Exhibit A - Services Agreement - SCC-26-011-HR - Addendum 4.docx

Exhibit A: Services Agreement

RFP SCC-26-011-HR: Strategic Talent Development Services

Exhibit A: Services Agreement

INVOICES & PAYMENTS (Code of Virginia § 2.2-4354)

a. Supplier shall invoice in accordance with the Statement of Work for the associated Project. Deliverables based charges shall be invoiced after acceptance by the SCC. Labor charges shall be invoiced on not more than a monthly basis in arrears. SCC shall have no payment obligation until it has received a complete invoice identifying the Services provided with all backup and other documentation required by the Contract. Any payment terms requiring payment in less than thirty (30) days will be regarded as requiring payment thirty (30) days after receipt by SCC of a complete and proper invoice. Invoices shall be submitted by Supplier directly to SCC at the following address: HRAccountsPayable@scc.virginia.gov. All invoices shall show the Contract number.

b. Payment is contingent on SCC’s review of each invoice and a determination that all invoiced charges are consistent with the Contract and all Services provided in conformity with the Contract. Should SCC dispute any charges, SCC shall notify Supplier, in writing, as to those charges which it disputes and the basis for the determination.

c. Reimbursement to Supplier for travel expenses must comply with the Contract and the then-current SCC Travel Policy. Costs exceeding those for which reimbursement is allowable under the Contract and SCC Travel Policy are the sole responsibility of Supplier.

d. Within seven (7) days after receipt of amounts paid to Supplier by SCC for work or services performed by a subcontractor, supplier, or vendor to Supplier under the Contract, Supplier shall:

i. Pay the subcontractor, supplier, or vendor for the proportionate share of the total payment received from SCC attributable to the work or services performed or the materials furnished by the subcontractor, supplier, or vendor under the Contract; or

ii. Notify SCC and the subcontractor, supplier, or vendor, in writing, of Supplier’s intention to withhold all or a part of the payment with the reason for nonpayment.

e. Supplier shall pay interest to its subcontractor, supplier, or vendor on all amounts owed by Supplier that remain unpaid after seven (7) days following receipt by Supplier of payment from SCC for work performed or materials furnished by the subcontractor, supplier, or vendor except for amounts withheld as allowed under subsection (d)(ii) above. Unless otherwise provided under the terms of the Contract, interest shall accrue at the rate of one percent per month.

f. Supplier shall include in each subcontract or purchase order a provision requiring the subcontractor, supplier, or vendor to include in each of its subcontracts or purchase orders a provision requiring each of its subcontractors, suppliers, and vendors to include or otherwise be subject to the same payment and interest requirements with respect to each lower-tier subcontractor, supplier, and vendor. Each subcontractor shall include with its invoice to, or request for payment from, Supplier a certification that that subcontractor has paid each of its suppliers and lower-tier subcontractors their proportionate share of previous payments received from Supplier attributable to the work performed or the materials furnished by it under the Contract.

g.

DISPUTES AND CLAIMS (Code of Virginia § 2.2-4363)

Claims, whether for money or other relief, shall be submitted by Supplier in writing to SCC Procurement Manager (“Procurement Manager”), no later than sixty (60) days after final payment; however, written notice of Supplier’s intention to file such claim must be given to the Procurement Manager at the time of the occurrence or beginning of the work upon which the claim is based and shall clearly state that it is a “notice of intent to make a claim.”

A claim shall clearly state that it is a “claim” and set forth the relief sought by Supplier, including any additional costs or damages claimed by Supplier and the basis for the relief requested, including the specific contractual basis upon which Supplier believes it is entitled to the relief requested. Failure to timely submit a notice of intent to make a claim, or to submit a claim, shall preclude any relief to Supplier.

The Procurement Manager shall render a final decision in writing within ninety (90) days after its receipt of Supplier’s written claim or within ninety (90) days after final payment, whichever date is later. The failure of the Procurement Manager to respond, or to timely respond, to a claim shall be deemed a denial of the claim by the Procurement Manager.

If Supplier’s claim is denied in whole or in part by the Procurement Manager, Supplier may request an administrative review of the final decision pursuant to SCC’s Procedure for Administrative Review of Procurement Decisions, dated October 6, 2015, available at Virginia SCC - Procurement. Supplier may not invoke review under these procedures prior to receipt of the Procurement Manager’s decision on a claim unless the Procurement Manager fails to timely render a decision.

