RFP_32110-20525_Vehicle_Rental_Pro_Forma_Release_2.pdf

CONTRACT

BETWEEN THE STATE OF TENNESSEE,

CENTRAL PROCUREMENT OFFICE

AND

CONTRACTOR NAME

This Contract, by and between the State of Tennessee, Central Procurement Office (“State”) and Contractor Legal Entity Name (“Contractor”), is for the provision of Vehicle Rentals, as further defined in the "SCOPE." State and Contractor may be referred to individually as a “Party” or collectively as the “Parties” to this Contract.

The Contractor is a/an Individual, For-Profit Corporation, Non-Profit Corporation, Special Purpose Corporation Or Association, Partnership, Joint Venture, Or Limited Liability Company.

Contractor Place of Incorporation or Organization: Location Contractor Edison Registration ID # Number

A. SCOPE:

A.1. The Contractor shall provide all goods or services and deliverables as required, described, and detailed below and shall meet all service and delivery timelines as specified by this Contract.

A.2. Definitions. For purposes of this Contract, definitions shall be as follows and as set forth in the Contract:

Long-Term Vehicle Rental

Vehicle rented at least 30 days but no more than 6 months. Only available under Group 1 and Group 2 Vehicle Rental portion of the Contract.

Short-Term Vehicle Rental

Vehicle rented 29 days or less.

A.3. Vehicle Groups.

a. Group 1 Vehicle Rental, Passenger Vehicles – this program will include only passenger vehicle rentals with unlimited miles available for daily, weekly, or monthly rental either through the Contractor’s physical locations, airports, or pick-up.

(1) Weekly rates shall be based on 5.5 calendar days.

(2) Monthly rates shall be based on 24 calendar days.

b. Group 2 Vehicle Rental, Commercial Vehicles – this program will include only commercial vehicle rentals with unlimited miles available for daily, weekly, or monthly rental either through the Contractor’s physical locations, airports, or pick-up.

(1) Weekly rates shall be based on 5.5 calendar days.

(2) Monthly rates shall be based on 24 calendar days.

A.4. Vehicle Specifications

The State requires that the following vehicles be made available within and outside the State of Tennessee to Authorized Users:

a. Passenger Vehicle Classes - Any type of vehicle used for carrying or transporting passengers

(1) Compact Sedan

(2) Intermediate/Mid-Size Sedan

(3) Full-Size Sedan

(4) Small/Mid-Size Sport Utility Vehicle

(5) Large Sport Utility Vehicle

(6) Minivan

(7) Passenger Van (15 passengers)

b. Commercial Vehicles Classes - Any type of vehicle used for carrying or transporting goods

(1) Pick-Up Truck – ½ ton

(2) Pick-Up Truck – ¾ ton

(3) Pick Up Truck – 1 Ton

(4) Box Truck – 16 feet with Ramp

(5) Box Truck – 16 feet with Lift Gate

(6) Box Truck – 24 feet with Lift Gate

(7) Cargo Van

i. The Pick-Up Truck – ½ ton and the Pick-Up Truck – ¾ ton in the

Commercial Vehicle Classes must come with a towing package.

c. No rentals of any vehicle class not listed in Contract Attachment D (hereto (including, but not limited to, exotics, high line vehicles and commercial trucks not listed in Section A.5.b) shall be permitted under this Contract.

d. All Group 1 and Group 2 vehicles must have at least one quarter (1/4) tank of fuel upon pick- up by Authorized Users.

e. All vehicles must be equipped with at least the following features: Bluetooth sync, automatic transmission, power steering, power brakes, anti-lock brake systems, power windows, power door locks, air conditioning, AM/FM radio and all appropriate safety driver and passenger equipment, including but not limited to, air bags and all other manufacturer standard features/options included on the proposed model.

f. Vehicle Model Year

(1) Passenger vehicles must be either the current model year, the previous model year, or up to three model years old (calculated from current calendar year).

(2) Commercial vehicles must be no older than five (5) years old (calculated from current calendar year).

g. All vehicles must be maintained according to the manufacturer maintenance schedule.

h. Upon pick-up by the Authorized User, the interior and exterior of the vehicle must be clean for Group 1 and Group 2 vehicles.

A.5. Users/Eligible Renters

a. The Contractor must provide vehicle rental services to all eligible and approved Authorized Users that hold a valid State-issued driver’s license and are at least eighteen (18) years old, or at least twenty-five (25) years old for passenger vans, at the reservation start time, within and outside the State of Tennessee. For all eligible and approved drivers age eighteen (18) and over, the Contractor must not impose any additional fees. Eligible renters must meet any other qualifications in the jurisdiction in which the specific vehicle rental originates.

b. All eligible and approved Authorized Users that meet the license and age requirements detailed in Section A.6.a. can operate any vehicle rented by another eligible and approved Authorized User. There will not be a charge by the Contractor for these additional drivers.

c. The Contractor must provide, at no cost to the State, its preferred customer and/or reward program.

d. The driver will be responsible for paying any and all traffic violations when the rental vehicle is in their possession. Contractor(s) must send notice of tickets to each Authorized User for payment by the rental driver. The State assumes no responsibility for the payment of any tickets received by the driver.

e. The Authorized User will be responsible for immediate reporting to the Contractor of any accident, property damage, or personal injury involving or associated with any vehicles or the theft of any vehicle.

