Q17-03 Exhibits A-D.pdf

Wisconsin Department of Administration DOA-3054 (R10/2005) Chs. 16, 19, 51

Exhibit A Standard Terms And Conditions (Request For Bids / Proposals)

1.0 SPECIFICATIONS: The specifications in this request are

the minimum acceptable. When specific manufacturer and model numbers are used, they are to establish a design, type of construction, quality, functional capability and/or performance level desired. When alternates are bid/proposed, they must be identified by manufacturer, stock number, and such other information necessary to establish equivalency. The State of Wisconsin shall be the sole judge of equivalency. Bidders/proposers are cautioned to avoid bidding alternates to the specifications which may result in rejection of their bid/proposal.

2.0 DEVIATIONS AND EXCEPTIONS: Deviations and excep-

tions from original text, terms, conditions, or specifications shall be described fully, on the bidder's/proposer's letter-head, signed, and attached to the request. In the absence of such statement, the bid/proposal shall be accepted as in strict compliance with all terms, conditions, and specifica-tions and the bidders/proposers shall be held liable.

3.0 QUALITY: Unless otherwise indicated in the request, all

material shall be first quality. Items which are used, demonstrators, obsolete, seconds, or which have been discontinued are unacceptable without prior written approval by the State of Wisconsin.

4.0 QUANTITIES: The quantities shown on this request are

based on estimated needs. The state reserves the right to increase or decrease quantities to meet actual needs.

5.0 DELIVERY: Deliveries shall be F.O.B. destination freight

prepaid and included unless otherwise specified.

6.0 PRICING AND DISCOUNT: The State of Wisconsin quali-

fies for governmental discounts and its educational institu-tions also qualify for educational discounts. Unit prices shall reflect these discounts.

6.1 Unit prices shown on the bid/proposal or contract

shall be the price per unit of sale (e.g., gal., cs., doz., ea.) as stated on the request or contract. For any given item, the quantity multiplied by the unit price shall establish the extended price, the unit price shall govern in the bid/proposal evaluation and contract administration.

6.2 Prices established in continuing agreements and

term contracts may be lowered due to general market conditions, but prices shall not be subject to increase for ninety (90) calendar days from the date of award.

Any increase proposed shall be submitted to the contracting agency thirty (30) calendar days before the proposed effective date of the price increase, and shall be limited to fully documented cost increases to the contractor which are demonstrated to be indus-trywide. The conditions under which price increases may be granted shall be expressed in bid/proposal documents and contracts or agreements.

6.3 In determination of award, discounts for early

payment will only be considered when all other con-ditions are equal and when payment terms allow at least fifteen (15) days, providing the discount terms are deemed favorable. All payment terms must allow the option of net thirty (30).

7.0 UNFAIR SALES ACT: Prices quoted to the State of

Wisconsin are not governed by the Unfair Sales Act.

8.0 ACCEPTANCE-REJECTION: The State of Wisconsin

reserves the right to accept or reject any or all bids/proposals, to waive any technicality in any bid/proposal submitted, and to accept any part of a bid/proposal as deemed to be in the best interests of the State of Wisconsin.

Bids/proposals MUST be date and time stamped by the soliciting purchasing office on or before the date and time that the bid/proposal is due. Bids/proposals date and time stamped in another office will be rejected. Receipt of a bid/proposal by the mail system does not constitute receipt of a bid/proposal by the purchasing office.

9.0 METHOD OF AWARD: Award shall be made to the lowest

responsible, responsive bidder unless otherwise specified.

10.0 ORDERING: Purchase orders or releases via purchasing

cards shall be placed directly to the contractor by an authorized agency. No other purchase orders are authorized.

11.0 PAYMENT TERMS AND INVOICING: The State of

Wisconsin normally will pay properly submitted vendor invoices within thirty (30) days of receipt providing goods and/or services have been delivered, installed (if required), and accepted as specified.

Invoices presented for payment must be submitted in accordance with instructions contained on the purchase order including reference to purchase order number and submittal to the correct address for processing.

A good faith dispute creates an exception to prompt payment.

12.0 TAXES: The State of Wisconsin and its agencies are

exempt from payment of all federal tax and Wisconsin state and local taxes on its purchases except Wisconsin excise taxes as described below.

The State of Wisconsin, including all its agencies, is required to pay the Wisconsin excise or occupation tax on its purchase of beer, liquor, wine, cigarettes, tobacco products, motor vehicle fuel and general aviation fuel.

However, it is exempt from payment of Wisconsin sales or use tax on its purchases. The State of Wisconsin may be subject to other states' taxes on its purchases in that state depending on the laws of that state. Contractors perform-ing construction activities are required to pay state use tax on the cost of materials.

13.0 GUARANTEED DELIVERY: Failure of the contractor to

adhere to delivery schedules as specified or to promptly replace rejected materials shall render the contractor liable for all costs in excess of the contract price when alternate procurement is necessary. Excess costs shall include the administrative costs.

