DEP.RFR.BWSC.MIWOSPRS.2016-03.ATTACH1.SUPP.TANDC.7.21.16.docx

Commonwealth of Massachusetts Department of Environmental Protection

Marine & Inland Waters Oil Spill Prevention & Response Services Contract

Attachment #1

SUPPLEMENTAL TERMS & CONDITIONS

ATTACHMENT 1 - DEPARTMENT SUPPLEMENTAL TERMS AND CONDITIONS

TABLE OF CONTENTS

DEPARTMENT SUPPLEMENTAL TERMS AND CONDITIONS

Marine and Inland Waters Spill Prevention & Response Services Contract (MIWOSPRS)

Article 1 Statement of Services

The full Scope of Services for the MIWOSPRS Contract is defined in detail in Section 3 of the RFR, which is incorporated herein by reference.

Article 2 Documents Forming the Contract

The Contract Documents comprising the Agreement between MassDEP and the Contractor shall include, in the following order of precedence: The Commonwealth Terms and Conditions; The Standard Contract Form, including the instructions and Contractor Certifications; The Department’s Request for Response (RFR), including all Attachments and Appendices, and any Addenda or Amendments to the RFR issued by MassDEP prior to the closing date specified in the procurement calendar for RFR Amendments, the Contractor’s Response to the RFR, excluding any language stricken by the Department as unacceptable, but including any negotiated terms and conditions allowable pursuant to law or regulation; and any Department approved Project Work and Cost Plans and/or Work Orders as negotiated and approved by the Parties during the course of and in accordance with all terms of this Contract.

Article 3 Assignment of MIWOSPRS Services and Budgets, Generally

3.1 MassDEP Selection of Contractors for Project Work: MassDEP may either assign a project to a specific Contractor (known as a Work Order) or conduct a competitive best value bid among MIWOSPRS Contractors for a project. In the former case, MassDEP may assign projects based on a Contractor’s expertise, experience and/or capabilities. In the latter case, MassDEP may request a Scope of Work, Qualifications Package and/or Cost Estimate from multiple Contractors and select a Contractor for a project based on the best value as determined by MassDEP.

As part of either an assignment of a project to a specific Contractor, or as part of MassDEP’s determination of the best value from Contractors’ Scopes of Work, Qualification Packages, and/or Cost Estimates, MassDEP may consider some, or all, of the following:

1. Previous experience, technical capabilities and management approach needed for a particular project;

2. The magnitude of the resources required to perform a particular project relative to the Contractor's currently available resources, including staff and subcontractors;

3. The Contractor’s prior performance under this Contract (if any), which MassDEP will evaluate based upon a number of factors, such as technical quality, responsiveness, adherence to work and cost plans, and/or quality of project management;

4. Any existing or potential conflicts of interest of the Contractor in relation to a given project; and

5. Any other consideration which the Department deems appropriate in the assignment of projects under this Contract.

3.2 Project Scope of Services Documentation: Following MassDEP’s assignment of project work or the selection of a contractor for project work based on a best value evaluation, the Contractor must prepare a detailed project Work and Cost Plan, if required by the Department, in accordance with the procedures required by the Department for this Contract. After the Work and Cost Plan has been approved by the Department’s Contract Administrator, the Contractor will be authorized to proceed with the Project on a specified date. The Department reserves the right not to compensate the Contractor for any work activities that are performed outside of the Project’s Work and Cost Plan, or the Department-issued Work Order scope of services. Further details regarding the requirements for Project Work and Cost Plans and Work Orders are located in Article 6, Contract Management, below.

3.3 No Guaranteed Projects or Minimum Dollar Awards Under the Contract: The Department does not guarantee that any Contractor will be assigned a particular number of projects or work orders, or that any Contractor will receive a particular dollar level of services, during the time period for performance of the Contract.

Article 4 Contractor General Performance Requirements

4.1 Contractor Performance, in General: The Contractor is responsible for ensuring that all work activities performed under this Contract, by either the Contractor and/or its subcontractors, are implemented and completed in a highly professional, technically competent, and efficient manner. The Contractor has a specific responsibility to ensure that all work activities performed under the Contract conforms to best practices in management, engineering, technical, and/or scientific practices as applicable, as well as to any pertinent Quality Control/Quality Assurance requirements or guidance relevant to the work activities. The Contractor shall provide all materials, labor, equipment, utilities, transportation, and supervision as required by specific Projects.

