Sample Environmental Lab Contract.pdf

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ISID – Laboratory Testing Services (Billing Rate)

Indefinite-Scope, Indefinite-Delivery Contract

R 10/10/19

STATE OF MICHIGAN

DEPARTMENT OF TECHNOLOGY, MANAGEMENT AND BUDGET

This contract authorizes the professional services contractor to provide professional services. (Authority: 1984 PA 431)

CONTRACT FOR PROFESSIONAL LABORATORY TESTING SERVICES: Indefinite Scope-Indefinite Delivery

THIS CONTRACT, authorized this DATE day of MONTH in the year two-thousand and twenty (2020), by the Director, Department of Technology, Management and Budget, BETWEEN the STATE OF MICHIGAN acting through the DESIGN AND CONSTRUCTION DIVISION of the DEPARTMENT OF TECHNOLOGY, MANAGEMENT AND BUDGET, State Facilities Administration, 3111 W. St. Joseph Street. Lansing, Michigan, hereinafter called the Department, and ENTITY the Prime Professional Laboratory Testing Services Contractor, hereinafter called the Professional.

WHEREAS, the Department proposes securing professional services for:

Indefinite-Scope, Indefinite-Delivery Contract No. 00 Index No. Contract Order No. Y File No.

Department of Technology, Management and Budget, Design and Construction Division, Indefinite-Scope, Indefinite-Delivery Contract (ISID) for Minor Projects – Professional Laboratory Testing Services Various State Departments and Facilities Various Site Locations, Michigan

NOW THEREFORE, the Department and the Professional in consideration of the covenants of this Contract agree as follows:

I. The Professional shall provide the professional laboratory testing services, technical staff, and support personnel for each assigned Project provided and to the extent authorized by the Department of Technology, Management and Budget, Design and Construction Division (DCD) [The Department], and be solely responsible for such professional services. The Professional’s services shall be performed in strict accordance with the Project.

II. The State of Michigan shall compensate the Professional for providing their professional services for the Project in accordance with the conditions of this Professional Services Contract.

IN WITNESS, WHEREOF, each of the parties has caused this Professional Services Contract to be executed by its duly authorized representatives on the dates shown beside their respective signatures, with the Contract to be effective upon the date on which the Professional received a copy executed by the authorized State of Michigan representative(s) by regular, registered, or certified mail or by delivery in person. This contract constitutes the entire agreement between the parties.

FOR THE PROFESSIONAL:

Firm Name Federal Identification (I.D.) Number

Signature Date

Title

FOR THE STATE OF MICHIGAN:

Director, Department of Technology, Management and Budget Date

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ARTICLE I

PROFESSIONAL SERVICES SCOPE OF WORK

Provide professional laboratory testing services, technical staff and support personnel for various assigned laboratory testing Projects on an as-needed basis as defined by the Department. This laboratory testing Contract will be used for an unspecified number of ISID projects conducted under The Natural Resources and Environmental Protection Act, 1994 P.A. 451, as amended.

The scope of work for each assigned project will be defined at the time the project is awarded by the State to the Professional firm. The professional services required for each of these assigned projects requested by the Department may include any or all of the services outlined in the Project Statement/Scope of Work.

The Professional firm’s services shall be performed in strict accordance with this Contract and be in compliance with the Department’s approved and attached Project Statement.

The total compensation to be paid to the Professional by the Department for all assigned ISID Projects under this Contract will not exceed one million dollars ($1,000,000.00) unless, otherwise approved in writing by the Department.

This Contract does not warrant or imply to the Professional firm, entitlement to perform any specific percentage (%) amount of environmental work during the life of this three (3) year Contract.

This Contract will remain in effect for three (3) years from the date of this Contract award but may be unilaterally terminated by the State of Michigan at any time, for cause or its convenience, by written notification of the State, to the Professional. Furthermore, this Contract may be extended for one (1) additional year, at the sole option and discretion of the State upon the Department providing written notice to the Professional prior to the expiration of the original three (3) year Contract time period. Any such time extension shall be subject to the terms and conditions of this Contract, including, but not limited to, the existing cost per sample included in this Contract for the Professional, their Subcontractors/Consultants, and their employees or agents.