A.6. Reservation and Pick-up/Return Policy

a. The Contractor must maintain rental facilities throughout the State of Tennessee and nationally to service Authorized Users outside the borders of the State. The Contractor must be able to provide service to all counties across the State. The Contractor must make available to the State a secure online reservation system that will be available for use 24 hours a day, 365 days a year (including weekends and holidays). The online reservation system must provide users a reservation confirmation and a summary of the vehicle reservation including date(s), location(s), vehicle class, and rental rates using the contracted rates.

b. Reservation Notification Process – the Contractor will create and implement upon State approval a process in which the State will be notified of reservations made by Authorized Users.

c. All Authorized Users must provide the proper documentation (e.g. State Employee

ID, Driver’s License, etc.) at the time of vehicle pick-up. The Contractor may turn away any Authorized User who is not able to provide this documentation. If this documentation is not provided and a rental is denied, the Authorized User will not be charged for the vehicle.

d. After-hours and weekend vehicle returns must be made available to all Authorized

Users within the state of Tennessee. If the original rental location is closed on weekends, the renter may return at an alternate location within 25 miles at no additional cost. If no such location is available, the rental period shall be adjusted free of charge.

e. In the event an Authorized User has reserved a vehicle that has become over-sold, the Contractor must provide an upgraded vehicle that is mutually acceptable to the Authorized User and the Contractor. The Contractor will provide the mutually agreed upon upgraded vehicle at the same rate as the originally reserved vehicle.

f. The Contractor will provide a 59-minute grace period for rental returns.

g. The Contractor must provide secure on-site parking, or off-site with delivery and pick-up, options for user’s personal vehicles at no additional charge during the entire rental period at off-airport locations (does not include airports and the State lot). If the Contractor does not offer on-site parking, the Contractor agrees to pick up State employees within a (xx) mile radius from the rental location for Group 1 and Group 2 rental types.

h. Reservations must be made at least four (4) hours in advance of reservation start time.

A.7. Roadside Assistance and Emergency Response

The Contractor must provide 24-hour/365-day emergency roadside assistance on all vehicles available under this Contract. Upon vehicle pick-up, the Contractor must provide the user with a verbal and written 24-hour local or toll-free number to be used for any emergencies requiring roadside assistance.

A.8. Implementation Plan

a. The Contractor is responsible for the transition between the State’s current contract for Vehicle Rental and the new contract according to the timeline proposed. The Implementation Plan is the transition process where the selected Contractor will provide instruction, service, support and maintenance to ensure proper utilization and functioning of the new Contractor system. The Contractor will be responsible for reporting progress on the Implementation Plan every two (2) weeks until the agreed upon go-live date is reached.

b. The Contractor Implementation Plan submitted in response to RFP #32110-20525 will be inserted as Attachment C.

A.9. Fuel

a. Vehicle Groups 1 and 2: If an Authorized User fails to fill the gas tank up to the same level that was present at rental pick up, the Contractor may charge in accordance with Section C.11.h. to return the gas tank to the level present at rental pickup.

A.10. Long Term Vehicle Rental

a. The Contractor must allow for long term vehicle rentals at the payment rates provided in Section C. Long- term vehicle rentals will last at least one (1) month but no longer than six (6) months.

b. For rentals lasting longer than thirty (30) days, Authorized Users shall contact the rental location every thirty (30) days to report the miles that have been driven. The State shall inform Authorized Users of their mileage reporting responsibility.

A.11. Reporting

a. Statewide Contract Reports: All reports shall be submitted electronically in

Microsoft Excel format. Reports shall include the ability to sort or summarize data in accordance with the Contract Administrator's specifications. All reports shall be provided at no additional cost to the State.

b. Quarterly Reports: Contractor will submit quarterly reports to the Contract Administrator no later than fifteen (15) days after the end of the State's quarter (e.g.

a fiscal year quarter 2 report for October - December is due no later than January 15th). At the Contract Administrator's sole discretion, the State may extend the time allowed to complete quarterly reports. Quarterly reports shall provide statistical data on all transactions under this Contract by Authorized Users. At minimum, the quarterly report's statistical data shall be detailed and broken down by line item to include:

(1) Edison contract number

(2) Contract line item number

(3) Invoice date

(4) Invoice number

(5) Supplier part number

(6) Item or bundle description

(7) Quantity purchased

(8) Unit of measure

(9) Unit of measure description (10)Name of State Agency, Other Governmental Body or not-for-profit entity (11)Identity of purchaser: State entity or non-State entity (12)State Agency location (13)Unit/Contract price per line item (14)List price as listed in supplier's catalog if catalog item (15)Subtotals for each category above (16)Grand totals for each category above (17)The following items must also be included for each vehicle rental:

I. Rental Reservation Start Date and Time II. Rental Reservation End Date and Time III. Rental Actual Start Date and Time IV. Rental Actual End Date and Time V. Rental Pick-Up Location VI. Rental Drop-Off Location VII. Vehicle Reserved VIII. Vehicle Driven IX. Reserving User’s Name X. Reserving User’s Agency and Location XI. Vehicle Rental Rate XII. Fees Charged XIII. Explanation of Fees XIV. Total Invoice Amount XV. Total Miles Driven

c. Custom Reports: When requested by the State, the Contractor shall submit custom reports to the Contract Administrator within thirty (30) days of the request.

d. Reports shall be provided in electronic format. All electronic reports must be submitted in

Microsoft Excel format. Reports must include the ability to sort/summarize by account, item number, Category, Equipment Category. Contractor agrees to provide all data requested in a flat file format as designated by the State Contract Administrator.

A.12. Green Vehicles.

The State is committed to providing state employees with energy-efficient and alternative fuel motor vehicles. At least twenty-five percent (25%) of vehicles procured by the State (including rentals) in designated nonattainment areas shall be energy-efficient and/or alternative fuel motor vehicles. The Contractor must work with the State to provide these types of vehicles, for example compact fuel-efficient vehicles with a mileage rating of at least twenty-five (25) miles per gallon.

A.13. Leisure.

a. Authorized Users shall have the ability to rent Group 1 and Group 2 vehicles at the rates set forth in Contract Attachment D for leisure (non-business) use. For rentals to Authorized Users for leisure use, the Authorized User shall be responsible for damage to or loss of the vehicle in accordance with the terms and conditions of the applicable Rental Contract. For leisure use rentals, Authorized Users can elect to purchase optional damage waiver.

For rentals to Authorized Users for leisure use, the Authorized User shall be responsible pursuant to the terms and conditions of the applicable Rental Contract for all third-party claims for property damage, bodily injury or death resulting from the use or operation of any vehicle.

Authorized Users can elect to purchase optional supplemental liability protection. Liability protection is not included in the leisure use rates provided in Contract Attachment D. Liability protection for third party claims, if purchased, will be upon the terms and subject to the limitations set forth in the applicable rental contract and insurance policy.

A.14. Rentals originating in the United States shall not be driven to Mexico or Canada.

A.15. Warranty.

Contractor represents and warrants that the term of the warranty (“Warranty Period”) shall be the greater of the Term of this Contract or any other warranty generally offered by Contractor, its suppliers, or manufacturers to customers of its goods or services. The goods or services provided under this Contract shall conform to the terms and conditions of this Contract throughout the Warranty Period. Any nonconformance of the goods or services to the terms and conditions of this Contract shall constitute a “Defect” and shall be considered “Defective.” If Contractor receives notice of a Defect during the Warranty Period, then Contractor shall correct the Defect, at no additional charge.

Contractor represents and warrants that the State is authorized to possess and use all equipment, materials, software, and deliverables provided under this Contract.

Contractor represents and warrants that all goods or services provided under this Contract shall be provided in a timely and professional manner, by qualified and skilled individuals, and in conformity with standards generally accepted in Contractor’s industry.

If Contractor fails to provide the goods or services as warranted, then Contractor will re-provide the goods or services at no additional charge. If Contractor is unable or unwilling to re-provide the goods or services as warranted, then the State shall be entitled to recover the fees paid to Contractor for the Defective goods or services. Any exercise of the State’s rights under this Section shall not prejudice the State’s rights to seek any other remedies available under this Contract or applicable law.

A.16. Inspection and Acceptance. The State shall have the right to inspect all goods or services provided by Contractor under this Contract. If, upon inspection, the State determines that the goods or services are Defective, the State shall notify Contractor, and Contractor shall re-deliver the goods or provide the services at no additional cost to the State. If after a period of thirty (30) days following delivery of goods or performance of services the State does not provide a notice of any Defects, the goods or services shall be deemed to have been accepted by the State.

B TERM OF CONTRACT:

B.1 This Contract shall be effective on DATE (“Effective Date”) and extend for a period of thirty-six (36) months after the Effective Date (“Term”). The State shall have no obligation for goods or services provided by the Contractor prior to the Effective Date.

B.2. Renewal Options. This Contract may be renewed upon satisfactory completion of the Term. The State reserves the right to execute up to two (2) renewal options under the same terms and conditions for a period not to exceed twelve (12) months each by the State, at the State's sole option. In no event, however, shall the maximum Term, including all renewals or extensions, exceed a total of sixty (60) months.

B.3. Term Extension. The State may extend the Term an additional period of time, not to exceed one hundred-eighty (180) days beyond the expiration date of this Contract, under the same terms and conditions, at the State’s sole option. In no event, however, shall the maximum Term, including all renewals or extensions, exceed a total of sixty (60) months.

C. PAYMENT TERMS AND CONDITIONS:

C.1. Estimated Liability. The total purchases of any goods or services under the Contract are not known.