4.2 Contractor’s Responsibility for Providing Staff, including Subcontractor Staff, Who are Qualified for the Planned Work: The Department’s evaluation and selection of the MIWOSPRS Contractors is based upon each Contractor’s material representations regarding the qualifications and expertise of both the Contractor and any subcontractor(s) designated by the Contractor to perform the various MassDEP scope of services activities as defined in the RFR. Therefore, during the Contract term, the Contractor is responsible for and shall provide appropriately qualified, educated, experienced and credentialed Contractor and subcontractor staff to perform any work that is assigned by the Department. At all times during the Contract term, the Contractor remains fully responsible for providing both Contractor and subcontractor personnel who are capable, qualified, experienced and appropriately licensed to perform any project activities within the Contractor’s designated scope of services areas of expertise.

4.3 Prompt Performance of Services within Specified Project and/or Work Order Timelines: The Contractor and, if applicable, its Subcontractors, must perform all services in a prompt manner, and in accordance with the timelines set forth in any applicable Project Work and Cost Plan or other agreement approved by the Department.

4.4 Submission of Reports, Submittals, Plans, Drawings, Designs, and Other Written Materials: As required by any federal and/or state statutes or regulations, or by MassDEP personnel, and/or other federal, state or local authorities, the Contractor shall ensure that all reports, submittals, plans, drawings, designs, and any other written materials necessary to perform and/or document the required work activities are prepared, completed, and submitted in a timely manner to MassDEP for its review and approval. In submitting any form of documentation, the Contractor remains fully responsible for the professional quality, technical accuracy, timely completion and coordination of all work activities, whether or not previously documented under this Contract. Upon request of the Department, the Contractor shall correct any errors, omissions or other deficiencies identified in any submitted written materials without seeking additional compensation from MassDEP.

MassDEP’s approval of any written documentation from the Contractor shall not relieve the Contractor of the responsibility for technical adequacy, timely performance, and full completion of all required work activities, nor shall MassDEP’s payment for these documentation services be construed as a waiver of any legal or equitable claim arising out of the Contractor’s performance under this Contract.

The Department may have limits on the electronic file size that can be transmitted and stored through e-mail. Therefore, MassDEP may require the Contractor to provide a secure file transfer protocol capability or other secure method for the Department to access large computer files being submitted to the Department in lieu of using the e-mail system.

4.5 Compliance with Laws, Regulations, and Ordinances: The Contractor shall comply with all applicable provisions of federal, state, and local laws, rules, regulations, by-laws, and ordinances in the performance of all services under this Contract.

4.6 Contractor and Subcontractor Obligations: The Contractor is responsible for ensuring the efficient management and control of all its personnel and the personnel of any of its subcontractors in the delivery of services under this Contract. As required by the Department, the Contractor shall make its personnel and its subcontractors’ personnel available to the Department to discuss and review the status of Project activities, and to review, discuss and establish administrative and technical procedures and practices for the efficient delivery of services under this Contract.

4.7 Contractor and Subcontractor Licensing Requirements: Through execution of this Contract, the Contractor certifies that both the Contractor and all approved subcontractors possess any and all currently valid state and federal licenses, permits and/or certificates that are required in connection with the performance of any services and shall ensure that both the Contractor and all subcontractors are and remain in full compliance with all such requirements throughout the performance of the activities required under this Contract.

4.8 Responsibilities of the Contractor for Penalties and Fines: If the Contractor incurs any fines or penalties as a result of their work for the Department that is a result of a violation of, or failure to obtain the appropriate permits, licenses or other required credentials for the work, the Contractor will be solely responsible for the costs of complying with, and fully remedying those violations. The Contractor must provide the Department with an immediate written notice when such violation(s) occurs, and must also provide the Department with written notice as to when and how such violation(s) have been resolved. The Contractor’s written notice to MassDEP may include electronic notification via email.

4.9 Health and Safety: The Contractor shall be solely responsible for ensuring the health and safety of its personnel and the personnel of any Subcontractors working on Projects, and of any person within reasonable proximity of the Contractor's activities at a site. The Contractor shall comply with all federal OSHA requirements for all work under the MIWOSPRS Contract, as well as complying with all other pertinent federal, state and local regulations pertaining to health and safety at these sites.

4.10 Department Approval Does not Relieve Responsibilities from the Contractor: The Department's approval of drawings, designs, specifications, reports and any other work or materials delivered to the Department shall not relieve the Contractor of responsibility for the technical accuracy and adequacy of its work, and shall not be construed as a waiver of any rights under this Contract.

4.11 Contractor’s Delivery of Materials, Supplies, and Equipment must be Free of Financial or Other Obligations: The Contractor shall ensure that all materials, supplies and equipment to be delivered to the Department are free and clear from liens, or other restrictions. All materials, supplies and equipment used for this Contract must not have any financial or other obligations that in any way restrict or limit their availability for use in performing services hereunder, or expose the Commonwealth to financial liability. In the event that the Department is exposed to such financial liability, the Contractor shall be solely and legally responsible to resolve these obligations to the satisfaction of the Department, at no cost to the Commonwealth.

