RFP 180000002971 Rye Planting Multi County.docx

STATE OF MICHIGAN

Department of Natural Resources Procurement Services

Request for Proposal No. 180000002971 Field Prep, Fertilizing and Planting in Forest Openings – Benzie, Grand Traverse, Kalkaska, Leelanau, Manistee and Wexford Counties

This is a Request for Proposal (RFP) for field prep, fertilizing and planting in select forest openings on state-owned forest lands located in Benzie, Grand Traverse, Kalkaska, Leelanau, Manistee and Wexford Counties as described in Exhibit A (the “Contract Activities”).

Anticipated Timeline

Request for Proposal No. 180000002971 Field Prep, Fertilizing and Planting in Forest Openings – Benzie, Grand Traverse, Kalkaska, Leelanau, Manistee and Wexford Counties

PROPOSAL INSTRUCTIONS

RFP Structure and List of RFP Documentation

1. CONTACT INFORMATION FOR THE STATE. The sole point of contact concerning this Request for Proposal (RFP) is:

Lisa VanOstran, Buyer 517-284-5975 vanostranl@michigan.gov Contacting any other state personnel, agent, consultant or representative may result in disqualification.

2. QUESTIONS. Questions concerning the RFP may be submitted through the SIGMA-VSS system or by emailing the buyer at vanostranl@michigan.gov.

3. MODIFICATIONS TO RFP PRIOR TO PROPOSAL DEADLINE SUBMISSION DATE. The State may modify the RFP at any time prior to the deadline submission date. Changes will be posted on SIGMA-VSS. This is the only method by which the RFP may be modified. The posted changes revise the original RFP.

4. PRE-BID MEETINGS. There will be no pre-bid meeting scheduled for this project. Bidders are encouraged to visit the openings prior to submitting their proposals.

Bidders may contact DNR Project Manager Tim Lyon at (231) 922-6053 if bidder has questions concerning the conditions or locations of the forest openings. Questions must be limited ONLY to conditions and locations of openings; questions concerning other aspects of the bid must be directed to the Solicitation Manager.

5. RESPONSE PREPARATION. Bidders must follow the Proposal Instructions and provide complete responses to Exhibit B, General Information and Requirements and enter price proposals through SIGMA-VSS, emailed to vanostranl@michigan.gov or faxed to (517) 241-0013. Please Note: this is a new fax number for DNR Procurement.

6. REQUIRED DOCUMENTATION. DNR must have a copy of Bidder’s current liability insurance certificate on file as required by Standard Contract Terms, Section 4 Insurance Requirements. Bidder must include insurance certificate with bid response (preferred method is an attachment through SIGMA-VSS. The Certificate of Insurance must have their policy endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees and agents” as additional insureds using endorsement CG 20 10 11 85, or both CG 2010 07 04 and CG 2037 07 0. Certificate Holder: Department of Natural Resources, 525 W. Allegan St. Lansing, MI 48915.

7. DELIVERY OF PROPOSAL. Bids are due by 9:30 a.m. Eastern on July 25, 2018.

Online - Bidder may submit Exhibit B, price quotes, all attachments, and any modifications or withdrawals electronically through SIGMA-VSS (preferred method). The proposal and attachments must be fully uploaded prior to the bid due date and time. Allow sufficient time to create the quote, upload attachments, and submit the quote as the SIGMA-VSS system will not allow a quote to be submitted after 9:30 a.m. Eastern on the due date.

Questions on how to submit information or how to navigate in the SIGMA-VSS system can be answered by calling (517) 284-0540 or (888) 734-9749.

Fax – Bidder may submit Exhibit B, Exhibit C (price proposal), and any attachments by fax to 517-241-0013 (new fax number for DNR Procurement). Fax must be received by the DNR Procurement Services Buyer by the bid due date and time.

8. EVALUATION PROCESS. Bids will be evaluated based on information provided in Exhibit B General Information and Requirements. It is the bidder’s responsibility to demonstrate the following:

· Bidder has the proper equipment to perform the task.

· Bidder has a crew supervisor with experience in overseeing the work being performed.

· Bidder has a minimum of three references for examples of prior experience.

· Bidder has the ability to complete the task in the timeframe requested.

Evaluation of price proposals includes consideration for a Qualified Disabled Veteran Preference. 1984 PA 431, as amended, establishes a preference of up to 10% for businesses owned by qualified disabled veterans meeting the evaluation criteria.

9. NOTICE OF DEFICIENCY. If the State determines, after the deadline to submit proposals, that there is an area of the RFP that was deficient, unclear or conflicting, the State may issue a request (“Notice of Deficiency”) to bidders. Failure to respond to a Notice of Deficiency may be cause for disqualification.