Supplier’s remedies shall be limited to recovery of monetary damages and interest as may be allowed by law. In no event shall Supplier’s remedies include the right to terminate the Contract, except as expressly provided herein.

The existence of a claim or an ongoing dispute resolution process shall not excuse Supplier from continuing performance under the Contract or from properly complying with any changes ordered by SCC.

GENERAL TERMS & CONDITIONS

3.1 Applicable Law and Venue. This solicitation and any resulting contract shall be governed by the laws of the Commonwealth of Virginia and any litigation with respect thereto shall be brought in the Supreme Court of Virginia. Supplier shall comply with all applicable federal, state and local laws, rules, and regulations. Nothing in the Agreement will be construed to waive the Commonwealth’s sovereign immunity as it extends to SCC.

3.2 Authorized to Conduct Business. (Code of Virginia § 2.2-4311.2). Supplier, if organized as a stock or nonstock corporation, limited liability company, business trust, or limited partnership or registered as a registered limited liability partnership, shall be authorized to transact business in the Commonwealth as a domestic or foreign business entity if so required by Title 13.1 or Title 50 of the Code of Virginia or as otherwise required by law. Supplier shall not allow its existence to lapse or its certificate of authority or registration to transact business in the Commonwealth, if so required under Title 13.1 or Title 50 of the Code of Virginia, to be revoked or cancelled at any time during the term of the Contract. SCC may void the Contract, in whole or in part, if Supplier fails to remain in compliance with the provisions of this provision.

3.3 Anti-Discrimination, Employment Practices, and Child Labor Prohibition. SCC does not discriminate against faith-based organizations as established by Code of Virginia § 2.2-4343.1.

Supplier will conform to the provisions of the Federal Civil Rights Act of 1964, as amended, the Virginia Fair Employment Contracting Act of 1975, as amended, where applicable, the Virginians with Disabilities Act, the Americans with Disabilities Act, and Code of Virginia § 2.2-4311.

If Supplier is a faith-based organization as defined in Code of Virginia § 2.24343.1(B), Supplier shall not discriminate against any recipient of goods, services, or disbursements made pursuant to the Contract on the basis of the recipient's religion, religious belief, refusal to participate in a religious practice, or on the basis of race, age, color, gender or national origin and Supplier shall be subject to the same rules as other organizations that contract with public bodies to account for the use of the funds provided; however, if Supplier segregates public funds into separate accounts, only the accounts and programs funded with public funds shall be subject to audit by SCC. (Code of Virginia § 2.2-4343.1(E)).

During the performance of the Contract, as required by Code of Virginia § 2.2-4201 and § 2.2-4311.4, Supplier agrees as follows:

a. Supplier will not discriminate against any employee or applicant for employment because of race, religion, color, sex, or national origin, age, disability, relating to discrimination in employment, except where there is a bona fide occupational qualification reasonably necessary to the normal operation of the Supplier. Supplier agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause, including the names of all contracting agencies with which the Supplier has contracts of over $10,000.

b. Supplier, in all solicitations or advertisements for employees placed by or on behalf of the Supplier, will state that Supplier is an equal opportunity employer. Notices, advertisements and solicitations placed in accordance with federal law, rule, or regulation shall be deemed sufficient for the purpose of meeting this requirement.

c. If Supplier employs more than five employees, Supplier shall: (i) provide annual training on Supplier's sexual harassment policy to all supervisors and employees providing services in the Commonwealth, except such supervisors or employees that are required to complete sexual harassment training provided by the Commonwealth of Virginia Department of Human Resource Management; and (ii) post Supplier’s sexual harassment policy in (a) a conspicuous public place in each building located in the Commonwealth of Virginia that Supplier owns or leases for business purposes and (b) Supplier's employee handbook.

d. Supplier will not use forced or indentured child labor, as defined in Code of Virginia § 2.2-4311.4, in the performance of the Contract.

Supplier shall include the provisions of subsections a, b, c, and d above in every subcontract or purchase order over $10,000 so that those provisions will be binding upon each subcontractor or vendor.

The requirements of this section are a material part of the Contract. If Supplier violates one of these provisions, SCC may terminate the Contract for breach, in whole or in part. Violation of one of these provisions may also result in debarment from contracting with the Commonwealth of Virginia regardless of whether the Contract is terminated.

