Sample Contract DOT0003153.pdf

Operational Procurement Contract – DRAFT IN PROCESS Page 1 of 35

STATE OF GEORGIA

DEPARTMENT OF TRANSPORTATION

AGENCY CONTRACT

Contract Title: Right of Way Turnkey Acquisition Services – PI 0007692 and 0020052

Contract Number: 48400-425-DOT0003153-001 O.C.G.A. Title #: 32

Contract Type: Open Agency Contract for Services

SECTION I: CONTRACT INFORMATION

ARTICLE #101 - CONTRACT BETWEEN

This Agency Contract (hereinafter referred to as “Contract”) is made and entered into on ____________________, or as of [ENTER START DATE], whichever is later (hereinafter referred to as “Effective Date”) by and between the Georgia Department of Transportation, an agency of the State of Georgia, (hereinafter referred to as the “Department” or “GDOT”) located at One Georgia Center, 600 West Peachtree Street, Northwest, Atlanta, Georgia 30308

AND

CONTRACTOR’S LEGAL NAME (all caps and bold) STREET ADDRESS (lower case, not bold)

CITY, STATE ZIP (lower case, not bold) an entity that is authorized to do business in the State of Georgia (hereinafter referred to as the “Contractor”). The Department and the Contractor are sometimes referred to herein individually as a “Party” and collectively as the “Parties”).

WHEREAS, the Department is in need of Right of Way Acquisition Services (hereinafter, the “Services”); and, WHEREAS, the Department has caused a Request for Proposals (“RFP”), RFP No. 48401-DOT0003153, (hereinafter referred to as the “Solicitation”), which is expressly incorporated into this Contract by reference as if completely restated herein, to obtain the services of a qualified contractor for the Services set forth herein; and

WHEREAS, the Department received from Contractor a Proposal in response to the Solicitation, the components for which are attached hereto as Attachment 4 (Contractor’s Response); and

WHEREAS the Contractor represents that it has the requisite skills, qualifications, expertise, and experience necessary to perform the Services and provide the deliverables described herein, and the Department has relied on such representation.

NOW, THEREFORE, for and in consideration of the mutual promises, covenants and agreements made as expressed and contained herein, or attached and incorporated and made a part hereof, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:

ARTICLE #102 – CONTRACT TERM

A. Initial Contract Term. This Contract is effective as of the Effective Date and shall terminate One (1) Year therefrom

(“Initial Term”), unless renewed pursuant to ARTICLE #102.B, Contract Renewal, or terminated earlier under ARTICLE #402 – TERMINATION PROVISIONS of this Contract. This Contract shall not be deemed to create a debt of the State of Georgia (hereinafter may also be referred to as “State”) for the payment of any sum beyond the fiscal year of execution or, in the event of a renewal, beyond the fiscal year of such renewal.

Contract #: 48400-425-DOT0003153-001 Right of Way Turnkey Acquisition Services – PI 0007692 and 0020052

B. Contract Renewal. The Department shall have the option, in its sole discretion, to renew the Contract in one (1) year renewals (each referred to as a “Renewal Period”). The price, terms, and conditions in effect at the time of each renewal(s) shall remain the same unless the Contract is amended by mutual agreement. Each renewal option shall be initiated solely by the Department. The renewal is granted by giving the Contractor written notice of the renewal request at least one hundred ten (110) calendar days prior to the expiration of the initial term or each current renewal(s) term. Renewal(s) will depend upon the best interests of the Department, funding, and Contractor's performance.

Annual renewal(s) will be accomplished through the Department’s issuance of a unilateral Contract Renewal Form, signed by the Department, and issued to the Contractor. The Department does not accept nor acknowledge automatic renewals and shall have no obligations, payment or otherwise, associated therewith.

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

ARTICLE #103 - CONTACT INFORMATION; NOTICE REQUIREMENTS:

A. Notices issued pursuant to this Contract shall be in writing and issued in accordance with this ARTICLE. A notice shall be considered received as specified in ARTICLE #103.B:

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

Department’s Project Manager Department’s Issuing Officer Department of Transportation Department of Transportation Office of Policy and Design Office of Procurement Attn: ___________________ Attn: _________________ 600 W. Peachtree Street 600 W. Peachtree Street Atlanta, Georgia 30308 Atlanta, Georgia 30308 Phone: _________________ Phone: ________________ E-mail: _________________ E-mail: __________________

2. The Contractor's contact information for correspondence:

Contractor’s Contract Administrator Contractor’s Remit-To Address Company Name: Company’s Legal Name:

Attn: Company’s FEIN #:

Address: Address:

City State Zip: City State Zip:

E-mail: E-mail:

Phone: Phone:

B. Any and all notices, designations, consents, offers, acceptances, or any other communication provided for herein shall be in writing and delivered by personal delivery; first class certified or registered mail, return receipt requested; U.S.