4.12 Contractor’s Equipment and Supply Maintenance and Operation Obligations: The Contractor shall operate, maintain and utilize supplies and equipment in accordance with applicable manufacturers' instructions, and ensure proper maintenance so supplies and equipment are safe to use, and will fulfill the goals for which they were designed.

4.13 Contractor’s Obligation for Loss or Damage to Materials, Supplies, and Equipment: The Contractor bears full risk of loss or damage to materials, supplies or equipment used on or in connection with the performance of services under this Contract. Loss or damage to materials, supplies, equipment due to the Contractor’s actions or inaction that must be replaced or repaired for the work is the sole responsibility of the Contractor, and the Department reserves the right to require the Contractor to replace or repair such losses and damaged items at its own expense.

4.14 Contractor Obligations to Support Department with Evidentiary Quality Work: The Contractor shall fully cooperate and coordinate work with and assist other Contractors, if so directed by the Department, in planning, scheduling and implementation of MIWOSPRS services undertaken by the Department, by other federal or state agencies, or by any private party in compliance with the Department’s requirements and instructions.

In appropriate circumstances, the Department and the Contractor shall mutually plan and properly document their respective roles and action in connection with MIWOSPRS support services in order to provide evidentiary support and documentation required for subsequent enforcement actions that may be commenced by the Commonwealth, including but not limited to any action for recovery of costs for any MIWOSPRS services activities performed under this Contract.

The Contractor may be called upon either during and/or after the MIWOSPRS support service activities have been completed and/or after the Contract has expired, to prepare and provide documentation and/or testimony associated with the Commonwealth’s enforcement actions, including but not limited to cost recovery actions. The Contractor agrees that, by accepting the Department’s Project in accordance with any approved Work and Cost Plan and/or Work Order, the obligations to provide appropriate documentation, chain-of-custody evidence, and testimony as described in more detail in this subsection are within the scope of services the Contractor is providing to the Department.

Article 5: Rights Reserved to the Department

Introductory Note: in addition to the Reservation of Rights set forth in this Article 5, the Department’s MIWOSPRS RFR and its Appendices contain additional MassDEP reservations of rights provisions that remain binding upon all MIWOSPRS Contractors for the duration of the Contract term, and are incorporated herein by reference.

5.1 MassDEP’s Right to Inspect and Approve the Work: The Department reserves the right to inspect and/or approve all work activities of the Contractor, and if applicable, the Subcontractor, performed under the MIWOSPRS Contract.

5.2 MassDEP’s Right to Remove Non-performing Contractor and/or Subcontractor Personnel from Projects: The Department reserves the right to order, at its discretion, the Contractor to remove any Contractor personnel and/or subcontractor personnel from any Project whom MassDEP determines is incompetent, impaired due to physical impediments and/or due to the influence of drugs and/or alcohol, incapacitated, ill, in violation of health and/or safety requirements, or otherwise fails and/or refuses to comply with or meet the Contract’s general performance requirements and/or fails or refuses to perform any work activities required by this Contract. In addition, the Department reserves the right, at its discretion, to remove a non-performing Contractor or non-performing Subcontractor(s) from any Project.

5.3 MassDEP’s Right to Suspend or Terminate MIWOSPRS Activities: The Department in its sole discretion reserves the right to order, at any time, the suspension and/or termination of any MIWOSPRS activities. Upon receipt of MassDEP’s notice of suspension and/or termination, the Contractor’s entitlement to payment for any MIWOSPRS activities shall cease except with respect to payment for services rendered prior to receipt of MassDEP’s suspension or termination notice. In the event that MassDEP’s notice of suspension and/or termination is verbal, written confirmation of the notice shall be provided to the Contractor by MassDEP as soon as reasonably possible (email transmission is permissible). Upon receipt of MassDEP’s verbal or written notice, the Contractor shall immediately cease all work activities and shall remove from the site all personnel, equipment, supplies and/or materials as directed by the Department.

5.4 MassDEP’s Right to Assign Multiple Contractors, or Substitute Contractors: The Department reserves the right to assign multiple Contractors to a Project or to substitute Contractors for a Project at any time, at the Department’s sole discretion.

5.5 MassDEP’s Right to Suspend or Terminate the Contractor for Performance Problems and/or Violation of Legal Requirements: MassDEP reserves the right to suspend or terminate a Contractor based upon evidence of performance problems on one or more assigned projects, failure to meet and/or comply with the General Performance Requirements, fraud in the submission of invoices or with respect to other dealings with the Department, violation of any federal, state, or local laws, regulations or requirements, failure to remain current on all fees/taxes/payments owed to the Commonwealth or MassDEP and/or failure to meet any other Contractual requirement. This provision shall be interpreted in a manner consistent with the requirements set forth in the Commonwealth’s Terms and Conditions.

