Exhibit D - Sample Contract

Commodities Contract – 7-22-2020 Page 1 of 20

STATE OF GEORGIA

DEPARTMENT OF TRANSPORTATION

OPEN AGENCY COMMODITIES CONTRACT

eRFX #: 48400-DOT0002204 RFQ Name: Light Weight Aggregates

Contract Number: 48400-410-DOT0002204-00X O.C.G.A. Title #: 32

SECTION I GENERAL PROVISIONS:

ARTICLE #101 - CONTRACT BETWEEN:

This Commodities Contract (hereinafter referred to as “Contract”) is made and entered into as of _______________________ (hereinafter referred to as “Effective Date”) by and between the Georgia Department of Transportation, an agency of the State of Georgia, (hereinafter referred to as “GDOT” or the “Department”) located at One Georgia Center, 600 West Peachtree Street, Northwest, Atlanta, Georgia 30308;

AND

CLICK HERE TO ENTER Contractor Name – EXACTLY as listed on SOS CLICK HERE TO ENTER Contractor Address

CLICK HERE TO ENTER Contractor City, State Zip an entity that is qualified to do business in the State of Georgia (hereinafter referred to as the “Contractor”) (The

Department and the Contractor are sometimes referred to herein individually as a “Party” and collectively as the

“Parties”).

Nothing contained in this Contract shall be construed to convert the Contractor or any of its employees, agents, sub-contractors, or sub-subcontractors into a partner, employee, or agent of the Department. Nor shall either party to this

Contract have any authority to bind the other in any respect.

WHEREAS, the Contractor represents that it complies with the State of Georgia requirements for corporations, if applicable, and has signified a willingness to furnish Light Weight Aggregate to the Department and the Department has relied on such representation; and

WHEREAS, the Parties hereto desire to enter into an Contract which sets forth the nature of the Commodities the

Contractor is qualified to provide and terms and conditions associated therewith.

WHEREAS, the Commodities employed in the contract were solicited under the Light Wight Aggregates and Solicitation

#,48400-DOT0002166, herein after referred to as the Solicitation.

NOW, THEREFORE, THE PARTIES HERETO, in consideration of the mutual promises made as hereinafter expressed and contained, or attached and incorporated and made a part hereof, and of the benefits to flow from one to the other, do hereby agree each with the other as follows:

RFQ #48400-DOT0002204-00X

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ARTICLE #102 DEPARTMENT AND CONTRACTOR CONTACT INFORMATION:

The telephone numbers, contact persons, and mailing addresses listed below for the Department’s and the

Contractor’s representatives may be changed during the term of this Contract by written notification to the other

Party. Notices given pursuant to this Contract shall be in writing and shall be to the Department or Contractor by delivering them to the Party in person or by depositing it in the U.S. mail postage prepaid, addressed to the Parties as follows.

A. The Department's mailing address and telephone number for correspondence, reports, and other matters relative to this contract, except as otherwise indicated, are:

Department’s Project Manager: Department’s Contract Administrator:

Department of Transportation Department of Transportation Office of State Maintenance Office of Operational Purchasing Attn: Mary Taylor Attn: Eric Glaubman 600 West Peachtree Street, N.W. 600 West Peachtree Street, N.W.

Atlanta, GA 30308 Atlanta, GA 30308 Phone: 404-631-1388 Phone: 404-532-0071 E-mail: MTaylor@dot.ga.gov E-mail: EGlaubman@dot.ga.gov

B. The Contractor's mailing address and telephone number for correspondence, reports, and other matters relative to this Contract are:

Click here to enter text Attn: Click here to enter text Click here to enter text Click here to enter text Phone: Click here to enter text E-mail: NAME@COMPANY

C. Email is an acceptable form of notice.

ARTICLE #103 - DURATION OF CONTRACT:

A. Initial Contract Term. This Contract is effective as of the date written in ARTICLE #101 above and shall terminate one (1) year from the date written therein, unless renewed pursuant to ARTICLE #103.B Contract Renewal, Contract Renewal or terminated earlier under ARTICLE #116 TERMINATION of this Contract, in accordance with the applicable terms and conditions. Pursuant to O.C.G.A. Section 50-5-64, this Contract shall not be deemed to create a debt of the State for the payment of any sum beyond the fiscal year of execution or, in the event of a renewal, beyond the fiscal year of such renewal.

B. Contract Renewal. The Department shall have the option, in its sole discretion, to renew the Contract for four

(4) one (1) year options so long as price, terms and conditions remain the same unless contract allows for an escalation clause. The renewal is granted by giving the Contractor written notice of the renewal decision at least one hundred twenty (120) days prior to the expiration of the initial term or renewal term. Renewal will depend upon the best interests of the State, funding, and Contractor's performance. Renewal will be accomplished through the issuance of a Contract Renewal Form that must be evidenced in writing by both parties. The Department does not accept or acknowledge automatic renewals.

