EXHIBIT D - CONTRACT GENERAL TERMS AND CONDITIONS.pdf

EXHIBIT D

GENERAL TERMS AND CONDITIONS

Any contract entered into with the Authority shall include clauses required pursuant to the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations as updated and replaced by PPRB. These required clauses are mandatory and are nonnegotiable. For your convenience, the required clauses, and other clauses the Authority cannot modify, are in bold headings.

1. Notices--All notices required or permitted to be given under this Contract shall be in writing and personally delivered or sent by certified United States mail, postage prepaid, return receipt requested, to the party to whom the notice should be given at the address set forth below. Notice shall be deemed given when actually received or when refused. The parties agree to promptly notify each other in writing of any changes of address.

For the Contractor: XXXXXX

XXXXXXX

XXXXXXXX

For the Authority: William V. Cork 501 N. West Street, 15th Floor Jackson, MS 39201

2. Termination for Default--If the Authority gives the Contractor a notice that the personal or professional services are being provided in a manner that is deficient, the Contractor shall have 30 (thirty) days to cure the deficiency. If the Contractor fails to cure the deficiency, the Authority may terminate the Contract for default and the Contractor will be liable for the additional cost to the Authority to procure the personal and professional services from another source. Termination under this paragraph could result in Contractor being excluded from future contract awards pursuant to Chapter 15 of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations. Any termination wrongly labelled termination for default shall be deemed a termination for convenience.

3. Termination for Convenience--The Authority may, when the interests of the Authority so require, terminate this Contract in whole or in part, for the convenience of the Authority. The Authority shall give written notice of the termination to Contractor specifying the part of the Contract terminated and when termination becomes effective. Contractor shall incur no further obligations in connection with the terminated work and on the date set in the notice of termination Contractor will stop work to the extent specified. Contractor shall complete the work not terminated by the notice of termination and may incur obligations as are necessary to do so.

4. Contract Assignment and Subcontracting--Contractor acknowledges that it was selected by the Authority to perform the services required hereunder based, in part, upon Contractor’s special skills and expertise. Contractor shall not assign, subcontract, or otherwise transfer this agreement, in whole or in part, without the prior written consent of the Authority, which may, in its sole discretion, approve or deny without reason. Any attempted assignment or transfer of Contractor’s obligations hereunder without consent of the Authority shall be null and void. Approval of a subcontract by the Authority shall not be deemed to be approval of the incurrence of any additional obligation of the Authority. Subcontracts shall be subject to the terms and conditions of this agreement and to any conditions of approval that the Authority may deem necessary. Subject to the foregoing, this agreement shall be binding upon the respective successors and assigns of the parties.

5. Interest of the Contractor and the Contractor's Employees--The Contractor covenants that neither it nor its employees presently have any interest and will not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Contract. The Contractor further covenants that in the performance of this Contract, no person having such interest will be employed.

6. Confidential Information--The Authority is a public Agency of the State of Mississippi and is subject to the

Mississippi Public Records Act of 1983. Mississippi Code Annotated §§ 25-61-1, et seq. If a public records request is made for any information provided to the Authority by Contractor, the Authority shall follow the provisions of Mississippi Code Annotated §§ 25-61-9 and 79-23-1 before disclosing such information – unless Contractor has previously indicated the information is not a trade secret or confidential commercial and financial information. The Authority shall not be liable to the Contractor for disclosure of information required by court order or required by law. Any disclosure of those materials, documents, data, and other information which Contractor has designated in writing as proprietary and confidential shall be subject to the provisions of Mississippi Code Annotated §§ 25-61-9 and 79-23-1. The services to be provided, the unit prices and overall price to be paid, and the term of the contract shall not be deemed a trade secret or confidential commercial or financial information.

"Confidential Information" shall mean:

(a) those materials, documents, data, and other information which the Contractor has designated in writing as proprietary and confidential, and

(b) all data and information which the Contractor acquires as a result of its contact with and efforts on behalf of the Authority and any other information designated in writing as confidential by the Authority.

Each party to this Contract agrees to protect all confidential information provided by one party to the other; to treat all such confidential information as confidential to the extent that confidential treatment is allowed under State and/or Federal law and, except as otherwise required by law, not to publish or disclose such information to any third party without the other party's written permission, and to do so by using those methods and procedures normally used to protect the party's own confidential information. Any liability resulting from the wrongful disclosure of confidential information on the part of the Contractor, or its Subcontractor shall rest with Contractor. Disclosure of any confidential information by the Contractor or its Subcontractor without the express written approval of the Authority shall result in the immediate termination of this Contract.

7. Officials Not to Benefit--No member of or delegate to the Congress of the United States of America, and no Resident Commission will be admitted to any share or part thereof or to any benefit to arise here from.

