BOA_Template.pdf

WSSC CONTRACT NO. 98586

WASHINGTON SUBURBAN SANITARY COMMISSION

SMALL ARCHITECTURAL & ENGINEERING PROJECTS

BASIC ORDERING AGREEMENT (BOA)

ARTICLES OF AGREEMENT made and concluded this _____ day of ______________, 202_ by and between the WASHINGTON SUBURBAN SANITARY COMMISSION, a Bi-County agency of the State of Maryland (hereinafter referred to as the “COMMISSION”) and FIRMS NAME (hereinafter referred to as “CONSULTANT”).

WITNESSETH

WHEREAS, the COMMISSION proposes to enter into a Basic Ordering Agreement (BOA) contract with an Architectural and Engineering firm.

WHEREAS, as stated in Exhibit A and this Agreement, the COMMISSION desires the professional services of the CONSULTANT to provide architectural and engineering for small projects.

NOW THEREFORE, in consideration of the premises, the mutual covenants hereinafter recited and for other good, valuable and sufficient consideration, the receipt of which is hereby acknowledged, the parties hereto mutually covenant and agree as follows:

The introductory paragraphs above and attached exhibits are incorporated in and form a part of this Agreement.

ARTICLE 1. SCOPE OF SERVICES AND TASK ORDERS

A. The CONSULTANT shall furnish and perform the work and services described in

Exhibit A on a task order basis as described herein, and in accordance with the terms of this Agreement and attached exhibits.

Work is to be authorized and accomplished under a series of definitive written task orders which will identify the work to be accomplished; the basis of compensation for each task order; the limit of compensation for each task order; and the schedule for performing the scope of services. The terms and conditions of this Agreement shall apply to and govern the services to be provided in each task order.

1. The procedure for issuing and implementing individual task orders shall be as follows:

a. The CONSULTANT shall be notified by the COMMISSION of the specific task(s) to be performed and be provided a Scope of Work for the proposed task order.

b. The CONSULTANT shall submit a proposal to the COMMISSION which addresses the following:

(1) The proposed schedule for completion of the task order.

(2) The estimated staffing, number of man hours for each, and direct labor costs associated with the accomplishment of the task order.

(3) A list of any materials or information required from the

COMMISSION to complete the task order.

(4) Any other information required by the COMMISSION as identified in the Scope of Work.

c. Following COMMISSION review and approval of the

CONSULTANT'S proposal, the agreed upon terms and provisions of the task order shall be prepared in the task order format (Exhibit B) and duly executed by both parties.

d. No work is authorized on the task order until the CONSULTANT has received a Notice to Proceed from the COMMISSION for the task order. Such authorization shall be in the form of a written letter. Any work performed prior to receiving such Notice to Proceed shall be at the CONSULTANT’S risk.

e. Upon receipt of the Notice to Proceed, the CONSULTANT shall commence work and shall thereafter complete the required work and services in a professional and expeditious manner, in accordance with the agreed schedule.

B. As to each task order, the CONSULTANT agrees to perform, but is not limited to, the following services:

1. Secure permission to enter upon public and private lands, in accordance with

COMMISSION guidelines, as required to perform work under the task order and this Agreement. The CONSULTANT shall use care and discretion while working on public or private property and shall be responsible for any damages to said property incurred as a result of his operations.

2. Cause plans, reports and other documents submitted to the COMMISSION under the terms of the Agreement to be signed by a principal or principals of the CONSULTANT'S firm licensed and registered to engage in the practice of the appropriate branch of engineering in the state of Maryland.

3. Review materials supplied by the COMMISSION and provide such additional information or data as is necessary for the completion of the project which is the subject of the task order.

C. The CONSULTANT shall have the following responsibilities associated with work performed under this Agreement:

1. The CONSULTANT shall be responsible for the quality, technical accuracy, timely completion, and the coordination of all designs, drawings, specifications, reports, and systems performance for all services furnished by the CONSULTANT under this Agreement. The CONSULTANT shall, without additional compensation from the COMMISSION, correct or revise any and all errors, omissions, or other deficiencies in its work product and other services.

2. The CONSULTANT acknowledges and agrees that review, approval, payment for or acceptance of services required under this Agreement in no manner relieves the CONSULTANT of responsibility for the adequacy, fitness, completeness, suitability and correctness of those services.

3. The CONSULTANT shall be and remain liable to the COMMISSION for all costs, expenses, injuries and other damages arising out of or resulting from a material breach of this Agreement and/or the negligent performance of the services to be provided by the CONSULTANT, its servants, agents, or subcontractors. Such damages may include, but are not limited to: the construction change order cost paid by the COMMISSION to remedy or correct errors, omissions or deficiencies in the work including additional time and compensation for delay and disruption; COMMISSION staff time to inspect and manage such work; COMMISSION overhead; and any other costs incurred by the COMMISSION resulting from the breach of contract or negligent performance of professional engineering services by the CONSULTANT, its servants, agents, or subcontractors.

4. The CONSULTANT acknowledges and agrees to abide by the terms and conditions of WSSC security policies as set forth in Exhibit C, “WSSC Document Security and Site Access Procedures,” attached hereto and incorporated herein by reference as fully enforceable terms of this contract.