1. If both parties agree, this Contract may be renewed for additional terms up to a maximum of four (4) renewals, so long as price, terms and conditions remain the same. Renewal terms may be up to (12) twelve months per renewal period. Contract to renew must be evidenced in writing by both parties.

C. Contract Extension. In the event that this Contract shall terminate or be likely to terminate prior to the making of an award for a new Contract for the identified goods, the Department may, with the written consent of Contractor, extend this Contract for such period as may be necessary to afford the Department a continuous supply of the identified goods.

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ARTICLE #104 - DESCRIPTION OF GOODS/COMMODITIES:

A. Specifications in Bidding Documents. The Contractor shall provide all goods required in the Solicitation that comply with the specifications (Exhibit A) contained in the Solicitation and the terms of the Contract, plus those goods and deliverables as may additionally be described in the Contractor’s Response (Exhibit B).

B. Product Shipment and Delivery. WHEN SHIPPING IS INCLUDED IN COST All commodities shall be shipped F.O.B. destination. Destination shall be the location(s) specified in the eRFX or any provided Purchase Instrument. All items shall be at the Contractor’s risk until they have been delivered and accepted by the receiving Department. All items shall be subject to inspection on delivery.

Hidden damage will remain the responsibility of the Contractor to remedy without cost to the Department, regardless of when the hidden damage is discovered. The Department reserves the right to pick up from the Contractor’s location orders instead of shipping.

C. Non-Exclusive Rights. The Contract is not exclusive. The Department reserves the right to select other contractors to provide good similar to goods described in the Contract during the term of the Contract.

D. No Minimums Guaranteed. The Contract does not guarantee any minimum level of purchases.

ARTICLE #105 COMPENSATION:

A. This is an Open Agency Contract, with no guaranteed minimum or maximum amounts, to purchase light weight aggregates for use by Districts. The department will pay the Contractor as invoiced based on the completion of the milestone(s) below:

Item # QPL Item Description QTY UOM Price

1 Course Aggregate, #9 Stone 1 TON

2 Course Aggregate, #7 Stone 1 TON

3 Course Aggregate, #89 Stone 1 TON

Payments will be made to the Contractor after acceptance of the Contractor’s goods by the Department and after receipt of undisputed invoice to the Department.

B. The price quoted and listed shall be firm throughout the term of this Contract.

C. It is understood that this bid is made without prior understanding, agreement, or connection with any corporation, firm or person submitting a bid for same materials, supplies, or equipment, and is in all respects fair and without collusion or fraud, that collusive bidding is a violation of state and federal law and can result in fines, prison sentences, and civil damage awards.

D. Contract Year Pricing

1. Initial Contract Year Pricing- Firm Fixed Price

The Contractor will be paid for the goods sold pursuant to the Contract in accordance with the prices quoted and listed on the Contractor’s Solicitation Response, EXHIBIT B, and final pricing documents as incorporated into the Open Agency Contract and the terms of the Contract. Unless clearly stated otherwise in the Contract, all prices are firm and fixed and are not subject to variation. Prices shall be fixed-price based on the Contractor’s current, dated, published catalog or price list. Prices are to include, but are not limited to freight, insurance, fuel surcharges and customs duties.

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2. Renewal/Option Contract Year Pricing – Firm Fixed Price with Economic Price Adjustment

The de-escalation/escalation clause may permit but not obligate the Department to consider an economic price decrease/increase adjustment. Unit prices may be adjusted for each renewal period in accordance with changes in the index. The price(s) listed in the Contract shall be firm for the first year. A decrease or increase in price will be determined based upon The U. S. Government’s Bureau of Labor

Statistics, Producer Price Index (PPI) using Index Series Id: _ PCU32799232799204_ (not seasonally adjusted) 12-month percentage for (Treated lightweight aggregate and crushed slag, minerals and earths, not seasonally adjusted). The 12-month percentage change shall be calculated based upon the month of the date of the request. The burden of proof will be upon the contractor to substantiate the need for a price escalation. The Department reserves the right to approve or deny any requests for price escalation. Requests for price escalation should be submitted in writing, at least one hundred and twenty (120) days prior to the expiration of the contract. Consideration for Index used in the adjustment calculation will be based on final data only.

ARTICLE #106 DEPARTMENT PAYMENT TO CONTRACTOR:

A. The Department will issue a Purchase Order (PO) that will serve as the Contractor’s Notice to Proceed (NTP) (hereinafter referred to as “PO/NTP”). The terms of this Contract shall be incorporated by reference into any and all PO/NTP for Commodities issued prior to the expiration or termination of this Contract. The PO will be issued by electronic mail (e-mail). A PO/NTP is considered “issued” when the e-mail is sent.

The Contractor shall not ship any goods until authorized in writing by the Department through a PO/NTP, which shall provide an effective date for the shipment(s). Any work, including but not limited to travel, preliminary meetings, planning, etc., performed outside of the terms and conditions of and before the issuance of the PO/NTP will not be considered for payment.