3.4 Drug-Free Workplace (Code of Virginia § 2.2-4312). During the performance of the Contract, Supplier agrees to:

(a) provide a drug-free workplace for Supplier's employees;

(b) post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in Supplier's workplace and specifying the actions that will be taken against employees for violations of such prohibition;

(c) state in all solicitations or advertisements for employees placed by or on behalf of Supplier that Supplier maintains a drug-free workplace; and

(d) include the provisions of the foregoing clauses in every subcontract or purchase order of over $10,000, so that the provisions will be binding upon each subcontractor or vendor.

For the purposes of this section, “drug-free workplace” means a site for the performance of work done in connection with the Contract by Supplier, the employees of whom are prohibited from engaging in the unlawful manufacture, sale, distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of the Contract.

3.5 Immigration Reform and Control Act of 1986 And E-Verify (Code of Virginia § 2.2-4311.1 and § 2.2-4308.2). Supplier certifies that it does not and shall not during the performance of the Contract knowingly employ an unauthorized alien as defined in the federal Immigration Reform and Control Act of 1986. Supplier agrees to register and participate in the federal employment eligibility verification program (E-Verify) to verify information and work authorization of its newly hired employees performing work pursuant to the Contract to the extent required by Code of Virginia § 2.2-4308.2.

3.6 Antitrust. Supplier conveys, sells, assigns, and transfers to SCC all rights, title and interest in and to all causes of action it may now have or hereafter acquire under the antitrust laws of the United States and the Commonwealth of Virginia relating to the Services purchased or acquired by SCC under the Contract.

3.7 Ethics in Public Contracting. By submitting their proposals, offerors certify that their proposals are made without collusion or fraud and that they have not offered or received any kickbacks or inducements from any other offeror, supplier, manufacturer or subcontractor in connection with their proposal, and that they have not conferred on any public employee having official responsibility for this procurement transaction any payment, loan, subscription, advance, deposit of money, services or anything of more than nominal value, present or promised, unless consideration of substantially equal or greater value was exchanged.

3.8 Availability of Funds. Supplier acknowledges and agrees that SCC shall be bound hereunder only to the extent that the General Assembly appropriates funds that are legally available or may hereafter become legally available for the purpose of this Contract.

3.9 Assignment of Contract. This contract shall not be assignable by Supplier in whole or in part without the written consent of SCC.

3.10 Insurance. Supplier shall have the following insurance coverage in place at the time the Contract is awarded. Supplier shall maintain these insurance coverages during the entire term of the Contract and shall ensure that all insurance coverage is provided by insurance companies authorized to sell insurance in Virginia by SCC.

a. Workers' Compensation coverage that meets or exceeds statutory requirements and benefits. Coverage is compulsory for employers of three or more employees, to include the employer. Supplier’s failure to promptly notify SCC of increases in the number of employees that change Supplier’s workers’ compensation requirements under the Code of Virginia during the term of the Contract shall be in material breach of the Contract.

b. Employer's Liability with limits of not less than $100,000, per employee.

c. Commercial General Liability with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate, to include bodily injury and property damage, personal injury and advertising injury, products and completed operations coverage. The Commonwealth of Virginia and SCC must be named as additional insureds and will be added by endorsement or included under a blanket additional insured endorsement as additional insureds on a primary and non-contributory basis.

Within thirty (30) days after notice of award of the Contract, and from time to time during the term of the Contract upon SCC’s request, Supplier must furnish SCC with a current certificate of insurance showing coverage in at least the amounts required by the Contract. If requested, Supplier must also furnish a copy of the applicable insurance policy to SCC. Certificates of insurance for the coverages set forth in this Section must include evidence of SCC’s additional insured and loss payee status on the policies for which such status is required.

In the case of loss or damage or other event that requires notice or other action under the terms of any insurance coverage described above, Supplier is solely responsible for taking such action and for any applicable deductibles or self-insured retention requirements. Supplier must provide SCC with contemporaneous notice and with such other information as SCC may request regarding the insured event.