5. The CONSULTANT acknowledges and agrees to abide by the terms and conditions of the “Cooperation and Confidentiality” provision as set forth in Exhibit D, attached hereto and incorporated herein by reference as fully enforceable terms of this contract.

6. The CONSULTANT shall obtain base maps, as-built drawings, Standard

Details, Standard Specifications, Water House Connections, Standard Forms and other information available on the COMMISSION’s website or at a

COMMISSION Depot. The COMMISSION shall furnish to the CONSULTANT any COMMISSION templates, as-built drawings, Special Details, existing construction documents, right of entry to private land agreements, easements, land records, and other information necessary to perform a task order that is in the possession and control of the COMMISSION but not otherwise reasonably available to the

CONSULTANT.

ARTICLE 2. TIME AND PERFORMANCE

A. All work under this Agreement shall be assigned by the COMMISSION via task order(s) issued prior to expiration of the Base Term

B. The time for completion of a task order will be specified in a task order.

C. For a task order issued prior to the Base Term expiring and not completed prior to the expiration of the term, the CONSULTANT shall complete the work specified in the task order as directed by the COMMISSION. However, all work on such task order(s) shall be completed no later than one year after the expiration of the Base Term unless written approval to continue performance of the task order is obtained from the COMMISSION’S General Manager/CEO. This Agreement shall govern the CONSULTANT’s and the COMMISSION’s rights and obligations with respect to a task order to the same extent as if a task order was completed prior to the Base Term expiring.

D. All extensions of time beyond the time specified in a task order must be requested of the

COMMISSION'S project manager in writing by the CONSULTANT thirty (30) days prior to the occurrence of such deadline(s). The written request should contain the additional time requested to complete the task order and a complete justification of the requested time extension. All time extensions approved by the COMMISSION will be issued in writing.

ARTICLE 3. TERM OF AGREEMENT

A. The Base Term of this Agreement shall be for three years.

B. In accordance with WSSC Code of Regulations, Title 6, Chapter 6.15.410(b)(1), the COMMISSION may find it advantageous to obtain the option of a unilateral contract extension to extend the Agreement ninety (90) days past its termination date. If the COMMISSION intends to exercise the extension, it shall provide written notice to the CONSULTANT at least thirty (30) days prior to the Agreement termination date. The exercise of the 90-day option is at the COMMISSION’s sole discretion.

C. In accordance with WSSC Code of Regulations, Title 6, Chapter 6.15.420(d), the

COMMISSION retains the right to cancel multi-year contracts after the first fiscal period (or one year) due to unavailability of funds.

ARTICLE 4. COMPENSATION

A. In consideration of the timely, proper and satisfactory performance of its services and obligations under this Agreement, and as full and complete compensation therefore, except as otherwise expressly provided herein, the COMMISSION will pay to the CONSULTANT allowable costs and fees as follows:

1. Direct labor costs. Direct labor costs shall mean the hourly rates for the direct labor costs identified in Exhibit E, Labor Classification with Salary Schedule, attached hereto, for time directly chargeable to a task order and does not include any costs incurred by the CONSULTANT while participating in the negotiation of this Agreement, task orders, sub-agreements or change orders applicable to Article VIII below, nor shall it include the costs of fringe benefits paid by the CONSULTANT (such as social security contributions, unemployment, excise and payroll taxes, workmen's compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay, etc.). The rates specified in Exhibit E shall remain firm for the duration of this Agreement including the base term and option terms if exercised. The rates are all inclusive and include all overhead and costs associated with completing the assigned task order work and services.

or

2. Agreed lump sum task order price.

B. The CONSULTANT will submit periodic invoices for payment, but not more frequently than monthly, for work and services performed under this contract. Such invoices shall be prepared by the CONSULTANT supplemented and accompanied by supporting data which is satisfactory to the COMMISSION. A list of employees employed by the CONSULTANT to perform the direct services and their respective salary rates shall be certified and submitted to the COMMISSION with the first invoice for payment.

1. For cost-type task orders, direct labor costs will be supported by names, grades, hours worked, pay rates, and payments to persons involved.

(Overtime will be separately identified.)

a. In cases of fixed fee, billing of fee shall be on the basis of percentage of work completed since the previous month's estimate.

2. For lump sum task orders, payments will be based on an agreed-upon percentage complete, less any previous payments.

C. The CONSULTANT shall submit monthly progress reports to the COMMISSION'S project manager. Said reports shall describe the CONSULTANT'S work accomplished during the month covered by the report and shall present the overall status of the CONSULTANT'S work through said month. In no case will the COMMISSION make a payment to the CONSULTANT until the progress report for that month is approved by the COMMISSION.

D. The CONSULTANT agrees to retain books, accounts, records, and other documents directly pertinent to the performance of this contract and allow the COMMISSION the right to audit in accordance Code of Regulations, Title 6, Chapter 6.15.450.

E. The CONSULTANT shall vest in the COMMISSION title to all drawings, specifications contract documents, calculations, and all other data or work items produced by the CONSULTANT under this Agreement, and this material shall be made available to the COMMISSION immediately upon request. The COMMISSION retains the right to acquire originals, reproducible, and/or prints and copies of this material to suit its needs and purposes and to distribute this material to any agencies, firms and/or individuals. Subject to Exhibits C and D, under no circumstances shall any material produced as a result of this Agreement be released by the CONSULTANT to other than COMMISSION personnel without prior knowledge and approval by the COMMISSION'S project manager.

