Attachment 4 - Contract General T&Cs.docx

Attachment 2 Draft Contract

Iowa Department of Administrative Services Contracts Declaration & Execution Page

Title of Contract:

DRAFT

This Agreement is entered into between the State of Iowa (by and through its agency, the Department of Administrative Services) and the Contractor named below:

State Agency’s Name:

Contractor’s Name:

Contract to Begin:

Date of Expiration:

Annual Extensions:

The parties agree to comply with the terms and conditions and attachments which are by this reference made a part of the Agreement:

Section 1 – Terms & Conditions …………………………………………………..……………………………………………...…….. Page x Section 2 – Special Terms & Conditions ……………………………………………………………………………………..……… Page xx Section 3 – Scope of Work ……………..………………………………………………………………………………………..………… Page xx Section 4 – HCR Operations & Maintenance Plan ……………………………………………………………………..………… Page xx Section 5 – Resort Sponsorship Signage ……………………………………………………………………..………………………… Page xx Section 6 – Contract Transition Requirements ………………………………………………………………………….……………Page xx Section 7 – HCR Flood Management Plan ……………………………………………………………………………………….…… Page xx Section 8 – Fees ….………………………………………………………………………………………………………………………..……… Page xx Section 9 – Contacts ..……………………………………………………………………………………………………………..…..………. Page xx

Contract Attachments* Attachment 1 – Honey Creek Resort - USACE Lease with Iowa DNR Attachment x – Land Area Assignment (LAA) Map Attachment X – Real Property Inventory Attachment X – Honey Creek Resort Personal Property Assigned Attachment X – Cottage Equipment/Item Minimum Inventory to Be Maintained *Additional Attachments may be incorporated in the final awarded contract

IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto Contractor:

By (Authorized Signature)

DO NOT SIGN – FOR REVIEW ONLY

Date Signed

Printed Name and Title of Person Signing

Address

State of Iowa: Department of Administrative Services – Central Procurement

By (Authorized Signature)

DO NOT SIGN – FOR REVIEW ONLY

Date Signed

Printed Name and Title of Person Signing

Address

SECTION 1

General Terms & Conditions

1.1 Definitions

The following words shall be defined as set forth below:

“Acceptance” means that the Agency has determined that one or more Deliverables satisfy the Agency’s Acceptance Tests. Final Acceptance means that the Agency has determined that all Deliverables satisfy the Agency’s Acceptance Tests. Non-acceptance means that the Agency has determined that one or more Deliverables have not satisfied the Agency’s Acceptance Tests.

“Acceptance Criteria” means the Specifications, goals, performance measures, testing results and/or other criteria designated by the Agency and against which the Deliverables may be evaluated for purposes of Acceptance or Non-acceptance thereof.

“Acceptance Tests” or “Acceptance Testing” mean the tests, reviews and other activities that are performed by or on behalf of Agency to determine whether the Deliverables meet the Acceptance Criteria or otherwise satisfy the Agency, as determined by the Agency in its sole discretion.

“Annual Financial Report” means a report prepared each year by the Respondent, which includes the operating entity’s balance sheet, income statement, statement of cash flows and notes that are an integral part of such financial statements. This report shall be reviewed by an independent Certified Public Accountant.

“Bid Proposal” or “Proposal” means the Contractor’s proposal submitted in response to the RFP.

“Capital Budget / Capital Improvement Plan” means a plan that is submitted annually that outlines the Capital Improvements the Respondent is planning to complete in the coming year.

“Capital Improvement” means a Real Property Improvement or Personal Property purchase approved in advance by DAS and completed by the Respondent.

“Contract” means the collective documentation memorializing the terms of the agreement between the Agency and the Contractor identified on the Contract Declarations & Execution Page(s) and includes the signed Contract Declarations & Execution Page(s), the Special Terms, these General Terms and Conditions, any Special Contract Attachments, and all other attachments to the Contract.

“Contract Declarations & Execution Page(s)” means the document that contains basic information about the Contract and incorporates by reference these General Terms and Conditions for Services Contracts, the Special Terms, and all other attachments to the Contract Declarations and Execution Page(s).

“Contractor” means the awarded business/person to provide the contractual services agreed upon.

“Contractor Personal Property” means personal property provided by the Contractor. Title to Contractor Personal Property is held by the Contractor. Contractor Personal Property does not include any personal property purchased throughout the term to replace or supplement Personal Property that was originally assigned at the start of the contract. Contractor Personal Property may be removed by Contractor following the expiration or any termination of this Contract.

“Deficiency” means a defect, flaw, anomaly, failure, omission, interruption of service, or other problem of any nature whatsoever with respect to a Deliverable, including, without limitation, any failure of a deliverable to conform to or meet an applicable specification. Deficiency also includes the lack of something essential or necessary for completeness or proper functioning of a Deliverable.

“Deliverables” means all of the goods, products, services, work, work product, items, materials and property to be created, developed, produced, delivered, performed or provided by or on behalf of, or made available through, Contractor (or any agent, contractor or subcontractor of Contractor) in connection with this Contract.