5.6 MassDEP’s Right to Withhold Payment for Unsatisfactory Performance: The Department reserves the right to withhold payment for unsatisfactory Contractor Work Performance. If the Department determines, in its discretion, that any submission(s) by the Contractor of technical analyses, reports, studies and/or designs, and/or any Contractor work activity performance (whether performed by the Contractor or any subcontractor(s)), has not or will not achieve the requirements, as stated in the applicable Project Work and Cost Plan and/or Work Order, the Department reserves the right to: (1) withhold full or partial payment for the work until all issues are resolved to the satisfaction of the Department; (2) require the Contractor to immediately correct or remediate any deficient or defective work, whether or not such deficient or defective work arises out of the use or reliance upon such submission, without additional compensation from the Department; or (3) re-assign future work Projects to other MIWOSPRS Contractors. The Department further reserves the right to pursue additional remedies against the Contractor to address any deficient or defective work by the Contractor or its subcontractors and any damages arising out of such work.

5.7 MassDEP’s Right to Require Removal/Replacement of Equipment, Materials or Supplies: The Department, through the Department’s MIWOSPRS Contract Administrator, reserves the right to order the Contractor’s removal, repair or replacement of any equipment, materials or supplies MassDEP determines to be defective, damaged, unnecessary, or otherwise unsuitable for the performance of services under this Contract, and, if applicable, to require the replacement of the removed items at the Contractor’s cost.

5.8 MassDEP’s Right to Issue Stop Work Orders: The Department reserves the right, in its sole discretion, to issue a Stop Work Order (either verbally or in writing) to a Contractor on a Project . The MassDEP Project Manager or the MassDEP Contract Administrator is authorized to issue the Stop Work Order verbally to the Contractor. In the event of a verbal Stop Work Order, the MassDEP Contract Administrator shall provide the Contractor with written documentation (which can consist of electronic email) within a reasonable period of time that specifies the reason(s) for the Stop Work Order and (if applicable) the reason(s) for the suspension and/or termination of services.

5.9 MassDEP’s Right to Access and Review Contractor Personnel Certifications, Licenses, and/or Registrations: The Department reserves the right to request and receive from the Contractor and/or any Subcontractor copies of any and all records of employees’ professional and training licenses, certifications, registrations, and other documents that attest to the employees’ qualifications as previously represented by the Contractor and/or Subcontractor to the Department, either through written documentation or through oral communication with the Department.

Article 6: Contract Management, Including Project Work and Cost Plans

6.1 Contract Management Overview: The parties agree that effective Contract management is of utmost importance to the successful and cost-effective accomplishment of services performed under this Contract. The Contractor understands and acknowledges that its selection for this Contract was premised in part upon the representations made in the Quote Package relative to its capabilities and intent to manage and control work activities provided by the Contractor to the Department during the Contract term. The Contractor further understands and acknowledges that the Department will evaluate the Contractor’s performance not only on the technical quality of its services, but also on the efficiency and adequacy of its management and control of Contract activities.

6.2 Designation of MIWOSPRS Contract Administrator and Contractor's Point-of Contact: Contract management shall be achieved principally through the interaction of the Department's MIWOSPRS Contract Administrator and the Contractor's Point-of-Contact (POC). Upon execution of the Contract, the Contractor must designate a POC. The parties may change such designations at any time, provided that each party gives timely written notice thereof to the other party.

For purposes of management of this Contract, the Department makes the following initial designation of its MIWOSPRS Contract Administrator:

Patrick Hurley MIWOSPRS Contract Administrator Bureau of Waste Site Cleanup Department of Environmental Protection 1 Winter Street, Boston, MA 02108 patrick.hurley@state.ma.us 617-292-5641

The Department's MIWOSPRS Contract Administrator and the Contractor’s POC shall be the points of contact for matters pertaining to this Contract. Project Work and Cost Plans, Work Orders, and Change Orders, including suspensions and/or terminations thereof, shall be valid only when signed by the Department's MIWOSPRS Contract Administrator.

6.3 Contract Management Procedures: The Contractor POC and the MIWOSPRS Contract Administrator shall meet periodically to review and coordinate work under the Contract. Through the Contractor POC and the MIWOSPRS Contract Administrator, the Department and the Contractor may from time to time amend Contract management policies and procedures to ensure consistent and effective administration of this Contract.