Express mail; courier or an express overnight service (such as Federal Express); or, email, addressed to the designated representative for the party at the address identified in ARTICLE #103.A, followed by receipt confirmed by return email.

C. Each such notice shall be deemed to have been provided:

1. At the time it is actually received for personal delivery; or,

2. Within one (1) day in the case of express overnight, courier, or services such as Federal Express or U.S.

Express mail with guaranteed next day delivery; or,

3. Within five (5) days after it is deposited in the U.S. Mail in the case of certified, registered, or first-class U.S.

Mail.

4. As of the date of the email notification during regular business hours to the appropriate GDOT identified in

ARTICLE # 103.A.

D. The contact information listed below for the Department’s and the Contractor’s authorized representatives may be changed during the term of this Contract by written notification to the other Party. It shall be the responsibility of Contractor to inform the Department’s Issuing Officer of any change in address in writing no later than five (5) Business Days after the change.

SECTION II: SPECIFICATIONS

ARTICLE #201 – DESCRIPTION OF SERVICES

A. The Contractor shall provide all the Services in compliance with the requirements detailed in EXHIBIT A:

Department’s Scope of Work and as may be additionally described in Attachment 4: Contractor’s Response, at the prices set forth in EXHIBIT B: Contractor’s Cost Worksheet.

B. Product Shipment and Delivery. All products, if any, shall be shipped F.O.B. Destination. All items shall be at the Contractor’s risk until they have been delivered to a specific location as agreed upon by the Parties or as set out in EXHIBIT A and accepted by the Department. All items shall be subject to inspection on delivery. Hidden damage will remain the responsibility of the Contractor to remedy without cost to the Department, regardless of when the hidden damage is discovered.

C. Product Recall. In the event that any products and/or equipment provided in performance of the Services are found by the Contractor, the Department, any governmental agency, or any court having jurisdiction thereof to contain a defect, serious quality or performance deficiency, or to not be in compliance with any standard or requirement so as to require or make advisable that such commodity(ies) be reworked or recalled, the Contractor will promptly communicate all relevant facts to the Department and undertake all corrective actions, including those required to meet all obligations imposed by laws, regulations, or orders, and shall file all necessary papers, corrective action programs, and other related documents to the appropriate regulatory body, provided that nothing contained in this section shall preclude the Department from taking such action as may be required of it under any such law or regulation. The Contractor shall also perform all necessary repairs or modifications at its sole expense except to the extent that the Contractor and the Department shall agree to the performance of such repairs by the Department upon mutually acceptable terms.

D. Non-Exclusive Rights. This Contract is not exclusive. The Department reserves the right to select other Contractors to provide the Services similar to those described in this Contract, during the term of the Contract.

ARTICLE # 202 – COMMENCEMENT OF WORK; ISSUANCE OF PURCHASE ORDERS/NOTICE TO PROCEED

A. The Department will issue a Purchase Order(s) (“PO”) that will serve as Contractor’s Notice to Proceed(s) (“NTP”)

(hereinafter referred to as “PO/NTP”) as the Department requires for the initial contract term and any subsequent renewal periods. The terms of this Contract shall be incorporated by reference into any and all PO/NTPs issued prior to the expiration or termination of this Contract. The PO/NTP will be issued by electronic mail to the Contractor’s representative identified in ARTICLE #103 – CONTACT INFORMATION; NOTICE REQUIREMENTS. A PO/NTP is considered “issued” on the date the e-mail containing the PO/NTP is sent by the Department to the Contractor.

B. The Contractor shall not ship nor deliver any materials, equipment, devices, or components thereof, nor otherwise commence work in furtherance of this Contract, until authorized in writing by the Department through issuance of a PO/NTP, which shall provide a commencement date. Any work, including but not limited to travel, preliminary meetings, planning, etc., performed prior to the issuance of the PO/NTP will not be considered for payment.

Contractors are not to begin work or ship any product on any verbal communication from within the Department. The Department will not be liable for payment for any work or product with the issuance of a verbal communication.

C. The Parties agree that the Department will not pay or otherwise compensate the Contractor for any materials, equipment, devices, or components thereof, nor any work commenced, prior to issuance of the PO/NTP or beyond the term of this Contract, unless specifically authorized in writing as evidenced by a time extension (see ARTICLE #102.C – Contract Extension).

ARTICLE # 203 – PERFORMANCE OF OTHER SERVICES

A. Contractor shall not perform any other services or furnish deliverables that are outside of the scope of services or specifications described in ARTICLE #201 and/or otherwise described in EXHIBIT A: Department’s Scope of Work and/or otherwise listed in EXHIBIT B: Contractor’s Cost Worksheet, unless specifically authorized in writing as evidenced by an amendment (see ARTICLE #401 – CONTRACT AMENDMENT; CONTRACT MODIFICATION).