“Documentation” means any and all technical information, commentary, explanations, design documents, system architecture documents, database layouts, test materials, training materials, guides, manuals, worksheets, notes, work papers, and all other information, documentation and materials related to or used in conjunction with the Deliverables, in any medium, including hard copy, electronic, digital, and magnetically or optically encoded media.

“Environmental Condition” means any environmental condition or matter affecting HCR, the Land Area Assignment or the Real Property Improvements, including a condition relating to or arising or resulting from a failure to comply with any applicable law or the terms and conditions of a permit or from a release of Hazardous Substances into the Environment.

“Facilities” means real property and Real Property Improvements owned by the State of Iowa and provided to the Contractor.

“GAAP” means generally accepted accounting principles in the United States.

“General Manager” means the individual with responsibility for the day to day management of the required and authorized services. This individual shall be the main liaison to the Agency on all matters related to this Contract and shall have the authority to respond to all issued raised by the Agency in regards to this Contract.

“Gross Receipts” means the total amount received, excluding sales tax, realized by or accruing to the Contractor from all sales, for cash or credit, of services, accommodations, materials, or other merchandise pursuant to rights granted in the Contract including gross receipts of subcontractors. All moneys paid into coin-operated devices, card-operated, or electronic payment devices, except public telephones, shall be included in Gross Receipts. Gross Receipts shall exclude documented customer refunds and standard employee complimentary benefits.

“Hazardous Substances” means any substance or mixture of substances that presents a danger to the public health or safety and includes but is not limited to a substance that is toxic, corrosive, or flammable, or that is an irritant or that generates pressure through decomposition, heat, or other means. “Hazardous substance” may include any hazardous waste identified or listed by the administrator of the United States environmental protection agency under the Solid Waste Disposal Act as amended by the Resource Conservation and Recovery Act of 1976, or any toxic pollutant listed under section 307 of the federal Water Pollution Control Act as amended to January 1, 1977, or any hazardous substance designated under section 311 of the federal Water Pollution Control Act as amended to January 1, 1977, or any hazardous material designated by the secretary of transportation under the Hazardous Materials Transportation Act.

“HCR” means Honey Creek Resort.

“IDNR Lease” means Lease No. DACW41-1-97-233 between the Secretary of the Department of the Army and the IDNR, as amended by the Supplemental Agreement No. 1, the Supplemental Agreement No. 2, and as further supplemented and amended from time to time.

“Land Area Assignment (LAA)” means the areas and facilities assigned to the Contractor for operations and maintenance.

“Monthly Net Receipts” means all payments, whether by coin or currency, on account, by check, credit card, or debit card, collected or uncollected, received by Contractor during each calendar month of this Agreement, in connection with, occupancy, camping, food or drink sold from the Resort Property, or goods sold within the Resort Property, regardless of where or by whom the payment is made less:

· Sales and/or use taxes collected by Contractor in accordance with applicable provisions of the Iowa Tax Code which are separately stated payable to the State of Iowa;

· The value of any equipment exchanged or transferred from or to other business locations of Contractor, where such exchanges or transfers are not made for the purpose of avoiding a sale or service fee by Lessee that would otherwise be made from or at the Honey Creek Resort;

· Receipts with respect to any refunds made to Contractor's customers, to the extent of any refund actually granted or adjustment actually made, either in the form of cash or credit, providing the refund and reason therefore is documented along with the name and address of the person receiving the refund; and

· Documented discounts and rebates to customers.

“Operator” refers to the Contractor operating the Honey Creek Resort under this contract. Contractor, Operator, and Concessionaire are used interchangeably throughout this document.

“Personal Property” means personal property owned by the State of Iowa. Personal Property includes, but not limited to, any equipment, furniture, vehicles, goods, fixtures or other tangible property necessary for operations that are not recognized as a real property or a Real Property Improvement.

“Preventative Maintenance” means planned, scheduled, and routine maintenance performed periodically, including weekly, monthly, semi-annual, or annual maintenance activities such as inspections, lubrication, adjustments, and similar activities necessary to maintain property and equipment in a normal operating condition. Preventative Maintenance expenses are not eligible for reimbursement from or payment through the Personal and Real Property Replenishment Fund (PRF).

“Real Property” means buildings, structures, or fixtures and equipment that are affixed to the land or building in such a manner that they become part of the realty. This term includes marina docks and slips.

"Real Property Improvements" means improvements, replacements, or restorations to a good condition (or good working condition, if applicable) made to buildings, structures, or fixtures and equipment that are affixed to the land or building in such a manner that they become part of the realty. This term includes marina docks and slips.

“Resort Property” means the areas and facilities assigned to the Contractor for operations and maintenance within the Land Area Assignment.

“Routine Maintenance” means maintenance that occurs on a daily basis including, but not limited to, janitorial and custodial services, operations of utilities and grounds keeping.