The State estimates the purchases during the Term shall be eight million dollars ($8,000,000.00) (“Estimated Liability”). This Contract does not grant the Contractor any exclusive rights. The State does not guarantee that it will buy any minimum quantity of goods or services under this Contract.

Subject to the terms and conditions of this Contract, the Contractor will only be paid for goods or services provided under this Contract after a purchase order is issued to Contractor by the State or as otherwise specified by this Contract.

C.2. Price Changes. Prices listed in awarded published catalog, price lists or price schedule shall remain firm for three hundred sixty-five (365) days (“Firm Price Period”).

a. Price Decreases. After the Firm Price Period, prices shall be equitably adjusted to reflect a decrease in Contractor’s costs.

b. Price Increases. After the Firm Price Period, Contractor may request price increases. The request shall: include copies of the new price lists or catalog that reflect a change in the Contractor’s cost; not constitute an increase in profit; and apply to all of the Contractor's customers.

c. Approval of Price Changes. The State may at its sole option: (1) grant the Contractor’s request;

(2) cancel the Contract and award it to the next apparent best evaluated Respondent; (3) cancel the Contract and reissue the solicitation; or (4) deny the Contractor’s request. If approved, any price changes of less than seven percent (7%) will become effective upon the State’s approval in writing. Price changes exceeding seven percent (7%) shall require a Contract amendment. The Contractor shall honor all purchase orders dated prior to the approved price change. Upon request from the State, the Contractor shall furnish the approved catalog, price schedule or price list as applicable to the State at no charge.

C.3. Payment Methodology. The Contractor shall be compensated based on the payment rates for goods or services contained in Contract Appendix # and as authorized by the State. The Contractor’s compensation shall be contingent upon the satisfactory provision of goods or services as set forth in Section A.

C.4. Travel Compensation. The Contractor shall not be compensated or reimbursed for travel time, travel expenses, meals, or lodging.

C.5. Invoice Requirements. The Contractor shall invoice the State only for goods delivered and accepted by the State or services satisfactorily provided at the amounts stipulated in Section C.3., above.

Contractor shall submit invoices and necessary supporting documentation, no more frequently than once a month, and no later than thirty (30) days after goods or services have been provided to the following address:

State Agency Billing Address

a. Each invoice, on Contractor’s letterhead, shall clearly and accurately detail all of the following information (calculations must be extended and totaled correctly):

(1) Invoice number (assigned by the Contractor);

(2) Invoice date;

(3) Contract number (assigned by the State);

(4) Customer account name: State Agency & Division Name;

(5) Customer account number (assigned by the Contractor to the above-referenced

Customer);

(6) Contractor name;

(7) Contractor Tennessee Edison registration ID number;

(8) Contractor contact for invoice questions (name, phone, or email);

(9) Contractor remittance address;

(10) Description of delivered goods or services provided and invoiced, including identifying information as applicable;

(11) Number of delivered or completed units, increments, hours, or days as applicable, of each good or service invoiced;

(12) Applicable payment methodology (as stipulated in Section C.3.) of each good or service invoiced;

(13) Amount due for each compensable unit of good or service; and

(14) Total amount due for the invoice period.

b. Contractor’s invoices shall:

(1) Only include charges for goods delivered or services provided as described in

Section A and in accordance with payment terms and conditions set forth in Section C;

(2) Only be submitted for goods delivered or services completed and shall not include any charge for future goods to be delivered or services to be performed;

(3) Not include Contractor’s taxes, which includes without limitation Contractor’s sales and use tax, excise taxes, franchise taxes, real or personal property taxes, or income taxes; and

(4) Include shipping or delivery charges only as authorized in this Contract.

c. The timeframe for payment (or any discounts) begins only when the State is in receipt of an invoice that meets the minimum requirements of this Section C.5.

C.6. Payment of Invoice. A payment by the State shall not prejudice the State's right to object to or question any payment, invoice, or other matter. A payment by the State shall not be construed as acceptance of goods delivered, any part of the services provided, or as approval of any amount invoiced.

C.7. Invoice Reductions. The Contractor's invoice shall be subject to reduction for amounts included in any invoice or payment that is determined by the State, on the basis of audits conducted in accordance with the terms of this Contract, to not constitute proper compensation for goods delivered or services provided.

C.8. Deductions. The State reserves the right to deduct from amounts, which are or shall become due and payable to the Contractor under this or any contract between the Contractor and the State of Tennessee, any amounts that are or shall become due and payable to the State of Tennessee by the Contractor.

C.9. Prerequisite Documentation. The Contractor shall not invoice the State under this Contract until the

State has received the following, properly completed documentation.

a. The Contractor shall complete, sign, and present to the State the "Authorization Agreement for Automatic Deposit Form" provided by the State. By doing so, the Contractor acknowledges and agrees that, once this form is received by the State, payments to the Contractor, under this or any other contract the Contractor has with the State of Tennessee, may be made by ACH;

and

b. The Contractor shall complete, sign, and return to the State the State-provided W-9 form. The taxpayer identification number on the W-9 form must be the same as the Contractor's Federal Employer Identification Number or Social Security Number referenced in the Contractor’s Edison registration information.

