, and shall make them available for inspection and audit by authorized representatives of the State, including the Procurement Officer or designee, at all reasonable times. The Contractor shall provide copies of all documents requested by the State, including, but not limited to itemized billing documentation containing the dates, hours spent and work performed by the Contractor and its subcontractors under the Contract. All records related in any way to the Contract are to be retained for the entire time provided under this Section.

29.2 The State reserves the right, at its sole discretion and at any time, to perform an audit of the Contractor’s performance under this Contract. Upon three (3) business days’ notice, the State shall be provided reasonable access to Contractor’s records to perform such audit. The Contractor agrees to fully cooperate and assist in any audit conducted by or on behalf of the State, including, by way of example only, making records and employees available as, where, and to the extent requested by the State and by assisting the auditors in reconciling any audit variances.

Contractor shall not be compensated for providing any such cooperation and assistance. The right to audit shall include any of the Contractor’s subcontractors including but not limited to any lower tier subcontractor(s). The Contractor shall ensure the State has the right to audit such subcontractor(s).

30. Notices; Procurement Officer: All notices to and communication with [MDP][MHT] regarding this Contract shall be directed to the Contract Administrator and the Procurement Officer listed below:

[If to MDP: Pam Lacey Procurement Officer Maryland Department of Planning 301 West Preston Street, Suite 1101 Baltimore, Maryland 21201 Telephone No.: (410) 767-4521 Facsimile No.: (410) 767-4480]

[If to MHT: Anne Raines, Procurement Officer Maryland Historical Trust 100 Community Place Crownsville, Maryland 21032 Telephone No.: (410) 697-9584 Facsimile No.: (410) 697-9616]

______________________________, Contract Administrator Telephone No.:___________________ Facsimile No.:____________________

If to the Contractor: ________________________________, ______________________

31. Waiver.

No waiver of a right or remedy of a party shall constitute a waiver of another right or remedy of that party. Any waiver of the provisions of the Contract or of a party's rights or remedies under the Contract must be in writing to be effective. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by either of the parties hereto of a breach or of a default under any of the provisions of the Contract shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity. Failure, neglect, or delay by a party to enforce the provisions of the Contract or its rights or remedies at any time, shall not be construed and shall not be deemed to be a waiver of such party's rights under the Contract and shall not in any way affect the validity of the whole or any part of the Contract or prejudice such party's right to take subsequent action.

32. Severability.

If a court of competent jurisdiction renders any provision or portion of a provision of this Contract invalid or otherwise unenforceable, that provision or portion of a provision will be severed, and the remainder of this Contract will continue in full force and effect as if the invalid provision or portion of a provision were not part of this Contract.

33. Headings and Section References; Construction.

The section headings in this Contract are inserted only for convenience and are not to be construed as part of this Contract or as a limitation of the scope of the particular section to which the heading refers.

34. Integration; Parol Evidence.

This Contract, including all exhibits and other documents incorporated by reference, constitutes the entire agreement of the parties, and all other communications prior to its execution, whether written or oral, with reference to the subject matter of this Contract are superseded by this Contract. All pre-printed terms of any Contractor purchase order or other business processing document shall have no effect.

35. Counterparts.

The Contract may be executed in one or more counterparts, each of which shall constitute an enforceable original of the Contract; facsimiles and/or PDF scanned copies of signatures shall be as effective and binding as original signatures.

36. No Third-Party Beneficiaries.

This Contract is for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a party.

37. Relationship.

This Contract is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship among the parties hereto. Neither party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.

38. Ownership of Documents and Materials.

38.1. The Contractor agrees that all documents and materials including, but not limited to, reports, drawings, studies, specifications, estimates, maps, photographs, designs, graphics, mechanicals, artwork, and computations prepared by or for the Contractor under the terms of this Contract shall at any time during the performance of the Services be made available to [MDP][MHT] upon request and shall become and remain the exclusive property of [MDP][MHT] upon termination or completion of the Services. [MDP][MHT] shall have the right to use the same without restriction or limitation and without compensation to the Contractor other than that provided in this Contract. [MDP][MHT] shall be the owner for the purposes of copyright, patent or trademark registration.

38.2 The Contractor agrees that at all times during the term of this Contract and thereafter, works created under this Contract and services performed under this Contract shall be “works made for hire” as that term is interpreted under U.S. copyright law. To the extent that any products created as a Deliverable under this Contract are not works made for hire for the State, the Contractor hereby relinquishes, transfers, and assigns to the State all of its rights, title, and interest (including all intellectual property rights) to all such products created under this Contract, and will cooperate reasonably with the State in effectuating and registering any necessary assignments.

38.3 The Contractor shall not affix any restrictive markings upon any data, documentation, or other materials provided to the State hereunder and if such markings are affixed, the State shall have the right at any time to modify, remove, obliterate, or ignore such warnings.

38.4 The State shall have the exclusive right to use, duplicate, and disclose any data, information, documents, records, or results, in whole or in part, in any manner for any purpose whatsoever, that may be created or generated by the Contractor in connection with this Contract. If any material, including software, is capable of being copyrighted, the State shall be the copyright owner and Contractor may copyright material connected with this project only with the express written approval of the State.