10. CLARIFICATION REQUEST. If the State determines, after the deadline to submit proposals, that a bidder’s proposal is not clear, the State reserves the right to issue a request (“Clarification Request”) to a bidder to clarify its proposal. Failure to respond to a Clarification Request may be cause for disqualification.

11. RESERVATIONS. The State reserves the right to:

a. Discontinue the RFP process at any time for any or no reason. The issuance of an RFP, your preparation and submission of a proposal and the State’s subsequent receipt and evaluation of your proposal does not commit the State to award a Contract to you or anyone, even if all the requirements in the RFP are met.

b. Consider late proposals: (i) if no other proposals are received; (ii) if there are no complete proposals received; (iii) if the State received complete proposals, but they did not pass the Evaluation Process; or, (iv) if the award process fails to result in an award.

c. Consider an otherwise disqualified proposal, if no other proposals are received.

d. Disqualify a proposal based on the information provided or the failure to complete the vendor registration questions on the buy4michigan registration, or if it is determined that a bidder purposely or willfully submitted false information in response to the RFP.

e. Consider bidders’ prior performance with the State in making its award decision.

f. Refuse to award a Contract to any bidder that has failed to pay State of Michigan taxes or has any outstanding debt with the State of Michigan.

g. Enter into negotiations with one or more bidders on price, terms, technical requirements, or other deliverables within the scope of the RFP.

h. Evaluate the proposal outside the scope identified in Section 8, Evaluation Process, in the event that the State receives only one RFP response.

12. AWARD RECOMMENDATION. The award of a State contract will be made to the responsive and responsible bidder who offers the best value to the State of Michigan. Best value will be determined by the considering the factors stated in Section 8 Evaluation Process, and price, as demonstrated by its proposal. The State will post the award (“Notice of Recommendation”) on SIGMA-VSS.

13. DEBRIEF MEETINGS AND PROTEST. The Notice of Recommendation will provide bidders with instructions on how to request a debrief meeting.

If you wish to initiate a protest of the award, you must submit your written protest to Laura Gyorkos at gyorkosl@michigan.gov no later than 12:00 p.m. Eastern Time, three (3) business days after the Notification of Award is posted on SIGMA-VSS. The State reserves the right to adjust this timing and will publish any change on the SIGMA-VSS system.

Additional information about the protest process is available at www.michigan.gov/micontractconnect under the “Programs and Policies” link.

14. GENERAL PROPOSAL CONDITIONS. The State will not be liable for any costs incurred by bidders in preparation of its proposal, delivery of a proposal, and any follow-up discussions with the State. The bidder agrees that its proposal will be considered an offer to do business with the State in accordance with the provisions of its proposal, including the Standard Contract Terms, and that the proposal will be irrevocable and binding for a period of 90 calendar days from date of submission. If a contract is awarded to the bidder, the State may, at its option, incorporate all or any part of the proposal into a contract. This RFP is not an offer to enter into a contract. This RFP may not provide a complete understanding of the State’s environment, or contain all matters upon which an agreement must be reached.

15. FREEDOM OF INFORMATION ACT. All portions of the bidder’s proposal and the resulting contract are subject to disclosure as required under Michigan’s Freedom of Information Act, 1976 Public Act 422.

16. RIGHTS TO INFORMATION CONTAINED IN PROPOSALS. All proposals will be considered the property of the State.

Field Prep, Fertilizing and Planting in Forest Openings – Benzie, Grand Traverse, Kalkaska, Leelanau, Manistee and Wexford Counties

EXHIBIT A

STATEMENT OF WORK

CONTRACT ACTIVITIES

This exhibit identifies the anticipated requirements of any Contract resulting from this RFP. The term “Contractor” in this document refers to a bidder responding to this RFP The Michigan Department of Natural Resources (DNR) is seeking bids for grounds/farming work on select forest openings on state-owned lands located in Benzie, Grand Traverse, Kalkaska, Leelanau, Manistee and Wexford Counties. Specified fields will be mowed and fertilized, or cleared of debris, tilled, fertilized, and seeded.