6.4 Project and Work Order Assignments, Generally: The Contractor shall perform services under this Contract pursuant to Project Work and Cost Plans and/or Work Orders. Projects are valid only when approved by the MIWOSPRS Contract Administrator. The Contractor bears and accepts an affirmative obligation to review the requirements for Projects and to provide the Department with its best professional judgment regarding the extent to which the stated goals and objectives of a Project are feasible and can be accomplished in an efficient and cost-effective manner.

6.5 Project Implementation Procedures: The general procedures for initiating and implementing a Project shall be as follows:

Projects:

a. Project Initiation: Once a Contractor is notified of selection for a Project, MassDEP will issue a Project Number which shall be referenced in future documentation including cover letters and invoices. Depending on the complexity of the Project, the Contractor’s POC and the Department’s MIWOSPRS Contract Administrator and/or Project Manager may cooperatively set up a “Scoping Session” to determine the goals and implementation plans for the Project and due dates for the project, and the due date for the project planning documents. Scoping Sessions can take the form of a meeting or conference call.

b. Work and Cost Plan: After the scoping session, the Contractor shall prepare a Work and Cost Plan (i.e. the work plan that also contains a cost estimate). After negotiation by the parties and approval by the MIWOSPRS Contract Administrator, the Work and Cost Plan will become the specification for the work to be performed. In cases where Contractors have submitted bids and the Department has selected a Contractor through a Best Value process, the bid documents including pricing may form the basis of the Work and Cost Plan.

c. Changes to the Work and Cost Plan: The Contractor and/or the Department may initiate Changes and modifications to the approved Work and Cost Plan or Work Order. When the scope of the change is agreed between the Department and the Contractor, the Contractor shall prepare a Change Order using the format provided to the Contractor by the Department. Upon written approval by the MIWOSPRS Contract Administrator, the Change Order becomes a modification to the specifications defined by the Work and Cost Plan or prior Change Order for the project.

d. Project Closeout: Projects shall be considered closed when the Contractor has completed all tasks and submitted and received the Department’s written approval for all deliverables and any other work items as defined in the Work and Cost Plan or Work Order for the Project. Official closure of the Project is determined by the Department’s MIWOSPRS Contract Administrator.

Work Orders:

a. The Department may issue Work Orders to Contractors for services that are relatively simple and usually of short duration. Unlike the Work and Cost Plan for a Project, the scope and cost estimate for a Work Order are prepared by the Department, usually in consultation with the Contractor, and then delivered to the Contractor for implementation.

b. The Contractor shall implement the Work Order upon receipt, or in accordance with the schedule provided within the Work Order. The Contractor shall notify the Department’s Contract Administrator immediately upon the Contractor’s identification of any inconsistencies with the Work Order’s technical requirements and/or budget, or any other issues that would prevent the Work Order from being successfully completed in accordance with the time deadline or for the budget amount.

Article 7: Personnel Changes and Substitutions

7.1 Availability of Contractor and Subcontractor Key Personnel for this Contract: The Contractor acknowledges that the Department’s determination to award the Contractor this Contract is based in part upon material representations made by the Contractor in its Quote Package regarding the availability of the Contractor’s key personnel and the key personnel of the Contractor’s approved subcontractors to perform the required MIWOSPRS activities. Through execution of this Contract, the Contractor warrants and certifies the ongoing availability of both the Contractor’s personnel and subcontractor’s personnel to perform all services required by this Contract. The Department recognizes that the MIWOSPRS Contract has certain time periods where no active work may occur, and that the Contractors must utilize their employees to meet their business goals and obligations, and the Department will take these circumstances into consideration when applying this clause.

7.2 Notification of Changes to Key Personnel or Personnel Actively Engaged in Ongoing Projects: The Contractor shall notify the MIWOSPRS Contract Administrator in writing (email notification is sufficient) no less than two (2) weeks prior to making requested changes for project management and key technical Contractor and/or subcontractor personnel actively involved in a Project, including projects where the Department is prospectively considering the use of the Contractor.

7.3 Requirement for Changes to Contractor/Subcontractor Key Personnel or Personnel Engaged in Ongoing Projects: The Contractor shall assign to the Contract and to all Projects those Contractor and/or Subcontractor key personnel listed in the Contract who are necessary to fulfill the Contract requirements. No substitutions shall be made except in accordance with this clause and the following provisions:

1. Requests for Personnel Substitutions: All Contractor requests for personnel substitutions must be submitted in writing to the Department’s MIWOSPRS Contract Administrator (email requests are permissible), and provide a detailed explanation of the circumstances necessitating the proposed substitution(s), a complete resume(s) for the proposed substitute(s), and any other information requested by the Department as needed to approve or disapprove the proposed substitution(s).