8. Ownership of Documents and Work Papers--The Authority shall own all documents, files, reports, work papers and working documentation, electronic or otherwise, created in connection with the project, which is the subject of this Contract, except for the Contractor's internal administrative and quality assurance files and internal project correspondence. The Contractor shall deliver such documents and work papers to the Authority upon termination or completion of this Contract. The foregoing notwithstanding, the Contractor shall be entitled to retain a set of such work papers for its files and shall obtain written permission from the Authority to use such workpapers, subject to any copyright protections.

9. Record Retention and Access to Records--Contractor shall maintain such financial records and other records as may be prescribed by the Authority or by applicable Federal and State laws, rules, and regulations. Provided Contractor is given reasonable advance written notice, and such inspection is made during normal business hours of Contractor, the Authority or any duly authorized representatives shall have unimpeded, prompt access to any of Contractor’s books, documents, papers, and/or records which are relevant to this Contract. All records related to this Contract shall be retained by Contractor for three years after final payment is made under this agreement and all pending matters are closed; however, if any audit, litigation or other action arising out of or related in any way to this project is commenced before the end of the three year period, the records shall be retained for one year after all issues arising out of the action are finally resolved or until the end of the three year period, whichever is later.

10. Contractor Personnel--The Authority shall, throughout the life of the Contract, have the right of reasonable rejection and approval of staff or Subcontractors assigned to the work by Contractor. If the Authority reasonably rejects staff or Subcontractors, Contractor shall provide replacement staff or Subcontractors satisfactory to the Authority in a timely manner and at no additional cost to the Authority. The day-to-day supervision and control of Contractor’s employees and Subcontractors is the sole responsibility of Contractor.

11. Right to Inspect Facility--The Authority, may at reasonable times, inspect the place of business of a Contractor or any Subcontractor, which is related to the performance of any contract awarded by the Authority.

12. Disputes--Any dispute concerning a question of fact under this Contract, which is not disposed of by agreement of the parties, shall be decided by the Executive Director of the Authority or his designee. This decision shall be reduced to writing and a copy thereof mailed or furnished to the parties. Disagreement with such decision by either party shall not constitute breach under the terms of this Contract. Such disagreeing party shall be entitled to seek such other rights and remedies it may have at law or in equity.

13. Waiver--No delay or omission by either party to this Contract in exercising any right, power, or remedy hereunder or otherwise afforded by contract, at law, or in equity shall constitute an acquiescence therein, impair any other right, power or remedy hereunder or otherwise afforded by any means, or operate as a waiver of such right, power, or remedy. No waiver by either party to this Contract shall be valid unless set forth in writing by the party making said waiver. No waiver of or modification to any term or condition of this Contract will void, waive, or change any other term or condition. No waiver by one party to this Contract of a default by the other party will imply, be construed as or require waiver of future or other defaults.

14. Severability--If any part of this Contract is declared to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision of the Contract that can be given effect without the invalid or unenforceable provision, and to this end, the provisions hereof are severable. In such event, the parties shall amend the Contract as necessary to reflect the original intent of the parties, and to bring any invalid or unenforceable provisions in compliance with applicable law.

15. Applicable Law--The Contract shall be governed by and construed in accordance with the laws of the State of Mississippi, excluding its conflicts of laws, provisions and, any litigation with respect thereto shall be brought in the courts of Mississippi.

16. Venue--The Contractor shall comply with applicable Federal, State and local laws and regulations. Any and all claims or causes of action arising out of or relating to this Contract shall lie exclusively in the proper State court in the First Judicial District of Hinds County, Mississippi, which shall be the exclusive forum and jurisdiction for any and all disputes.

17. Compliance with Equal Opportunity in Employment Policy--Contractor understands that the Authority is an equal opportunity employer and therefore, maintains a policy which prohibits unlawful discrimination based on race, color, creed, sex, age, national origin, physical handicap, disability, genetic information, or any other consideration made unlawful by Federal, State, or local laws. All such discrimination is unlawful, and Contractor agrees during the term of the agreement that Contractor will strictly adhere to this policy in its employment practices and provision of services.

18. Compliance with Law-- Contractor shall comply with, and all activities under this agreement shall be subject to, all applicable Federal, State, and local laws and regulations, as now existing and as may be amended or modified.

19. Representation Regarding Gratuities--Contractor represents that it has not, is not, and will not offer, give, or agree to give any employee or former employee of the Authority a gratuity or offer of employment in connection with any approval, disapproval, recommendation, development, or any other action or decision related to the solicitation and resulting Contract. Contractor further represents that no employee or former employee of the Authority has or is soliciting, demanding, accepting, or agreeing to accept a gratuity or offer of employment for the reasons previously stated; any such action by an employee or former employee in the future, if any, will be rejected by Contractor. Contractor further represents that it is in compliance with the Mississippi Ethics in Government laws, codified at Mississippi Code Annotated §§ 25-4-101 through 25-4-121, and has not solicited any employee or former employee to act in violation of said law.