“RFP” means the Request for Proposals or Request for Bids (and any Addenda thereto) identified on the Contract Declarations and Execution Page(s) that was issued to solicit the Deliverables that are subject to the Contract “Special Contract Attachments” means any attachment to this Contract referenced within the Contract or indicated in the Contract Declarations & Execution Page(s).

“Special Terms” means the Contract attachment entitled “Special Terms” that contains terms specific to this Contract, including but not limited to the Scope of Work, contract payment terms, and any amendments to these General Terms and Conditions. If there is a conflict between the General Terms and Conditions and the Special Terms, the Special Terms shall prevail.

“Specifications” means all specifications, requirements, technical standards, performance standards, representations and other criteria related to the Deliverables stated or expressed in this Contract, the Documentation, the RFP, and the Proposal. Specifications shall include the Acceptance Criteria and any specifications, standards or criteria stated or set forth in any applicable state, federal, foreign and local laws, rules and regulations. The Specifications are incorporated into this Contract by reference as if fully set forth in this Contract.

“State” means the State of Iowa, or the Agency (DAS).

“Usage Report” means a report provided monthly and annually that includes usage data from each required and authorized service provided in the Scope of Work. The type of usage to be reported and due dates of reporting shall be provided in the Operating and Maintenance Plan.

1.2 Duration of Contract

1.2.1 The term of the Contract shall begin and end on the dates specified on the Contract Declarations & Execution Page(s), unless extended or terminated earlier in accordance with the termination provisions of this Contract. The Agency may, in its sole discretion, exercise any applicable extension by giving the Contractor written notice of the extension decision at least sixty (60) days prior to the expiration of the initial term or renewal term.

1.2.2 This contract is not in effect until all approvals are granted by the Army Corps of Engineers in accordance with the USACE Lease with Iowa DNR.

1.3 Scope of Work

The Contractor shall provide Deliverables that comply with and conform to the Specifications and as outlined in Section 3 of this Contract.

1.4 Compensation

1.4.1 Pricing

The Contractor will be compensated in accordance with the payment terms outlined in the Contract Payment Terms and Scope of Work described in the Special Terms.

The Contractor shall submit, on the frequency established on the Contract Declarations & Execution Page(s) or in the Scope of Work, an invoice for Deliverables rendered in accordance with this Contract. The invoice shall comply with all applicable rules concerning payment of such claims. The Agency shall verify the Contractor’s performance of the Deliverables outlined in the invoice before making payment. The Agency shall pay all approved invoices in arrears and in conformance with Iowa Code 8A.514. The Agency may pay in less than sixty (60) days, but an election to pay in less than sixty (60) days shall not act as an implied waiver of Iowa Code § 8A.514.

Unless otherwise agreed in writing by the parties, the Contractor shall not be entitled to receive any other payment or compensation from the State for any Deliverables provided by or on behalf of the Contractor under this Contract. The Contractor shall be solely responsible for paying all costs, expenses and charges it incurs in connection with its performance under this Contract.

1.4.2 Reimbursement Expenses

The State has established rules for limitations on reimbursement expenses. Please reference Department of Administrative Services - State Accounting Enterprise Procedure 210-245 (accessible on the internet) for limits on travel expenses.

1.4.3 Withholding Payments

In addition to pursuing any other remedy provided herein or by law, the Agency may withhold compensation or payments to Contractor, in whole or in part, without penalty to the Agency or work stoppage by Contractor, in the event the Agency determines that:

1.4.3.1 Contractor has failed to perform any of its duties or obligations as set forth in this Contract; or

1.4.3.2 Any Deliverable has failed to meet or conform to any applicable Specifications or contains or is experiencing a Deficiency.

No interest shall accrue or be paid to Contractor on any compensation or other amounts withheld or retained by the Agency under this Contract.

1.4.4 Setoff Against Sums Owed by the Contractor

In the event that Contractor owes the State any sum under the terms of this Contract, any other contract or agreement, pursuant to a judgment, or pursuant to any law, the State may, in its sole discretion, set off any such sum against:

1.4.4.1 Any sum invoiced by, or owed to, Contractor under this Contract, or

1.4.4.2 Any sum or amount owed by the State to Contractor, unless otherwise required by law.

The Contractor agrees that this provision constitutes proper and timely notice under any applicable laws governing setoff.

1.5 Termination

1.5.1 Immediate Termination by the State

The State may terminate this Contract for any of the following reasons effective immediately without advance notice:

1.5.1.1 In the event the Contractor is required to be certified or licensed as a condition precedent to providing goods and services, the revocation or loss of such license or certification will result in immediate termination of the Contract effective as of the date on which the license or certification is no longer in effect;

1.5.1.2 The State determines that the actions, or failure to act, of the Contractor, its agents, employees or subcontractors have caused, or reasonably could cause, a person’s life, health or safety to be jeopardized;

1.5.1.3 The Contractor fails to comply with confidentiality laws or provisions;

1.5.1.4 The Contractor furnished any statement, representation or certification in connection with the Contract or the bidding process which is materially false, deceptive, incorrect or incomplete.