B. Contractor is strictly prohibited from offering, marketing, presenting, promoting, representing, or selling to the

Department any services, materials, equipment, devices, or components thereof, that are outside the scope of this Contract. Violation of this prohibition will result in termination of the Contract pursuant to ARTICLE #402 – TERMINATION PROVISIONS, and may result in disciplinary action taken, including suspension of Contractor’s registration with Team Georgia Marketplace™ pursuant to Article 1.3.7.4.of the Georgia Procurement Manual, Improper Sales Attempts.]

ARTICLE #204 –DEPARTMENT AND CONTRACTOR RIGHTS AND OBLIGATIONS:

A. The Department has the right at any time to require Contractor to put an immediate stop to any procedure or the use of any equipment (chemical, material, etc., if applicable) considered by the Department to be hazardous or toxic to persons, buildings, or surfaces. The Contractor will be responsible for providing substitutes, acceptable to the Department, as quickly as possible. The Department shall not be responsible for any losses that Contractor may incur related to the stoppage of work for this reason, nor the cost associated with Contractor’s remediation thereof as may be required by applicable law and/or governmental regulatory body.

B. The Department has the right to require the Contractor to reassign or remove any employee or subcontractor’s employee from the premises temporarily or permanently when, in the Department’s sole opinion, the employee is not suitable. The Department’s decision on this matter shall be final, and Contractor will remove this employee immediately and replace with a person of at least equivalent training, experience, and requisite qualifications as quickly as possible, subject to the Department’s prior approval.

C. Contractor hereby expressly agrees to be responsible for the proper custody, care, and control of and assume all risk of loss or damage to any Department equipment or other State-owned property furnished for the Contractor’s use in the performance of this Contract. Contractor further agrees that Department equipment transported by Contractor personnel in a vehicle belonging to Contractor (including any vehicle rented or leased by Contractor or Contractor’s personnel) shall be deemed to be in the sole care, custody, and control of Contractor’s personnel while being transported. Contractor agrees that it will reimburse the Department for its loss or damage, normal wear and tear excepted, when such property is in the Contractor’s custody or use.

D. Subcontractors.

1. Contractor agrees to obtain prior written approval from the Department for the use of subcontractors to provide the Services described in ARTICLE #201 - DESCRIPTION OF SERVICES prior to subcontractor’s performance of work. The Contractor will ensure that the subcontractor both understands and abides by all applicable provisions of the Contract and is able and qualified to perform the activities to be delegated regarding any work to be performed under this Contract. Upon approval from the Department to use a subcontractor, the Contractor specifically agrees to be fully responsible for the performance of any subcontractor or other designee, for any and all provisions of this Contract. Contractor further agrees to obtain a sworn Georgia Security and Immigration Compliance Act Affidavit from all approved subcontractors performing work under this Contract in accordance with ARTICLE #503- GEORGIA SECURITY AND IMMIGRATION COMPLIANCE ACT. No subcontract, into which Contractor enters with respect to performance of obligations or work assigned under the Contract, shall in any way relieve Contractor of any responsibility, obligation, or liability under this Contract and for the acts and omissions of all of its subcontractors and their employees and/or agents. All restrictions, obligations and responsibilities of the Contractor under the Contract shall also apply to its subcontractors. Any contract with a subcontractor must also preserve the rights of the Department in full. The Department shall have the right to reject or request the removal of any subcontractor(s) from the Contract that, in the Department’s judgment, lacks the skill, experience, or record of satisfactory performance to perform the work specified herein.

2. Prompt Payment of Subcontractors. Contractor shall pay the subcontractor(s) for satisfactory performance of work under the Contract, no later than 10 calendar days from receipt of each payment made to the Contractor, in accordance with the “Georgia Prompt Pay Act”, Sections 13-11-1 through 13-11-11 of the Official Code of Georgia Annotated (“O.C.G.A.”). If the Contractor is found to be in noncompliance with this provision, it shall constitute a breach of the Contract, and further payments for any work performed may be withheld until corrective action is taken. Failure to take corrective action may result in termination of the Contract in accordance with ARTICLE #402

- TERMINATION PROVISIONS.

3. No subcontract that Contractor enters into with respect to performance of obligations or work assigned under the Contract shall in any way relieve Contractor of any responsibility, obligation, or liability under this Contract and for the acts and omissions of all alternative Contractors, agents, and employees. All restrictions, obligations and responsibilities of the Contractor under the Contract shall also apply to the subcontractors. Any Contract with a subcontractor must also preserve the rights of the Department.