The Scope of Work shall remain in effect from Notice to Proceed. In no instance shall any shipments be authorized beyond this scope unless specifically authorized in writing as evidenced by a time extension letter or as otherwise authorized by the Department. No shipments of goods shall be authorized or payment made for work performed beyond the termination date of this Contract.

B. Invoice/Payment. Contractor shall be allowed to invoice the Department only after the goods are provided, inspected and accepted. Receipt of the goods does not constitute acceptance. Invoices are to be dated no earlier than the date of acceptance. Invoices are not to exceed the Contractor’s pricing quoted in the Solicitation as referenced in Exhibit B and Exhibit C unless a Contract amendment has been fully executed to reflect a change in pricing. An invoice must contain proper Contractor’s remit to address, description of goods provided, correct invoice amount, Contract number and the associated purchase order number issued. Contractor should provide to the GDOT their correct payment remit to address on the Contractor’s response form. The Department shall pay all approved invoices in accordance with applicable provisions of Georgia State law. The Department will pay the Contractor upon receipt of properly prepared invoice at the “Bill To” address in the purchase order. Contractor should always include the Contract Number on invoices Standard payment terms are net 30 days (N30) from the date of the invoice issued, after the commodities are accepted.

Unless otherwise agreed in writing by the parties, the Contractor shall not be entitled to receive any other payment or compensation from the Department for any commodities provided by or on behalf of the Contractor under the Contract. The Contractor shall be solely responsible for paying all costs, expenses and charges it incurs in connection with its performance under the Contract.

C. In the event it appears to the Department that the Contractor is failing to substantially comply with the quality of commodities or the specified completion schedule of its' duties under this Contract, the Department Contract Administrator shall provide written notice thereof to the Contractor. The notice must identify specific incidents or circumstances comprising the conditions complained of. As soon as practicable after the receipt of said notice, the appropriate representatives of both parties shall meet to discuss the conditions complained of. In the event such conditions are not thereafter corrected, then the Department reserves the right to withhold Contract payment.

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D. Delay of Payment Due to Contractor’s Failure. If the Department in good faith determines that the Contractor has failed to perform or deliver any commodities as required by the Contract, the Contractor shall not be entitled to any compensation under the Contract until such commodities is delivered, and accepted. In this event, the Department may withhold that portion of the Contractor’s compensation, which represents payment for commodities that were not delivered. To the extent that the Contractor’s failure to perform or deliver in a timely manner causes the Department to incur costs, the Department may deduct the amount of such incurred costs from any amounts payable to Contractor. The Department’s authority to deduct such incurred costs shall not in any way affect the Department’s authority to terminate the Contract.

E. Set-Off Against Sums Owed by the Contractor. In the event that the Contractor owes the Department and/or the State any sum under the terms of the Contract, pursuant to any judgment, or pursuant to any law, the Department and/or the State may set off the sum owed to the Department and/or the State against any sum owed by the Department and/or the State to the Contractor in the Department's sole discretion.

ARTICLE #107 - CONTRACTOR AND DEPARTMENT RIGHTS AND OBLIGATIONS:

A. The Department will have the right at any time to require the Contractor to put an immediate stop to any procedure, or the use of any equipment (chemical, material, etc., if applicable) considered by the Department to be hazardous (or toxic) to persons, buildings, or surfaces. The Contractor will utilize acceptable substitutes as quickly as possible.

B. The Department has the right to require the Contractor to remove any employee from the premises temporarily or permanently when in the Departments sole opinion the employee is not suitable. The Contractor will remove this employee immediately and replace as quickly as possible.

C. Contractor hereby expressly agrees to assume all risk of loss or damage to any Department equipment or other property in the care, custody, and control of Contractor's personnel. Contractor further agrees that equipment transported by Contractor personnel in a vehicle belonging to Contractor (including any vehicle rented or leased by Contractor or Contractor's personnel) shall be deemed to be in the sole care, custody, and control of Contractor's personnel while being transported.

D. Contractor agrees to obtain Department approval for the use of subcontractors to deliver the commodities described prior to subcontractor’s performance of work. Upon approval from the Department to use a subcontractor, the Contractor specifically agrees to be fully responsible for the performance of any subcontractor or other designee, for any and all provisions of this contract. The Contractor will ensure that the subcontractor both understands and abides by all applicable provisions of the contract and regulations. No subcontract which Contractor enters into with respect to performance of obligations or work assigned under the Contract shall in any way relieve Contractor of any responsibility, obligation, or liability under this Contract and for the acts and omissions of all subcontractors, agents, and/or its employees. All restrictions, obligations and responsibilities of the Contractor under the Contract shall also apply to the subcontractors. Any contract with a subcontractor must also preserve the rights of the Department in full. The Department shall have the right to request the removal of a subcontractor from the Contract.

E. Contractor shall pay the subcontractor for satisfactory performance of work in accordance to the “Georgia Prompt Pay Act”, sections 13-11-1 through 13-11-11 of the Official Code of Georgia Annotated.