A. BACKGROUND/PROBLEM STATEMENT

The DNR’s State Forest Management Plan objectives include the restoration of existing habitat areas including wildlife openings. The Deer Range Improvement Plan (DRIP), which uses funds from deer hunting license purchases to improve deer habitat, identifies forest openings as important sources of forbs and grasses for deer during the spring, summer, and fall seasons. Maintaining these openings by planting and/or mowing, increasing plant production by fertilizing, and setting back brush or shrub encroachment is therefore important for perpetuating this habitat component for deer. In addition to benefiting deer, forest openings provide important food sources for wild turkey broods. Openings containing clover and/or annuals such as rye are especially beneficial to turkey broods and adult turkeys because they provide an important food source in the form of insects for young poults and high-quality forage for adults. Some of these openings also serve as important areas for elk forage and mating territory. Without regular mowing/planting and fertilizing, openings will lose much of their value to these wildlife species or will be lost to forest succession.

B. CONTRACT ACTIVITIES

Forest opening fields are grouped in Bid Areas. See the map attachments for field locations.

Forest opening fields in this RFP are grouped in five (5) “Bid Areas”. See map attachments for field locations.

Contractor shall provide all labor, equipment and other supplies and services necessary to perform the work as specified below for each Bid Area.

Contractor shall provide fertilizer for all Bid Areas: 12-12-12 applied at 100 lbs per acre.

Contract shall provide seed for all Bid Areas: Annual Bin Run Rye Seed applied at 2 bushels per acre.

Contractor must access openings by existing roads.

Contractor is advised to walk the access roads for each Block prior to bidding to determine potential difficulties accessing openings; and walk openings prior to beginning work in order to become aware of rocks, stumps or debris etc… that could cause hazard to equipment, and adjust their operations accordingly.

At all access points with berms, Contractor must replace all berms removed following completion of work.

Contractor must contact the DNR Project Manager 72 hours prior to the beginning of work in each Block to coordinate access (some openings are gated).

Bidder may contact DNR Project Manager Tim Lyon at (231) 922-6053 if Bidder has questions concerning the conditions or locations of any forest opening. However, questions must be limited ONLY to conditions and locations of openings; questions concerning other aspects of the bid must be directed to the DNR Procurement Services buyer.

Bid Area #1 – Benzie, Manistee and Leelanau Counties Total number of acres = 130.8 acres Work must be completed between August 1st and September 15th, 2018

Contractor must:

· Disk each field twice so that 90% of existing vegetation is turned to bare soil.

· Seed shall be applied at 2 bushels per acre and lightly disked in.

· Fertilizer shall be applied at 100 lbs per acre

· Sequence of seed and fertilizer application is left to the discretion of the Contractor based on their specific equipment capabilities.

Bid Area #2 – Grand Traverse County Total number of acres = 73.5

· Seed shall be applied at 2 bushels per acre and lightly disked in.

· Sequence of seed and fertilizer application is left to the discretion of the Contractor based on their specific equipment capabilities.

Bid Area #3 – Kalkaska County Total number of acres = 56.9

· Seed shall be applied at 2 bushels per acre and lightly disked in.

· Sequence of seed and fertilizer application is left to the discretion of the Contractor based on their specific equipment capabilities.

Bid Area #4 – Kalkaska County Total number of acres = 80.2

· Seed shall be applied at 2 bushels per acre and lightly disked in.

· Sequence of seed and fertilizer application is left to the discretion of the Contractor based on their specific equipment capabilities.

Bid Area #5 Total number of acres = 12.4

· Seed shall be applied at 2 bushels per acre and lightly disked in.

· Fertilizer shall be applied at 100 lbs per acre

· Sequence of seed and fertilizer application is left to the discretion of the Contractor based on their specific equipment capabilities.

C. EQUIPMENT REQUIREMENTS AND MATERIAL SPECIFICATIONS

Minimum equipment required for this contract:

· Farm Tractor

· Heavy Duty Disk

· Seed and fertilizer spreader

Equipment must be adequate to perform the Contract Activities. The State will determine if the equipment is adequate for the work and Best Value Award will take the equipment evaluation into consideration.

In the event of mechanical breakdown, the Contractor will be expected to provide backup so that Contract Activities continue to be performed as specified. Equipment failure WILL NOT constitute an acceptable reason for not performing Contract Activities. If work is not completed by the specified date, penalties may be applied, up to or including forfeiture of payment.

D. PROJECT MANAGEMENT

The Contractor will carry out this project under the direction and control of DNR Wildlife Division Project Manager Tim Lyon.

Contractor must contact the DNR Project Manager 72 hours prior to the beginning of work in each block to coordinate access (some openings are gated).

Once work begins on site, the Contractor will report at least weekly to the Project Manager the progress of work and any real or anticipated problems as they arise. Contractor may report progress/problems to Project Manager by telephone or email.

The Contractor will notify the Project Manager within 24 hours following completion of all on-site work.

E. ACCEPTANCE

DNR Project Manager, or designee, will be monitoring work during the entire process. Upon Contractor’s notification that work is complete, DNR Project Manager or designee will inspect the completed opening fields.