14.0 ENTIRE AGREEMENT: These Standard Terms and

Conditions shall apply to any contract or order awarded as a result of this request except where special requirements

DOA-3054

are stated elsewhere in the request; in such cases, the special requirements shall apply. Further, the written contract and/or order with referenced parts and attach-ments shall constitute the entire agreement and no other terms and conditions in any document, acceptance, or acknowledgment shall be effective or binding unless expressly agreed to in writing by the contracting authority.

15.0 APPLICABLE LAW AND COMPLIANCE: This contract

shall be governed under the laws of the State of Wisconsin.

The contractor shall at all times comply with and observe all federal and state laws, local laws, ordinances, and regulations which are in effect during the period of this contract and which in any manner affect the work or its conduct. The State of Wisconsin reserves the right to cancel this contract if the contractor fails to follow the requirements of s. 77.66, Wis. Stats., and related statutes regarding certification for collection of sales and use tax.

The State of Wisconsin also reserves the right to cancel this contract with any federally debarred contractor or a contractor that is presently identified on the list of parties excluded from federal procurement and non-procurement contracts.

16.0 ANTITRUST ASSIGNMENT: The contractor and the State

of Wisconsin recognize that in actual economic practice, overcharges resulting from antitrust violations are in fact usually borne by the State of Wisconsin (purchaser).

Therefore, the contractor hereby assigns to the State of Wisconsin any and all claims for such overcharges as to goods, materials or services purchased in connection with this contract.

17.0 ASSIGNMENT: No right or duty in whole or in part of the

contractor under this contract may be assigned or dele-gated without the prior written consent of the State of Wisconsin.

18.0 WORK CENTER CRITERIA: A work center must be certi-

fied under s. 16.752, Wis. Stats., and must ensure that when engaged in the production of materials, supplies or equipment or the performance of contractual services, not less than seventy-five percent (75%) of the total hours of direct labor are performed by severely handicapped individuals.

19.0 NONDISCRIMINATION / AFFIRMATIVE ACTION: In

connection with the performance of work under this contract, the contractor agrees not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in s. 51.01(5), Wis.

Stats., sexual orientation as defined in s. 111.32(13m), Wis.

Stats., or national origin. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising;

layoff or termination; rates of pay or other forms of compensation; and selection for training, including appren-ticeship. Except with respect to sexual orientation, the contractor further agrees to take affirmative action to ensure equal employment opportunities.

19.1 Contracts estimated to be over twenty-five thousand

dollars ($25,000) require the submission of a written affirmative action plan by the contractor. An exemp-tion occurs from this requirement if the contractor has a workforce of less than twenty-five (25) employees.

Within fifteen (15) working days after the contract is awarded, the contractor must submit the plan to the contracting state agency for approval. Instructions on preparing the plan and technical assistance regarding this clause are available from the contracting state agency.

19.2 The contractor agrees to post in conspicuous places, available for employees and applicants for employ-ment, a notice to be provided by the contracting state agency that sets forth the provisions of the State of Wisconsin's nondiscrimination law.

19.3 Failure to comply with the conditions of this clause

may result in the contractor's becoming declared an "ineligible" contractor, termination of the contract, or withholding of payment.

20.0 PATENT INFRINGEMENT: The contractor selling to the

State of Wisconsin the articles described herein guarantees the articles were manufactured or produced in accordance with applicable federal labor laws. Further, that the sale or use of the articles described herein will not infringe any United States patent. The contractor covenants that it will at its own expense defend every suit which shall be brought against the State of Wisconsin (provided that such contractor is promptly notified of such suit, and all papers therein are delivered to it) for any alleged infringement of any patent by reason of the sale or use of such articles, and agrees that it will pay all costs, damages, and profits recov-erable in any such suit.

21.0 SAFETY REQUIREMENTS: All materials, equipment, and

supplies provided to the State of Wisconsin must comply fully with all safety requirements as set forth by the Wisconsin Administrative Code and all applicable OSHA Standards.

22.0 WARRANTY: Unless otherwise specifically stated by the

bidder/proposer, equipment purchased as a result of this request shall be warranted against defects by the bidder/proposer for one (1) year from date of receipt. The equipment manufacturer's standard warranty shall apply as a minimum and must be honored by the contractor.

23.0 INSURANCE RESPONSIBILITY: The contractor perform-

ing services for the State of Wisconsin shall:

23.1 Maintain worker's compensation insurance as

required by Wisconsin Statutes, for all employees engaged in the work.

23.2 Maintain commercial liability, bodily injury and prop-

erty damage insurance against any claim(s) which might occur in carrying out this agreement/contract.

Minimum coverage shall be one million dollars ($1,000,000) liability for bodily injury and property damage including products liability and completed operations. Provide motor vehicle insurance for all owned, non-owned and hired vehicles that are used in carrying out this contract. Minimum coverage shall be one million dollars ($1,000,000) per occurrence combined single limit for automobile liability and property damage.

23.3 The state reserves the right to require higher or lower

limits where warranted.

24.0 CANCELLATION: The State of Wisconsin reserves the

right to cancel any contract in whole or in part without penalty due to nonappropriation of funds or for failure of the contractor to comply with terms, conditions, and specifica-tions of this contract.