2. Substitute(s) Qualifications: All proposed substitutes shall have qualifications that are equivalent to or better than the qualifications of the person(s) to be replaced (including, but not limited to, all licenses, trainings, and certifications required to perform the work activities involved), and shall be at the same labor category, unless otherwise approved by the Department’s MIWOSPRS Contract Administrator. MassDEP reserves the right to verify these requirements through documentation from the Contractor and/or subcontractor(s).

3. Department Evaluation: The Department will evaluate substitution requests in a timely manner and promptly notify the Contractor whether the request is approved or disapproved.

4. Costs for Substitutions Borne by the Contractor: The cost of personnel changes and substitutions made in the course of the Contract shall be borne by the Contractor, including but not limited to any costs associated with the training of substitute personnel, or the cost of preparing change orders that are associated with the substitution of personnel.

Article 8: Subcontractors

During the Contract term, Contractors may have the need to acquire and manage subcontractors for various services required by the MIWOSPRS contract. As part of its response to this RFR, Contractors may identify Subcontractors to enhance their capabilities. Contractors should note that, pursuant to Section 9 of the Commonwealth’s Terms and Conditions, any subcontract entered into by the Contractor for the purposes of fulfilling the obligations under the MIWOSPRS Contract must be in writing, authorized in advance by the Department and shall be consistent with and subject to the provisions of the Commonwealth Terms and Conditions. Contractors should also note that subcontracts will not relieve or discharge the Contractor from any duty, obligation, responsibility or liability arising under the MIWOSPRS Contract. As part of the Department’s authorization of a subcontractor, the Contract Administrator must approve labor rates and costs.

8.1 Acquisition of Subcontractors on Project-specific, As-needed basis:

If the Department and/or Contractor determine that additional or different subcontractors (from those identified in the Contractor’s response to this RFR) are required during the course of the project, the Contractor must submit the written request to the Department’s MIWOSPRS Contract Administrator and Project Manager for approval. The Department’s written approval of these subcontractors can be conveyed through written email transmission, and approval of all additional subcontractors must conform to the requirements of Section 9 of the Commonwealth Terms and Conditions.

The Contractor must acquire Subcontractors for specific projects in accordance with a “best value” approach, as specified below in this sub-section.

The following table summarizes the purchasing procedure and dollar thresholds to which the procedures apply:

> $ 2,500 – < $ 5,000

> $5,000 – < $ 18,000

On a Project-specific basis, a Contractor may require the services of a specific subcontractor firm because of that firm’s unique technical capabilities. In cases where the cost for use of that subcontractor will exceed $5,000, the Contractor shall discuss the Project-specific circumstances, and the qualifications of the proposed subcontractor, with the Department’s MIWOSPRS Contract Administrator. If the MIWOSPRS Contract Administrator agrees with the Contractor’s proposed use of this specific subcontractor, the Contractor shall prepare documentation supporting the use of this specific subcontractor based upon technical considerations, and include in this documentation an evaluation and statement (with supporting cost justification) that the cost for the services is within the reasonable range for that service. The Contractor shall not proceed to enter into a subcontract pursuant to this paragraph until the Contractor receives written approval from the Department’s MIWOSPRS Contract Administrator in response to the Contractor’s documentation submission.

Article 9: Insurance and Indemnification

A. Insurance: General Requirements

1. The Contractor shall obtain and maintain throughout the term of the Contract the insurance coverage of the kinds and amounts specified below. Insurance companies acceptable to the Department shall provide such coverage. The insurer(s) shall:

● be licensed to transact the business of insurance in Massachusetts or is an authorized excess or surplus lines insurer in Massachusetts;

● have an A.M. Best rating of “A-“ Class “VII” or better in the most recently published Best’s Insurance Report. If, during the terms of the contract, any insurer’s rating falls below “A-“ Class “VII,” the insurance must be replaced no later than the renewal date of the insurance policy; or

● be within a risk retention group lawfully providing insurance to its members in Massachusetts.

MassDEP reserves the right to approve or reject all insurers. MassDEP further reserves the right to revoke its acceptance of any insurer or insurance policy.

2. The Contractor shall request in writing to each insurer that its insurance policy(ies) be endorsed to provide MassDEP with thirty (30) days written notice prior to cancellation. The Contractor shall provide MassDEP with a copy of the request to its insurer and either a copy of the policy with endorsement or a letter from the insurer denying the request.

3. Upon signing this Contract, the Contractor shall furnish to MassDEP a certificate or certificates of insurance in a form satisfactory to MassDEP showing that it has complied with this article. The Contractor shall not seek to cancel any of the required insurance policies. The Contractor shall also notify MassDEP in writing immediately if the Contractor receives any notices of cancellation on any of the required insurance policies.