· Fields must be determined to have been mowed and completed in accordance with specifications.

· Work area must be in a clean and orderly condition; no fertilizer bags or brush/debris littering the fields.

· All equipment, material, and miscellaneous supplies brought onto the project area(s) as part of the operation shall be removed.

· Berms are replaced at access points.

· Existing access roads are in a condition equal or better to the condition prior to Contractor’s utilization.

F. PRICING

Enter price quotes on SIGMA-VSS (if submitting online), email to vanostranl@michigan.gov, or by fax to (517) 241-0013.

The Contractor is encouraged to offer quick payment terms. The number of days must not include processing time for payment to be received by the Contractor's financial institution.

Pricing is fixed and firm for the duration of the Contract period.

G. INVOICING/PAYMENT

· Invoices shall be submitted to DNR following completion of work, however, all invoices must be submitted to the DNR by September 20, 2018.

· All invoices shall reflect actual work done with quantities and the actual number of acres worked.

· All invoices submitted to the State must include: (a) date; (b) purchase order number; (c) quantity; (d) description of the work completed; (e) date work performed; (f) unit price; and (g) total price.

· Payment will be made upon completion of work and inspection and acceptance by DNR Project Managers.

· The State will only disburse payments through Electronic Funds Transfer (EFT).

Field Prep, Fertilizing and Planting in Forest Openings – Benzie, Grand Traverse, Kalkaska, Leelanau, Manistee and Wexford Counties

EXHIBIT B

GENERAL INFORMATION AND REQUIREMENTS

Contractors must provide a detailed response to each question.

1. Company Contact Information.

Sole contact during the RFP process.

Name:

Title:

Phone Number:

Email:

2. Company Background Information.

Legal business name.

Legal business address.

Phone number.

Number of years in business

Number of employees

Has your company had any contract terminated for contractor default in the last three years? If yes, explain when and the reasons for the termination.

3. Business Owned by Qualified Disabled Veteran “Qualified Disabled Veteran,” as defined by Public Act 431 of 1984, means a business entity that is at least 51% owned by one or more veterans with a service-connected disability. The Act defines “Service-Connected Disability” as a disability incurred or aggravated in the line of active military, naval, or air service as defined in 38 USC 101 (16).

To qualify for a Business owned by a qualified disabled Veteran, please provide the following:

(a) Proof of service and conditions of discharge: DD214 or equivalent.

(b) Proof of service-connected disability: DD214 if the disability was documented at discharge or Veterans Administration (VA) Rating Decision Letter or equivalent if the disability was documented after discharge.

(c) Proof of Ownership: Appropriate legal documents setting forth the ownership of the business entity.

Is the bidder a disabled Veteran-owned business?

If Contractor is a service disabled veteran owned business, did the Contractor certify and provide required documentation in vendor registration?

4. Experience with the State of Michigan.

Does your company have experience working with the State of Michigan? If so, please provide a list (including the contract number) of the contracts you hold or have held with the State for the last 3 years.

5. Experience

Please describe at least three relevant experiences (that are similar in nature to services as defined by this RFP) that you consider relevant to your ability to successfully perform services as defined by this RFP.

Experience 1

Company Name:

Contact Name:

Address:

Phone Number:

Email Address:

Description of the Project:

Total Project Cost:

Start and End Dates:

Experience 2

Company Name:

Contact Name:

Address:

Phone Number:

Email Address:

Description of the Project:

Total Project Cost:

Start and End Dates:

Experience 3

Company Name:

Contact Name:

Address:

Phone Number:

Email Address:

Description of the Project:

Total Project Cost:

Start and End Dates:

6. Information Specific to the Work as defined by this RFP

Explain the specific techniques that will be used to perform the tasks set forth in Exhibit A, Contract Activities.

Indicate (list) specific equipment to be used in the process of this project. Disk size and weight. Tractor/Dozer size. (The State will determine if the listed equipment is adequate for the work and Best Value Award will take the equipment evaluation into consideration.)

Date bidder is available to begin the project:

Bid Area #2:_____________days Bid Area #3:_____________days Bid Area #4______________days Bid Area #5:_____________days

Project Manager (or Crew Supervisor) Name:

Provide qualifications, including number of years of experience, of Project Manager (Crew Supervisor):

How often will the Project Manager (Crew Supervisor) be on site while work is being performed:

Indicate the number of staff dedicated to this project:

7. Subcontractor Information

Will subcontractors be utilized for this contract?