1.5.2 Termination for Cause by the Agency

The Agency may terminate this Contract upon written notice for the breach by Contractor of any material term, condition or provision of this Contract, if such breach is not cured within the time period specified in the Agency’s notice of breach or any subsequent notice or correspondence delivered by the Agency to Contractor, provided that cure is feasible. In addition, the Agency may terminate this Contract effective immediately without penalty and without advance notice or opportunity to cure for any of the following reasons:

1.5.2.1 Contractor furnished any statement, representation, warranty or certification in connection with this Contract, the RFP or the Proposal that is false, deceptive, or materially incorrect or incomplete;

1.5.2.2 Contractor or any of Contractor’s officers, directors, employees, agents, subsidiaries, affiliates, contractors or subcontractors has committed or engaged in fraud, misappropriation, embezzlement, malfeasance, misfeasance, or bad faith;

1.5.2.3 Contractor or any parent or affiliate of Contractor owning a controlling interest in Contractor dissolves;

1.5.2.4 Contractor terminates or suspends its business;

1.5.2.5 Contractor’s corporate existence or good standing in Iowa is suspended, terminated, revoked or forfeited, or any license or certification held by Contractor related to Contractor’s performance under this Contract is suspended, terminated, revoked, or forfeited;

1.5.2.6 Contractor has failed to comply with any applicable international, federal, state (including, but not limited to Iowa Code chapter 8F), or local laws, rules, ordinances, regulations or orders when performing within the scope of this Contract;

1.5.2.7 The Agency determines or believes the Contractor has engaged in conduct that: (a) has or may expose the Agency or the State to material liability, or (b) has caused or may cause a person’s life, health or safety to be jeopardized;

1.5.2.8 Contractor infringes or allegedly infringes or violates any patent, trademark, copyright, trade dress or any other intellectual property right or proprietary right, or Contractor misappropriates or allegedly misappropriates a trade secret;

1.5.2.9 Contractor fails to comply with any applicable confidentiality laws, privacy laws, or any provisions of this Contract pertaining to confidentiality or privacy; or

1.5.2.10 Any of the following has been engaged in by or occurred with respect to Contractor or any corporation, shareholder or entity having or owning a controlling interest in Contractor:

1.5.2.10.1 Commencing or permitting a filing against it which is not discharged within ninety (90) days, of a case or other proceeding seeking liquidation, reorganization, or other relief with respect to itself or its debts under any bankruptcy, insolvency, or other similar law now or hereafter in effect; or filing an answer admitting the material allegations of a petition filed against it in any involuntary case or other proceeding commenced against it seeking liquidation, reorganization, or other relief under any bankruptcy, insolvency, or other similar law now or hereafter in effect with respect to it or its debts; or consenting to any such relief or to the appointment of or taking possession by any such official in any voluntary case or other proceeding commenced against it seeking liquidation, reorganization, or other relief under any bankruptcy, insolvency, or other similar law now or hereafter in effect with respect to it or its debts;

1.5.2.10.2 Seeking or suffering the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its assets;

1.5.2.10.3 Making an assignment for the benefit of creditors;

1.5.2.10.4 Failing, being unable, or admitting in writing the inability generally to pay its debts or obligations as they become due or failing to maintain a positive net worth and such additional capital and liquidity as is reasonably adequate or necessary in connection with Contractor’s performance of its obligations under this Contract; or

1.5.2.10.5 Taking any action to authorize any of the foregoing. The Agency’s right to terminate this Contract shall be in addition to and not exclusive of other remedies available to the Agency, and the Agency shall be entitled to exercise any other rights and pursue any remedies, in law, at equity, or otherwise.

1.5.3 Notice of Default to Contractor

If there is a default event described in Section 1.5.2, the State shall provide written notice to Contractor requesting that the breach or noncompliance be remedied within the period of time specified in the State’s written notice (which time period shall not be less than sixty (60) days. If the breach or noncompliance is not remedied by the date specified in the written notice, the State may immediately terminate the Contract.

1.5.4 Termination Due to Lack of Funds or Change in Law

Notwithstanding anything in this Contract to the contrary, and subject to the limitations set forth below, the Agency shall have the right to terminate this Contract following ninety (90) days advance notice as a result of any of the following:

1.5.4.1 The legislature or governor fail in the sole opinion of the Agency to appropriate funds sufficient to allow the Agency to either meet its obligations under this Contract or to operate as required and to fulfill its obligations under this Contract; or

1.5.4.2 If funds are de-appropriated, reduced, not allocated, or receipt of funds is delayed, or if any funds or revenues needed by the Agency to make any payment hereunder are insufficient or unavailable for any other reason as determined by the Agency in its sole discretion; or

1.5.4.3 If the Agency’s authorization to conduct its business or engage in activities or operations related to the subject matter of this Contract is withdrawn or materially altered or modified; or

1.5.4.4 If the Agency’s duties, programs or responsibilities are modified or materially altered; or

1.5.4.5 If there is a decision of any court, administrative law judge or an arbitration panel or any law, rule, regulation or order is enacted, promulgated or issued that materially or adversely affects the Agency’s ability to fulfill any of its obligations under this Contract. The Agency shall provide Contractor with written notice of termination pursuant to this section.