DOA-3054

25.0 VENDOR TAX DELINQUENCY: Vendors who have a

delinquent Wisconsin tax liability may have their payments offset by the State of Wisconsin.

26.0 PUBLIC RECORDS ACCESS: It is the intention of the

state to maintain an open and public process in the solicita-tion, submission, review, and approval of procurement activities.

Bid/proposal openings are public unless otherwise speci-fied. Records may not be available for public inspection prior to issuance of the notice of intent to award or the award of the contract.

27.0 PROPRIETARY INFORMATION: Any restrictions on the

use of data contained within a request, must be clearly stated in the bid/proposal itself. Proprietary information submitted in response to a request will be handled in accordance with applicable State of Wisconsin procurement regulations and the Wisconsin public records law. Proprietary restrictions normally are not accepted.

However, when accepted, it is the vendor's responsibility to defend the determination in the event of an appeal or litigation.

27.1 Data contained in a bid/proposal, all documentation

provided therein, and innovations developed as a result of the contracted commodities or services cannot be copyrighted or patented. All data, docu-mentation, and innovations become the property of the State of Wisconsin.

27.2 Any material submitted by the vendor in response to

this request that the vendor considers confidential and proprietary information and which qualifies as a trade secret, as provided in s. 19.36(5), Wis. Stats., or material which can be kept confidential under the Wisconsin public records law, must be identified on a Designation of Confidential and Proprietary Informa-tion form (DOA-3027). Bidders/proposers may request the form if it is not part of the Request for Bid/Request for Proposal package. Bid/proposal prices cannot be held confidential.

28.0 DISCLOSURE: If a state public official (s. 19.42, Wis.

Stats.), a member of a state public official's immediate family, or any organization in which a state public official or a member of the official's immediate family owns or controls a ten percent (10%) interest, is a party to this agreement, and if this agreement involves payment of more than three thousand dollars ($3,000) within a twelve (12) month period, this contract is voidable by the state unless appro-priate disclosure is made according to s. 19.45(6), Wis.

Stats., before signing the contract. Disclosure must be made to the State of Wisconsin Ethics Board, 44 East Mifflin Street, Suite 601, Madison, Wisconsin 53703 (Telephone 608-266-8123).

State classified and former employees and certain University of Wisconsin faculty/staff are subject to separate disclosure requirements, s. 16.417, Wis. Stats.

29.0 RECYCLED MATERIALS: The State of Wisconsin is

required to purchase products incorporating recycled mate-rials whenever technically and economically feasible.

Bidders are encouraged to bid products with recycled content which meet specifications.

30.0 MATERIAL SAFETY DATA SHEET: If any item(s) on an

order(s) resulting from this award(s) is a hazardous chemi-cal, as defined under 29CFR 1910.1200, provide one (1) copy of a Material Safety Data Sheet for each item with the shipped container(s) and one (1) copy with the invoice(s).

31.0 PROMOTIONAL ADVERTISING / NEWS RELEASES:

Reference to or use of the State of Wisconsin, any of its departments, agencies or other subunits, or any state offi-cial or employee for commercial promotion is prohibited.

News releases pertaining to this procurement shall not be made without prior approval of the State of Wisconsin.

Release of broadcast e-mails pertaining to this procurement shall not be made without prior written authorization of the contracting agency.

32.0 HOLD HARMLESS: The contractor will indemnify and

save harmless the State of Wisconsin and all of its officers, agents and employees from all suits, actions, or claims of any character brought for or on account of any injuries or damages received by any persons or property resulting from the operations of the contractor, or of any of its contractors, in prosecuting work under this agreement.

33.0 FOREIGN CORPORATION: A foreign corporation (any

corporation other than a Wisconsin corporation) which becomes a party to this Agreement is required to conform to all the requirements of Chapter 180, Wis. Stats., relating to a foreign corporation and must possess a certificate of authority from the Wisconsin Department of Financial Institutions, unless the corporation is transacting business in interstate commerce or is otherwise exempt from the requirement of obtaining a certificate of authority. Any foreign corporation which desires to apply for a certificate of authority should contact the Department of Financial Institutions, Division of Corporation, P. O. Box 7846, Madison, WI 53707-7846; telephone (608) 261-7577.

34.0 WORK CENTER PROGRAM: The successful

bidder/proposer shall agree to implement processes that allow the State agencies, including the University of Wisconsin System, to satisfy the State's obligation to purchase goods and services produced by work centers certified under the State Use Law, s.16.752, Wis. Stat.

This shall result in requiring the successful bidder/proposer to include products provided by work centers in its catalog for State agencies and campuses or to block the sale of comparable items to State agencies and campuses.

35.0 FORCE MAJEURE: Neither party shall be in default by

reason of any failure in performance of this Agreement in accordance with reasonable control and without fault or negligence on their part. Such causes may include, but are not restricted to, acts of nature or the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes and unusually severe weather, but in every case the failure to perform such must be beyond the reasonable control and without the fault or negligence of the party.

State of Wisconsin Department of Administration

DOA-3681 (01/2001)

ss. 16, 19 and 51, Wis. Stats.