E. Indemnification.

1. General Contractor’s Indemnification Contractor hereby waives, releases, relinquishes, discharges and agrees to indemnify, defend, protect and save harmless, the Department, the State of Georgia (including the State Tort Claims Trust Fund and other self-insured funds) and all of its State entities, and all respective officers, employees, directors and agents thereof (collectively, the “Indemnitees”) and from any and all claims, demands, liabilities, losses, costs or expenses for any loss including but not limited to bodily injury (including death), personal injury, property damage, expenses, and attorney's fees, caused by, growing out of, or otherwise happening in connection with this Contract, due to any act or omission (whether intentional or negligent) on the part of the Contractor, it's agents, employees or re working at the direction of the Contractor or on its behalf, or due to any breach of this Contract by the Contractor, or due to the application or violation of any pertinent Federal, State or local law, rule or regulation by the Contractor. This indemnification applies whether: (a) the activities involve third parties or employees or agents of the Contractor or of the Department; (b) the State is partially responsible for the situation giving rise to the claim; provided, however, this indemnification does not apply to the extent of the sole negligence of the State of Georgia and its officers or employees. If and to the extent such damage or loss as covered by this indemnification is covered by the State Tort Claims Trust Fund (the “Funds”), the State Authority Liability Trust Fund, the State Employee Broad Form Liability Fund, the State Insurance Hazard Reserve, and other self-insured funds (collectively, the “Funds”) established and maintained by the Risk Management Division of the State of Georgia Department of Administrative Services (DOAS) or any successor State entity, the Contractor agrees to reimburse the Funds for such monies paid out by the Funds. To the full extent permitted by the Constitution and the laws of the State of Georgia and the terms of the Funds, the Contractor and its insurers waive any right of subrogation against the State of Georgia, its officers, employees and agents, the Funds and insurers participating thereunder, to the full extent of this indemnification.

2. Intellectual Property Indemnification. In the event that use of all or any portion of the Services and related products and equipment furnished under this Contract is/are held to constitute an infringement of a third party’s copyrights, patent, or other intellectual property rights and its use enjoined, Contractor shall, at Contractor’s sole expense, promptly either (a) procure for the Department the right to continue using the infringing item including all related licenses and services; (b) replace or modify the infringing item with a non-infringing item, or (c) modify the infringing item so that it becomes non-infringing provided it meets the requirements and specifications of this Contract. Nothing in this ARTICLE #204.E.2 shall be deemed to limit or condition the Department’s rights otherwise set forth in this Contract, including termination in accordance with ARTICLE #402 – TERMINATION

PROVISIONS.

The Contractor shall indemnify, defend, and hold harmless the Indemnitees from and against all suits, claims, or loss for infringement of any intellectual property rights resulting from the use of the Services by the Department or any of its employees or agents. This indemnity shall not apply to any infringement or alleged infringement resulting from (i) use of the Services in a manner for which the same was neither designed nor contemplated; or

(ii) modification or altering of any part or component of the Services, except as approved by Contractor.

3. The Contractor’s indemnification obligations under this ARTICLE #204 extend to the successors and assigns of the Contractor, and survive the termination of the Contract and the dissolution or, to the extent allowed by law, the bankruptcy of the Contractor.

ARTICLE #205 - RESERVED

ARTICLE #206 – INSURANCE REQUIREMENTS:

A. Insurance Certificates.

1. The Contractor must procure and maintain insurance policies at the Contractor's own expense and must furnish the Department with an insurance certificate providing evidence of proof of coverage at least in the amounts indicated below. The insurance certificate must list the Department as the certificate holder and as an additional insured for the commercial general liability, commercial business automobile liability and umbrella liability policies as follows: “State of Georgia, The Georgia Department of Transportation, its officers, employees and agents, 600 W Peachtree St NW, Atlanta, Georgia 30308”. The policy must protect the Contractor and the Department (as an additional insured) from any claims for bodily injury, property damage, or personal injury throughout the duration of the Contract with such policy supporting, but not intended to limit, the Contractor’s indemnification obligations under ARTICLE #204.E - INDEMNIFICATION.

2. The insurance certificate must provide the following information:(i) name, address, signature, and telephone number of authorized agents; (ii) name and address of insured, (iii) name of insurance company; (iii) a description of each policy in standard terminology; (iv) policy number, policy period and limits of liability; (v) name and address of the Department as certificate holder; (vi) identification number of the Contract assigned by the Department; and

(vii) document that the liability coverage purchased by Contractor includes contractual liability coverage.

B. Insurer Qualifications. Each of the insurance coverages required below shall be issued by a company licensed by the Office of Insurance and Safety Fire to conduct the business of insurance in Georgia and, (ii) unless waived or modified in writing by the Department, shall be an insurer with a minimum A.M. Best Rating of “A-“. All such coverage shall remain in full force and effect during the term and any renewal or extension thereof. The insurance certificate must be submitted with this Contract.