C.10. Rebate.

Contractor shall pay to the State a rebate on all rentals by Authorized Users ("Rebated Rentals") from the Contractor under the terms of this Contract based on the rebate tier structure set below.

The rebate will be determined quarterly from the Effective Date of the contract identified in Section B.1. and will be based on the total accumulative volume of spend for Rebated Rentals set forth in the rebate tier structure below for the duration of the Contract Term, including any renewals or extensions.

Spend Range Percentage to State

$0.00 to $500,000.00 provides %

$500,001.00 to $1,000,000.00 provides %

$1,000,001.00 to $1,500,000.00 provides %

$1,500,001.00 to $2,000,000.00 provides %

$2,000,001.00 to $2,500,000.00 provides %

$2,500,001.00 to $3,000,000.00 provides %

$3,000,001.00 to $3,500,000.00 provides %

$3,500,001.00 to $4,000,000.00 provides %

$4,000,001.00 to $4,500,000.00 provides %

$4,500,001.00 to $5,000,000.00 provides %

$5,000,001.00 to $5,500,000.00 provides %

$5,500,001.00 to $6,000,000.00 provides %

$6,000,001.00 to $6,500,000.00 provides %

$6,500,001.00 to $7,000,000.00 provides %

$7,000,001.00 to $7,500,000.00 provides %

$7,500,001.00 to $8,000,000.00 provides %

$8,000,001.00 to provides %

The rebate will be paid by the Contractor within forty-five (45) days after the end of each quarter as set forth below:

Calendar Quarter 1 (Jan 1-Mar 31) Calendar Quarter 2 (Apr 1-June 30) Calendar Quarter 3 (July 1-Sep 30) Calendar Quarter 4 (Oct 1-Dec 31)

Contractor shall submit payments to:

Director, Office of Financial Management Department of General Services 22nd Floor, William R Snodgrass, Tennessee Tower 312 Rosa L. Parks Avenue Nashville, TN 37243

C.11. Pricing and Fees

a. For Contractor rentals to Authorized Users for business use only, the rates in Contract

Attachment D shall include full damage waiver.

b. For Contractor rentals to Authorized Users for business use only, the rates in Contract

Attachment D shall include liability protection for accidents arising out of the operation or use of the rental vehicle with combined single limits of one million dollars ($1,000,000.00) per occurrence. Unless required by law, liability protection excludes any protection afforded under:

first party benefits; personal injury protection; medical payments; no-fault; and uninsured or underinsured motorist. Liability protection provides no coverage for physical damage to, or theft of, the rental vehicle. Insurer and policy terms shall not change without prior, written notice to the State. For leisure rentals to Authorized Users, the limits of liability described in this paragraph, C.11.b, do not apply. For leisure rentals to Authorized Users, liability protection for third party claims, if applicable, will be as specified in the applicable rental agreement with the Contractor.

c. The Contractor must provide lower pricing on a reserved vehicle should the user's reserved vehicle have a lower advertised rate than the State contract pricing at the time of pick-up.

d. The Contractor will not be allowed to charge the Authorized User a fee exceeding one (1) day of the rental rate in the situation there is a no-show or late cancellation of reservation. A late cancellation shall be defined as a cancellation made within fifty-nine (59) minutes.

e. The rates provided in Contract Attachment D are not subject to blackout dates. Except for rentals in the New York City metropolitan area, the Contractor will not be allowed to impose surcharges during peak seasons.

f. The Contractor may charge an airport concession fee on vehicles rented only at airport locations. These fees are provided in Contract Attachment D. The Authorized User must not be charged an airport fee for vehicles rented at off-airport locations.

g. The Contractor may charge a daily city differential rate on rentals in the cities identified in

Contract Attachment D.

h. In the event an Authorized User fails to fill the gas tank up to the same level that was present at rental pick up, the Contractor may charge the local per gallon pump price plus the per gallon fuel surcharge in Attachment D on the amount of fuel required to return the gas tank to the level present at rental pickup. The Contractor shall not charge a penalty fee for this action.

Contractor shall report the local per gallon pump price to the State monthly.

j. In the event a user must reserve a vehicle for a one-way trip within the State of Tennessee, the

Contractor may not charge additional fees or surcharges. For all one-way rentals not within the State of Tennessee that originate and terminate in different States, the Contractor will charge the one-way rates provided in Attachment D.

k. In the event a vehicle is returned late the Contractor will charge the contracted hourly rate for each hour past the originally specified return time that the vehicle is in use. The hourly rate will be charged until it reaches four (4) hours at which time the Contractor will charge a full daily rate until the vehicle return time.

D. MANDATORY TERMS AND CONDITIONS:

D.1. Required Approvals. The State is not bound by this Contract until it is duly approved by the Parties and all appropriate State officials in accordance with applicable Tennessee laws and regulations.

Depending upon the specifics of this Contract, this may include approvals by the Commissioner of Finance and Administration, the Commissioner of Human Resources, the Comptroller of the Treasury, and the Chief Procurement Officer. Approvals shall be evidenced by a signature or electronic approval.