1.5.5 Obligations and Remedies in the Event of Termination

1.5.5.1 The Contractor shall pay within 60 days of the effective date of termination any fees or monies owed to the DAS including the balance of the Gift Card account. Contract transition responsibilities shall be followed as outlined in Section 6 “Contract Transition Requirements” of this Contract.

1.5.5.2 The Contractor shall clean the State of Iowa facilities and return them to the DAS in satisfactory condition, within a period of time specified by the DAS, prior to Contract termination. The DAS will perform a final inspection of the State of Iowa facilities. If the DAS, in its commercially reasonable discretion, determines the DAS Facilities are not in satisfactory condition (reasonable wear and tear excepted), the DAS will provide the Contractor with a list of corrective actions and specified period of time in which to complete the actions.

1.5.5.3 DAS shall pay to Contractor within 60 days of the effective date of termination the sum of (i) the annual forecasted net revenue multiplied by the number of years remaining of the term of this Contract,; and (ii) any additional expenses paid by Contractor in furtherance of the operations and improvements of Honey Creek Resort under this Contract. Payment will be made upon submission of invoices and proper proof of Contractor’s claim. Comment by Claude (AI Legal Review): CRITICAL - UNCAPPED PAYOUT, APPEARS TO APPLY EVEN TO FOR-CAUSE TERMINATION: As placed (immediately following the Termination for Cause and Termination Due to Lack of Funds sections, and before any carve-out limiting it to a particular termination type), this clause reads as applying to ANY termination - including one where the State terminates FOR CAUSE due to the Contractor's own default, bankruptcy, illegal conduct, or a hazardous condition it caused. As drafted, DAS would owe the Contractor its full forecasted net revenue for every year remaining in the term - AND all potential renewal years that were never exercised and were solely at the Agency's discretion - even where the State terminates because the Contractor breached the contract. This also directly contradicts Section 1.4.5 (Limitation of the State's Payment Obligations), which disclaims liability for 'loss of prospective profits' - this clause IS a payment for prospective profits. Recommend: (1) expressly limit this payout to termination for convenience/non-appropriation only, never to termination for Contractor cause; (2) remove 'including all potential renewals thereof' since unexercised renewal options are not a vested entitlement; (3) reconcile with Section 1.4.5. This is a substantial, largely unbounded contingent liability for the State as currently written. Comment by Brincks, Jocelyn: Nathan weigh in on this language Comment by Brincks, Jocelyn: Ok for now per Nathan

1.5.6 Limitation of the State’s Payment Obligations

The Agency shall not be liable, under any circumstances, for any of the following:

1.5.6.1 The payment of unemployment compensation to Contractor’s employees;

1.5.6.2 The payment of workers’ compensation claims, which occur during the Contract or extend beyond the date on which the Contract terminates;

1.5.6.3 Any costs incurred by Contractor in its performance of the Contract, including, but not limited to, startup costs, overhead or other costs associated with the performance of the Contract, notwithstanding any other provisions of this Contract;

1.5.6.4 Any damages or other amounts associated with the loss of prospective profits, anticipated sales, goodwill, or for expenditures, investments or commitments made in connection with this Contract, notwithstanding any other provisions of this Contract;

1.5.6.5 Any taxes Contractor may owe in connection with the performance of this Contract, including, but not limited to, sales taxes, excise taxes, use taxes, income taxes or property taxes.

1.5.7 Contractor’s Termination Duties

Upon termination, Contractor shall:

1.5.7.1 Cease work under this Contract and take all necessary or appropriate steps to limit disbursements and minimize costs, and furnish a report within thirty (30) days of the date of notice of termination, describing the status of all work performed under the Contract and such other matters as the Agency may require.

1.5.7.2 Immediately cease using and return to the Agency any property or materials, whether tangible or intangible, provided by the Agency to Contractor.

1.5.7.3 Cooperate in good faith with the Agency and its employees, agents and independent contractors during the transition period between the notification of termination and the substitution of any replacement service provider.

1.5.7.4 Immediately return to the Agency any payments made by the Agency for Deliverables that were not rendered or provided by Contractor.

1.5.7.5 Immediately deliver to the Agency any and all Deliverables for which the Agency has made payment (in whole or in part) that are in the possession or under the control of the Contractor or its agents or subcontractors in whatever stage of development and form of recordation such property is expressed or embodied as that time.

1.5.8 Termination for Cause by Contractor

Contractor may terminate this Contract for the breach by the Agency of any material term, condition or provision of this Contract, if such breach is not cured within sixty (60) days of the Agency’s receipt of Contractor’s written notice of breach.