Please note that for this Professional Services Contract ISID Contract No., as noted on page 1, must be provided on all Project correspondence and documents. Also, you are not to provide any laboratory testing services or incur expenses until individual ISID Projects are assigned to this Contract (see Article II – Compensation and the Appendix 1 – Project/Program Statement).

The Professional shall provide, without exception, every professional, scientific, technical, and environmental discipline, staff and support personnel, along with all supplies, equipment and testing apparatus, and all other specialized personnel, services necessary to achieve the Project Scope of Work as described in the attached Project/Program Statement(s), and to perform such work for compensation fee(s) according to the professional laboratory testing services rendered and be within the Professional firm’s not-to-exceed compensation fee(s) amount authorized in this Contract and Department approved Contract Change Orders. The Professional shall check and verify the accuracy of all Project Scope of Work furnished by the Department or any other Project related source. The assignment of, or continuation of any assigned Project work is conditional upon satisfactory performance for the Department. The Professional firm’s response to the assigned Project Scope of Work shall begin no later than two (2) business days from the date of written notification of the Department’s need for professional services. The Professional acknowledges that the Department is the first interpreter of the Professional firm’s performance under this Contract.

The Professional shall refer to the State of Michigan, Department of Environment, Great Lakes and Energy operational memorandum to assist them in performing analytical laboratory testing services for a Project.

The Professional acknowledges by signing this Professional Services Contract having a clear understanding of the requested professional services required by the Department to provide it, and further agrees that the terms and conditions of this Professional Services Contract provide accurate professional fee(s) for the Professional to provide the requested Project scope of work requirements for each assigned project. No increase in fee to the Professional will be allowed unless there is a material change made to the Project as described in its Project/Program Statement and the change in scope to the Project/Program Statement is accepted and approved in writing, by the Project Director and the Professional.

Professional services shall not be performed, and no Project expenses shall be incurred by the Professional prior to the issuance of a written and signed Professional Services Contract and a Contract Order authorizing the Professional to start the Project work. Compensation for Department directed changes to the Project will be provided to the Professional by a Contract Modification and/or Contract Change Order signed by the Department and the Professional.

The Professional shall immediately inform the Department whenever it is indicated that the Professional’s authorized not-to-exceed Budget for any of the assigned Projects may be exceeded. The Professional shall make recommendations to the Department for revisions to bring the Project Cost back to the Professional’s original authorized Budget amount. Any revision to the Project must be accepted and approved by the Department in writing.

The professional services may also include participation in legislative presentations as directed by the legislature or the Department.

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No substitution of any “Key Principal Personnel/Employee” essential for the successful completion of the Project and identified in the Professional’s Organizational Chart will be allowed by the Professional for this Contract without the prior written consent from the Project Director. Before any “Key Principal Personnel/Employee” substitution takes place, the Professional shall submit a written request to the Project Director, and this substitution request shall include the following information: (1) A request in writing for a No Cost Contract Modification; (2) Detailed written justification for this substitution; (3) The Professional’s qualifications of any proposed “Key Principal Personnel/Employee” replacement; and (4) A written statement from the Professional assuring the Department that the Project scope of work will not be adversely affected by this substitution.

This request to modify their Professional Services Contract must be accepted and approved in writing by the Project Director and the Director of the Department.

The Department will designate an individual to serve as the Project Director for the Project scope of work who shall be fully acquainted with the Project/Program Statement and have the authority to render Project decisions and furnish information promptly. Except in connection with issues under the Article XII - Contract Claims and Disputes text, the Project Director will exercise general management and administration for the Professional’s services in so far as they affect the interest of the State. The Professional shall indemnify, defend, and hold harmless the State against exposure to claims arising from delays, negligence, or delinquencies by the Professional for the professional services of this Contract.

The professional services of this Contract shall be performed in accordance with the Phase/Task service description in this article. The following Phase/Task service description outlined in this Contract represents the Department’s standard of care method for describing the Professional firm’s responsibilities for providing the laboratory testing services of this Contract, but by inclusion, or omission, do not limit or exclude any regular or normal professional services necessary to accomplish the Project Scope of Work as required by the governing environmental enforcing agency, in full compliance with all applicable safety and health regulations and be in accordance with the approved Project Budget and the best industries accepted requisites for occupational safety and health standards of professional laboratory testing practice. However, all of the services outlined in this Contract may or may not be applicable to the Project/Program Statement and will require the Professional to identify only the services that are applicable for the Project at hand. The Professional shall coordinate the interface of the services required for their Project Scope of Work and be responsible for identifying any additional Task services necessary to successfully complete their Project Scope of Work.