D.2. Communications and Contacts. All instructions, notices, consents, demands, or other communications required or contemplated by this Contract shall be in writing and shall be made by certified, first class mail, return receipt requested and postage prepaid, by overnight courier service with an asset tracking system, or by email or facsimile transmission with recipient confirmation. All communications, regardless of method of transmission, shall be addressed to the respective Party at the appropriate mailing address, facsimile number, or email address as stated below or any other address provided in writing by a Party.

The State:

Kelly Bekele, Category Specialist Department of General Services Central Procurement Office

3rd Floor, WRS Tennessee Tower 312 Rosa L. Parks Avenue Nashville, TN 37243 Kelly.Bekele@tn.gov Telephone # (615) 253-1637

The Contractor:

Contractor Contact Name & Title Contractor Name Address Email Address Telephone # Number FAX # Number

All instructions, notices, consents, demands, or other communications shall be considered effective upon receipt or recipient confirmation as may be required.

D.3. Modification and Amendment. This Contract may be modified only by a written amendment signed by all Parties and approved by all applicable State officials. The State’s exercise of a valid Renewal Option or Term Extension does not constitute an amendment so long as there are no other changes to the Contract’s terms and conditions.

D.4. Subject to Funds Availability. The Contract is subject to the appropriation and availability of State or federal funds. In the event that the funds are not appropriated or are otherwise unavailable, the State reserves the right to terminate this Contract upon written notice to the Contractor. The State’s exercise of its right to terminate this Contract shall not constitute a breach of Contract by the State.

Upon receipt of the written notice, the Contractor shall cease all work associated with the Contract.

If the State terminates this Contract due to lack of funds availability, the Contractor shall be entitled to compensation for all conforming goods requested and accepted by the State and for all satisfactory and authorized services completed as of the termination date. Should the State exercise its right to terminate this Contract due to unavailability of funds, the Contractor shall have no right to recover from the State any actual, general, special, incidental, consequential, or any other damages of any description or amount.

D.5. Termination for Convenience. The State may terminate this Contract for convenience without cause and for any reason. The State shall give the Contractor at least thirty (30) days written notice before the termination date. The Contractor shall be entitled to compensation for all conforming goods delivered and accepted by the State or for satisfactory, authorized services completed as of the termination date. In no event shall the State be liable to the Contractor for compensation for any goods neither requested nor accepted by the State or for any services neither requested by the State nor satisfactorily performed by the Contractor. In no event shall the State’s exercise of its right to terminate this Contract for convenience relieve the Contractor of any liability to the State for any damages or claims arising under this Contract.

D.6. Termination for Cause. If the Contractor fails to properly perform its obligations under this Contract in a timely or proper manner, or if the Contractor materially violates any terms of this Contract (“Breach Condition”),the State shall have the right to immediately terminate the Contract and withhold payments in excess of compensation for completed services or provided goods.

Notwithstanding the above, the Contractor shall not be relieved of liability to the State for damages sustained by virtue of any Breach Condition and the State may seek other remedies allowed at law or in equity for breach of this Contract.

D.7. Assignment and Subcontracting. The Contractor shall not assign this Contract or enter into a subcontract for any of the goods or services provided under this Contract without the prior written approval of the State. Notwithstanding any use of the approved subcontractors, the Contractor shall be the prime contractor and responsible for compliance with all terms and conditions of this Contract. The State reserves the right to request additional information or impose additional terms and conditions before approving an assignment of this Contract in whole or in part or the use of subcontractors in fulfilling the Contractor’s obligations under this Contract.

D.8. Conflicts of Interest. The Contractor warrants that no part of the Contractor’s compensation shall be paid directly or indirectly to an employee or official of the State of Tennessee as wages, compensation, or gifts in exchange for acting as an officer, agent, employee, subcontractor, or consultant to the Contractor in connection with any work contemplated or performed under this Contract.

The Contractor acknowledges, understands, and agrees that this Contract shall be null and void if the Contractor is, or within the past six (6) months has been, an employee of the State of Tennessee or if the Contractor is an entity in which a controlling interest is held by an individual who is, or within the past six (6) months has been, an employee of the State of Tennessee.

D.9. Nondiscrimination. The Contractor hereby agrees, warrants, and assures that no person shall be excluded from participation in, be denied benefits of, or be otherwise subjected to discrimination in the performance of this Contract or in the employment practices of the Contractor on the grounds of handicap or disability, age, race, creed, color, religion, sex, national origin, or any other classification protected by federal or state law. The Contractor shall, upon request, show proof of nondiscrimination and shall post in conspicuous places, available to all employees and applicants, notices of nondiscrimination.

D.10 Equal Opportunity. The Contractor agrees as follows:

a. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:

(1) Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising;

(2) Layoff or termination;

(3) Rates of pay or other forms of compensation; and

(4) Selection for training, including apprenticeship.