If yes, provide the information below:

Subcontractor Company Name:

Office Address:

Contact Name:

Phone Number:

Description of services to be performed:

8. Payment Terms

9. Standard Contract

The State strongly encourages strict adherence to the Standard Contract Terms. The State reserves the right to deem a bid non-responsive for failure to honor the Standard Contract Terms. Nevertheless, the bidder may submit proposed changes to the Standard Contract Terms accompanied by a detailed explanation as to each change for State consideration; failure to do so will constitute the bidder’s acceptance of the Standard Contract Terms. General statements, such as that the bidder reserves the right to negotiate the terms and conditions, may also be considered non-responsive.

The Contractor must affirm that it agrees with the Standard Contract Terms, or if it does not agree, identify the specific exceptions to the Standard Contract Terms. Exceptions must be listed here and Contractor must provide a redline version of the Standard Contract Terms as an attachment.

Exceptions:

Field Prep, Fertilizing and Planting in Forest Openings – Benzie, Grand Traverse, Kalkaska, Leelanau, Manistee and Wexford Counties

EXHIBIT C

PRICING

It is the preference of the DNR that pricing be entered online through SIGMA-VSS and Contractor is encouraged to utilize the website.

1. Price proposal must include all costs of personnel, equipment and materials necessary to plant as specified including mileage to and from planting site and including hauling any necessary equipment. No additional or miscellaneous charges will be allowed.

2. By submitting its proposal, the Contractor certifies that the prices were arrived at independently, and without consultation, communication, or agreement with any other Contractor.

*Note: Quantities specified are estimates; actual quantity of acres awarded may vary depending on how bid prices meet budgetary constraints. Bidders should provide pricing only for Bid Areas that they are able to service.

of acres Total Price

STANDARD CONTRACT TERMS

This STANDARD CONTRACT (“Contract”) is agreed to between the State of Michigan (the “State”) and Contractor.

The parties agree as follows:

1. Duties of Contractor. Contractor must perform the services and provide the deliverables described in Exhibit A – Statement of Work (the “Contract Activities”).

Contractor must furnish all labor, equipment, materials, and supplies necessary for the performance of the Contract Activities, and meet operational standards, unless otherwise specified in Exhibit A.

Contractor must: (a) perform the Contract Activities in a timely, professional, safe, and workmanlike manner consistent with standards in the trade, profession, or industry; (b) meet or exceed the performance and operational standards, and specifications of the Contract; (c) not interfere with the State’s operations; (e) obtain and maintain all necessary licenses, permits or other authorizations necessary for the performance of the Contract; (d) cooperate with the State, including the State’s quality assurance personnel, and any third party to achieve the objectives of the Contract; (g) not make any media releases without prior written authorization from the State; (e) assign to the State any claims resulting from state or federal antitrust violations to the extent that those violations concern materials or services supplied by third parties toward fulfillment of the Contract; and (f) provide the State priority in performance of the Contract except as mandated by federal disaster response requirements. Any breach under this paragraph is considered a material breach.

Contractor must be clearly identifiable while on State property, and clearly identify themselves whenever making contact with the State.

2. Notices. All notices and other communications required or permitted under this Contract must be in writing and will be considered given and received: (a) when verified by written receipt if sent by courier; (b) when actually received if sent by mail without verification of receipt; or (c) when verified by automated receipt or electronic logs if sent by facsimile or email.

3. Performance Guarantee. Contractor must at all times have financial resources sufficient, in the opinion of the State, to ensure performance of the Contract and must provide proof upon request.

4. Insurance Requirements. Contractor must maintain the insurances identified below and is responsible for all deductibles. All required insurance must: (a) protect the State from claims that may arise out of, are alleged to arise out of, or result from Contractor's or a subcontractor's performance; (b) be primary and non-contributing to any comparable liability insurance (including self-insurance) carried by the State; and (c) be provided by an company with an A.M. Best rating of "A" or better and a financial size of VII or better

Commercial General Liability Insurance

Minimal Limits:

$1,000,000 Each Occurrence Limit $1,000,000 Personal & Advertising Injury Limit $2,000,000 General Aggregate Limit $2,000,000 Products/Completed Operations Deductible Maximum:

$50,000 Each Occurrence Contractor must have their policy endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional insureds using endorsement CG 20 10 11 85, or both CG 2010 07 04 and CG 2037 07 0.

Motor Vehicle Insurance

Minimal Limits:

$1,000,000 Per Occurrence

Workers' Compensation Insurance

Minimal Limits:

Coverage according to applicable laws governing work activities.

Waiver of subrogation, except where waiver is prohibited by law.

Employers Liability Insurance

Contractor must provide insurance certificates to the State.