38.5 If the Contractor obtains or uses for purposes of this Contract, or subcontracts for, any design, device, material, or process covered by letters of patent for copyright, it shall provide an assignment to [MDP][MHT] of ownership for purposes of copyright, patent or trademark of all rights to possess and to use such design, device, material or process, and a copy of a legally sufficient agreement with the patentee or owner, a copy of which shall be filed with the patentee or owner.

38.6 Except as may otherwise be set forth in this Contract, Contractor shall not use, sell, sub-lease, assign, give, or otherwise transfer to any third party any other information or material provided to Contractor by the State or developed by Contractor relating to the Contract, except as provided for in Section 39 [Confidential or Proprietary Information and Documentation].

38.7 The Contractor shall indemnify and save harmless the State, [MDP][MHT], and their officers, agents, and employees from any and all third-party claims, losses damages, liabilities, judgements and expenses, including without limitation reasonable attorneys’ fees for infringement by reason of the use of any such patented design, device, materials, or process, or any trademark or copyright, and shall indemnify, protect and save harmless the State, [MDP][MHT], and their officers, agents, and employees with respect to any third-party claim, action, costs or infringement, or for royalties or user fees arising out of purchase or use of materials, construction, supplies, equipment or services covered by this Contract.

39. Confidential or Proprietary Information and Documentation.

39.1 Subject to the Maryland Public Information Act, and any other applicable laws and regulations promulgated pursuant thereto, all confidential or proprietary information and documentation relating to either party (including without limitation, any information or data stored within the Contractor’s computer systems or cloud infrastructure, if applicable) shall be held in confidence by the other party. Each party shall, however, be permitted to disclose, as provided by and consistent with applicable law, relevant confidential information to its officers and agents, to the extent that such disclosure is necessary for the performance of their duties under this Contract. Each officer and agent to whom any of the State’s confidential information is to be disclosed shall be advised by Contractor of the obligations hereunder, and bound by, confidentiality at least as restrictive as those of set forth in this Contract.

39.2 The provisions of this Section shall not apply to information that: (a) is lawfully in the public domain; (b) has been independently developed by the other party without violation of this Contract; (c) was already rightfully in the possession of such party; (d) was supplied to such party by a third party lawfully in possession thereof and legally permitted to further disclose the information; or (e) which such party is required to disclose by law.

40. Cost and Price Certification.

40.1 By submitting cost or price information, the Contractor certifies that, to the best of its knowledge, the information submitted is accurate, complete, and current as of the date of the [MDP][MHT] award of the Contract to Contractor.

40.2 The price under this Contract and any change order or modification hereunder, including profit or fee, shall be adjusted to exclude any significant price increases occurring because the Contractor furnished cost or price information which, as of the date of [MDP’s][MHT’s] award of the Contract to Contractor, was inaccurate, incomplete, or not current.

41. Living Wage.

If a Contractor subject to the Living Wage law fails to submit all records required under COMAR 21.11.10.05 to the Commissioner of Labor and Industry at the Department of Labor, Licensing and Regulation, the State may withhold payment of any invoice or retainage. The State may require certification from the Commissioner on a quarterly basis that such records were properly submitted.

42. Prompt Payment of Subcontractors.

42.1 The Contractor shall ensure that all subcontractors, including any Minority Business Enterprise (MBE) subcontractors if applicable, are promptly paid any undisputed amount to which the subcontractor is entitled. An undisputed amount is an amount owed by a contractor to a subcontractor for which there is no good faith dispute, including any retainage withheld, if any, and includes an amount withheld because of issues arising out of an agreement or occurrence unrelated to the agreement under which the amount is withheld.

42.2 If the Contractor withholds payment of an undisputed amount to its subcontractors, [MDP][MHT], may, at its sole option and discretion: a) refuse to process further payments to the Contractor until payment to the subcontractor is verified; b) suspend all or some of the contract work without affecting the completion date(s) for the contract work; c) pay or cause payment of the undisputed amount to the subcontractor from monies otherwise due or that may become due; d) place a payment for an undisputed amount in an interest-bearing escrow account; or

e) take other or further actions as appropriate to resolve the withheld payment dispute.

42.3 Upon completion of the Contract, but before final payment, the Contractor shall submit a final report, in affidavit form under the penalty of perjury, of all payments made to, or withheld from MBE subcontractors, if applicable.

42.4 The remedies enumerated above are in addition to those provided under

COMAR 21.11.03.13 with respect to any subcontractors that have contracted pursuant to the State’s MBE program.

42.5 To ensure compliance with certified MBE subcontract participation goals, and to monitor compliance with the terms of the Contract, [MDP][MHT] shall take action to remedy noncompliance consistent with COMAR 21.11.03.13.

42.6 An act, failure to act, or decision of a Procurement Officer or a representative of [MDP][MHT] concerning a withheld payment between the Contractor and subcontractor under Section 42.2 herein, may not: (a) affect the rights of the contracting parties under any other provision of law, (b) be used as evidence on the merits of a dispute between [MDP][MHT] and the Contractor in any other proceeding, or (c) result in liability against or prejudice the rights of [MDP][MHT].