C. Required Insurance Coverages and Minimum Limits. The Contractor must maintain the following insurance coverage during the term of the Contract, in at least the minimum amounts set forth below, to cover all loss and liability for damages on account of bodily injury, including death therefrom, and injury to or destruction of property caused by or arising from any and all services carried on and any and all work performed by the Contractor pursuant to this Contract:

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

a) Bodily injury by accident - per employee $ 100,000

b) Bodily injury by disease - per employee $ 100,000

c) Bodily injury by disease – policy limit $ 500,000

2. Commercial General Liability Insurance with the following minimum coverage:

a) Each Occurrence Limit $1,000,000

b) Personal & Advertising Injury Limit $1,000,000

c) General Aggregate Limit $3,000,000

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

3. Commercial Business Automobile Liability Insurance of at least the minimum coverage of $1,000,000

Combined Single Limit for each occurrence to cover vehicles that are owned, leased, or rented by Contractor.

4. RESERVED

5. Excess/Umbrella Liability Insurance is acceptable for Contractor to satisfy the minimum limits set forth in subsections C.2 and C.3 of this ARTICLE #206.

D. It shall be the responsibility of the Contractor to require all of its subcontractors to maintain Commercial General

Liability insurance and Commercial Business Automobile Liability insurance with companies and limits as stated in this ARTICLE #206, and to provide a certificate evidencing that such insurance is in effect upon request.

E. The Contractor understands and agrees that the foregoing policies shall provide at least thirty (30) days prior written notice of cancellation or non-renewal- or allowed to lapse for any reason until at least thirty (30) days prior written notice has been given to the Department, or until such time as other valid and effective insurance coverage acceptable in every respect to the Department and providing protection equal to protection called for in the policies referenced in this ARTICLE #206 shall have been received, accepted, and acknowledged by the Department.

F. No Waiver of Subrogation. There is no waiver of subrogation rights by either Party with respect to insurance.

ARTICLE #207 - WARRANTIES:

A. Warranties Expressed in the Contract with Warranties Implied by Law. All warranties made by the Contractor and/or subcontractors in all provisions of the Contract and Attachment 4: Contractor’s Response, whether or not the Contract specifically denominates the Contractor’s and/or subcontractors’ promise as a warranty or whether the warranty is created only by the Contractor’s affirmation or promise, or is created by a description of the Services to be provided, or by provision of samples to the Department shall not be construed as limiting or negating any warranty provided by law, including without limitation, warranties which arise through course of dealing or usage of trade, the warranty of merchantability, and the warranty of fitness for a particular purpose. The warranties expressed in the Contract are intended to modify the warranties implied by law only to the extent that they expand the warranties applicable to the Services provided by the Contractor. The provisions of this section apply during the term of the Contract and any extensions or renewals thereof.

B. Warranty – Nonconforming Services

1. Any and all goods delivered to the Department or used by Contractor in the performance of Services shall be free from any defects in design, material, or workmanship.

2. If the goods are found to be defective in material or workmanship, do not conform to Contractor’s warranty, or are otherwise determined by the Department to be unacceptable or unsatisfactory, the Department’s Issuing Officer identified in ARTICLE #103 shall issue a written notice to Contractor. The Department shall have the option of returning, repairing, or replacing the defective Services and goods at Contractor’s expense. Contractor agrees that upon receipt of the written notice, it shall make every effort to correct the deficiency(ies) within the timeframe prescribed therein. In no instance shall Contractor be permitted to replace defective parts or components with refurbished, remanufactured, or surplus items without prior written authorization of the Department.

3. Acceptance by the Department shall not relieve the Contractor of its warranty or any other obligation under the Contract. Notwithstanding the foregoing, the Department reserves the right to terminate the Contract (ARTICLE

#402 – TERMINATION PROVISIONS).

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

D. Title to Property. The Contractor represents and warrants that title to any property utilized, assigned, conveyed, licensed, or otherwise provided pursuant to the Contract is good and that transfer of title or license to the Department is rightful, and that all property shall be delivered free of all encumbrances and liens of any kind. Title to any supplies, materials, or equipment shall remain in the Contractor until fully paid for by the Department.

E. Conformity with Contractual Requirements. The Contractor represents and warrants that any Services and goods provided in accordance with the Contract will appear and operate in conformance with the terms and conditions of the Contract.

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

G. Industry Standards. The Contractor represents and expressly warrants that all aspects of the services provided, and work performed shall at a minimum conform to the standards of performance considered generally acceptable in the relevant industry for similar work and projects. This shall be in addition to any express warranties, representations, and specifications included in the Contract, which shall take precedence.