This Section is not intended to and is not be construed in any manner as waiving, restricting or limiting the liability of either party for any obligations under this Contract (including any provisions hereof requiring Contractor to indemnify, defend and hold harmless the State).

5. Independent Contractor. Contractor is an independent contractor and assumes all rights, obligations and liabilities set forth in this Contract. Contractor, its employees, and agents will not be considered employees of the State. No partnership or joint venture relationship is created by virtue of this Contract. Contractor, and not the State, is responsible for the payment of wages, benefits and taxes of Contractor’s employees and any subcontractors. Prior performance does not modify Contractor’s status as an independent contractor.

6. Subcontracting. Contractor may not delegate any of its obligations under the Contract without the prior written approval of the State. Contractor must notify the State at least 90 calendar days before the proposed delegation, and provide the State any information it requests to determine whether the delegation is in its best interest. If approved, Contractor must: (a) be the sole point of contact regarding all contractual matters, including payment and charges for all Contract Activities; (b) make all payments to the subcontractor; and (c) incorporate the terms and conditions contained in this Contract in any subcontract with a subcontractor. Contractor remains responsible for the completion of the Contract Activities, compliance with the terms of this Contract, and the acts and omissions of the subcontractor. The State, in its sole discretion, may require the replacement of any subcontractor.

7. Assignment. Contractor may not assign this Contract to any other party without the prior approval of the State. Upon notice to Contractor, the State, in its sole discretion, may assign in whole or in part, its rights or responsibilities under this Contract to any other party. If the State determines that a novation of the Contract to a third party is necessary, Contractor will agree to the novation, provide all necessary documentation and signatures, and continue to perform, with the third party, its obligations under the Contract.

8. Ordering. Contractor is not authorized to begin performance until receipt of a Purchase Order.

9. Acceptance. Contract Activities are subject to inspection and testing by the State within 30 calendar days of the State’s receipt of them (“State Review Period”), unless otherwise provided in Exhibit A. If the Contract Activities are not fully accepted by the State, the State will notify Contractor by the end of the State Review Period that either: (a) the Contract Activities are accepted, but noted deficiencies must be corrected; or (b) the Contract Activities are rejected. If the State finds material deficiencies, it may: (i) reject the Contract Activities without performing any further inspections; (ii) demand performance at no additional cost; or (iii) terminate this Contract in accordance with Section 13, Termination for Cause.

Within 10 business days from the date of Contractor’s receipt of notification of acceptance with deficiencies or rejection of any Contract Activities, Contractor must cure, at no additional cost, the deficiency and deliver unequivocally acceptable Contract Activities to the State. If acceptance with deficiencies or rejection of the Contract Activities impacts the content or delivery of other non-completed Contract Activities, the parties’ respective Program Managers must determine an agreed to number of days for re-submission that minimizes the overall impact to the Contract. However, nothing herein affects, alters, or relieves Contractor of its obligations to correct deficiencies in accordance with the time response standards set forth in this Contract.

If Contractor is unable or refuses to correct the deficiency within the time response standards set forth in this Contract, the State may cancel the order in whole or in part. The State, or a third party identified by the State, may perform the Contract Activities and recover the difference between the cost to cure and the Contract price plus an additional 10% administrative fee.

10. Terms of Payment. Invoices must conform to the requirements communicated from time-to-time by the State. All undisputed amounts are payable within 45 days of the State’s receipt. Contractor may only charge for Contract Activities performed as specified in Exhibit A. Invoices must include an itemized statement of all charges. The State is exempt from State sales tax for direct purchases and may be exempt from federal excise tax, if Services purchased under this Agreement are for the State’s exclusive use. Notwithstanding the foregoing, all prices are inclusive of taxes, and Contractor is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by the State under this Contract.

The State has the right to withhold payment of any disputed amounts until the parties agree as to the validity of the disputed amount. The State will notify Contractor of any dispute within a reasonable time. Payment by the State will not constitute a waiver of any rights as to Contractor’s continuing obligations, including claims for deficiencies or substandard Contract Activities. Contractor’s acceptance of final payment by the State constitutes a waiver of all claims by Contractor against the State for payment under this Contract, other than those claims previously filed in writing on a timely basis and still disputed.

The State will only disburse payments under this Contract through Electronic Funds Transfer (EFT). Contractor must register with the State at http://www.michigan.gov/cpexpress to receive electronic fund transfer payments. If Contractor does not register, the State is not liable for failure to provide payment.

Without prejudice to any other right or remedy it may have, the State reserves the right to set off at any time any amount then due and owing to it by Contractor against any amount payable by the State to Contractor under this Contract.