Division of Agency Services Bureau of Procurement

Exhibit B Supplemental Standard Terms and Conditions for Procurements for Services

1.0 ACCEPTANCE OF BID/PROPOSAL CONTENT: The con-

tents of the bid/proposal of the successful contractor will become contractual obligations if procurement action ensues.

2.0 CERTIFICATION OF INDEPENDENT PRICE

DETERMINATION: By signing this bid/proposal, the bidder/proposer certifies, and in the case of a joint bid/proposal, each party thereto certifies as to its own organi-zation, that in connection with this procurement:

2.1 The prices in this bid/proposal have been arrived at

independently, without consultation, communication, or agreement, for the purpose of restricting competi-tion, as to any matter relating to such prices with any other bidder/proposer or with any competitor;

2.2 Unless otherwise required by law, the prices which

have been quoted in this bid/proposal have not been knowingly disclosed by the bidder/proposer and will not knowingly be disclosed by the bidder/proposer prior to opening in the case of an advertised procure-ment or prior to award in the case of a negotiated procurement, directly or indirectly to any other bidder/proposer or to any competitor; and

2.3 No attempt has been made or will be made by the

bidder/proposer to induce any other person or firm to submit or not to submit a bid/proposal for the purpose of restricting competition.

2.4 Each person signing this bid/proposal certifies that:

He/she is the person in the bidder's/proposer's organi-zation responsible within that organization for the decision as to the prices being offered herein and that he/she has not participated, and will not participate, in any action contrary to 2.1 through 2.3 above; (or)

He/she is not the person in the bidder's/proposer's organization responsible within that organization for the decision as to the prices being offered herein, but that he/she has been authorized in writing to act as agent for the persons responsible for such decisions in certifying that such persons have not participated, and will not participate in any action contrary to 2.1 through 2.3 above, and as their agent does hereby so certify; and he/she has not participated, and will not participate, in any action contrary to 2.1 through 2.3 above.

3.0 DISCLOSURE OF INDEPENDENCE AND RELATIONSHIP:

3.1 Prior to award of any contract, a potential contractor

shall certify in writing to the procuring agency that no relationship exists between the potential contractor and the procuring or contracting agency that interferes with fair competition or is a conflict of interest, and no relationship exists between the contractor and another person or organization that constitutes a conflict of interest with respect to a state contract. The Department of Administration may waive this provi-sion, in writing, if those activities of the potential con-tractor will not be adverse to the interests of the state.

3.2 Contractors shall agree as part of the contract for

services that during performance of the contract, the contractor will neither provide contractual services nor enter into any agreement to provide services to a person or organization that is regulated or funded by the contracting agency or has interests that are adverse to the contracting agency. The Department of Administration may waive this provision, in writing, if those activities of the contractor will not be adverse to the interests of the state.

4.0 DUAL EMPLOYMENT: Section 16.417, Wis. Stats., prohibits an individual who is a State of Wisconsin employee or who is retained as a contractor full-time by a State of Wisconsin agency from being retained as a contractor by the same or another State of Wisconsin agency where the individual receives more than $12,000 as compensation for the individual’s services during the same year. This prohibition does not apply to individuals who have full-time appointments for less than twelve (12) months during any period of time that is not included in the appointment. It does not include corporations or partnerships.

5.0 EMPLOYMENT: The contractor will not engage the services

of any person or persons now employed by the State of Wisconsin, including any department, commission or board thereof, to provide services relating to this agreement without the written consent of the employing agency of such person or persons and of the contracting agency.

6.0 CONFLICT OF INTEREST: Private and non-profit corpora-

tions are bound by ss. 180.0831, 180.1911(1), and 181.0831 Wis. Stats., regarding conflicts of interests by directors in the conduct of state contracts.

7.0 RECORDKEEPING AND RECORD RETENTION: The

contractor shall establish and maintain adequate records of all expenditures incurred under the contract. All records must be kept in accordance with generally accepted accounting procedures. All procedures must be in accordance with federal, state and local ordinances.

The contracting agency shall have the right to audit, review, examine, copy, and transcribe any pertinent records or documents relating to any contract resulting from this bid/proposal held by the contractor. The contractor will retain all documents applicable to the contract for a period of not less than three (3) years after final payment is made.

8.0 INDEPENDENT CAPACITY OF CONTRACTOR: The

parties hereto agree that the contractor, its officers, agents, and employees, in the performance of this agreement shall act in the capacity of an independent contractor and not as an officer, employee, or agent of the state. The contractor agrees to take such steps as may be necessary to ensure that each subcontractor of the contractor will be deemed to be an independent contractor and will not be considered or permitted to be an agent, servant, joint venturer, or partner of the state.

State of Wisconsin Department of Justice

17 West Main Street Post Office Box 7857

Madison, WI 53707

Exhibit C

CONTRACT FOR SERVICES

Contract No.

Commodity or Service:

Contract Period:

Contract Amount:

This Contract is entered into by the State of Wisconsin Department of Justice (hereafter DOJ) and [_____________] (hereafter the Contractor or ____).

The DOJ and the Contractor acknowledge that they have read the Contract and the attached exhibits, addenda and requirements, understand them and agree to be bound by their terms and conditions.