F. Contractor hereby waives, releases, relinquishes, discharges and agrees to indemnify, protect, save harmless, the State of Georgia (including the State Tort Claims Trust Fund and other self-insured funds) and all of it's State entities, and all respective officers, employees, directors and agents of and from any and all claims, demands, liabilities, losses, costs or expenses for any loss including but not limited to bodily injury (including death), personal injury, property damage, expenses, and attorney's fees, caused by, growing out of, or otherwise happening in connection with this contract, due to any act or omission (whether intentional or negligent) on the part of the contractor, it's agents, employees or others working at the direction of contractor, or on its behalf or due to any breach of this Contract by the Contractor, or due to the application or violation of any pertinent Federal, State or local law, rule or regulation by the contractor. This indemnification applies whether: (a) the activities involve third parties or employees or agents of the contractor or of the Department; (b) the State is partially responsible for the situation giving rise to the claim; provided, however, this indemnification does not apply to the extent of the sole negligence of the State of Georgia and its officers or employees. This indemnification extends to the successors and assigns of the contractor, and this indemnification survives the termination of the Contract and the dissolution or, to the extent allowed by law, the bankruptcy of the contractor. If and to the extent such damage or loss as

Commodities Contract – 7-22-2020 Page 6 of 20 covered by this indemnification is covered by the State Tort Claims Fund (the "Fund") established and maintained by the State of Georgia Department of Administrative Services (DOAS), the contractor agrees to reimburse the Fund for such monies paid out by the Fund. To the full extent permitted by the Constitution and the laws of the State of Georgia and the terms of the Fund, the contractor and its insurers waive any right of subrogation against the State of Georgia, its officers, employees and agents, the Fund and insurers participating thereunder, to the full extent of this indemnification.

ARTICLE #108 - INSURANCE:

A. Insurance Requirements: The Contractor shall procure and maintain insurance policies at the contractor's own expense and shall furnish the Department an insurance certificate listing the Department as the certificate holder and as an additional insured. The policy shall protect the Contractor and the Georgia Department of Transportation (as an additional insured) from any claims for bodily injury, property damage, or personal injury covered by the indemnification obligations set forth herein throughout the duration of the contract. The Contractor shall maintain the following insurance coverage during the term of the Contract, in at least the minimum amounts set forth below, to cover all loss and liability for damages on account of bodily injury, including death therefrom, and injury to or destruction of property caused by or arising from any and all Services carried on and any and all work performed by the Contractor pursuant to this Contract:

a) Workers Compensation Insurance (Occurrence) in the amounts of the statutory limits established by the General Assembly of the State of Georgia (A self-insurer must submit a certificate from the Georgia Board of Workers Compensation stating that the contractor qualifies to pay its own workers compensation claims.) In addition, the contractor shall require all subcontractors occupying the premises or performing work under the Contract to obtain an insurance certificate showing proof of Workers Compensation Coverage with the following minimum coverage:

(1) Bodily injury by accident - per employee $100,000;

(2) Bodily injury by disease - per employee $100,000;

(3) Bodily injury by disease – policy limit $500,000.

b) Commercial General Liability Policy with at least the following minimum coverage:

(1) Each Occurrence Limit $1,000,000

(2) Personal & Advertising Injury Limit $1,000,000

(3) General Aggregate Limit $3,000,000

(4) Products/Completed Ops. Aggregate Limit $2,000,000

c) Automobile Liability with at least the minimum coverage:

(1) Combined Single Limit $1,000,000 to cover vehicles, owned, leased or rented by the Contractor.

The Contractor shall require its sub-contractors to maintain Commercial General Liability insurance with business automobile liability coverage with companies and limits as stated above. GDOT shall be named as an additional insured and a copy of the policy endorsement shall be provided with the insurance certificate.

B. Insurance Certificates and General Requirements:

Certificates must reference the Contract number. No Contract performance shall occur unless and until the required insurance certificates are provided. The insurance certificate must document that the liability coverage purchased by the contractor includes contractual liability coverage to insure the indemnity agreement as stated in herein. In addition, the insurance certificate must provide the following information:

1. Name, address, signature and telephone number of authorized agents.

2. Name and address of insured.

3. Name of Insurance Company.

4. Description of coverage in standard terminology.

5. Policy number, policy period and limits of liability.

6. Name and address of State Agency as certificate holder.

7. Thirty (30) day notice of cancellation.

8. Details of any special policy exclusions.

C. Excess liability coverage may be used in combination with the base policy to obtain these limits.

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D. The foregoing policies shall contain a provision that coverage afforded under the policies will not be canceled, or not renewed or allowed to lapse for any reason until at least thirty (30) days prior written notice has been given to GDOT. Certificates of Insurance showing such coverage to be in force shall be filed with GDOT prior to commencement of any work under the contract. The foregoing policies shall be obtained from insurance companies licensed to do business in Georgia and shall be with companies acceptable to GDOT, which must have a minimum A.M. Best rating of A-. All such coverage shall remain in full force and effect during the term and any renewal or extension thereof. The insurance certificate must be submitted with this commodities contract.