The bankruptcy or insolvency of the insured Contractor shall not relieve any of the insurers of their obligations with regard to the insurance being provided. The insurers shall also be liable for the payments of any amounts within any deductible obligations under any policy with no right of recourse against any additional insured.

4. The premium for any insurance required hereunder shall not be charged as a direct cost.

5. MassDEP reserves the right to require the Contractor to furnish the terms and conditions of any policy of insurance under this Contract.

6. Failure to procure or maintain the insurance coverage in the amounts, coverage and endorsements required shall be considered a breach of this Contract resulting in immediate termination of the Contract.

7. MassDEP reserves the right to require the contractor to require of its subcontractors and/or sub-consultants insurance in the kinds and amounts required by this Contract.

8. MassDEP reserves the right to require the Contractor, in appropriate circumstances, to include property owners upon whose land the Contract work is being performed to be added as additional insureds to the Contractor’s commercial general liability and umbrella liability or excess insurance liability insurance, and the Contractor shall furnish certificates of insurance evidencing the addition of these insureds.

B. Insurance: Specific Requirements and Limits: The Contractor shall obtain and maintain the following insurance with limits not less than those described below:

1. Workers Compensation Insurance and Employers Liability Insurance including Occupational Disease Benefits in compliance with Massachusetts law covering all directors, officers, employees and agents doing work in the Commonwealth of Massachusetts or in connection with this Contract. The policy shall provide for Employers Liability Insurance limits of not less than $1,000,000 each accident; $1,000,000 each disease, each employee and $1,000,000 disease aggregate.

The Workers Compensation insurer shall provide a Waiver of Subrogation in favor of the Commonwealth of Massachusetts, MassDEP and their officials and employees.

2. Commercial General Liability Insurance providing limits of not less than $1,000,000 each occurrence; $2,000,000 Per Project General Aggregate; $1,000,000 Products/Completed Operations Aggregate. Such insurance shall be written on an occurrence basis subject to the Insurance Service Office’s (ISO) form CG00 01 or equivalent. The insurance shall include coverage for Liability Assumed in an Insured Contract, Broad Form Property Damage, Independent Contractors Coverage, Personal and Advertising Liability, Cross Liability and Explosion, Collapse, Underground Hazard (XCU) coverage.

The Commonwealth of Massachusetts, MassDEP and their officials and employees shall be added as additional insureds for Commercial General Liability. With regard to this Contract the insurance shall be primary and non-contributory, without regarding to any other insurance available to the Commonwealth or MassDEP. The insurer shall also agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

3. Business Automobile Liability Insurance written to provide coverage for at least all owned automobiles, non-owned and hired automobiles. The policy shall provide limits of not less than $1,000,000 each accident on a combined single limit basis.

The Commonwealth of Massachusetts, MassDEP and their officials and employees shall be added as additional insureds for Business Automobile Liability. The insurer shall also agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

4. For contractors providing environmental consulting, design, testing, monitoring, sampling or other engineering services, Professional Liability/Errors and Omissions Insurance with limits of not less than $1,000,000 each claim and in the aggregate covering the Contractor’s rendering or failure to render professional services under the Contract. This insurance shall provide at a minimum coverage for all professional services assumed by the Contractor under this Contract. Such insurance shall apply to negligent acts, errors or omissions committed by the Contractor and cover the Contractor’s liability for the negligent acts, errors or omissions of anyone for whom the Contractor is legally liable.

The professional liability insurance policy shall not have a pollution, lead, silica or asbestos exclusion. It shall provide prior acts coverage that precedes all services performed by the Contractor under this Contract.

The professional liability insurer shall agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

The Contractor shall continuously maintain this professional liability insurance for a period of three (3) years following substantial completion of all work.

5. If required by MassDEP on a Project-Specific basis: Contractors Pollution Liability Insurance, either as part of the Professional Liability Insurance policy or as a stand-alone policy providing no less than $1,000,000 each incident and in the aggregate. Such insurance may be written on either a claims made or occurrence basis. If such coverage is written as claims made, it shall provide prior acts coverage that precedes all services performed by the Contractor under this Contract and the Contract shall maintain this insurance for a period of three (3) years following substantial completion of all work.

The Contractors Pollution Liability Insurance shall not have any exclusion for lead, silica, or asbestos. The policy shall provide coverage for arranging the transportation, storage and disposal of any oil and/or hazardous material, including naturally occurring hazardous substances. The policy shall be endorsed to cover liability for the disposal of oil and/or hazardous materials at approved dump sites.