1.6 Confidential Information

1.6.1 Access to Confidential Information

The Contractor’s employees, agents and subcontractors may have access to confidential information maintained by the Agency to the extent necessary to carry out its responsibilities under the Contract. The Contractor shall presume that all information received pursuant to this Contract is confidential unless otherwise designated by the Agency. The Contractor shall provide to the Agency a written description of its policies and procedures to safeguard confidential information. Policies of confidentiality shall address, as appropriate, information conveyed in verbal, written, and electronic formats. The Contractor must designate one individual who shall remain the responsible authority in charge of all data collected, used, or disseminated by the Contractor in connection with the performance of the Contract. The Contractor shall provide adequate supervision and training to its agents, employees and subcontractors to ensure compliance with the terms of this Contract. The private or confidential information shall remain the property of the Agency at all times.

1.6.2 No Dissemination of Confidential information

No confidential information collected, maintained, or used in the course of performance of the Contract shall be disseminated by Contractor except as authorized by law and only with the prior written consent of the Agency, either during the period of the Contract or thereafter. Any data supplied by the Agency to the Contractor or created by the Contractor in the course of the performance of this Contract shall be considered the property of the Agency. The Contractor must return any and all such data received, collected, maintained, created or used in the course of the performance of the Contract in whatever form it is maintained promptly at the request of the Agency. The Contractor may be held civilly or criminally liable for improper disclosure of confidential information.

1.6.3 Subpoena

In the event that a subpoena or other legal process is served upon the Contractor or the Agency for records containing confidential information, the Contractor shall promptly notify the Agency and cooperate with the Agency in any lawful effort to protect the confidential information.

1.6.4 Reporting of Unauthorized Disclosure

The Contractor shall immediately report to the Agency any unauthorized disclosure of confidential information.

1.6.5 If Contractor requests confidential treatment with respect to any information or material contained within its Bid Proposal and if a judicial or administrative proceeding is initiated to compel the release of such material, Contractor shall, at its sole expense, appear in the proceeding or otherwise obtain an order restraining the release of such material from a court of competent jurisdiction. Agency may release the information or material with or without advance notice to Contractor if no judicial or administrative proceeding is initiated and Agency determines the information or material is not confidential under Iowa or other applicable law, or if Contractor failed to properly request confidential treatment under the RFP, or if Contractor rescinds its request for confidential treatment.

1.6.6 Survives Termination

The Contractor’s obligations under this section shall survive termination or expiration of this Contract.

1.7 Indemnification

1.7.1 By the Contractor

The Contractor agrees to indemnify and hold harmless the State and its officers, appointed and elected officials, board and commission members, employees, volunteers and agents (collectively the “Indemnified Parties”), from any and all costs, expenses, losses, claims, damages, liabilities, settlements and judgments (including, without limitation, the reasonable value of the time spent by the Attorney General’s Office, and the costs, expenses and attorneys’ fees of other counsel retained by the Indemnified Parties) directly or indirectly related to, resulting from, or arising out of this Contract, including but not limited to any claims related to, resulting from, or arising out of:

1.7.1.1 Any breach of this Contract;

1.7.1.2 Any negligent, intentional or wrongful act or omission of the Contractor or any agent or subcontractor utilized or employed by the Contractor;

1.7.1.3 The Contractor’s performance or attempted performance of this Contract, including any agent or subcontractor utilized or employed by the Contractor;

1.7.1.4 Any failure by the Contractor to make all reports, payments and withholdings required by federal and state law with respect to social security, employee income and other taxes, fees or costs required by the Contractor to conduct business in the State of Iowa;

1.7.1.5 Any claim of misappropriation of a trade secret or infringement or violation of any intellectual property rights, proprietary rights or personal rights of any third party, including any claim that any Deliverable or any use thereof (or the exercise of any rights with respect thereto) infringes, violates or misappropriates any patent, copyright, trade secret, trademark, trade dress, mask work, utility design, or other intellectual property right or proprietary right of any third party.

1.7.1.6 Both parties recognize that Contractor shall not be liable for and the indemnification provisions contained in this section shall not apply to any claims of negligence or relating to any liability whatsoever concerning the acts, or failures to act, of any and all prior Contractors’ or the failure to adequately maintain or make repairs to real or personal property subject to this Contract prior to Contractor’s possession and operation under this Contract.

1.7.2 Survives Termination

Contractor’s duties and obligations under this section shall survive the termination of this Contract and shall apply to all acts or omissions taken or made in connection with the performance of this Contract regardless of the date any potential claim is made or discovered by the other party or any other Indemnified Party.

1.8 Insurance

1.8.1 Insurance Requirements

The Contractor, and any subcontractor, shall maintain in full force and effect, with insurance companies licensed by the State of Iowa, at the Contractor’s expense, insurance covering its work during the entire term of this Contract and any extensions or renewals thereof. The Contractor’s insurance shall, among other things, be occurrence based and shall insure against any loss or damage resulting from or related to the Contractor’s performance of this Contract regardless of the date the claim is filed or expiration of the policy. The State of Iowa and the Agency shall be named as additional insureds or loss payees, or the Contractor shall obtain an endorsement to the same effect, as applicable.