11. Liquidated Damages. Liquidated damages, if applicable, will be assessed as described in Exhibit A.

12. Stop Work Order. The State may suspend any or all activities under the Contract at any time. The State will provide Contractor a written stop work order detailing the suspension. Contractor must comply with the stop work order upon receipt. Within 90 calendar days, or any longer period agreed to by Contractor, the State will either: (a) issue a notice authorizing Contractor to resume work, or (b) terminate the Contract or purchase order. The State will not pay for Contract Activities, Contractor’s lost profits, or any additional compensation during a stop work period.

13. Termination for Cause. The State may terminate this Contract for cause, in whole or in part, if Contractor, as determined by the State: (a) endangers the value, integrity, or security of any location, data, or personnel; (b) becomes insolvent, petitions for bankruptcy court proceedings, or has an involuntary bankruptcy proceeding filed against it by any creditor; (c) engages in any conduct that may expose the State to liability; (d) breaches any of its material duties or obligations; or (e) fails to cure a breach within the time stated in a notice of breach. Any reference to specific breaches being material breaches within this Contract will not be construed to mean that other breaches are not material.

If the State terminates this Contract under this Section, the State will issue a termination notice specifying whether Contractor must: (a) cease performance immediately, or (b) continue to perform for a specified period. If it is later determined that Contractor was not in breach of the Contract, the termination will be deemed to have been a Termination for Convenience, effective as of the same date, and the rights and obligations of the parties will be limited to those provided in Section 14, Termination for Convenience.

The State will only pay for amounts due to Contractor for Contract Activities accepted by the State on or before the date of termination, subject to the State’s right to set off any amounts owed by the Contractor for the State’s reasonable costs in terminating this Contract. The Contractor must pay all reasonable costs incurred by the State in terminating this Contract for cause, including administrative costs, attorneys’ fees, court costs, transition costs, and any costs the State incurs to procure the Contract Activities from other sources.

14. Termination for Convenience. The State may immediately terminate this Contract in whole or in part without penalty and for any reason, including but not limited to, appropriation or budget shortfalls. The termination notice will specify the Contractor must cease performance of the Contract Activities immediately. If the State terminates this Contract for convenience, the State will pay all reasonable costs, as determined by the State, for State approved Transition Responsibilities.

15. General Indemnification. Contractor must defend, indemnify and hold the State, its departments, divisions, agencies, offices, commissions, officers, and employees harmless, without limitation, from and against any and all actions, claims, losses, liabilities, damages, costs, attorney fees, and expenses (including those required to establish the right to indemnification), arising out of or relating to: (a) any breach by Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable) of any of the promises, agreements, representations, warranties, or insurance requirements contained in this Contract; (b) any infringement, misappropriation, or other violation of any intellectual property right or other right of any third party; (c) any bodily injury, death, or damage to real or tangible personal property occurring wholly or in part due to action or inaction by Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable); and (d) any acts or omissions of Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable).

The State will notify Contractor in writing if indemnification is sought; however, failure to do so will not relieve Contractor, except to the extent that Contractor is materially prejudiced. Contractor must, to the satisfaction of the State, demonstrate its financial ability to carry out these obligations.

The State is entitled to: (i) regular updates on proceeding status; (ii) participate in the defense of the proceeding; (iii) employ its own counsel; and to (iv) retain control of the defense if the State deems necessary. Contractor will not, without the State’s written consent (not to be unreasonably withheld), settle, compromise, or consent to the entry of any judgment in or otherwise seek to terminate any claim, action, or proceeding. To the extent that any State employee, official, or law may be involved or challenged, the State may, at its own expense, control the defense of that portion of the claim.

Any litigation activity on behalf of the State, or any of its subdivisions under this Section, must be coordinated with the Department of Attorney General. An attorney designated to represent the State may not do so until approved by the Michigan Attorney General and appointed as a Special Assistant Attorney General.

16. Limitation of Liability. The State is not liable for consequential, incidental, indirect, or special damages, regardless of the nature of the action.

17. Disclosure of Litigation, or Other Proceeding. Contractor must notify the State within 14 calendar days of receiving notice of any litigation, investigation, arbitration, or other proceeding (collectively, “Proceeding”) involving Contractor, a subcontractor, or an officer or director of Contractor or subcontractor, that arises during the term of the Contract, including: (a) a criminal Proceeding; (b) a parole or probation Proceeding; (c) a Proceeding under the Sarbanes-Oxley Act; (d) a civil Proceeding involving: (1) a claim that might reasonably be expected to adversely affect Contractor’s viability or financial stability; or (2) a governmental or public entity’s claim or written allegation of fraud; or (e) a Proceeding involving any license that Contractor is required to possess in order to perform under this Contract.