The Parties do not intend to shift all risk of loss to insurance. Supplier’s obligation to maintain insurance coverage in specified amounts will not act as a limitation on any other liability or obligation which Supplier would otherwise have under the Contract. Similarly, the naming or endorsement of SCC as additional insured is not intended to be a limitation on Supplier’s liability under the Contract and will in no event be deemed to, or serve to, limit Supplier’s liability to SCC, to available insurance coverage, or to the policy limits specified above, nor to limit SCC’s rights to exercise any and all remedies available to SCC under the Contract, at law or in equity.

3.11 Indemnification. Supplier agrees to indemnify, defend, and hold harmless SCC, its officers, commissioners, and employees from and against any and all third party claims, direct damages suffered by SCC, demands, proceedings, suits and actions, including any related liabilities, obligations, losses, damages, fines, judgments, settlements, expenses (including attorneys' and accountants' fees and disbursements) and costs (each, a "Demand"), incurred by, borne by, or asserted against SCC to the extent such Demand in any way relates to, arises out of or results from: (i) any act or omission of any Supplier employee or subcontractor of Supplier; (ii) breach of any representation, warranty or covenant of Supplier contained herein; (iii) any defect in Supplier’s work or services; or (iv) any actual or alleged infringement or misappropriation of any third party's intellectual property rights by Supplier. Selection and approval of counsel and approval of any settlement shall be accomplished in accordance with all applicable laws, rules, and regulations. In all cases the selection and approval of counsel and approval of any settlement must be satisfactory to SCC.

3.12 Confidentiality of Information. Supplier agrees to observe complete confidentiality of any confidential information, proprietary data and/or trade secrets and any parts thereof, whether such material is SCC’s or that of a manufacturer, vendor, or distributor to which Supplier or Supplier’s personnel may gain access while engaged by SCC or while on SCC premises. Revealing, copying, or using in any manner whatsoever any such contents which have not been authorized by SCC is strictly prohibited. The restrictions herein shall survive the termination of this Contract and shall continue in force and effect and shall be binding upon Supplier, its agents, employees, successors, assigns, subcontractor, and any party claiming an interest in this Contract on behalf of or under the rights of Supplier following any termination. Supplier shall advise all Suppliers' agents, employees, all Suppliers' agents, employees, successors, assigns, and subcontractors of the restrictions, present and continuing, set forth herein. Supplier shall defend and incur all costs, if any, for actions which arise from noncompliance by Supplier, its agents, employees, successors, assigns, or subcontractors regarding the restrictions herein.

3.13 Audit. Supplier shall retain all books, records, and other documents relative to this Contract for five (5) years after final payment or until audited by SCC or the Commonwealth of Virginia, whichever is sooner. SCC, its authorized agents, and/or the Auditor of Public Accounts for the Commonwealth of Virginia shall have full access to and the right to examine any of said materials during said period.

3.14 Ownership of Material. Ownership of all data, material and documentation originated and prepared for the SCC pursuant to this contract shall belong exclusively to the SCC and be subject to public inspection. All materials generated under this contract shall be considered work made for hire. The SCC shall have all rights, title and interest in or to all products, work plans, project reports, designs, programs, databases and documentation developed or generated under this contract including without limitation unlimited rights to use, duplicate, modify or disclose any part thereof, in any manner and for any purpose and the right to permit or prohibit any other person including the Contractor from doing so. To the extent the Contractor may be deemed at any time to have any of the foregoing rights the Contractor agrees to assign and does hereby assign such rights to the SCC.

SPECIAL TERMS AND CONDITIONS

4.1 Changes to the Contract. Changes can only be made to the contract in the following ways: Comment by Amy Pierce: I don’t see any price escalation allowances. Are we expecting them to hold the labor rates for the 5 year term?

a. The parties agree in writing to modify the scope of the contract. An increase or decrease in the price of the contract resulting from such modification shall be agreed to by the parties as a part of their written agreement to modify the contract.

b. SCC may order changes within the general scope of the contract at any time by written notice to Supplier. Changes within the scope of the contract include, but are not limited to, things such as services to be performed, the method of packing or shipment, and the place of delivery or installation. Supplier shall comply with the notice upon receipt. Supplier shall be compensated for any additional costs incurred as the result of such order and shall give SCC a credit for any savings. Said compensation shall be agreed upon, in writing, by the parties.