1.8.2 Types and Amounts of Insurance Required

Unless otherwise requested by the Agency in writing, the Contractor shall cause to be issued insurance coverages insuring the Contractor and/or subcontractors against all general liabilities, product liability, personal injury, property damage, and (where applicable) professional liability. In addition, the Contractor shall ensure it has any necessary workers’ compensation and employer liability insurance as required by Iowa law.

General Liability (including contractual liability) written on an occurrence basis General Aggregate Products – Comp/Op Aggregate Personal injury Each Occurrence $5 million

$2 Million $2 Million $2 Million

Aggregate $2 Million $10 Million

Aggregate $1 Million $5 Million

1.8.3 Certificates of Coverage

Contractor shall maintain all insurance policies required by this Contract in full force and effect during the entire term of this Contract and any extensions or renewals thereof, and shall not permit such policies to be canceled or amended except with the advance written approval of the Agency. The Contractor shall submit certificates of the insurance, which indicate coverage and notice provisions as required by this Contract, to the Agency upon execution of this Contract. The certificates shall be subject to approval by the Agency. The insurer shall state in the certificate that no cancellation of the insurance will be made without at least thirty (30) days’ prior written notice to the Agency. Approval of the insurance certificates by the Agency shall not relieve the Contractor of any obligation under this Contract.

1.8.4 Waiver of Subrogation Rights

The Contractor shall obtain a waiver of any subrogation rights that any of its insurance carriers might have against the State. The waiver of subrogation rights shall be indicated on the certificates of insurance coverage supplied to the State.

1.9 Project Management & Reporting

1.9.1 Project Manager

At the time of execution of this Contract, each party shall designate, in writing, a Project Manager to serve until the expiration of this Contract or the designation of a substitute Project Manager. During the term of this Contract, each Project Manager shall be available to meet monthly, unless otherwise mutually agreed, to review and plan the Deliverables being provided under this Contract.

1.9.2 Review Meetings

During the review meetings the Project Managers shall discuss progress made by the Contractor in the performance of this Contract. Each party shall provide a status report, as desired by a Project Manager, listing any problem or concern encountered since the last meeting. Records of such reports and other communications issued in writing during the course of Contract performance shall be maintained by each party.

1.9.3 Reports

At the next scheduled meeting after which any party has identified in writing a problem, the party responsible for resolving the problem shall provide a report setting forth activities undertaken, or to be undertaken, to resolve the problem, together with the anticipated completion dates of such activities. Any party may recommend alternative courses of action or changes that will facilitate problem resolution. For as long as a problem remains unresolved, written reports shall identify:

1.9.3.1 Any event not within the control of the Contractor or the Agency that accounts for the problem;

1.9.3.2 Modifications to the Contract agreed to by the parties in order to remedy or solve the identified problem;

1.9.3.3 Damages incurred as a result of any party's failure to perform its obligations under this Contract; and

1.9.3.4 Any request or demand by one party that another party believes is not included within the terms of this Contract.

1.9.4 Problem Reporting Omissions

The Agency’s acceptance of a problem report shall not relieve the Contractor of any obligation under this Contract or waive any other remedy under this Contract or at law or equity that the Agency may have. The Agency’s failure to identify the extent of a problem or the extent of damages incurred as a result of a problem shall not act as a waiver of performance or damages under this Contract. Where other provisions of this Contract require notification of an event in writing, the written report shall be considered a valid notice under this Contract provided the parties required to receive notice are notified.

1.10 Change Order Procedure

The Agency may at any time request a modification to the Scope of Work using a change order. The following procedures for a change order shall be followed:

1.10.1 Written Request: The Agency shall specify in writing the desired modifications to the same degree of specificity as in the original Scope of Work.

1.10.2 The Contractor’s Response: The Contractor shall submit to the Agency a firm cost proposal for the requested change order within five (5) business days of receiving the change order request.

1.10.3 Acceptance of the Contractor Estimate: If the Agency accepts the cost proposal presented by the Contractor, the Contractor shall provide the modified Deliverable subject to the cost proposal included in the Contractor response. The Contractor’s provision of the modified deliverables shall be governed by the terms and conditions of this Contract.

1.10.4 Adjustment to Compensation: The parties acknowledge that a change order for this Contract may or may not entitle the Contractor to an equitable adjustment in the Contractor’s compensation or the performance deadlines under this Contract.

1.11 Legislative Changes

The Contractor expressly acknowledges that the contracted Deliverables are subject to legislative change by either the federal or state government. Should either legislative body enact measures which alter the project, the Contractor shall not hold the Agency liable in any manner for the resulting changes. The Agency shall use best efforts to provide thirty (30) days’ written notice to the Contractor of any legislative change. During the thirty (30)-day period, the parties shall meet and make a good faith effort to agree upon changes to the Contract to address the legislative change. Nothing in this Subsection shall affect or impair the Agency’s right to terminate the Contract pursuant to the termination provisions.