F. The CONSULTANT shall be compensated on either a lump sum basis or a cost reimbursement basis dependent upon the scope and character of work to be performed under the individual task orders. A cost ceiling of $0,000,000.00 has been established for all work under the Contract. In no event shall the CONSULTANT be paid any amount in excess of the cost ceiling unless such ceiling has been increased through a written amendment to this Agreement. The individual task orders issued to the CONSULTANT will each have an established cost. The established cost shall be in the form of a mutually agreed lump sum price when the lump sum basis is utilized, or in the form of a cost ceiling when the cost reimbursement basis is utilized. For cost reimbursement task orders, the cost ceiling shall not be exceeded without a formal amendment to the task order(s).

When a cost reimbursement basis of compensation is employed for any task order, the following shall apply:

1. If at any time during the course of the work the CONSULTANT anticipates that the cost ceiling for the total contract or for a particular task order will be exceeded, the CONSULTANT shall immediately notify the COMMISSION in writing of the additional amount necessary to complete the work and shall state the reasons and justifications for the anticipated excess costs. The cost ceiling established for the contract shall not be exceeded by the CONSULTANT without a formal change order to this Agreement. Any costs incurred by the CONSULTANT in excess of the established task order cost ceiling without amendment to the task order shall not be reimbursed.

G REQUIREMENTS CONTRACT. The CONSULTANT acknowledges that this

Agreement is a Requirements Contract. The Commission may purchase services under this Agreement on an as-needed basis and is not precluded from purchasing similar services from other vendors or sources. The Commission has no obligation to purchase any particular value or amount of services under this Agreement from the CONSULTANT and shall have no obligation to the CONSULTANT if no services are purchased. The CONSULTANT acknowledges and agrees that the Commission is under no obligation to issue any minimum number or value of Task Orders to the CONSULTANT, or to purchase any services as a result of issuing this Agreement. The COMMISSION does not guarantee purchase of any amount of the labor categories identified in Exhibit E will be awarded to the CONSULTANT.

Any estimated quantities included in the solicitation for this Agreement, in Exhibit E or otherwise referenced or included in this Agreement are not guaranteed, and the total dollar value of any Purchase Order that may be issued in conjunction with this Agreement is NOT guaranteed.

ARTICLE 5. TERMINATION

The COMMISSION may, by written notice to the CONSULTANT, terminate this Agreement for default; or for convenience; or by mutual consent, in accordance with the WSSC Code of Regulations, Title 6, Chapter 6.15.590.

In addition, the COMMISSION may terminate the work and services of any individual task order in whole or in part at any time either for the COMMISSION's convenience or for default because of the failure of the CONSULTANT to perform services timely, failure to meet standards required, or fulfill the CONSULTANT’s obligations under the task order or this Agreement. Task orders may also be terminated in whole or in part by mutual consent.

Upon receipt of a termination notice, the CONSULTANT shall:

(1) immediately discontinue all services affected by the termination notice, and

(2) deliver to the COMMISSION all information and materials as may have been provided by the COMMISSION or accumulated by the CONSULTANT in the performance of its services, whether completed or in progress.

If the termination is for the convenience of the COMMISSION, the CONSULTANT shall only be paid for work performed through the date of termination. If the CONSULTANT and the Chief Procurement Officer cannot agree on the amount due the CONSULTANT as a result of the termination for convenience, the CONSULTANT may file a timely claim under the WSSC Code of Regulations, Title 6, Chapter 6.15.580.

If the termination is due to the CONSULTANT’s default for failure to fulfill the task order or contract obligations, the COMMISSION may take over the work and prosecute same to completion at the CONSULTANT’s expense. In such cases, the CONSULTANT shall be liable to the COMMISSION for damages to the COMMISSION from the default, including reasonable attorneys’ fees. If the CONSULTANT disputes the issuance of a termination for default, the CONSULTANT may file a timely claim under WSSC Code of Regulations, Title 6, Chapter 6.15.580.

In accordance with Chapter 6.15.420 of the WSSC Code of Regulations, the COMMISSION also retains the right to cancel this multi-year contract after the first fiscal period (or one year), and thereafter, when funds are not appropriated or are unavailable.

The parties are aware of the Covid–19 pandemic and have taken commercially reasonable measures to allow for their continued operations and performance during the pandemic. The parties have also considered and are aware of the impact the pandemic may or will have on the schedule and performance of the services to be performed under this Agreement. In negotiating and establishing the pricing and other terms and provisions of a task order, the parties shall take into consideration the delays, disruptions, additional costs and expenses, and other impacts the Covid 19 pandemic may have on the performance and completion of the task order. Accordingly, notwithstanding any provisions to the contrary in this Agreement, the Covid–19 pandemic is expressly excluded from the aforesaid Force Majeure clause, and cannot serve as a basis for a claim for additional time or compensation, or other adjustment or amendment to a task order or to this Agreement.

ARTICLE 6. FORCE MAJEURE

Neither party shall be considered in default in the performance of its obligations hereunder to the extent that performance of such obligations is delayed, hindered or prevented by any cause which is beyond the reasonable control of such party (hereinafter called “Force Majeure”).