4.2 Cancellation of Contract. SCC reserves the right to cancel and terminate the Agreement, in part or in whole, without penalty, upon oral notice to Supplier, confirmed by written notice to Supplier. Any contract cancellation notice shall not relieve Supplier of the obligation to deliver and/or perform on all outstanding orders issued prior to the effective date of cancellation.

4.3 Risk of Loss. Supplier shall be responsible to safeguard all work until accepted by SCC. The safeguarding is to protect the work from risk of loss, damage, or destruction. Supplier shall be liable for such loss, damage, or destruction. Replacement of the items so lost, damaged, or destroyed shall be at the sole expense of Supplier. After acceptance, SCC is liable for such loss, damage, or destruction.

4.4 Consent to Subcontract. No portion of the work shall be subcontracted without prior written consent of SCC. IF Supplier desires to subcontract some part of the work specified herein, Supplier shall furnish SCC the names, qualifications and experience of its proposed subcontractors. Supplier shall, however, remain fully liable and responsible for the work to be done by its subcontractor(s) and shall assure compliance with all requirements of the contracts.

4.5 Replacement of Supplier Individuals. Prior to the completion of the Contract, should the services of any individual provided by Supplier become unsatisfactory to SCC, Supplier will be notified in writing of the concerns, and Supplier shall promptly respond to those concerns in writing. It is further agreed that, upon the failure of Supplier to reply, or the failure of such reply to provide adequate assurance to SCC, the Contract may be canceled. At the option of SCC, Supplier may be permitted to provide an immediate replacement who must also be, and remain, satisfactory to SCC, in accordance with the terms of this paragraph.

4.6 Audit: The contractor shall retain all books, records, and other documents relative to this contract for five (5) years after final payment, or until audited by the Commonwealth of Virginia, whichever is sooner. The Commission, its authorized agents, and/or state auditors shall have full access to and the right to examine any of said materials during said period

b. The Supplier shall continuously maintain adequate protection of each Site from damage and shall protect property of the SCC and or Authorized User from injury or loss arising in connection with the Services. The Supplier shall make good any damage, injury or loss caused by its operations or the Services, except as may be directly and solely due to errors caused by the Agency.

c. In an emergency affecting the health, safety, or life of persons or threatening loss or damage to the facility or adjoining property, the Supplier, without special instruction or authorization from the Agency, shall act promptly at, at its discretion, to prevent such threatened loss or injury. The Supplier shall carry out any instructions or directives issued by the Agency, to prevent threatened loss or injury, immediately, without appeal. Requests for any additional compensation by the Supplier on account of any emergency actions or measures must be submitted to the Agency Contract Administrator and will be approved on a case-by-case basis at the discretion of the Agency.

4.8 Renewal of Contract: The initial term of the contract is for three (3) years. This contract may be renewed by the Commonwealth for two (2), one (1) year renewals under the terms conditions and pricing then in effect of the original contract except as stated in a. and b. below. Price increases may be negotiated only at the time of renewal. Written notice of the Commonwealth’s intention to renew shall be given approximately 60 days prior to the expiration date of each contract period.

a. If the Commonwealth elects to exercise the option to renew the contract for an additional one-year period, the contract price(s) for the additional one year shall not exceed the contract price(s) of the original contract increased/decreased by more than the percentage increase/decrease of the “Other Services” category, Table 3, Column 5 of the CPI-U section of the Consumer Price Index of the United States Bureau of Labor Statistics for the latest twelve months for which statistics are available.

b. If during any subsequent renewal periods, the Commonwealth elects to exercise the option to renew the contract, the contract price(s) for the subsequent renewal period shall not exceed the contract price(s) of the previous renewal period increased/decreased by more than the percentage increase/decrease of the “Other Services” category, Table 3, Column 5 of the CPI-U section of the Consumer Price Index of the United States Bureau of Labor Statistics for the latest twelve months for which statistics are available

4.9 Conflicts of Interest. SCC reserves the right to determine if a conflict of interest exists between Supplier and any third party subject to SCC jurisdiction. During the term of any resulting contract, Supplier agrees that Supplier's employees shall abstain from providing services to any third parties that would constitute a conflict of interest as determined solely by SCC. During the term of the Contract, Contactor shall continue to disclose any situations in which a potential conflict of interest could arise, present the facts of the situation, and offer an opinion as to whether the situation involves a conflict. Supplier shall agree to accept the decision of SCC as to whether a conflict exists.

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