ARTICLE #109 - BONDS:

NOT APPLICABLE

ARTICLE #110 WARRANTIES:

A. Construction of Warranties Expressed in the Contract with Warranties Implied by Law.

All warranties made by the Contractor and/or subcontractors in all provisions of the Contract and the Contractor’s Response, whether or not the Contract specifically denominates the Contractor’s and/or subcontractors’ promise as a warranty or whether the warranty is created only by the Contractor’s affirmation or promise, or is created by a description of the Commodities to be provided, or by provision of samples to the State shall not be construed as limiting or negating any warranty provided by law, including without limitation, warranties which arise through course of dealing or usage of trade, the warranty of merchantability, and the warranty of fitness for a particular purpose. The warranties expressed in the Contract are intended to modify the warranties implied by law only to the extent that they expand the warranties applicable to the Commodities provided by the Contractor. The provisions of this section apply during the term of the Contract and any extensions or renewals thereof.

B. Warranty – Nonconforming Goods

All Commodities delivered and any services performed by Contractor to the Department shall be free from any defects in design, material, or workmanship. If any Commodities offered and any services performed by the Contractor are found to be defective in material or workmanship, or do not conform to Contractor’s warranty, the Department shall have the option of returning, repairing, or replacing the defective goods at Contractor’s expense.

Payment for any goods shall not constitute acceptance. Acceptance by the Department shall not relieve the Contractor of its warranty or any other obligation under the Contract.

C. Compliance with Federal Safety Acts.

Contractor warrants and guarantees to the State that the Commodities provided under the Contract are in compliance with Sections 5 and 12 of the Federal Trade Commission Act; the Fair Packaging and Labeling Act;

the Federal Food, Drug, and Cosmetic Act; the Consumer Product Safety Act; the Federal Environmental Pesticide Control Act; the Federal Hazardous Substances Act; the Fair Labor Standards Act; the Wool Commodities Labeling Act; the Flammable Fabrics Act; the Occupational Safety and Health Act; the Office of Management and Budget A-110 Appendix A; and the Anti-Kickback Act of 1986.

D. Originality and Title to Concepts, Materials, and Goods Produced.

Contractor represents and warrants that all the concepts, materials, goods and Services produced, or provided to the State pursuant to the terms of the Contract shall be wholly original with the Contractor or that the Contractor has secured all applicable interests, rights, licenses, permits or other intellectual property rights in such concepts, materials and works. The Contractor represents and warrants that the concepts, materials, goods and Services and the State’s use of same and the exercise by the State of the rights granted by the Contract shall not infringe upon any other work, other than material provided by the Contract to the Contractor to be used as a basis for such materials, or violate the rights of publicity or privacy of, or constitute a libel or slander against, any person, firm or corporation and that the concepts, materials and works will not infringe upon the copyright, trademark, trade name, trade dress patent, literary, dramatic, statutory, common law or any other rights of any person, firm or corporation or other entity. The Contractor represents and warrants that it is the owner of or otherwise has the right to use and distribute the goods and Services contemplated by the Contract.

E. Conformity with Contractual Requirements.

The Contractor represents and warrants that the Commodities provided in accordance with the Contract will appear and operate in conformance with the terms and conditions of the Contract.

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F. Obligations Owed to Third Parties.

The Contractor represents and warrants that all obligations owed to third parties with respect to the activities contemplated to be undertaken by the Contractor pursuant to the Contract are or will be fully satisfied by the Contractor so that the State and the Department will not have any obligations with respect thereto.

G. Title to Property

The Contractor represents and warrants that title to any property assigned, conveyed or licensed to the State is good and that transfer of title or license to the State is rightful and that all property shall be delivered free of any security interest or other lien or encumbrance. Title to any supplies, materials, or equipment shall remain in the Contractor until fully paid for by the Department. Except as otherwise expressly authorized by the Department, all materials produced by Contractor personnel in performance of this contract, including but not limited to software, charts, graphs, diagrams, video tapes and other project documentation, shall be deemed to be work made for hire and shall be the property of the State of Georgia.

H. Industry Standards

The Contractor represents and expressly warrants that all aspects of the Commodities provided or used by it shall at a minimum conform to the standards in the Contractor’s industry. This requirement shall be in addition to any express warranties, representations, and specifications included in the Contract, which shall take precedence.

I. Contractor’s Personnel and Staffing.

Contractor warrants that all persons assigned to perform Services under this Contract are either lawful employees of Contractor or lawful employees of a subcontractor authorized by the Department as specified in the Solicitation.

All persons assigned to perform Services under this Contract shall be qualified to perform such Services.

Personnel assigned by Contractor shall have all professional licenses required to perform the Services.