Force Majeure includes but is not limited to any of the following if reasonably beyond the control of the party claiming Force Majeure: war (declared or undeclared), blockages, hostilities, revolutions, riots, strikes, lockouts or other labor disturbances, fires, storms, delays or interruptions in transportation, or any laws, regulations or ordinances of any government, governmental agency or court having or claiming to have jurisdiction over any part of the services, including laws, regulations or ordinance pertaining to the protection of the environment, or obtaining permits required by any such government, governmental agency or court, or any other cause (whether or not of kinds specifically mentioned herein) that is not reasonably within the control of the party claiming Force Majeure.

The parties are aware of the Covid–19 pandemic and have taken commercially reasonable measures to allow for their continued operations and performance during the pandemic. The parties have also considered and are aware of the impact the pandemic may or will have on the schedule and performance of the services to be performed under this Agreement. In negotiating and establishing the pricing and other terms and provisions of a task order, the parties shall take into consideration the delays, disruptions, additional costs and expenses, and other impacts the Covid 19 pandemic may have on the performance and completion of the task order. Accordingly, notwithstanding any provisions to the contrary in this Agreement, the Covid–19 pandemic is expressly excluded as a Force Majeure event and cannot serve as a basis for a claim for additional time or compensation, or other equitable or legal adjustment or amendment to a task order or to this Agreement.

Additionally, the COMMISSION is finalizing and implementing a covid vaccination and testing program that the CONSULTANT and its subconsultants and subcontractors will be required to comply with. A copy of the program requirements will be provided.

ARTICLE 7. SUSPENSION OF SERVICES

The COMMISSION may at any time, suspend, delay, interrupt, or stop the performance of any or all of the services by written notice to the CONSULTANT.

ARTICLE 8. NO DAMAGES FOR DELAY

The CONSULTANT shall not be entitled to any costs or additional compensation for delay, disruption, interruption, suspension, or extension of time, or resulting labor productivity losses, constructive acceleration, ripple effects, cumulative impacts, overheads, profits, indirect costs, or other alleged damages of any nature or kind, arising from unforeseeable causes, even if such causes are not in the contemplation of the parties at the time a task order is executed, and the CONSULTANT acknowledges that pricing included in a task order is full consideration for all such costs, losses or other damages.

ARTICLE 9. CHANGES

A. The COMMISSION may, at any time, by written order, make changes within the general scope of this Agreement in the services or work to be performed. If such changes cause an increase or decrease in the CONSULTANT's cost of, or time required for, performance of any services under this Agreement, whether or not changed by any written order, the CONSULTANT may submit a claim in accordance with WSSC Code of Regulations, Title 6, Chapter 6.15.580.

B. No services for which an additional compensation will be charged by the

CONSULTANT shall be furnished without the written authorization of the

COMMISSION

ARTICLE 10. CONTRACT DISPUTE RESOLUTION

All claims by the CONSULTANT against the COMMISSION which includes without limitation, controversies based upon breach of contract, mistake, misrepresentation, or other cause for contract modification or rescission shall be filed and resolved in accordance with WSSC Code of Regulations, Title 6, Chapter 6.15.580(a).

ARTICLE 11. LITIGATION ASSISTANCE AND CORPORATE RECORDS

A. It is understood and agreed that the compensation herein provided to be paid by the

COMMISSION is for the services of the CONSULTANT on the project as described herein and does not include any assistance in preparation for or during the progress of litigation or arbitration to which the COMMISSION is a party. The CONSULTANT agrees to assist the COMMISSION in matters of litigation upon request and upon reasonable compensation to be negotiated for such services requested. The CONSULTANT shall not be entitled to any compensation for any assistance or services requested or rendered in any matter involving claims by third parties against the COMMISSION arising out of the fault or negligence on the part of the CONSULTANT or his agents.

B. The CONSULTANT agrees to obtain and maintain in good standing all corporate filings, licenses, and approvals, as required by Maryland law. The CONSULTANT will notify WSSC of its resident agent’s contact information.

ARTICLE 12. COVENANT AGAINST CONTINGENCY FEES

The undersigned person authorized to execute this proposal on behalf of the professional engineer, architect or registered land surveyor, or the firm or corporation offering services hereunder, warrants that he or she or any member of the contracting firms has not employed or retained any representative, individual or firm, other than a bona fide employee working solely for the contracting professional or firm to solicit or secure any contracts hereunder and furthermore warrants that there has not been any payment or promise or agreement to pay anyone a fee, commission, percentage, gift, or any other consideration contingent upon or resulting from the award of a contract under this proposal.

For the breach or violation of this provision, the COMMISSION shall have the right to terminate any contract or agreement resulting from this proposal without liability and, at its discretion, deduct from the contract price or otherwise recover the full amount or the value of such fee, commission, percentage, gift, or consideration. This right of recovery by the COMMISSION shall not be a bar to any charges or violations of any federal, state or local law brought before a court of competent jurisdiction by any party, including the

COMMISSION.