The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause.

b. The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive considerations for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

c. If the State approves any subcontract, the subcontract shall include paragraphs (a) and (b) above.

d. In addition, to the extent applicable the Contractor agrees to comply with 41 C.F. R. § 60-1.4, as that section is amended from time to time during the term.

D.11. Prohibition of Illegal Immigrants. The requirements of Tenn. Code Ann. § 12-3-309 addressing the use of illegal immigrants in the performance of any contract to supply goods or services to the state of Tennessee, shall be a material provision of this Contract, a breach of which shall be grounds for monetary and other penalties, up to and including termination of this Contract.

a. The Contractor agrees that the Contractor shall not knowingly utilize the services of an illegal immigrant in the performance of this Contract and shall not knowingly utilize the services of any subcontractor who will utilize the services of an illegal immigrant in the performance of this Contract. The Contractor shall reaffirm this attestation by submitting to the State a completed Attestation (accessible through the Edison Supplier Portal) and included at Attachment A semi-annually during the Term. If the Contractor is a party to more than one contract with the State, the Contractor may submit one attestation that applies to all contracts with the State. All Contractor attestations shall be maintained by the Contractor and made available to State officials upon request.

b. Prior to the use of any subcontractor in the performance of this Contract, and semi-annually thereafter, during the Term, the Contractor shall obtain and retain a current, written attestation that the subcontractor shall not knowingly utilize the services of an illegal immigrant to perform work under this Contract and shall not knowingly utilize the services of any subcontractor who will utilize the services of an illegal immigrant to perform work under this Contract. Attestations obtained from subcontractors shall be maintained by the Contractor and made available to State officials upon request.

c. The Contractor shall maintain records for all personnel used in the performance of this

Contract. Contractor’s records shall be subject to review and random inspection at any reasonable time upon reasonable notice by the State.

d. The Contractor understands and agrees that failure to comply with this section will be subject to the sanctions of Tenn. Code Ann. § 12-3-309 for acts or omissions occurring after its effective date.

e. For purposes of this Contract, "illegal immigrant" shall be defined as any person who is not: (i) a United States citizen; (ii) a Lawful Permanent Resident; (iii) a person whose physical presence in the United States is authorized; (iv) allowed by the federal Department of Homeland Security and who, under federal immigration laws or regulations, is authorized to be employed in the U.S.; or (v) is otherwise authorized to provide services under the Contract.

D.12. Records. The Contractor shall maintain documentation for all charges under this Contract. The books, records, and documents of the Contractor, for work performed or money received under this Contract, shall be maintained for a period of five (5) full years from the date of the final payment and shall be subject to audit at any reasonable time and upon reasonable notice by the State, the Comptroller of the Treasury, or their duly appointed representatives. The financial statements shall be prepared in accordance with generally accepted accounting principles.

D.13. Monitoring. The Contractor’s activities conducted and records maintained pursuant to this

Contract shall be subject to monitoring and evaluation by the State, the Comptroller of the Treasury, or their duly appointed representatives.

D.14. Progress Reports. The Contractor shall submit brief, periodic, progress reports to the State as requested.

D.15. Strict Performance. Failure by any Party to this Contract to require, in any one or more cases, the strict performance of any of the terms, covenants, conditions, or provisions of this Contract shall not be construed as a waiver or relinquishment of any term, covenant, condition, or provision. No term or condition of this Contract shall be held to be waived, modified, or deleted except by a written amendment signed by the Parties.

D.16. Independent Contractor. The Parties shall not act as employees, partners, joint venturers, or associates of one another. The Parties are independent contracting entities. Nothing in this Contract shall be construed to create an employer/employee relationship or to allow either Party to exercise control or direction over the manner or method by which the other transacts its business affairs or provides its usual services. The employees or agents of one Party are not employees or agents of the other Party.

D.17. Patient Protection and Affordable Care Act. The Contractor agrees that it will be responsible for compliance with the Patient Protection and Affordable Care Act (“PPACA”) with respect to itself and its employees, including any obligation to report health insurance coverage, provide health insurance coverage, or pay any financial assessment, tax, or penalty for not providing health insurance. The Contractor shall indemnify the State and hold it harmless from any costs to the State arising from Contractor’s failure to fulfill its PPACA responsibilities for itself or its employees.

D.18. Limitation of State’s Liability. The State shall have no liability except as specifically provided in this Contract. In no event will the State be liable to the Contractor or any other party for any lost revenues, lost profits, loss of business, decrease in the value of any securities or cash position, time, goodwill, or any indirect, special, incidental, punitive, exemplary or consequential damages of any nature, whether based on warranty, contract, statute, regulation, tort (including but not limited to negligence), or any other legal theory that may arise under this Contract or otherwise.

Notwithstanding anything else herein, the State’s total liability under this Contract (including without limitation any exhibits, schedules, amendments or other attachments to the Contract) or otherwise shall under no circumstances exceed the Estimated Liability. This limitation of liability is cumulative and not per incident.