H. Use of Department Vehicles. Contractor warrants that no Department vehicles will be used in the performance of this Contract. Contractor shall be responsible for providing all transportation necessary to deliver the services or any portions of the work thereof under the Contract.

ARTICLE #208 - STAFFING:

A. Contractor’s Personnel and Staffing. Contractor warrants that all persons assigned to perform work under this

Contract are either lawful employees of Contractor or lawful employees of a subcontractor authorized by the Department. All persons assigned to perform work under this Contract shall have the requisite skill, experience, and qualifications to perform such work. Personnel assigned by Contractor shall have all applicable professional licenses required to perform the work. If the Department believes performance or conduct of any person employed or retained by Contractor to perform any portions of the work hereunder is unsatisfactory or is not in compliance with the Contract, the Department has the right to require the Contractor to reassign or remove any employee or subcontractor’s employee from the premises temporarily or permanently. The Department’s decision on this matter shall be final, and Contractor will immediately replace this employee with a person of at least equivalent training, experience, and requisite qualifications as quickly as possible, subject to the Department’s prior approval.

B. Criminal Background Investigation. At Contractor’s cost and not reimbursable by the Department, Contractor shall, upon request, provide the Department with evidence of completion of a criminal background investigation of any and all Contractor or subcontractor personnel utilized to perform any aspect of the performance of Services pursuant to this Contract. Contractor represents and warrants that Contractor shall refrain from assigning personnel to any task under this Contract if such investigation reveals a disregard for the law or other background that indicates an unacceptable security risk as determined by the Department.

ARTICLE # 209 - CONTRACT PERFORMANCE:

A. Delay or Impossibility of Performance. Except for contracts specific to an emergency response or the provision of services that facilitate the Department’s and or Contractor’s response to emergency events, neither Party shall be responsible for or deemed to be in default under the Contract for any failure or delay in performance to the extent such failure or delay is cause by or results from acts beyond the control of such Party, including but not limited to an act of God, war, civil disturbance, civil or military authority, war, court order, acts of public enemy, or other disasters, collectively referred to as “Force Majeure Events”. In each such case, the failure or delay must be beyond the control and without the fault or negligence of the Contractor. If the Services to be provided to the Department are interrupted by a Force Majeure Event, the Department will be entitled to an equitable adjustment to the fees and other payments due to the Contractor under this Contract. If delay results from a subcontractor’s conduct, negligence, or failure to perform, the Contractor shall not be excused from compliance with the terms and obligations of the Contract.

B. Obligations Beyond Contract Term. The Contract shall remain in full force and effect to the end of the specified term or until expired, cancelled, or terminated pursuant to the Contract. Expiration, cancellation or termination of the Contract for any reason will not release Contractor from any liability or obligation set forth in the Contract that is expressly stated to survive any such expiration, cancellation, or termination, or by its nature would be intended to survive, including without limitation the provisions regarding warranty, indemnification, rights to intellectual property, confidentiality, records retention, title to property, and rights and remedies upon termination.

C. Further Assurances and Corrective Instruments. The Parties agree that they will, from time to time, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, such supplements hereto and such further instruments as may reasonably be required for carrying out the expressed intention of the Contract.

SECTION III: DEPARTMENT PAYMENT TO CONTRACTOR

ARTICLE #301 – COMPENSATION AND PRICING

A. The Department agrees to compensate Contractor for the Services satisfactorily performed pursuant to this Contract, as determined by the Department and in accordance with the prices set forth in EXHIBIT B: Contractor’s Cost Worksheet.

B. This is an open agency Contract, therefore all quantities listed are estimates and there are no guaranteed minimum or maximum amount of items to be purchased and services to be provided, nor total dollar amount commitment by the Department.

C. The unit prices listed in EXHIBIT B: Contractor’s Cost Worksheet, shall be firm and fixed throughout the term of this Contract, unless otherwise amended as outlined in ARTICLE #401.

ARTICLE # 302 - ECONOMIC PRICE ADJUSTMENT FOR RENEWALS

Beginning [ENTER DATE] and for every anniversary date thereafter, the prices set forth in EXHIBIT B: Contractor’s Cost Worksheet for labor and materials may be adjusted based on percent change (whether up or down) in the U.S.

Department of Labor’s Bureau of Labor Statistics’ Producer Price Index (PPI) using Index Series Id: PCU5313205313201 (not seasonally adjusted) for the prior twelve month period. However, consideration for the index used in the adjustment calculation will be based on final data only and not preliminary as noted by (P) in the indices. The Department reserves the right to apply any economic price adjustment (whether up or down) in its sole discretion. Any economic price adjustment shall be memorialized by the Parties in an amendment to the Contract.