J. Criminal Background Investigation

Department requires that a criminal background investigation be made of any and all Contractor personnel utilized to provide Services to the State. Contractor represents and warrants that Contractor shall refrain from assigning personnel to any task under this Contract if such investigation reveals a disregard for the law or other background that indicates an unacceptable security risk as determined by the State. The Contractor’s employees, agents and subcontractors may be granted access to state computers, hardware, software, programs and/or information technology infrastructure or operations to the extent necessary to carry out the Contractor's responsibilities under the Contract. Such access may be terminated at the sole discretion of the State. The Contractor shall provide immediate notice to Department of any employees, agents and/or subcontractors suspected of abusing or misusing such access privilege. The Contractor represents and warrants that Contractor shall provide notice to Department of the changed status of any employee, agent or subcontractor granted access to state computers, hardware, software, programs and/or information technology infrastructure or operations, including, but not limited to, termination or change of the position or Contract relationship.

K. Vehicles

Contractor warrants that no State vehicles will be used by Contractor for the performance of this Contract.

Contractor shall be responsible for providing transportation necessary to deliver all commodities.

ARTICLE #111 – ORDER OF PREFERENCE AND BID DOCUMENTATION

A. Order of Precedence In the case of any inconsistency or conflict among the specific provisions of the Contract(including any amendments accepted by both the Department and the Contractor attached hereto), the Solicitation (including any subsequent addenda and written responses to bidders’ questions), and the Contractor’s Response, any inconsistency or conflict shall be resolved as follows:

1. First, by giving precedence to the specific provisions of the Contract.

2. Second, by giving precedence to the specific provisions of the Solicitation.

3. Third, by giving precedence to the specific provisions of the Contractor’s Response, except that objections or amendments by a Contractor that have not been explicitly accepted by the Department in writing shall not be included in this Contract and shall be given no weight or consideration.

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B. Intent of References to Bid Documents. The references to the parties' obligations, which are contained in this document, are intended to supplement or clarify the obligations as stated in the Solicitation and the Contractor’s Response. The failure of the parties to make reference to the terms of the Solicitation or the Contractor’s Response in this document shall not be construed as creating a conflict and will not relieve the Contractor of the contractual obligations imposed by the terms of the Solicitation and the Contractor’s Response. The contractual obligations of the Department cannot be implied from the Contractor’s Response.

ARTICLE #112 DRUG-FREE WORKPLACE:

A. If Contractor is an individual, he or she hereby certifies that he or she will not engage in the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana during the performance of this Contract.

B. If Contractor is an entity other than an individual, it hereby certifies that:

1. A drug-free workplace, as provided in O.C.G.A. Section 50-24-1 et seq., throughout the duration of this Contract, will be provided for the Contractor's employees during the performance of this contract; and

2. It will secure from any subcontractor hired to work in a drug-free workplace the following written certification:

"As a part of the subcontracting agreement with (contractor's name, subcontractor's name) certifies to the contractor that a drug-free workplace will be provided for the subcontractors employees during the performance of this Contract pursuant to Paragraph 7 of subsection B of Code Section 50-24-3.

C. Contractor may be suspended, terminated, or debarred if it is determined that:

1. The Contractor has made false certification hereinabove; or

2. The Contractor has violated such certification by failure to carry out the requirements of Official Code of Georgia Section 50-24-3(b).

ARTICLE #113 BOYCOTT OF ISRAEL

A. Pursuant to O.C.G.A. Sec. 50-5-85, Contractor hereby certifies that it is not currently engaged in, and agrees that for the duration of this contract, it will not engage in a boycott of Israel.

ARTICLE #114 CONTRACT SHIPMENT AND SCHEDULE:

A. The Contract Commodities will be as described in the Specifications, EXHIBIT A.

B. The Contractor shall not ship any other items not listed on the Specifications, EXHIBIT A attached hereto as a part of any order made pursuant to this Contract.

ARTICLE #115 CONTRACT MODIFICATION OR ALTERATION:

A. If during the period of this Contract the Department is impacted with new requirements due to changes in state or federal regulations or organizational changes, the Department reserves the right to renegotiate with Contractor if increase or decrease of commodities is affected. The circumstances and specific Contract changes will be stated in writing by the Department Contract Administrator to the Contractor's Agent designated in ARTICLE 102B.

B. If during the period of the Contract the Contractor makes a survey or otherwise prescribes modifications or improvements, he should recommend in writing the proposed modifications, if any, to the Department Contract Administrator designated in ARTICLE 102A.

C. No changes, modifications or alterations of this Contract will be valid or effective unless made in writing and signed by both parties and affixed to this Contract as an amendment indicating appropriate information and properly executed.

D. Amendments The Contract may be amended in writing from time to time by mutual consent of the parties. All amendments to the Contract must be in writing and fully executed by duly authorized representatives of the Department and the Contractor.