D.19. Limitation of Contractor’s Liability. In accordance with Tenn. Code Ann. § 12-3-701, the

Contractor’s liability for all claims arising under this Contract shall be limited to an amount equal to two (2) times the Estimated Liability amount detailed in Section C.1. and as may be amended, PROVIDED THAT in no event shall this Section limit the liability of the Contractor for: (i) intellectual property or any Contractor indemnity obligations for infringement for third-party intellectual property rights; (ii) any claims covered by any specific provision in the Contract providing for liquidated damages; or (iii) any claims for intentional torts, criminal acts, fraudulent conduct, or acts or omissions that result in personal injuries or death.

D.20. Hold Harmless. The Contractor agrees to indemnify and hold harmless the State of Tennessee as well as its officers, agents, and employees from and against any and all claims, liabilities, losses, and causes of action which may arise, accrue, or result to any person, firm, corporation, or other entity which may be injured or damaged as a result of acts, omissions, or negligence on the part of the Contractor, its employees, or any person acting for or on its or their behalf relating to this Contract. The Contractor further agrees it shall be liable for the reasonable cost of attorneys’ fees, court costs, expert witness fees, and other litigation expenses for the State to enforce the terms of this Contract.

In the event of any suit or claim, the Parties shall give each other immediate notice and provide all necessary assistance to respond. The failure of the State to give notice shall only relieve the Contractor of its obligations under this Section to the extent that the Contractor can demonstrate actual prejudice arising from the failure to give notice. This Section shall not grant the Contractor, through its attorneys, the right to represent the State in any legal matter, as the right to represent the State is governed by Tenn. Code Ann. § 8-6-106.

D.21. HIPAA Compliance. As applicable, the State and Contractor shall comply with obligations under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Health Information Technology for Economic and Clinical Health (“HITECH”) Act and any other relevant laws and regulations regarding privacy (collectively the “Privacy Rules”). The obligations set forth in this Section shall survive the termination of this Contract.

a. Contractor warrants to the State that it is familiar with the requirements of the Privacy

Rules, and will comply with all applicable requirements in the course of this Contract.

b. Contractor warrants that it will cooperate with the State, including cooperation and coordination with State privacy officials and other compliance officers required by the Privacy Rules, in the course of performance of the Contract so that both parties will be in compliance with the Privacy Rules.

c. The State and the Contractor will sign documents, including but not limited to business associate agreements, as required by the Privacy Rules and that are reasonably necessary to keep the State and Contractor in compliance with the Privacy Rules. This provision shall not apply if information received or delivered by the parties under this

Contract is NOT “protected health information” as defined by the Privacy Rules, or if the Privacy Rules permit the parties to receive or deliver the information without entering into a business associate agreement or signing another document.

d. The Contractor will indemnify the State and hold it harmless for any violation by the

Contractor or its subcontractors of the Privacy Rules. This includes the costs of responding to a breach of protected health information, the costs of responding to a government enforcement action related to the breach, and any fines, penalties, or damages paid by the State because of the violation.

D.22. Tennessee Consolidated Retirement System. Subject to statutory exceptions contained in Tenn.

Code Ann. §§ 8-36-801, et seq., the law governing the Tennessee Consolidated Retirement System (“TCRS”), provides that if a retired member of TCRS, or of any superseded system administered by TCRS, or of any local retirement fund established under Tenn. Code Ann. §§ 8- 35-101, et seq., accepts State employment, the member's retirement allowance is suspended during the period of the employment. Accordingly and notwithstanding any provision of this Contract to the contrary, the Contractor agrees that if it is later determined that the true nature of the working relationship between the Contractor and the State under this Contract is that of “employee/employer” and not that of an independent contractor, the Contractor, if a retired member of TCRS, may be required to repay to TCRS the amount of retirement benefits the Contractor received from TCRS during the Term.

D.23. Tennessee Department of Revenue Registration. The Contractor shall comply with all applicable registration requirements contained in Tenn. Code Ann. §§ 67-6-601 – 608. Compliance with applicable registration requirements is a material requirement of this Contract.

D.24. Debarment and Suspension. The Contractor certifies, to the best of its knowledge and belief, that it, its current and future principals, its current and future subcontractors and their principals:

a. are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal or state department or agency;

b. have not within a three (3) year period preceding this Contract been convicted of, or had a civil judgment rendered against them from commission of fraud, or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state, or local) transaction or grant under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification, or destruction of records, making false statements, or receiving stolen property;

c. are not presently indicted or otherwise criminally or civilly charged by a government entity

(federal, state, or local) with commission of any of the offenses detailed in section b. of this certification; and

d. have not within a three (3) year period preceding this Contract had one or more public transactions (federal, state, or local) terminated for cause or default.

The Contractor shall provide immediate written notice to the State if at any time it learns that there was an earlier failure to disclose information or that due to changed circumstances, its principals or the principals of its subcontractors are excluded, disqualified, or presently fall under any of the prohibitions of sections a-d.

D.25. Force Majeure. “Force Majeure Event” means fire, flood, earthquake, elements of nature or acts of God, wars, riots, civil disorders, rebellions or revolutions, acts of terrorism or any other similar cause beyond the reasonable control of the Party except to the extent that the non-performing Party…