43. Survival of Contract Provisions.

Any provision of this Contract which contemplates performance or observance subsequent to any termination or expiration of this Contract shall survive termination or expiration of this Contract and continue in full force and effect, including the Contractor’s obligation to: pay invoices to subcontractors providing products/services in connection with this Contract; cooperate and assist with audits; confidentiality; document retention; patents, copyrights and intellectual property; warranty; indemnification obligations; limitations of liability under this Contract; and any other obligations specifically identified.

[44. MBE Participation Goal; Liquidated Damages.

44.1 With the exception of a Contract that has been designated as a procurement to be made without any certified MBE participation goals, any Solicitation documents completed and submitted by the Contractor in connection with a certified MBE participation commitment are hereby incorporated and made part of the Contract.

44.2 If [MDP][MHT] determines that the Contractor has not complied with any certified MBE subcontract participation contract goal contained in the Solicitation, or has failed to submit the MBE documentation required by the Solicitation and has not obtained a waiver in accordance with COMAR 21.11.03.11, or if the Contractor fails to comply in good faith with the outreach efforts required under COMAR 21.11.03.09.C(2)(a)—(e), [MDP][MHT], upon review by the Office of the Attorney General, may terminate the Contract. The reasons for such termination shall be specified in writing and mailed or delivered to the Contractor.

44.3 If the Contract is subject to a certified MBE participation goals, the

Contractor is required to make good faith efforts to comply with the Solicitation’s MBE participation goal. [MDP][MHT] and the Contractor acknowledge and agree that the State will incur damages, including but not limited to loss of goodwill, detrimental impact on economic development, and diversion of internal staff resources, if the Contractor does not make good faith efforts to comply with the requirements of the MBE participation goal. The parties further acknowledge and agree that the damages the State might reasonably be anticipated to accrue as a result of such lack of compliance are difficult to ascertain with precision. Therefore, upon a determination by the [MDP][MHT] that the Contractor failed to make good faith efforts to comply with one or more of the MBE participation goals specified in the Solicitation, the Contractor agrees to pay liquidated damages to the State at the rates set forth below. The Contractor expressly agrees that the State may withhold payment on any invoices as a set-off against liquidated damages owed.

44.4 The Contractor further agrees that for each specified violation, the agreed upon liquidated damages are reasonably proximate to the loss the State is anticipated to incur as a result of such violation as follows:

44.4.1 Failure to submit each monthly payment report in full compliance with COMAR 21.11.03.13 (B) (3): $27.00 per day until the monthly report is submitted as required;

44.4.2 Failure to include in its agreements with MBE subcontractors a provision requiring submission of payment reports in full compliance with COMAR 21.11.03.13 (B) (4): $87.00 per MBE subcontractor;

44.4.3 Failure to comply with COMAR 21.11.03.12 in terminating, canceling, or changing the scope of work/value of a contract with a MBE subcontractor and/or amendment of the MBE participation schedule: the difference between the dollar value of the MBE participation commitment on the MBE participation schedule for that specific MBE firm and the dollar value of the work performed by that MBE firm for the Contract;

44.4.4 Failure to meet the Contractor’s total MBE participation goal and subgoal commitments: the difference between the dollar value of the total MBE participation commitment on the MBE participation schedule and the MBE participation actually achieved; and

44.4.5 Failure to promptly pay all undisputed amounts to a subcontractor in full compliance with the prompt payment provisions of this Contract: $100.00 per day until the undisputed amount due to the subcontractor is paid.]

45. . Execution in Counterparts; Electronic Signatures.

This Contract may be executed in counterparts (including facsimile counterparts or as a “PDF” or similar attachment to an email), all of which when taken together shall be deemed one original. This Contract may be electronically signed; an electronic signature appearing on the Contract is the same as a handwritten signature for the purposes of validity, enforceability, and admissibility if the signature is an act of the person to whom the signature is attributed.

Witness the signatures of the parties hereto as of the Effective Date:

[Maryland Historical Trust] Contractor:__________________________ [Maryland Department of Planning]

By: ________________________________ By: ________________________________ Elizabeth Hughes Name: _______________________ Director, MHT Title: ________________________

Effective Date: ________________________ Date: _________________________

Paralegal review

____________________________________ Date: _________________________ Margaret Drake

Approved as to legal form and sufficiency:

____________________________________ Date: _________________________ Assistant Attorney General

Exhibit A – The Solicitation Exhibit B – The Proposal Exhibit C –The Contract Affidavit

Exhibit A

SOLICITATION

Exhibit B

PROPOSAL

Exhibit C

CONTRACT AFFIDAVIT

A. AUTHORITY

I HEREBY AFFIRM THAT:

I, (print name) ___________________________ possess the legal authority to make this Affidavit.

B. CERTIFICATION OF REGISTRATION OR QUALIFICATION WITH THE STATE

DEPARTMENT OF ASSESSMENTS AND TAXATION

I FURTHER AFFIRM THAT:

The business named above is a (check applicable items):

(1) Corporation — ___ domestic or ___ foreign;

(2) Limited Liability Company — ___ domestic…