ARTICLE # 303 – INVOICING AND PAYMENT TO CONTRACTOR:

A. Invoicing

1. Contractor shall invoice the Department only after the Services provided have been inspected and accepted by the Department. Receipt of the Services does not constitute acceptance. Invoices are to be dated no earlier than the date of acceptance. Unless otherwise defined in [EXHIBIT A: Department Scope of Work, the acceptance period shall be ten (10) business days following delivery of the work or deliverable to the Department.

2. Invoice amounts shall not exceed the Contractor’s pricing set forth in EXHIBIT B: Contractor’s Cost Worksheet, unless a Contract amendment reflecting a change in pricing has been fully executed prior to the date the invoice is issued.

3. Each invoice shall include the Contractor’s current “Remit to” address; a description of the Services provided; the invoice amount; the Contract number; and the associated Purchase Order number. Each properly prepared invoice must be sent in accordance with the instructions listed on the Purchase Order. Standard payment terms are net 30 days (N30) from the date the invoice is accepted.

B. Payment. Payment will be made to Contractor after acceptance of Contractor’s completed Services and receipt of an undisputed invoice by the Department in accordance with the amounts set out in EXHIBIT B: Contractor’s Cost Worksheet and the terms and conditions set forth in the Contract. Contractor shall not be entitled to receive any other compensation from the Department under the Contract. Contractor shall be solely responsible for paying all costs, expenses, and charges it incurs in connection with its performance under the Contract. [Payment for completed and accepted milestones shall not constitute acceptance of the Software or any related services not yet performed in accordance with the Contract.

C. Delay of Payment for Nonconforming Services and Contractor’s Failure.

1. The Department reserves the right to withhold payment or payments in whole or in part, and to continue to withhold any such payments if (i) the Department determines that the quality of the Services provided are deficient, unacceptable, or unsatisfactory; or, (ii) the Department determines that the Contractor has failed to perform the Services or any portion thereof, as required by the Contract.

2. To the extent that the nonconforming work or Contractor’s failure to perform or deliver in a timely manner causes the Department to incur costs, the Department may deduct the amount of such incurred costs from any amounts due and payable to Contractor.

3. The Department’s rights hereunder in this ARTICLE #303.D shall not in any way affect the Department’s authority to terminate the Contract in accordance with ARTICLE #402.

E. Taxes. The Department is exempt from federal excise taxes, and no payment will be made for any taxes levied on Contractor’s employee’s wages. The Department is exempt from State and local sales and use taxes on the Services.

Tax exemption certificates will be furnished upon request. The Contractor or an authorized subcontractor must provide the Department with a sworn verification regarding the filing of unemployment taxes for persons assigned by Contractor to perform work required in this Contract, for which verification is incorporated herein by reference.

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

G. Factoring or Assignment of Payments

1. Contractor shall provide the Department with a written notice to the Issuing Officer, in accordance with the requirements set forth in ARTICLE #103 - CONTACT INFORMATION; NOTICE REQUIREMENTS of this Contract, of any assignment, factoring, or other transfer of its right to receive payments arising under this Contract at least thirty (30) days prior to such assignment, factoring, or other transfer taking legal effect. Such written notice shall include the date, name and address of assignee/transferee, date assignment is to begin, and terms of the assignment, and shall be considered delivered upon receipt of such written notice by the Department.

2. Contractor shall be allowed to have only one assignment, factoring or transfer legally effective at any one point in time, and no multiple assignments, factoring or transfers by Contractor shall be permitted.

3. In addition to Contractor’s indemnification obligations set forth in ARTICLE #204, Contractor shall indemnify and hold harmless the Department and all other Indemnitees from any and all lawsuits, claims, actions, damages, (including reasonable attorney’s fees, obligations, liabilities and liens) arising or imposed in connection with the assignment or transfer of any account or right arising thereunder where Contractor has not complied with the notification assignment requirements of this section. Contractor also releases and waives any right, claim or action against the Department for amounts due and owing under this Contract where Contractor has not complied with the notice requirements of the section.

H. Late Fees. The Department shall not be liable for late fees, collection fees, attorney’s fees, interest, or other fees incurred by Contractor as a result of non-payment or a delay in payment by the Department.

I. Final Payment. Contractor shall issue an invoice for final payment to the Department no later than sixty (60) days following the expiration or termination date of the Contract. If Contractor fails to submit the final invoice for payment, all right to final payment is forfeited and the Department will not honor any requests submitted after the aforesaid time period. Contractor agrees that acceptance of any final payment due upon expiration or termination of the Contract shall be in full and final settlement of all claims or demands regarding further compensation for performance under this Contract, and shall release the Department from any and all further claims of whatever nature, whether known or unknown, for and on account of said Contract, and for any and all work done, and labor and materials furnished, in connection with the same.