ARTICLE 13. INDEMNIFICATION AGREEMENTS

A. PROFESSIONAL LIABILITY

The CONSULTANT shall defend, indemnify and save harmless the COMMISSION from any and all suits, claims, actions, damages or costs of every name and description, including reasonable attorneys’ fees to which the COMMISSION may be subject, including but not limited to any suit, claim or action alleging injury to persons (bodily injury, including death, or any personal injury) or property damage as a result of CONSULTANT'S professional engineering services, caused or alleged to be caused by the negligence or willful acts of misconduct on the part of the CONSULTANT, his servants or agents. The COMMISSION shall retain monies owed the CONSULTANT until such suits or claims for damages shall have been settled or until the CONSULTANT furnishes to the COMMISSION satisfactory evidence of insurance coverage with respect to such suits or claims or post a bond in the amount of the dispute in a form satisfactory to the COMMISSION.

B. GENERAL LIABILITY

The CONSULTANT shall defend, indemnify and save harmless the COMMISSION from any and all suits, claims, actions, damages or costs of every name and description, including reasonable attorney’s fees to which the COMMISSION may be subject, including but not limited to any suit, claim, or action alleging injury to persons (bodily injury, including death, or any personal injury) or property damage as a result of the work, caused or alleged to be caused by the negligence or willful acts of misconduct on the part of the CONSULTANT, his servants or agents, (other than arising out of CONSULTANT'S professional engineering services). Monies to become due the CONSULTANT under the contract as may be considered necessary by the COMMISSION shall be retained by the COMMISSION until such suits or claims for damages shall have been settled or until the CONSULTANT furnishes to the COMMISSION satisfactory evidence of insurance coverage with respect to such suits or claims or post a bond in the amount of the dispute in a form satisfactory to the

COMMISSION.

ARTICLE 14. INSURANCE

The CONSULTANT shall comply with the provisions and requirements of Exhibit G of this Agreement relating to bonds and insurance, which is attached and incorporated herein.

ARTICLE 15. PROJECT MANAGEMENT

The COMMISSION and the CONSULTANT shall each designate a project manager within fourteen (14) days from date of this Agreement to represent each party respectively and be responsible as the individual in charge of administering and carrying out provisions of this

Agreement. Once so designated by the CONSULTANT this project manager shall not be changed unless specifically allowed or requested by the COMMISSION. The right of approval shall also include key lead discipline engineers as identified in the Labor Classification with Salary Schedule.

The CONSULTANT shall advise the COMMISSION of the project manager's qualifications and the COMMISSION shall have the right of approval or rejection of the CONSULTANT'S designated project manager.

ARTICLE 16. RIGHT TO AUDIT

The COMMISSION has a right to audit the CONSULTANT and its subcontractors in accordance with WSSC Code of Regulations, Title 6, Chapter 6.15.450.

ARTICLE 17. CHOICE OF LAW

This Agreement shall be governed by and construed in accordance with Maryland law without regard to conflicts of law principles or provisions, and without regard to any rule or presumption requiring construction against any party who caused or contributed to its drafting.

ARTICLE 18. NO ASSIGNMENT

This Agreement is not transferable or otherwise assignable without the written consent of the

Chief Procurement Officer provided, however, the CONSULTANT may assign monies receivable under a contract after due notice in writing to the COMMISSION.

ARTICLE 19. MINORITY AND/OR SMALL LOCAL BUSINESS PARTICIPATION

In accordance with the COMMISSION'S Minority Business Enterprise Program (WSSC

Code of Regulations, Title 6, Chapter 6.30) and/or Small Local Business Enterprise Program (WSSC Code of Regulations, Title 6, Chapter 6.35), the CONSULTANT has agreed to subcontract Minority and/or Small Local Business Enterprise Participation in accordance with Exhibit F and its submitted and COMMISSION approved subcontracting plan.

ARTICLE 20. NONDISCRIMINATION POLICY REQUIRED BY MARYLAND

ANNOTATED CODE, PUBLIC UTILITIES, § 17-402.1(B).

The CONSULTANT shall not discriminate in any manner against an employee or an applicant for employment on the basis of sex, race, creed, color, age, mental or physical disability, sexual orientation, religion, marital status, gender identity or national origin.

The CONSULTANT shall include a similar nondiscrimination clause in all subcontracts.

If the CONSULTANT fails to include a similar nondiscrimination clause in a subcontract, the COMMISSION shall provide the CONSULTANT a reasonable opportunity to cure the defect. If the CONSULTANT fails to cure the defect within the time period granted, the COMMISSION may declare the Agreement void and the CONSULTANT shall be entitled to the reasonable value of work that has been performed and materials that have been provided to date. If the CONSULTANT cures the defect, the Agreement shall remain in force according to its revised terms.

If the CONSULTANT willfully fails to comply with the requirements of this nondiscrimination clause, the COMMISSION may compel the CONSULTANT to continue to perform under the Agreement as provided in Maryland Annotated Code, Public Utilities, § 17-402.1(b).