20. Procurement Regulations--This Contract shall be governed by the applicable provisions of the Public Procurement Review Board Office of Personal Service Contract Review Rules and Regulations, a copy of which is available on the Mississippi Department of Finance and Administration’s website (www.dfa.ms.gov). Any bidder/offeror responding to a solicitation for personal and professional services and any contractor doing business with a State Agency is deemed to be on notice of all requirements therein.

21. Availability of Funds--It is expressly understood and agreed that the obligation of the Authority to proceed under this agreement is conditioned upon the appropriation of funds by the Mississippi State Legislature and the receipt of the appropriated funds. If the funds anticipated for the continuing time fulfillment of the agreement are, at any time, not forthcoming or insufficient, regardless of the source of funding, the Authority shall have the right upon 10 (ten) business days written notice to Contractor, to terminate this agreement without damage, penalty, cost or expense to the Authority of any kind whatsoever. The effective date of termination shall be as specified in the notice of termination.

22. Indemnification--To the fullest extent allowed by law, Contractor shall indemnify, defend, save and hold harmless, protect, and exonerate the Authority, it’s commissioners, board members, officers, employees, agents, and representatives, and the State of Mississippi from and against all claims, demands, liabilities, suits, actions damages, losses, and costs of every kinds and nature whatsoever including without limitation, court costs, investigative fees and expenses, and attorneys’ fees, arising out of or caused by Contractor and/or its partners, principals, agents, employees and/or Subcontractors in the performance of or failure to perform this Contract.

In the Authority’s sole discretion, upon approval of the Office of the Mississippi Attorney General and the Authority, Contractor may be allowed to control the defense of any such claims, suit, etc. In the event Contractor defends said claim, suit, etc., Contractor shall be solely responsible for all costs and/or expenses associated with such defense, and the Authority shall be entitled to participate in said defense. Contractor shall not settle any claim, suit, etc. without the concurrence of the Office of the Mississippi Attorney General and the Authority, which shall not be unreasonably withheld.

23. Entire Agreement--This Contract, including all Contract documents, represents the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations, or agreements, irrespective of whether written or oral. This Contract may be altered, amended, or modified only by a written document executed by the Authority and the Contractor. Contractor acknowledges that it has thoroughly read all Contract documents and has had the opportunity to receive competent advice and counsel necessary for it to form a full and complete understanding of all rights and obligations herein. Accordingly, this Contract shall not be construed or interpreted in favor of or against the Authority or the Contractor on the basis of draftsmanship or preparation hereof.

24. Oral Statements--No oral statement of any person shall modify or otherwise affect the terms, conditions, or specifications stated in this Contract. All modifications to the Contract shall be made in writing by the Authority and agreed by the Contractor, and approved by the Public Procurement Review Board, if required.

25. Third Party Action Notification--Contractor shall give the Authority prompt notice in writing of any action or suit filed, and prompt notice of any claim against the Contractor by any entity that may result in litigation related in any way to this Contract.

26. Independent Contractor Status--The Contractor shall, at all times, be regarded as and shall be legally considered an independent Contractor and shall at no time act as an agent for the Authority. Nothing contained herein shall be deemed or construed by the Authority, the Contractor, or any third party as creating the relationship of principal and agent, master and servant, partners, joint ventures, employer and employee, or any similar such relationship between the Authority and the Contractor. Neither the method of computation of fees or other charges, nor any other provision contained herein, nor any acts of the Authority or the Contractor hereunder, creates or shall be deemed to create a relationship other than the independent relationship of the Authority and the Contractor.

Contractor's personnel shall not be deemed in any way, directly or indirectly, expressly or by implication, to be employees of the Authority. Neither the Contractor nor its employees shall, under any circumstances, be considered servants, agents, or employees of the Authority; and the Authority shall be at no time legally responsible for any negligence or other wrongdoing by the Contractor, its servants, agents, or employees.

The Authority shall not withhold from the Contract payments to the Contractor any Federal or State unemployment taxes, Federal or State income taxes, Social Security tax, or any other amounts for benefits to the Contractor. Further, the Authority shall not provide to the Contractor any insurance coverage or other benefits, including Workers' Compensation, normally provided by the Authority for its employees.

27. Stop Work Order--The Authority may, by written order to Contractor at any time, require Contractor to stop all or any part of the work called for by this Contract. This order shall be for a period of time specified by the Authority. Upon receipt of such an order, Contractor shall forthwith comply with its terms and take all reasonable steps to minimize any further cost to the Authority. Upon expiration of the stop work order, Contractor shall resume providing the services which were subject to the stop work order, unless the Authority has terminated that part of the agreement or terminated the agreement in its entirety. The Authority is not liable for payment for services which were not rendered due to the stop work order.