This Agreement becomes null and void if the time between the earlier dated signature and the later dated signature exceeds sixty (60) days, unless waived by the DOJ.

IN WITNESS WHEREOF, the Parties hereto by their duly authorized representatives have executed this Contract with full knowledge of and agreement with the terms and conditions of this Contract.

State of Wisconsin Contractor Department of Justice

Company Legal Name

Address

Signature: Signature:

Name: Bonnie Cyganek Name:

Title: Division Administrator Title

Date: Date:

State of Wisconsin Department of Justice Contract for Services

CONTRACT FOR SERVICES

1. ENTIRE CONTRACT.

1.1.

1.2.

1.3.

Entire Contract. This document is the “Master Contract”. The Master Contract, together with its Exhibits, is the “Contract” and is a complete and exclusive statement of the agreement between the parties. This Contract supersedes all proposals, letters of intent or prior agreements, oral or written, and all other communications and representations between the parties relating to the subject matter of the Contract. The DOJ reserves the right to reject or cancel agreements based on documents that have been altered.

Integration of Documents. The parties intend for this Master Contract and all of the Exhibits hereto to be read and harmonized together to the extent possible. In the event of conflict between the terms of the documents, the Master Contract shall control.

Contract Parts. The Contract consists of the following parts which will serve as the hierarchy of documents in descending order for resolution: (Any of the following are included, as applicable.)

Final Executed Contract and Official Purchase Order Schedule __: Scope of Work Schedule __: Payment Schedule Schedule __: Non-disclosure Agreement Schedule __: Request for Bid or Proposal # and title (including all attachments and addenda) Schedule __: Contractor Original Bid/Proposal Response dated _____

2. SCOPE OF WORK AND PRODUCTS.

The Contractor agrees to provide all of the products and services set forth in this Contract and all its attachments. A brief overview of the scope of work and products is as follows:

3. CONTRACT TERM. This Contract shall be effective upon its signing by both parties unless another date is specified in the Contract Documents and shall continue through [_initial term__], during which period Contractor shall fully perform this Contract to the satisfaction of the DOJ.

4. PRICING AND PAYMENT TERMS. The DOJ agrees to pay the Contractor according to Schedule __, Payment Schedule.

5. CHANGE CONTROL.

5.1. The Contractor and DOJ shall utilize a change control process to manage changes during the life of the Contract. Additional change control procedures and requirements may be described under the Change Control Process in the Project Management SOW.

5.2. Any contractual changes, including time extensions beyond the scope of services stated in this Contract, may be made only by a written amendment to this Contract, signed by both parties prior to the end date of this Contract.

5.3. The party requesting the change shall give such information, including the reason for the change, specific requirements, and expectations, if applicable, to the other party as is sufficient to allow the other party to consider the impact of the requested change.

5.4. All Change Requests shall be approved by both parties before any work affected by the change is started. If the DOJ requests a reduction of work by Contractor in which the DOJ will assume more responsibility for tasks, a Change Request the DOJ shall also describe the reduction and any associated reduction in cost.. Each Change Request document will be jointly developed by the Contractor and the DOJ.

5.5. For any work order that is not within the scope of the contract, the Contractor shall submit a detailed proposal. The Contractor shall analyze, record, estimate and submit to the DOJ, the proposed scope for the new work, a work schedule, and a rate or price adjustment for completion of the additional work. Upon DOJ approval, a new work order will be issued for the additional work. Upon the DOJ’s written approval and notice to proceed, the Contractor shall implement the additional work and shall invoice for the changed or additional work consistent with the DOJ’s approval notice and the terms and conditions of this Contract.

5.6. The Contractor shall not proceed under a change order without DOJ approval. Such extra work shall be authorized in writing only by the DOJ Purchasing Buyer, Department of Finance and Administrative Services. No costs incurred for the performance of extra work will be reimbursed unless and until DOJ approves a change order for it.

5.7. The DOJ does not guarantee utilization of goods and services provided for in this Contract for which the DOJ has not issued a work order.

6. ASSIGNMENT. Neither this contract nor any right or duty in whole or in part by the Contractor under this contract may be assigned, delegated or subcontracted without the written consent of the DOJ. If upon the written consent of the DOJ this Contract or any right or duty in whole or in part is assigned, the Contractor shall assure that the Assignee(s) l expressly assumes and agrees to perform all relevant obligations expressed under the terms of this Contract and agrees to be bound by the terms and conditions of this Contract. Assignment in whole or in part of this Contract does not absolve the Contractor of any liability or obligation expressed and agreed to hereunder.

7. SURVIVORSHIP. All purchase transactions and deliverables executed pursuant to the authority of this Contract shall be subject to all of the terms, conditions, prices and price discounts set forth herein, notwithstanding the expiration of the initial term of this Contract or any extensions thereof. Further, the terms, conditions and warranties contained in this Contract survive the completion of the performance, cancellation or termination of this Contract.