The Commonwealth of Massachusetts, MassDEP and their official and employees shall be added as additional insureds under the Contractors Pollution Liability. The CPL insurer shall also agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

6. Umbrella Liability or Excess Liability Insurance written on an occurrence basis providing no less than $2,000,000 each occurrence limits of liability. The Umbrella or Excess Liability shall apply at least excess over the Commercial General Liability, Business Automobile Liability and Employers Liability with Broad as Primary coverage.

The Umbrella or Excess Liability insurer shall agree to a Waiver of Subrogation in favor of the Commonwealth, MassDEP and their officials and employees.

C. Contractor’s Indemnification (General and IP):

1. Indemnification: Unless otherwise exempted by law, the Contractor shall indemnify and hold harmless the Commonwealth of Massachusetts, MassDEP and all of their officials, directors, employees and agents from and against any and all claims, damages, losses and expenses (including cost of defense, settlement and attorneys’ fees) which any or all of them may hereafter suffer, incur, be responsible for, or pay as a result of bodily injury, personal injury, property damage, and/or environmental clean-up costs (including injury to employees of the Contractor or its subcontractors) arising out of, resulting from or in consequence of the performance of this Contract, provided that such claim, damage, loss or expense is caused in whole or in part by any act or omission of the Contractor and/or any of its subcontractors. This indemnification obligation is in addition to and is not limited by any insurance required by this Contract.

2. Intellectual Property Indemnification: Unless otherwise exempted by law, the Contractor shall indemnify and hold harmless the Commonwealth of Massachusetts, MassDEP, and their officials, directors, employees and agents from and against all claims, actions, losses, damages and expenses (including cost of defense, settlement and attorneys’ fees) arising out of any patent, copyright, trademark or secret process infringement by the Contractor and/or its subcontractors in the performance of this Contract.

If the making or using of a design or process referenced in technical specifications drafted by the Contractor for MassDEP under this contract is limited or prohibited because of any infringement, the Contractor agrees to:

(A) Specify within the technical specifications and make clear to MassDEP in writing that the design or process drafted and/or created requires a license or licenses; and

(B) At the Contractor’s sole expense without reimbursement from MassDEP, the Contractor shall obtain any license(s) not referenced in the technical specifications which were drafted and/or created by the Contractor for submittal to MassDEP.

This indemnification obligation shall survive and continue to apply after substantial completion of all work under the Contract.

D. Consultant’s Indemnification (General and IP):

1. Indemnification: Unless otherwise exempted by law, the consultant shall indemnify and hold harmless the Commonwealth of Massachusetts, MassDEP and all of their officials, directors, employees and agents from and against any and all claims, damages, losses and expenses (including cost of defense, settlement and attorneys’ fees) which any or all of them may hereafter suffer, incur, be responsible for, or pay as a result of bodily injury, personal injury, property damage, and/or environmental clean-up costs (including injury to employees of the consultant or its sub-consultants) or any other loss to the extent that such are caused by the willful or reckless misconduct or negligence of the consultant, its sub-consultants or anyone from whom either may be legally liable arising out of, resulting from or in consequence of the performance of this Contract. This indemnification obligation is in addition to and not limited by any insurance required by the Contract.

2. Intellectual Property Indemnification: Unless otherwise exempted by law, the consultant shall indemnify and hold harmless the Commonwealth of Massachusetts, MassDEP, and their officials, directors, employees and agents from and against all claims, actions, losses, damages and expenses (including cost of defense, settlement and attorneys’ fees) arising out of any patent, copyright, trademark or secret process infringement by the consultant and/or its sub-consultants in the performance of this Contract.

If the making or using of a design or process referenced in technical specifications drafted by the Consultant for MassDEP under this Contract is limited or prohibited because of any infringement, the consultant agrees to:

(A) Specify within the technical specifications and make clear to MassDEP in writing that the design or process drafted and/or created requires a license or licenses; and

(B) At the consultant’s sole expense without reimbursement from MassDEP, the consultant shall obtain any license(s) not referenced in the technical specifications which were drafted and/or created by the consultant for submittal to MassDEP.

This indemnification obligation shall survive and continue to apply after substantial completion of all work under the Contract.

Article 10: Record Keeping, Audits, and Inspections of Records

10.1 Record Keeping: The Contractor and all subcontractors rendering services pursuant to this Contract shall comply with all legal requirements regarding Record-Keeping and the Retention and Inspection of Records as set forth in paragraph 7 of the Commonwealth’s Terms and Conditions. In addition, the Contractor shall establish and maintain a financial management and audit system that reflects costs and expenditures incurred and payments and reimbursements received pursuant to this Contract. The Contractor shall ensure that all subcontractors also comply with the requirements of this paragraph.