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E. Parties' Duty to Provide Notice of Intent to Litigate and Right to Demand Mediation In addition to any dispute resolution procedures otherwise required under this Contract or any informal negotiations which may occur between the parties, no civil action with respect to any dispute, claim or controversy arising out of or relating to this Contract may be commenced without first giving fourteen (14) calendar days written notice to the other party of the claim and the intent to initiate a civil action. At any time prior to the commencement of a civil action, either party may elect to submit the matter for mediation. Either party may exercise the right to submit the matter for mediation by providing the other party with a written demand for mediation setting forth the subject of the dispute. The parties will cooperate with one another in selecting a mediator and in scheduling the mediation proceedings. Venue for the mediation will be in Atlanta, Georgia; provided, however, that any or all mediation proceedings may be conducted by teleconference with the consent of the mediator. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs;

provided, however that the cost to Department shall not exceed five thousand dollars ($5,000.00).

All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or employees of any mediation service, are inadmissible for any purpose (including but not limited to impeachment) in any litigation or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Inadmissibility notwithstanding, all written documents shall nevertheless be subject to the Georgia Open Records Act O.C.G.A.

Section 50-18-70 et seq.

No party may commence a civil action with respect to the matters submitted to mediation until after the completion of the initial mediation session, forty-five (45) calendar days after the date of filing the written request for mediation with the mediator or mediation service, or sixty (60) calendar days after the delivery of the written demand for mediation, whichever occurs first. Mediation may continue after the commencement of a civil action, if the parties so desire.

ARTICLE #116 TERMINATION PROVISIONS:

A. Termination for Convenience. Following thirty (30) days’ written notice, the Department may terminate the Contract in whole or in part for any reason without the payment of any penalty or incurring any further obligation to the Contractor.

B. Immediate Termination. This Contract will terminate immediately and absolutely if the Department determines that adequate funds are de-appropriated such that the Department cannot fulfill its obligations under the Contract, which determination is at the Department's sole discretion and shall be conclusive. Further, the Department may terminate the Contract for any one or more of the following reasons effective immediately without advance notice:

1. In the event the Contractor is required to be certified or licensed as a condition precedent to providing goods, the revocation or loss of such license or certification may result in immediate termination of the Contract effective as of the date on which the license or certification is no longer in effect;

2. The Department determines that the actions, or failure to act, of the Contractor, its agents, employees or subcontractors have caused, or reasonably could cause, life, health or safety to be jeopardized;

3. The Contractor furnished any statement, representation or certification in connection with the Contract or the bidding process which is materially false, deceptive, incorrect or incomplete.

4. This Contract may also be terminated immediately by the Department for non-performance of terms and conditions of Contract.

C. Termination for Cause. The occurrence of any one or more of the following events shall constitute cause for the Department to declare the Contractor in default of its obligations under the Contract:

1. The Contractor fails to deliver or has delivered nonconforming goods or fails to perform, to the Department’s satisfaction, any material requirement of the Contract or is in violation of a material provision of the Contract, including, but without limitation, the express warranties made by the Contractor;

2. The Department determines that satisfactory performance of the Contract is substantially endangered or that a default is likely to occur;

3. The Contractor fails to make substantial and timely progress toward performance of the Contract;

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4. The Contractor becomes subject to any bankruptcy or insolvency proceeding under federal or state law to the extent allowed by applicable federal or state law including bankruptcy laws; the Contractor terminates or suspends its business; or the Department reasonably believes that the Contractor has become insolvent or unable to pay its obligations as they accrue consistent with applicable federal or state law;

5. The Contractor has failed to comply with applicable federal, state and local laws, rules, ordinances, regulations and orders when performing within the scope of the Contract;

6. The Contractor has engaged in conduct that has or may expose the Department or the State to liability, as determined in the Department’s sole discretion; or

7. The Contractor has infringed any patent, trademark, copyright, trade dress or any other intellectual property rights of the Department, the State, or a third party.

D. Notice of Default. If there is a default event caused by the Contractor, the Department shall provide written notice to the Contractor requesting that the breach or noncompliance be remedied within the period of time specified in the Department’s written notice to the Contractor. If the breach or noncompliance is not remedied within the period of time specified in the written notice, the Department may:

a) Immediately terminate the Contract without additional written notice; and/or

b) Procure substitute goods from another source and charge the difference between the Contract and the substitute Contract to the defaulting Contractor; and/or, Enforce the terms and conditions of the Contract and seek any legal or equitable remedies.

E. Payment Limitation in Event of Termination. In the event of termination of the Contract for any reason by the Department, the Department shall pay only those amounts, if any, due and owing to the Contractor for services actually rendered up to and including the date of termination of the Contract and for which the Department is obligated to pay pursuant to the Contract or Purchase Instrument. Payment will be made only upon submission of invoices and proper proof of the Contractor’s claim. This provision in no way limits the remedies available to the Department under the Contract in the event of termination. The Department shall not be liable for any costs incurred by the Contractor in its performance of the Contract, including, but not limited to, startup costs, overhead or other costs associated with the performance of the Contract.