8. PROSECUTION AND PROGRESS. The Contractor shall furnish all goods and services (“Deliverables”) pursuant to orders issued by the DOJ under this Contract. Each order shall be subject to all of the terms and conditions of this Contract, and incorporated into this Contract by this reference

9. PERFORMANCE AND COMPLIANCE

9.1. Services rendered under this Contract shall be performed in a timely, professional and diligent manner by qualified and efficient personnel and in conformity with commercial standards in the industry. The Contractor shall observe, abide by, and perform all of its obligations in accordance with all applicable legal requirements and DOJ work rules.

9.2. Without limiting the foregoing, the Contractor shall control the manner and means of rendering the Services in a safe and commercially reasonable manner and in compliance with all applicable codes, regulations and requirements imposed or enforced by any government agencies, including all applicable requirements of the Occupational Safety and Health Administration (OSHA) and all safety codes and procedures mandated or recommended by insurance underwriting organizations and all generally recognized organizations establishing safety standards, including without limitation the National Fire Protection Association.

Notwithstanding the foregoing, any stricter standard provided in plans, specifications or other documents incorporated as part of this Contract shall govern.

9.3. The Contractor shall at all times comply with all applicable regulations, licenses and orders relating to or in any way affecting this Agreement and the performance of this Agreement. The

Contractor, at its own expense, shall obtain any approval or permit required in the performance of its obligations.

9.4. Neither Contractor nor any of its employees, agents or representatives is an employee, agent or representative of the DOJ.

10. APPLICABLE LAW. This Contract shall be governed by the laws of the State of Wisconsin. Venue for any action brought under this Contract shall lie in Madison, Dane County, Wisconsin.

11. TIME IS OF THE ESSENCE. Contractor hereby acknowledges that time is of the essence for performance under this Contract unless otherwise agreed to in writing by the parties.

12. CANCELLATION AND TERMINATION.

12.1. The DOJ reserves the right to terminate any contract in whole or in part without penalty for the following:

a. By Mutual Agreement. This contract may be terminated by consent of both parties executed in writing.

b. For Cause. The DOJ may terminate this Contract by providing Contractor with thirty (30) calendar days’ written notice of a material breach of this Contract by Contractor or for the specific reasons as may be enumerated herein, if Contractor fails to cure the breach within thirty (30) days of notice or within the time for cure agreed upon by both parties.

Grounds for termination for cause include, but are not limited to:

• Failure to comply with the sales and use tax certification requirements of Wis. Stat.

§ 77.66.;

• Permitting any Wisconsin tax liability to become delinquent.

• Failure to comply with any non-discrimination or affirmative action requirements of subch. II, Chapter 111 of the Wisconsin Statutes (Wisconsin’s Fair Employment Law);

• Failure to maintain and keep in force all required insurance, permits and licenses

• Filing a petition in bankruptcy, becoming insolvent, or corporate dissolution;

• Allowing any final judgment to remain unsatisfied or a lien not to be disputed after a legally-imposed, 30-day notice;

• Making an assignment for the benefit of creditors; or

• Becoming a federally debarred Contractor.

c. For Lack of Funding or Authority. The DOJ may terminate this Contract if funding from federal, state, or other sources is not obtained and continued at levels sufficient to allow for purchase of services or supplies in the indicated quantities or term; or if federal or state laws or rules are modified or interpreted in such a way that the services are no longer allowable or appropriate for purchase under this Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

d. Public Interest. The DOJ is entering into this Contract for the purpose of carrying out the public interest and policy of the DOJ. If this Contract ceases to further the public interest and policy of the State of Wisconsin, the DOJ, in its sole discretion may terminate this Contract by written notice to the Contractor.

e. For Convenience. The DOJ may terminate this Contract at any time without cause, by providing sixty (60) days written notice to Contractor.

12.2. In the event of a termination for convenience, the DOJ’s liability hereunder shall be limited to an amount equal to the sum of the pro rata cost of the services actually performed by the Contractor through the effective date of termination.

12.3. Upon termination of this Contract for any reason or upon Contract expiration, the DOJ shall be entitled to a refund for deliverables or services paid for but not received or rendered. Such refund shall be paid within 30 days of written notice to the contractor of the refund request.

12.4. Return of DOJ Data. Upon the termination of this Agreement, Contractor shall, within two (2) business days following the termination of this Agreement, provide DOJ, without charge and without any conditions or contingencies whatsoever (including but not limited to the payment of any fees due to Contractor), with a final extract of the DOJ Data in the format specified by DOJ.

Further, Contractor shall certify to DOJ the destruction of any DOJ Data within the possession or control of Contractor but such destruction shall occur only after the DOJ Data has been returned to DOJ. This Section shall survive the termination of this Agreement.

12.5. Upon the termination of this Contract for any reason, or upon Contract expiration, each party shall be released from all obligations to the other party arising after the date of termination or expiration, except for those that by their terms survive such termination or expiration.

12.6. The rights and remedies of the DOJ provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

13. CONFIDENTIALITY. Confidentiality requirements are set forth in Attachment __, Non-disclosure Agreement. Contractor will treat all information as highly confidential. Before beginning work under this Contract, the Contractor and all of its personnel who work under this contract must sign a DOJ Non-disclosure Agreement.