SECTION IV: GENERAL CONTRACT PROVISIONS

ARTICLE #401 - CONTRACT AMENDMENT; CONTRACT MODIFICATION,:

A. Contract Amendment. The Contract may be amended in writing from time to time by mutual consent of the Parties.

All amendments to the Contract must be in writing and fully executed by duly authorized representatives of the Department and the Contractor.

B. If the Contractor desires an amendment or modification to any provision, condition, or obligation contained in this Contract, the Contractor shall deliver a timely and written request to the Department’s Project Manager designated in ARTICLE #103 to include a detailed explanation of the proposed change, justification and potential cost implications associated with the proposed change.

C. Contract Modification. If during the period of this Contract the Department is impacted with new requirements due to changes in state or federal laws or regulations or organizational changes, the Department reserves the right to renegotiate with the Contractor if such changes affect the provision of Services under the Contract. The circumstances and specific contract changes will be stated in writing by the Department’s Issuing Officer to the Contractor's Contract Administrator designated in ARTICLE #103. In the event such changes result in a withdrawal of the Department’s authorization to operate, or there is a material alteration in the programs administered by the Department, or any other substantial modification in the Department’s duties, the Department shall have the right to terminate this Contract pursuant to ARTICLE #402 – TERMINATION PROVISIONS.

D. RESERVED

E. No amendment or modification of this Contract will be binding on the Parties unless made in writing and properly executed by both Parties.

F. Any agreement of the Parties to amend, modify, or otherwise change any part of this Contract shall not affect any other part of this Contract, and the remainder of this Contract shall continue to be of full force and effect as set out herein.

ARTICLE # 402 - TERMINATION PROVISIONS:

A. Termination for Convenience. Following thirty (30) days’ prior written notice, the Department may, in its sole discretion, terminate the Contract for any reason without the payment of any penalty or incurring any further obligation to the Contractor. The Department will compensate Contractor for partially completed services based on submission by Contractor of a closeout report signed by Contractor’s authorized representative, which shall itemize and state in detail those portions of the services that have been completed and what remains to be done. The closeout report shall be submitted with the final invoice(s) submitted by Contractor in accordance with ARTICLE #402.D. (Payment Limitation in the Event of Termination). All services performed and deliverables completed shall remain the property of the Department. The Department shall not be responsible to Contractor for, and Contractor hereby waives any right to, any other costs, fees, and expenses of any nature whatsoever, including but not limited to, administrative fees, legal fees, costs to set up or shut down operations, salary, overhead, or any other cost or expense, whether direct or indirect, whether foreseen or unforeseen.

B. Termination for Cause.

1. Upon occurrence of a Default Event, as defined herein, the Department may, in its sole discretion, terminate this

Contract for cause. Termination shall take effect on the date set forth in the notice (“Notice of Default”) issued by the Department to Contractor provided, however, that Contractor shall have an opportunity to cure the Default Event. If the Default Event is not remedied within the cure period specified in the Notice of Default, the Department may elect to take any or all of the following actions:

(a) immediately terminate the Contract without additional written notice;

(b) withhold payment then due and/or thereafter due to Contractor in accordance with ARTICLE #303.D

(Delay of Payment for Nonconforming Work and Contractor’s Failure);

(c) procure substitute services from another source and recover from Contractor all additional costs and expenses paid or incurred by the Department as a result of the Default Event, plus all additional costs paid or incurred by the Department to procure the replacement services; and/or

2. Default Event. The occurrence of any one or more of the following events shall constitute cause for the Department to issue a Notice of Default:

(a) Contractor fails to timely deliver or progress the Services.

(b) Contractor delivers nonconforming or defective Services as described in ARTICLE #303.D, or fails to perform, to the Department’s satisfaction, any material requirement of the Contract or is in violation of a material provision of the Contract, including, but without limitation, the express warranties made by the Contractor.

(c) Contractor stops, disrupts, or otherwise delays services due to non-payment by the Department, if such withholding of payment is allowed under ARTICLE #303.D.

(d) Contractor fails to timely deliver or progress the Services, except to the extent of an allowed delay (see ARTICLE #209.A, Delay or Impossibility of Performance).

(e) Contractor fails to pay subcontractor(s), in accordance with ARTICLE #204 - CONTRACTOR AND DEPARTMENT RIGHTS AND OBLIGATIONS for work performed under this Contract.

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

(g) Contractor fails to complete the Services in accordance with the terms, conditions, and specifications set forth in this Contract.

(h) Contractor’s license, permit, or registration necessary for performance of Contractor’s obligations under this Contract is suspended or revoked.

(i) Contractor fails to comply with applicable federal, state, and local laws, rules, ordinances, regulations, and orders when performing within the scope of the…