18. State Data. All data and information provided to Contractor by or on behalf of the State, and all data and information derived therefrom, is the exclusive property of the State (“State Data”); this definition is to be construed as broadly as possible. Upon request, Contractor must provide to the State, or a third party designated by the State, all State Data within 10 calendar days of the request and in the format requested by the State. Contractor will assume all costs incurred in compiling and supplying State Data. No State Data may be used for any marketing purposes.

19. Non-Disclosure of Confidential Information. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties. The provisions of this Section survive the termination of this Contract.

a. Meaning of Confidential Information. For the purposes of this Contract, the term “Confidential Information” means all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; and, (c) should reasonably be recognized as confidential information of the disclosing party. The term “Confidential Information” does not include any information or documentation that was: (a) subject to disclosure under the Michigan Freedom of Information Act (FOIA); (b) already in the possession of the receiving party without an obligation of confidentiality; (c) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (d) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (e) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party). For purposes of this Contract, in all cases and for all matters, State Data is deemed to be Confidential Information.

b. Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Contract or to use such Confidential Information for any purposes whatsoever other than the performance of this Contract. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential. Disclosure to a subcontractor is permissible where: (a) use of a subcontractor is authorized under this Contract; (b) the disclosure is necessary or otherwise naturally occurs in connection with work that is within the subcontractor's responsibilities; and (c) Contractor obligates the subcontractor in a written contract to maintain the State's Confidential Information in confidence. At the State's request, any employee of Contractor or any subcontractor may be required to execute a separate agreement to be bound by the provisions of this Section.

c. Cooperation to Prevent Disclosure of Confidential Information. Each party must use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party must advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

d. Remedies for Breach of Obligation of Confidentiality. Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, in the case of the State, at the sole election of the State, the immediate termination, without liability to the State, of this Contract or any Statement of Work corresponding to the breach or threatened breach.

e. Surrender of Confidential Information upon Termination. Upon termination of this Contract or a Statement of Work, in whole or in part, each party must, within 5 calendar days from the date of termination, return to the other party any and all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession, custody, or control; provided, however, that Contractor must return State Data to the State following the timeframe and procedure described further in this Contract. Should Contractor or the State determine that the return of any non-State Data Confidential Information is not feasible, such party must destroy the non-State Data Confidential Information and must certify the same in writing within 5 calendar days from the date of termination to the other party.

20. Records Maintenance, Inspection, Examination, and Audit. The State or its designee may audit Contractor to verify compliance with this Contract. Contractor must retain, and provide to the State or its designee and the auditor general upon request, all financial and accounting records related to the Contract through the term of the Contract and for 4 years after the latter of termination, expiration, or final payment under this Contract or any extension (“Audit Period”). If an audit, litigation, or other action involving the records is initiated before the end of the Audit Period, Contractor must retain the records until all issues are resolved.

Within 10 calendar days of providing notice, the State and its authorized representatives or designees have the right to enter and inspect Contractor's premises or any other places where Contract Activities are being performed, and examine, copy, and audit all records related to this Contract. Contractor must cooperate and provide reasonable assistance. If any financial errors are revealed, the amount in error must be reflected as a credit or debit on subsequent invoices until the amount is paid or refunded. Any remaining balance at the end of the Contract must be paid or refunded within 45 calendar days.

This Section applies to Contractor, any parent, affiliate, or subsidiary organization of Contractor, and any subcontractor that performs Contract Activities in connection with this Contract.

21. Warranties and Representations. Contractor represents and warrants: (a) all Contract Activities are delivered free from any security interest, lien, or encumbrance and will continue in that respect; (b) the Contract signatory has the authority to enter into this Contract; (c) all information furnished by Contractor in connection with the Contract fairly and accurately represents Contractor's business, properties, finances, and operations as of the dates covered by the information, and Contractor will inform the State of any material adverse changes; and (d) all information furnished and representations made in connection with the award of this Contract is true, accurate, and complete, and contains no false statements or omits any fact that would make the information misleading. A breach of this Section is considered a material breach of this Contract, which entitles the State to terminate this Contract under Section 13, Termination for Cause.

22. Conflicts and Ethics. Contractor will uphold high ethical standards and is prohibited from: (a) holding or acquiring an interest that would conflict with this Contract; (b) doing anything that creates an appearance of impropriety with respect to the award or performance of the Contract; (c) attempting to influence or appearing to influence any State employee by the direct or indirect offer of anything of value; or (d) paying or…