28. Representation Regarding Contingent Fee--By executing the Contract the Contractor represents that it has not retained any person or Agency on a percentage, commission, or other contingent arrangement to secure this Contract. If the Contractor cannot make such a representation, a full and complete explanation shall be submitted in writing to the Authority prior to Contract execution.

29. E-Payment--Contractor agrees to accept all payments in United States currency via the State of Mississippi’s electronic payment and remittance vehicle. The Authority agrees to make payment in accordance with Mississippi “Timely Payments for Purchases by Public Bodies” laws, which generally provide for payment of undisputed amounts by the Authority within 45 (forty-five) calendar days of receipt of invoice. Mississippi Code Annotated § 31-7-301, et seq.

30. Paymode--Payments by the Authority using State’s accounting system shall be made and remittance information provided electronically as directed by the State and deposited into the bank account of Contractor’s choice. The Authority may, at its sole discretion, require Contractor to electronically submit invoices and supporting documentation at any time during the term of this Agreement. Contractor understands and agrees that the Authority is exempt from the payment of Mississippi taxes. All payments shall be in United States currency.

31. E-Verification--If applicable, Contractor represents and warrants that it will ensure its compliance with the Mississippi Employment Protection Act and will register and participate in the status verification system for all newly hired employees. Mississippi Code Annotated §§ 71-11-1 and 71-11-3. Contractor agrees to provide a copy of each verification upon request of the Authority subject to approval by any agencies of the United States Government. Contractor further represents and warrants that any person assigned to perform services hereafter meets the employment eligibility requirements of all immigration laws.

The breach of this clause may subject Contractor to the following:

(1) termination of this Contract and exclusion pursuant to Chapter 15 of the Public Procurement Review

Board Office of Personal Service Contract Review Rules and Regulations;

(2) the loss of any license, permit, certification or other document granted to Contractor by an Agency, department, or governmental entity for the right to do business in Mississippi; or

(3) both. In the event of such termination, Contractor would also be liable for any additional costs incurred by the Authority due to Contract cancellation or loss of license or permit to do business in the State.

32. Approval--It is understood that if this Contract requires approval by the Public Procurement Review Board

(“PPRB”) and/or the Department of Finance and Administration Office of Personal Service Contract Review (“OPSCR”), and this Contract is not approved by PPRB and/or OPSCR, it is void and no payment shall be made hereunder.

33. No Limitation of Liability--Nothing in this agreement shall be interpreted as excluding or limiting any liability of the Contractor for harm arising out of the Contractor’s or its Subcontractors’ performance under this agreement.

34. Property Rights--Property rights do not inure to Contractor until such time as services have been provided under a legally executed Contract. Contractor has no legitimate claim of entitlement to the provision of work hereunder and acknowledges that the Authority may terminate this Contract at any time for its own convenience.

35. Required Public Records and Transparency--Upon execution of a Contract, the provisions of the Contract which contain the personal or professional services provided, the unit prices, the overall price to be paid, and the term of the Contract shall not be deemed to be a trade secret or confidential commercial or financial information pursuant to Mississippi Code Annotated § 25-61-9(7). The Contract shall be posted publicly on www.transparency.ms.gov and shall be available for at the Authority for examination, inspection, or reproduction by the public. The Contractor acknowledges and agrees that the Authority and this Contract are subject to the Mississippi Public Records Act of 1983 codified at Mississippi Code Annotated §§ 25-61-1, et seq.

and its exceptions, Mississippi Code Annotated § 79-23-1, and the Mississippi Accountability and Transparency Act of 2008, codified at Mississippi Code Annotated §§ 27-104-151, et seq.

36. Federal Funds Availability--It is expressly understood and agreed that the obligation of the Authority to proceed under this agreement is contingent upon the receipt of federal funds awarded to the Authority. If the federal funds anticipated for the continuing fulfillment of the agreement are, at any time, not forthcoming or insufficient, the Authority shall have the right upon 10 (ten) business days written notice to the Contractor, to terminate this agreement without damage, penalty, cost or expense to the Authority of any kind whatsoever. The effective date of termination shall be as specified in the notice of termination.

37. Insurance requirements-- Contractor represents that it will maintain workers’ compensation insurance in compliance with Mississippi law which shall inure to the benefit of all Contractor’s personnel provided hereunder, comprehensive general liability or professional liability insurance with minimum limits of [$Amount] per occurrence, and fidelity bond insurance with minimum limits of [$Amount] as seen in Exhibit F. All general liability, professional liability, and fidelity bond insurance will provide coverage to the Mississippi Development Authority as an additional insured. The Mississippi Development Authority reserves the right to request from carriers, certificates of insurance regarding the required coverage. Insurance carriers shall be licensed or hold a Certificate of Authority from the Mississippi Department of Insurance.