14. SECURITY. During the performance of Services under this Contract, Contractor may have access to the personnel, premises, computer networks, equipment, and other property, including data files, information, or materials (collectively referred to as “data”) belonging to the State networks. Contractor shall preserve the safety, security, and the integrity of the personnel, premises, equipment, data and other property of the State, in accordance with the instruction of the State.

15. CONTRACTOR PERSONNEL.

15.1. Identification. The Contractor shall provide to the DOJ a list of the names, dates of birth, and addresses of all Contractor’s employees, Contracted Personnel, or Subcontractor’s employees (collectively, “Personnel”) in connection with the rendering of Services, specifying each such person’s connection to the Contractor, the role the person is to take in the performance of the Contract, and other particulars as the DOJ may require. The DOJ reserves the right to refuse any person employed or contracted by the Contractor who, in the sole opinion of the DOJ, would be undesirable, provided said reason is not unlawful.

15.2. Background or Criminal History Investigation. The Contractor shall perform no Services under this Contract until the DOJ has completed a fingerprint based background check of all Personnel who will be providing Services to the DOJ under the Contract. DOJ holds the right to conduct periodic re-checks of Personnel. If any of the identified Personnel are not acceptable to the DOJ in its sole opinion, the Contractor shall supply replacement Personnel, subject to the same background checks.

15.3. Right to Approve Changes of Personnel.

15.3.1. The DOJ shall have the right to approve or disapprove any person providing services for lack of performance under the contract who, in the sole opinion of the DOJ, would be undesirable provided the reason is not unlawful.. Should the DOJ determine that the removal of Contractor Personnel is merited, Contractor and the DOJ will discuss the matter, and if the parties cannot agree on an alternate resolution, the DOJ may direct the Contractor to remove or reassign Personnel.

15.3.2. If the DOJ requires remove one of the Personnel Contractor for just cause, Contractor agrees to replace any removed engineer(s) within 30 days.

15.3.3. If, on more than one occasion, Contractor permits an employee to work on DOJ’s account without identifying that person to DOJ or without following the procedures outlined above, and Contractor fails to implement a corrective action plan approved by the DOJ, the DOJ reserves the right to cancel this Contract and/or impose liquidated damages per sec. 19.

15.4. Changes in Key Personnel.

15.4.1. Contractor shall notify the DOJ at least ten (10) days in advance of any changes to these individuals so that the DOJ can perform a background check on the new Personnel before such Personnel begin work. No new Personnel shall provide Services hereunder until the DOJ informs Contractor that the background check has been completed with satisfactory results. DOJ shall provide the background check and notify Contractor in writing (or via email) of the background results within 72 business hours after Contractor notifies DOJ in writing (or via email) of a change in Personnel.

15.4.2. Contractor will notify the DOJ at least thirty (30) days in advance of any reductions in staffing levels of these individuals at any local or district office serving Wisconsin.

15.5. Notification of Personnel Removal. The Contractor shall inform DOJ by the close of business on the first business day following the day any Personnel that has access to the DOJ’s information systems is terminated from employment.

16. INSURANCE RESPONSIBILITY.

16.1 The Contractor shall maintain continuously and require each subcontractor to maintain continuously, at all times during the term of this Contract, at its own expense, minimum insurance coverages and limits of liability as specified below:

a. Worker’s Compensation insurance, as required under Chapter 102 of the Wisconsin Statutes, for all of the Contractor’s employees and Contracted Personnel engaged in the work performed under this Contract;

b. Commercial General Liability, bodily injury and property damage insurance against any claim(s) that may occur in carrying out the terms of this Contract, with a minimum coverage of one million dollars ($1,000,000) liability for bodily injury and property damage including products liability and completed operations; and

c. Motor Vehicle Liability insurance for all owned, non-owned and hired vehicles that are used in carrying out the terms of this Contract, with a minimum coverage of one million dollars ($1,000,000) per occurrence combined single limit for automobile liability and property damage.

d. Professional Liability insurance with coverage of not less than $1,000,000. If such policy is a “claims made” policy, all renewals thereof during the life of the Contract shall include “prior acts coverage” covering at all times all claims made with respect to Contractor’s work performed under the Contract. This Professional Liability coverage must be kept in force for a period of six (6) years after the services have been accepted by the DOJ.

16.2 The DOJ, its officers, officials, agents and employees shall be included as an additional insured under CGL and Motor Vehicle Liability insurance for primary and non-contributory limits of liability.

16.3 The limits of insurance coverage specified herein are minimum limits of insurance coverage only and shall not be deemed to limit the liability of Vendor’s insurer except as respects the stated limit of liability of each policy. Where required to be an additional insured, the DOJ shall be so for the full limits of insurance coverage required by Vendor, whether such limits are primary, excess, contingent or otherwise. Any limitations of insurance liability shall have no effect on Vendor’s obligation to indemnify the DOJ.

16.4 The duty to defend, indemnify, and hold the DOJ harmless under this agreement shall not be limited by the insurance required in this agreement.

16.5 Certificate of Insurance, showing up-to-date coverage, shall be on file in the Contracting Agency before the Contract may commence.