F. The Contractor’s Termination Duties. Upon receipt of notice of termination or upon request of the Department, the Contractor shall:

a) Cease work under the Contract and take all necessary or appropriate steps to limit disbursements and minimize costs, and furnish a report within thirty (30) days of the date of notice of termination, describing the status of all work under the Contract, including, without limitation, results accomplished, conclusions resulting therefrom, and any other matters the Department may require;

b) Immediately cease using and return to the Department, any personal property or materials, whether tangible or intangible, provided by the Department to the Contractor;

c) Comply with the Department’s instructions for the timely transfer of any active files and work product produced by the Contractor under the Contract;

d) Cooperate in good faith with the Department, its employees, agents and contractors during the transition period between the notification of termination and the substitution of any replacement contractor; and

e) Immediately return to the Department any payments made by the Department for commodities that were not delivered or services rendered by the Contractor.

ARTICLE #117 CONFIDENTIAL INFORMATION:

A. Access to Confidential Data. The Contractor’s employees, agents and subcontractors may have access to confidential data maintained by the State to the extent necessary to carry out the Contractor's responsibilities under the Contract. The Contractor shall presume that all information received pursuant to the Contract is confidential unless otherwise designated by the State. If it is reasonably likely the Contractor will have access to the State’s confidential information, then:

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1. The Contractor shall provide to the State a written description of the Contractor's policies and procedures to safeguard confidential information;

2. Policies of confidentiality shall address, as appropriate, information conveyed in verbal, written, and electronic formats;

3. The Contractor must designate one individual who shall remain the responsible authority in charge of all data collected, used, or disseminated by the Contractor in connection with the performance of the Contract;

and

4. The Contractor shall provide adequate supervision and training to its agents, employees and subcontractors to ensure compliance with the terms of the Contract.

B. The private or confidential data shall remain the property of the State at all times. Some Services performed for the Department may require the Contractor to sign a nondisclosure agreement. Contractor understands and agrees that refusal or failure to sign such a nondisclosure agreement, if required, may result in termination of the Contract.

C. No Dissemination of Confidential Data. No confidential data collected, maintained, or used in the course of performance of the Contract shall be disseminated except as authorized by law and with the written consent of the State, either during the period of the Contract or thereafter. Any data supplied to or created by the Contractor shall be considered the property of the State. The Contractor must return any and all data collected, maintained, created or used in the course of the performance of the Contract, in whatever form it is maintained, promptly at the request of the State.

D. Subpoena. In the event that a subpoena or other legal process is served upon the Contractor for records containing confidential information, the Contractor shall promptly notify the State and cooperate with the State in any lawful effort to protect the confidential information.

E. Reporting of Unauthorized Disclosure. The Contractor shall immediately report to the State any unauthorized disclosure of confidential information.

F. Survives Termination. The Contractor’s confidentiality obligation under the Contract shall survive termination of the Contract.

ARTICLE #118 - COMPLIANCE WITH STATUTES:

A. The Contractor, its employees, agents, and subcontractors shall comply with all applicable federal, state, and local laws, rules, ordinances, regulations and orders now or hereafter in effect when performing under the Contract, including without limitation, all laws applicable to the prevention of discrimination in employment and the use of targeted small businesses as subcontractors or contractors. The Contractor, its employees, agents and subcontractors shall also comply with all federal, state and local laws regarding business permits and licenses that may be required to carry out the work performed under the Contract. Contractor and Contractor's personnel shall also comply with all State and Department policies and standards in effect during the performance of the Contract, including but not limited to the Department’s policies and standards relating to personnel conduct, security, safety, confidentiality, and ethics. Further, the provisions of O.C.G.A. Section 45-10-20 et seq. have not and must not be violated under the terms of this Contract.

B. Choice of Law and Forum. The laws of the State of Georgia shall govern and determine all matters arising out of or in connection with this Contract without regard to the choice of law provisions of State law. In the event any proceeding of a quasi-judicial or judicial nature is commenced in connection with this Contract, such proceeding shall solely be brought in a court or other forum of competent jurisdiction within Fulton County, Georgia. This provision shall not be construed as waiving any immunity to suit or liability, including without limitation sovereign immunity, which may be available to the State.

ARTICLE #119 - CONTRACT ADMINISTRATION:

A. Not a Joint Venture. Nothing in the Contract shall be construed as creating or constituting the relationship of a partnership, joint venture, (or other association of any kind or agent and principal relationship) between the parties thereto. Each party shall be deemed to be an independent contractor contracting for goods and acting toward the mutual benefits expected to be derived hereto.

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B. Neither Contractor nor any of Contractor's agents, servants, employees, subcontractors or contractors shall become or be deemed to become agents, servants, or employees of the State. Contractor shall therefore be responsible for compliance with all laws, rules and regulations involving its employees and any subcontractors, including but not limited to employment of labor, hours of labor, health and…