ARTICLE 21. INTERPRETATION

In the interest of brevity, this Agreement and the task orders frequently omit modifying words such as “all” and “any” and articles such as “the” and “an,” but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. The term “days” as used in this Agreement and the task orders shall mean calendar days. The headings contained in this Agreement and the task orders are inserted only for ease of reference and are not meant to and shall not define, limit, or in any way affect the terms and provisions set forth therein. Each of the parties acknowledges that this is a fair agreement and is not the result of fraud, duress or undue influence exercised upon it by any person or entity. Each party acknowledges that is has read this Agreement, has participated in its negotiation, understands its contents, and has had the opportunity to obtain the assistance of legal counsel of its choice. This Agreement and the task orders are jointly drafted and are not to be interpreted more strictly against the COMMISSION even if initially prepared by the COMMISSION.

ARTICLE 22. SEVERABILITY

If any term or provision of this Agreement and the task orders issued under, or the application thereof to any person or circumstance, shall be invalid or unenforceable to any extent, the remainder of this Agreement and the task orders, or the application of this Agreement and the task orders to persons or circumstances other than those against whom or which such term or provision is invalid or unenforceable, shall not be affected thereby; and each term and provision of this Agreement and the task orders shall be valid and enforceable to the fullest extent permitted by applicable laws.

ARTICLE 23. NO THIRD-PARTY RIGHTS

Nothing in this Agreement and the task orders shall be deemed to create a joint venture or partnership between the COMMISSION and the CONSULTANT; nor shall anything contained in this Agreement and the task orders be deemed to give any third party any claim or right of action against the COMMISSION or the CONSULTANT; nor shall anything contained in this Agreement and the task orders be deemed to cause the CONSULTANT to become the agent of the COMMISSION or to otherwise alter the CONSULTANT’S independent contractor relationship with the COMMISSION.

ARTICLE 24. AUTHORIZATION

The CONSULTANT warrants, represents, and covenants that the execution and delivery of this Agreement and the task orders have been duly authorized by all requisite corporate or partnership action of the CONSULTANT and that the persons so executing and delivering this Agreement and the task orders on behalf of the CONSULTANT are duly authorized to do so.

ARTICLE 25. CODE OF ETHICS

The CONSULTANT and its subcontractors shall abide by the WSSC Code of Ethics, Code of Regulations, Title 1, Chapter 1.70.

ARTICLE 26. DUTY TO ASSIST

At the COMMISSION’S request, without additional compensation, during and after the term of the Agreement, the CONSULTANT agrees to cooperate with the COMMISSION in any external investigations, internal investigations, governmental inquiries, government investigations, or legal proceedings which involve the COMMISSION’S interests. At the COMMISSION’S request, and upon reasonable notice, the CONSULTANT, shall furnish such information and provide proper assistance to the COMMISSION as may reasonably be required and requested by the COMMISSION.

ARTICLE 27: PROCUREMENT REGULATIONS

This Agreement shall be construed and enforced in accordance with, and governed by, WSSC’s Procurement Regulations, WSSC Code of Regulations, Title 6, Chapter 6.15.

ARTICLE 28: INFORMATION TECHNOLOGY PROTECTION

In performing the work and services contemplated by this Agreement and interfacing with the Commission’s information technology systems and network, the CONSULTANT shall take commercially reasonable steps and shall implement reasonable physical, technical, security, and administrative measures as necessary to protect the security, privacy and operations of Commission’s system and network and the information contained therein against corruption or intrusion or other unauthorized access, acquisition, destruction, modification, and disclosure. The certifications of the CONSULTANT and its subcontractors shall include ISO 27001 or SOC2 Type II.

CONSULTANT and its Subconsultants shall inventory and properly secure all laptops and other Commission owned equipment provided for its temporary use, and shall immediately notify the Commission of the re-assignment or termination of employment of any employee or consultant to whom such equipment has been provided and ensure that such equipment is immediately retrieved and returned to the Commission.

CONSULTANT is financially responsible for any equipment which is not returned to the COMMISSION as required.

ARTICLE 29: CONSULTANT TRAVEL REIMBURSEMENT

Reimbursement of consultant travel expenses, when permitted by a contract, are governed by the COMMISSION’S Travel Expense Reimbursement Regulation, WSSC Code of Regulations Chapter 9.85. However, it is not the intent of the parties to reimburse the Consultant for travel expenses, and the CONSULTANT shall not be entitled to separate reimbursement of its travel expenses under this Agreement. All travel related expenses and costs are to be included in the rates and pricing established for each task order.

ARTICLE 30: PERSONAL INFORMATION PROTECTION

If during the course of this Agreement the COMMISSION discloses “Personal information” to CONSULTANT as defined in §10-1301 of the State Government Article of the Annotated Code of Maryland, the CONSULTANT shall, in accordance with the requirements of §10-1304 of the State Government Article, implement and maintain reasonable security procedures and practices that are appropriate to the nature of the personal information disclosed to it, and are reasonably designed to help protect personal information from unauthorized access, use, modification, disclosure, or destruction. Upon reasonable advance notice, and without creating an obligation to do so, the COMMISSION shall have the right to verify and audit the security procedures and practices implemented and maintained by CONSULTANT for this purpose.

CONSULTANT shall remain solely responsible for its information technology security procedures and practices.

ARTICLE 31: SENSITIVE ENGINEERING RECORDS AND DOCUMENTS,

COOPERATION AND CONFIDENTIALITY

The CONSULTANT and its subcontractors shall comply with the terms and conditions of the COMMISSION’S Document Security and Site Access Procedures (Exhibit C) and Cooperation and Confidentiality Requirements (Exhibit D), and with the provisions and requirements of Chapter 1.10 of the COMMISSION’S Code of Regulations - Access to the Sensitive Engineering Records.

