Attachment B - VCU Contractual Provisions - SPECIFIC.docx

ATTACHMENT B

SPECIFIC CONTRACTUAL PROVISIONS

A. INSURANCE: Firm shall procure and maintain and require any Subcontractor to procure and maintain for the duration of the Agreement, insurance against claims which may arise from or in connection with the performance of the work and the results of that work by the Firm, its agents, representatives, employees or subcontractor. Beginning on the Commencement Date and continuing during the Initial Term of the Agreement and any Renewals or extensions thereof, the Firm, at the Firm’s expense, shall keep in force, with an insurance company with a current A.M. Best’s rating of no less than A: VII, one which is authorized to transact business in Virginia, and in a form acceptable to the University, the following:

NOTE: ‘X’s indicate insurance is needed, whereas empty parentheses indicate insurance is not.

The insurance policies are to contain, or be endorsed to contain, the following provisions:

Additional Insured Status The Commonwealth of Virginia, and Virginia Commonwealth University, its officers, employees, and agents are to be covered on the CGL policy with respect to liability arising out of work or operations performed including materials, parts, or equipment furnished in connection with such work or operations.

Primary Coverage For any claims related to this contract, the Firm’s insurance coverage shall be primary insurance and any insurance or self-insurance maintained by the Commonwealth of Virginia, Virginia Commonwealth University, its officers, employees and agents shall be in excess of the Firm’s insurance and shall not contribute with it.

Notice of Cancellation Each insurance policy required above shall provide that coverage shall not be canceled, except with thirty (30) calendar days prior written notice to the University.

Waiver of Subrogation The Firm will grant to the University a waiver of any right to subrogation which any insurer of said Firm may acquire against the University by virtue of the payment of any loss under such insurance. The Firm will agree to obtain any endorsement that may be necessary to effect this waiver of subrogation, but this provision applies regardless of whether or not University has received a waiver of subrogation endorsement from the insurer.

Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the University. University may require the Firm to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

Claims Made Policies If any of the required policies provide claims-made coverage:

1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.

2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.

3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Firm must purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.

Verification of Coverage The Firm shall furnish University with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the University before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Firm’s obligation to provide them. University reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Special Risks or Circumstances University reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

B. BUILDER’S RISK INSURANCE: Should individual projects under this term contract include major renovations, Firm may be required to procure and maintain “all-risk” Builder’s Risk insurance as set forth in Section 12 of the General Conditions for New Construction, Addition, or Major Renovation.

C. DATA PROTECTION: Sensitive, non-public “VCU Data” is strictly regulated by state or federal law. Such data includes but is not limited to: business, administrative and financial data, intellectual property, and patient, student and personnel data. If the Firm providing goods or services to VCU will receive, create, or come into non-incidental contact with VCU Data, the Firm agrees to abide by the terms and conditions of the Data Protection Addendum (“DPA”) shown here https://procurement.vcu.edu/for-suppliers/ or, if applicable, the DPA attached to this Agreement as a separate document. The Data Protection Addendum may be updated from time to time and it is the Firm’s obligation to review the Data Protection Addendum in effect at the time of its provision of goods or services to VCU. Further, if the Firm providing goods or services to VCU will receive, create, or come into non-incidental contact with patient or VCU health plan participant Protected Health Information as that term is defined in 45 C.F.R. § 160.103, the Firm may be a Business Associate, and agrees to abide by the terms and conditions of the Business Associate Addendum in addition to the Data Protection Addendum should a determination be made that the Firm is a Business Associate.

D. WARRANTY: All materials and equipment shall be fully guaranteed against defects in material and workmanship for a period of 30 days following date of delivery. Should any defect be noted by the owner, the University will notify the Contractor of such defect or non-conformance. Notification will state either (1) that the Contractor shall replace or correct, or (2) the University does not require replacement or correction, but an equitable adjustment to the contract price will be negotiated. If the Contractor is required to correct or replace, it shall be at no cost to the University and shall be subject to all provisions of this clause to the same extent as materials initially delivered. If the Contractor fails or refuses to replace or correct the deficiency, the University may have the materials corrected or replaced with similar items and charge the Contractor the costs occasioned thereby or obtain an equitable adjustment in the contract price.

E. ORDERING PROCEDURES: Goods and/or Services will be ordered in the manner described in this section. The University makes no guarantee as to the volume of business that may be provided under this Agreement. A proposal for Goods and/or Services must be specifically requested of the Firm by a University department. When such Goods and/or Services are specifically requested, Firm will prepare a proposed statement of work. Additional contractual provisions may not be introduced in the proposed statement of work and the statement of work may not be marked as proprietary or confidential. Statements of work will be used solely to describe the personnel, services, deliverables, and applicable fees, and will be mutually agreed upon by the University and Selected Firm. The University will not be required to sign or otherwise execute the statements of work.

If the University desires to have Firm provide the Goods and/or Services described in the proposed statement of work, the University will issue a Purchase Order. When the University Purchase Order is issued, a contract exists between Selected Firm and the University for the specific Goods and/or Services described in the applicable statement of work.