1.12 Intellectual Property

1.12.1 Ownership and Assignment of Other Deliverables

Contractor agrees that the State and Agency shall become the sole and exclusive owners of all Deliverables. Contractor hereby irrevocably assigns, transfers and conveys to the State and the Agency all right, title and interest in and to all Deliverables and all intellectual property rights and proprietary rights arising out of, embodied in, or related to such Deliverables, including copyrights, patents, trademarks, trade secrets, trade dress, mask work, utility design, derivative works, and all other rights and interests therein or related thereto. Contractor represents and warrants that the State and the Agency shall acquire good and clear title to all Deliverables, free from any claims, liens, security interests, encumbrances, intellectual property rights, proprietary rights, or other rights or interests of Contractor or of any third party, including any employee, agent, contractor, subcontractor, subsidiary or affiliate of Contractor. The Contractor (and Contractor’s employees, agents, contractors, subcontractors, subsidiaries and affiliates) shall not retain any property interests or other rights in and to the Deliverables and shall not use any Deliverables, in whole or in part, for any purpose, without the prior written consent of the Agency and the payment of such royalties or other compensation as the Agency deems appropriate. Unless otherwise requested by Agency, upon completion or termination of this Contract, Contractor will immediately turn over to Agency all Deliverables not previously delivered to Agency, and no copies thereof shall be retained by Contractor or its employees, agents, subcontractors or affiliates, without the prior written consent of Agency.

1.12.2 Waiver

To the extent any of Contractor’s rights in any Deliverables are not subject to assignment or transfer hereunder, including any moral rights and any rights of attribution and of integrity, Contractor hereby irrevocably and unconditionally waives all such rights and enforcement thereof and agrees not to challenge the State’s rights in and to the Deliverables.

1.12.3 Further Assurances

At the Agency’s request, Contractor will execute and deliver such instruments and take such other action as may be requested by the Agency to establish, perfect or protect the State’s rights in and to the Deliverables and to carry out the assignments, transfers and conveyances set forth in this Contract.

1.13 Warranties

1.13.1 Construction of Warranties Expressed in this Contract with Warranties Implied by LawWarranties made by the Contractor in this Contract, whether: (1) this Contract specifically denominates the Contractor's promise as a warranty; or (2) the warranty is created by the Contractor's affirmation or promise, by a description of the Deliverables to be provided, or by provision of samples to the Agency, shall not be construed as limiting or negating any warranty provided by law, including without limitation, warranties that arise through course of dealing or usage of trade. The warranties expressed in this Contract are intended to modify the warranties implied by law only to the extent that they expand the warranties applicable to the Deliverables provided by the Contractor. The provisions of this section apply during the term of this Contract and any extensions or renewals thereof.

1.13.2 Contractor represents and warrants that: (1) all Deliverables shall be wholly original with and prepared solely by Contractor; or it owns, possesses, holds, and has received or secured all rights, permits, permissions, licenses and authority necessary to provide the Deliverables to the Agency hereunder and to assign, grant and convey the rights, benefits, licenses and other rights assigned, granted or conveyed to the Agency hereunder or under any license agreement related hereto without violating any rights of any third party; (2) Contractor has not previously and will not grant any rights in any Deliverables to any third party that are inconsistent with the rights granted to the Agency herein; and (3) the Agency shall peacefully and quietly have, hold, possess, use and enjoy the Deliverables without suit, disruption or interruption.

1.13.3 Contractor represents and warrants that: (1) the Deliverables (and all intellectual property rights and proprietary rights arising out of, embodied in, or related to such Deliverables); and (2) the Agency’s use of, and exercise of any rights with respect to, the Deliverables (and all intellectual property rights and proprietary rights arising out of, embodied in, or related to such Deliverables), do not and will not, under any circumstances, misappropriate a trade secret or infringe upon or violate any copyright, patent, trademark, trade dress or other intellectual property right, proprietary right or personal right of any third party. Contractor further represents and warrants there is no pending or threatened claim, litigation or action that is based on a claim of infringement or violation of an intellectual property right, proprietary right or personal right or misappropriation of a trade secret related to the Deliverables. Contractor shall inform the Agency in writing immediately upon becoming aware of any actual, potential or threatened claim of or cause of action for infringement or violation or an intellectual property right, proprietary right, or personal right or misappropriation of a trade secret. If such a claim or cause of action arises or is likely to arise, then Contractor shall, at the Agency’s request and at the Contractor’s sole expense: (1) procure for the Agency the right or license to continue to use the Deliverable at issue; (2) replace such Deliverable with a functionally equivalent or superior Deliverable free of any such infringement, violation or misappropriation; (3) modify or replace the affected portion of the Deliverable with a functionally equivalent or superior Deliverable free of any such infringement, violation or misappropriation; or (4) accept the return of the Deliverable at issue and refund to the Agency all fees, charges and any other amounts paid by the Agency with respect to such Deliverable. In addition, Contractor agrees to indemnify, defend, protect and hold harmless the State and its officers, directors, employees, officials and agents as provided in the Indemnification section of this Contract, including for any breach of the representations and warranties made by Contractor in this section. The foregoing remedies shall be in addition to and not exclusive of other remedies available to the Agency and shall survive termination of this Contract.

1.13.4 Contractor represents and warrants that the Deliverables (in whole…