The CONSULTANT shall implement and maintain reasonable security procedures and practices that are reasonably designed to protect the COMMISSION’S Sensitive Engineering Records, Documents and Information, and prevent unauthorized access to, or use, modification, distribution or disclosure of such records, documents and information. Upon reasonable advance notice, and without creating an obligation to do so, the COMMISSION shall have the right to verify and audit the security procedures and practices implemented and maintained by CONSULTANT for this purpose. CONSULTANT shall remain solely responsible for its security procedures and practices.

ARTICLE 32: SUBCONTRACTORS

As used in this Agreement, “subcontractors” shall refer to the subcontractors, subconsultants, suppliers, vendors and other individuals or entities directly or indirectly involved in providing work or services for this Agreement at the request of the CONSULTANT. The CONSULTANT shall be fully responsible to the COMMISSION for the performance, acts, errors and omissions of the CONSULTANT’s subcontractors, including without limitation, responsibility for the adequacy and coordination of their work and services. The CONSULTANT shall require, and shall cause appropriate provisions to be included in its subcontracts to assure, that its subcontractors comply with the CONSULTANT’s obligations under this Agreement as such obligations relate to the work and services they provide.

ARTICLE 32: ENTIRE AGREEMENT

This Agreement and task orders issued under the Agreement constitute the entire agreement between the parties and except for modifications prepared in accordance with provisions herein and WSSC’s Procurement Regulations, there are no other collateral contracts or agreements concerned between the parties contracting hereto. Nothing contained in this

Agreement shall be construed as creating any personal liability on the part of an officer, employee, or agent of the COMMISSION, including the Commissioners individually.

[Signatures on next page]

IN WITNESS WHEREOF, the parties herein have executed this Agreement on the day and year first written below.

Caprecia Poole-Williams Chief Procurement Officer Date:

Approved for WSSC as to form and legal sufficiency:

Name:

Title:

FIRM NAME

Name:

Title:

Attachments: (List all Exhibits included in contract) Attachments:

Exhibit A – Scope of Work Exhibit B – Task Order Format Exhibit C – Document Security and Site Access Procedures Exhibit D – Cooperation and Confidentiality Exhibit E – Labor Classification with Salary Schedule Exhibit F – MBE and SLBE Requirements Exhibit G – Bonds and Insurance Requirements Exhibit H – Iran Investment Certification Exhibit I – Contract Certification Affidavit

CONSENT TO USE OF ELECTRONIC SIGNATURE

Pursuant to MD Code, Commercial Law, § 21-104, each party agrees that the electronic signature of the parties included in the attached document(s) is intended to authenticate the writing(s) and shall have the same force and effect as a manually executed signature or original signature.

Pursuant to the Maryland Uniform Electronic Transactions Act, “electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record. MD Code, Commercial Law, § 21-101(i). Without limitation, “electronic signature” shall also include a faxed version of an original signature, electronically scanned and transmitted version of an original signature (e.g. PDF form), or a document transmitted by electronic means and containing, or to which there is affixed, a digital signature.

Each party agrees that no certification authority or other third-party verification is necessary to authenticate the parties’ electronic signatures and that each party’s electronic signature shall be attributable to the person whose name appears below the electronic signature as the act of that person.

The parties certify that the use of electronic signatures in the attached document(s) is not for any illegal or fraudulent purpose.

Caprecia Poole-Williams Chief Procurement Officer Washington Suburban Sanitary Commission

Name of Contractor:

Name of Person Signing:

Title of Person Signing:

EXHIBIT A

SCOPE OF WORK

SCOPE OF WORK (SOW)

CONTRACT NO. 98586

EXHIBIT B

BOA CONTRACT NO. 98586

TASK ORDER NO. TASK ORDER JOB NO.

TO: (Consultants)

IN ACCORDANCE WITH THE ABOVE-REFERENCED CONTRACT

The following is ordered:

A. Scope of work:

B. Compensation shall be:

C. Schedule:

Accepted by (Consultant): Approved by (WSSC):

(Seal)

Printed Name: Printed Name:

Title Title

Date Date

EXHIBIT C

DOCUMENT SECURITY AND SITE ACCESS PROCEDURES

A. “Sensitive” documents and information are defined as those that could reasonably be used to aid in or plan for contaminating or damaging the COMMISSION system or injuring COMMISSION customers, as well as documents of information defined as “Sensitive” or “Confidential Information” in the COMMISSION’S IT Security Policy. Examples of such documents include, but are not limited to:

1. Plans/blueprints, as-built drawings, or contract documents of COMMISSION facilities

2. Plans/blueprints, as-built drawings, contract documents, or 200-foot sheets of the water distribution system or the wastewater collection system

3. Information designated by the Data Owners (Business Unit Team Chief or designee responsible for the data) that requires additional levels of security due to the legal or business implications of unauthorized access or disclosure. Anything that may cause harm to WSSC Water or its customers/clients, employees, or other entities or individuals if improperly disclosed, or that is not otherwise publicly available.

For any document or information to be provided to the CONSULTANT where there is uncertainty whether it is “sensitive”, the COMMISSION shall have sole discretion to make such determination.