16.6 Contractor shall provide at least 30 day notice of any cancellation of insurance or material change to the insurance policies or endorsements.

16.7 The DOJ reserves the right, in its sole discretion, to require higher or lower insurance limits.

17. INDEMNIFICATION. The Contractor will indemnify and save harmless the State of Wisconsin and all of its officers, agents and employees from all suits, actions, or claims of any character brought for or on account of any injuries or damages received by any persons or property resulting from the operations of the Contractor, or of any of its subcontractors, in performing work under this agreement.

18. NONDISCRIMINATION / AFFIRMATIVE ACTION.

18.1. In connection with the performance of work under this Contract, the Contractor agrees not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in s. 51.01(5), Wis.

Stats., sexual orientation as defined in s. 111.32(13m), Wis. Stats., or national origin. This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Except with respect to sexual orientation, the Contractor further agrees to take affirmative action to ensure equal employment opportunities.

18.2. The Contractor agrees to post in conspicuous places, available for employees and applicants for employment, a notice to be provided by the contracting state agency that sets forth the provisions of the State of Wisconsin’s nondiscrimination law.

18.3. Contracts estimated to be over twenty-five thousand dollars ($25,000) require the submission of a written affirmative action plan by the Contractor. An exemption occurs from this requirement if the Contractor has a workforce of less than twenty-five (25) employees. Within fifteen (15) working days after the Contract is awarded, the Contractor must submit the plan to the contracting DOJ for approval. Instructions on preparing the plan and technical assistance regarding this clause are available from the DOJ.

18.4. Failure to comply with the conditions of this clause may result in the Contractor’s being declared an “ineligible” Contractor, termination of the contract, or withholding of payment.

19. LIQUIDATED DAMAGES

19.1. The DOJ and the Contractor recognize that time is of the essence and that the DOJ will suffer financial loss due to lack of performance of the terms and conditions of this Agreement and/or if the work is not completed by the completion dates required in the contract documents. Both parties recognize the delays, expense and damages involved in proving a legal proceeding and actual loss suffered by the DOJ if the work is not completed on time. Inasmuch as the amount of damage is extremely difficult to ascertain, the DOJ and the Contractor agree, stipulate and fix as liquidated damages, but not as a penalty, the sum of ________ ($___)/ day or ___% of the total contract amount, whichever is more, per calendar day beyond the delivery date specified. The Contractor hereby waives any defense as to the validity of liquidated damages stated in this agreement on the grounds that such liquidated damages are void as penalties or are not reasonably related to actual damages. Furthermore, the parties agree that the DOJ’s entitlement to liquidated damages shall be determined at the time of completion and shall not be subject to the claims provisions, if any, in the contract documents.

19.2. Amounts due the DOJ as liquidated damages may be deducted by the DOJ from any money payable to Contractor and any amount outstanding over and above the amounts deducted from invoices will be promptly tendered by check by Contractor to the DOJ.

19.3. The DOJ shall notify Contractor in writing of any claim for liquidated damages pursuant to this Section on or before the date when the DOJ deducts such sums from money payable to Contractor.

19.4. If annual fees are prepaid by the DOJ, the written notification of any claim for liquidated damages pursuant to this Section shall be sent to the Contractor within 30 days of the Contractor's nonperformance. A check for the liquidated damages shall be tendered to the DOJ within 30 days of the Contractor's receipt of such notice.

19.5. Delays in performance due to causes of Force Majeure (which are outside the control of both parties and could not be avoided by exercise of due care) or due to the responsibility of the DOJ or other contractor of the DOJ shall not be included in computing damages.

19.6. The Contractor shall be entitled to an adjustment in contract delivery times for delays attributable to delays caused or authorized by the DOJ or other causes beyond the Contractor’s control not reasonably foreseeable by the parties at the time of the Contract/Purchase Order execution, and that are without the fault or negligence of the Contractor, including, but not limited to, acts of nature or the public enemy, war or other national emergency making delivery temporarily impossible or illegal, acts or omissions of other suppliers, strikes and labor disputes not brought on by any act or omission of the supplier, fire, flood, epidemics, quarantines, or freight embargoes.

19.7. The Contractor shall not be entitled to an adjustment in contract time for delays within the control of the Contractor. Delays attributable to and within the control of a subcontractor or supplier shall be deemed to be delays within the control of the Contractor.

20. RIGHT OF SETOFF DAMAGES. DOJ may set off or recoup any amounts owed due Contractor from the DOJ, including liquidated or other damages, or claims for damages, against any money payable to Contractor pursuant to this Contract.

21. RIGHT TO WITHHOLD AMOUNTS OTHERWISE DUE IF THE CONTRACTOR IS IN BREACH. If Contractor fails to deliver deliverables or to provide Services which satisfy Contractor’s obligations under this Contract, DOJ shall have the right to withhold any and all payments due under this Contract.

DOJ may withhold any and all such payments due under this Contract to Contractor without penalty or work stoppage by Contractor, until such failure to perform is cured.

22. CUMULATIVE RIGHTS TO REMEDIES. No remedy conferred by any of the specific provisions of this Contract is intended to be exclusive of any other remedy unless otherwise…