F. SPECIAL EDUCATIONAL OR PROMOTIONAL DISCOUNTS: The Firm shall extend any special educational or promotional sale prices or discounts immediately to the University during the term of this Agreement. Such notice shall also advise the duration of the specific sale or discount price.

G. TRAVEL EXPENSES: Firm must receive written approval from VCU before initiating travel to any VCU campus or location. For travel that is approved in writing by VCU, Firm shall submit its reasonable out-of-pocket expenses to VCU. Travel expenses must be clearly documented in the form of receipts. VCU shall reimburse Firm for its reasonable out-of-pocket expenses in accordance with, and limited by, the VCU Travel Guidelines & Procedures. VCU reserves the right to dispute the reasonableness of, and reject, any travel expense.

H. EXCLUSIVE BEVERAGE AGREEMENT: The University reserves the right to enter into and maintain exclusive agreements for the sale, distribution, sampling, or availability of beverages on University premises. The Firm shall comply with all terms and conditions of any such exclusive agreements.

As of the Effective Date of this Agreement, the University has an exclusive agreement with Pepsi Bottling Group, LLC for the provision of the following beverage products: carbonated and non-carbonated soft drinks, fountain tea, bottled teas, bottled coffees, juices, isotonic beverages, and bottled water. The Firm shall ensure that only products supplied under the exclusive agreement are sold, distributed, sampled, or otherwise made available on University property.

The following beverages are expressly exempt from the exclusivity requirements set forth herein:

1. Non-bottled tap water and filtered water stations; hot chocolate; freshly brewed coffee and tea; fresh-squeezed juices; and smoothies;

2. Energy shots measuring less than three (3) ounces and milk;

3. VCU-branded bottled water distributed exclusively through VCU Catering, and Perrier® sparkling natural mineral water when required by branded restaurant concepts or for special catered events;

4. Beverage products required to meet brand standards at Taco Bell® and Starbucks® locations operating on campus;

5. Beverage products used as ingredients in proprietary recipes by on-campus dining operations, provided that such ingredients are not advertised or promoted as branded beverages;

6. Alcoholic beverages.

Notwithstanding the foregoing exemptions, no exempted beverage shall be advertised, promoted, or marketed on University property under any circumstances.

L. CASH HANDLING AND LIABILITY: Firm shall be solely responsible for the secure handling, storage, safekeeping, accounting, and distribution of all cash, gift cards or other financial incentives provided for the payment of research participants. Firm shall comply with any and all applicable regulations and institutional requirements for record keeping and reports related to these funds and incentives. Firm shall be deemed custodian of said cash or incentives upon receipt.

In the event of a loss, discrepancy, misappropriation, theft or mishandling of these funds or incentives while in Firm's custody, possession or control, VCU shall bear no responsibility or liability. Firm shall maintain adequate internal controls and insurance coverage sufficient to cover any such losses and shall promptly reimburse VCU for any funds or other incentives not properly accounted for or distributed. This obligation survives termination of the Agreement.

M. ADDITIONAL CONTRACT TERMS: The Contract shall contain the following clauses with respect to termination:

1. Termination The Contract shall contain the following clauses with respect to termination:

a. Termination.

1) The University may terminate any portion of the contract derived from the RFP, in whole or in part, without penalty, by providing one hundred and eighty (180) days written notice to the Firm.

2) The Firm is prohibited from terminating this contract within the first five (5) years of the effective date. After this initial period, the Firm may terminate this contract by delivering giving a written notice of intent on May 1st, with termination taking effect on May 31st of the following calendar year. Any subsequent termination notices by the Firm must also comply with the same schedule notice on be submitted on May 1st, effective and will take effect on May 31st of the following year and delivery of a written notice. All termination notices must be delivered to the University in writing.

3) Notwithstanding termination, the Firm is remains legally obligated to fulfill any and all required to fulfill any outstanding obligations, orders or commitments for goods and services ordered prior to the actual termination date.

4) Early Termination by Firm: The Firm shall agree to reimburse the University for any unamortized Capital Investment should the Firm desire to terminate the contract, pursuant to contract terms, prior to the end of the original term.

5) Early Termination by University: Should the University desire to terminate the contract prior to the end of the original term, pursuant to contract terms, the Firm shall be responsible for reimbursing the University one half (1/2) of the outstanding balance of the unamortized Capital Investment. The University may withhold any amount due from any final payments due to the Firm.

a. Termination For Bankruptcy/Insolvency. In addition to the above, VCU may terminate the Contract immediately upon written notice to the Firm if the Firm becomes (i) insolvent; (ii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding; or (iii) proceedings in bankruptcy or insolvency are instituted against the Firm, a receiver is appointed, or if any substantial part of the Firm’s assets is the object of attachment, sequestration or other type of comparable proceeding, and such proceeding is not vacated or terminated within thirty (30) days after its commencement or institution.

b. Termination For Non-Payment Of Commission/Other Payments. In addition to the above, VCU may terminate the Contract immediately, or upon a termination date VCU chooses, upon written notice to the Firm if the Firm fails to make timely commission payments and other payments due to VCU, as required by the Contract.