“Sensitive” documents and information are defined as those that could reasonably be used to aid in or plan damaging the COMMISSION operations or systems, as well as documents and information defined as “Sensitive” and "Confidential Information” in the COMMISSION 's IT Security Policy as:

1. Information designated by the Data Owners (Business Unit Team Chief or designee responsible for the data) that requires additional levels of security due to the legal or business implications of unauthorized access or disclosure. Anything that may cause harm to WSSC Water or its customers/clients, employees, or other entities or individuals if improperly disclosed, or that is not otherwise publicly available.

2. "Personal Information." Personal information as defined Maryland State Code defined as individually identifiable information that WSSC Water owns, licenses, or maintains and that is from or about an individual including, but not limited to

(a) first and last name; (b) home or other physical address, including street name and name of city or town; (c) email address or other online information, such as a user name and password; (d) telephone number; (e) government-issued identification or other number; (f) financial or payment card account number; (g) date of birth; (h) health information, including information regarding the individual's medical history or mental or physical condition, or medical treatment or diagnosis by a health care professional/created or received by WSSC Water;

and (i) any information that is combined with any of (a) through (h) above.

Examples of such documents and information include, but are not limited to customer records maintained in the COMMISSION’S billing, phone, and other IT systems that include personal information such as driver’s license, tax ID, social security, credit card and passport numbers or other customer billing and usage data such as water usage, payment status and similar information.

B. The CONSULTANT and its subcontractors shall abide by the following non-disclosure terms:

1. All records/information in connection with this contract shall be considered as property of WSSC. The distribution of documents (hardcopy or electronic) is restricted as follows:

a. For all documents deemed “sensitive”, including documents depicting or related to a

COMMISSION “Facility” (defined as a dam; a water treatment plant; water pump station; water storage facility; wastewater treatment plant; wastewater pumping station; Consolidated Office Building; or depot/maintenance shop [the facility includes related piping and appurtenances such as vaults and valves contained within its property lines]), pipelines greater than 12” in diameter, or as otherwise specified by the COMMISSION, the CONSULTANT and its employees may not distribute, without the prior written approval of the COMMISSION, such documents in any manner, in whole or in part, to anyone inside or outside of the CONSULTANT’s Company, except for purposes of performing the services under this contract. The distribution of such documents by the CONSULTANT shall include the statement that the documents being distributed are of a privileged and confidential nature and that they shall only be used for the purpose for which they are being distributed.

b. For all other COMMISSION documents, the CONSULTANT’s company may distribute documents only to individuals within or outside the Company needing them for performing legitimate business functions.

2. In development of new documents, the CONSULTANT will limit the inclusion of sensitive information regarding existing facilities/features to the minimum required to accomplish the objectives of this contract.

3. The CONSULTANT is responsible for its employees abiding by all non-disclosure terms of this contract as well as individual non-disclosure agreements under WSSC’s Engineering Records/Information (WERI) system. The CONSULTANT shall communicate to its employees the non-disclosure requirements. If the CONSULTANT or any of the CONSULTANT’s employees violate the terms of non-disclosure, WSSC, at its discretion following investigation, reserves the right to revoke all access privileges of the CONSULTANT and the CONSULTANT’s employees to COMMISSION records/information indefinitely as well as require the return of COMMISSION records/information in the possession of the CONSULTANT. The CONSULTANT has the right to appeal this revocation in accordance with Article IX of this contract.

4. The CONSULTANT shall have at least one individual employee apply and be approved for access to hardcopy or electronic documents through WSSC’s Engineering Records/Information (WERI) system. WSSC will only provide documents to employees of the CONSULTANT who have been approved for access.

5. The CONSULTANT shall be responsible to notify WSSC of the separation from employment or reassignment from this project of any employees previously working on this project. In addition, the CONSULTANT shall be responsible to review and authorize periodic renewals of “registered” employees as required by the WERI system.

6. The CONSULTANT shall be responsible for notifying WSSC within 24 hours of any identified breach of the CONSULTANT’s or its employee’s non-disclosure terms.

7. WSSC reserves the right to audit the CONSULTANT’s compliance with these non-disclosure terms.

C. ALL CONSULTANT and subcontractors’ employees involved in the project who have access to sensitive information are to have initial background checks performed by the COMMISSION to assure the COMMISSION information used and generated by this project will not end up in unauthorized hands. The initial background checks are valid for one year and subject to annual renewal for employees continuing to work on the project.

D. ALL sensitive documents given to the CONSULTANT shall be stored in secure areas. Access shall be limited to only those individuals who will be working directly on the project and have the clearances listed in C above.

E. Discussions regarding sensitive information shall not be conducted with persons not involved on the project.

F. Electronic documents of a sensitive nature shall be located on a local hard drive, a secure local area or wide area networked drive, or a secured project specific web site. File access rights to sensitive electronic documents shall be limited to project team members through secure access portals. All sensitive e-mail correspondence shall also be restricted from unsecured network/outside access. Upon completion of the project the CONSULTANT shall destroy all project records, including both paper and electronic copies, that the CONSULTANT determines are not needed for record purposes. All other records shall be stored in a secure fashion in accordance with the terms of this contract.