PHASE 600 – LABORATORY TESTING/ANALYSIS SERVICES

The Department will appoint a State Project Manager to monitor and coordinate the performance of laboratory testing services. Except where the Contract is assigned, the Professional is responsible to the Project Manager for the accuracy and timeliness of their services.

Provide all laboratory testing services necessary to analyze, evaluate, and report the results to meet the requirements of the Project/Program Statement for all samples collected by the Department and other agencies authorized to act on behalf of the Department within the contractual requirements of this Contract. The laboratory testing/analysis services under this phase may include but not be limited to coordination, all laboratory testing services identified in the contract, review and evaluation of the test results, produce and provide copies of correspondence, memoranda, electronic files, records of telephone or other conversations and other communications and reporting, as required by the Department/Client/Agency requirements and as outlined in the Project/Program Statement.

The Professional shall be available to provide non-analytical testing services related to the reported results such as expert witness testimony.

The testing and analysis of samples from the Department and/or the State/Client Agency shall receive first priority in laboratory testing processing. Laboratory testing and results shall be produced within the Contract turnaround times specified in this Contract.

Hold, and legally dispose of all testing and analysis samples, and sample bottles and containers from sampling and testing.

Where testing and analysis services are provided by others, evaluate and approve, or disapprove, testing and analysis reports within the Contract turnaround times specified in this Contract and provide copies thereof marked with the Professional firm’s approval. Provide written reports and appropriate correspondence summarizing the findings of the testing and analysis samples.

ARTICLE II

COMPENSATION

In consideration of the performance of this Contract, the Department agrees to pay the Professional, as compensation for professional services, a price per analysis for all analytical services, on a not-to-exceed basis as specified herein, subject to subsequent modification mutually agreeable to the parties hereto; provided, however, the Professional may not incur costs, or bill the Department, for professional services in excess of the estimates established for this Project without the prior written agreement of the Department. The attached proposal prepared by the Professional in response to the Request for Proposal, by the Owner, may describe methodology, services, schedule, and other aspects of the work to be performed under the Contract but does not supersede the Contract.

2.1 PER SAMPLE COST Compensation is approved and authorized by the Department on a per sample cost basis for laboratory services by Professional firm(s) identified and listed in this Contract to: (1) Test and analyze samples collected by their technical employees; and

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(2) The Professional firm’s per test costs shall be recognized by the Department to include sample shipping and all consumables necessary to prepare and secure the respective sample(s) and to conduct the required analytical testing procedures thereon.

The Professional shall provide, but no additional monetary compensation shall be allowed, for the professional services necessary to respond to and resolve all claims arising wholly or in part from the Professional firm’s errors or omissions or the Professional firm’s performance which is inconsistent with the Contract.

2.2 PREMIUM TIME/OVERTIME: This Contract anticipates that no premium or overtime is required to achieve the Project’s scope of work.

No compensation will be allowed to the Professional for any premium or overtime cost incurred to achieve the Project schedule of this Contract, unless directing in writing by the Project Director.

All incidental postage, mail, or other shipping or delivery services, acquisition, bad debts, previous business losses, employment fees, depreciation, and operating costs for equipment, including computer systems used for desktop applications, and any specialized testing equipment are to be included. The per test cost shall include, without exception, secretarial, computer/typing/word processing, editing, and clerical services utilized in any way for the Project as well as other non-technical and/or overhead employees. The per sample cost shall also include all profit without regard to its form or distribution.

2.3 DIRECT COST REIMBURSEMENT ITEMS: The Professional’s testing services, and authorized reimbursable expenses shall be treated as an authorized reimbursable expense item at a direct cost. Reimbursement of authorized expense items will be at the per sample unit costs. The Professional shall be responsible for the selection of the supplier of their testing services or materials, the coordination, accuracy, and application of their testing services, whether provided by their staff or provided by its Subcontractors/Consultants. No mark-up of the Subcontractors’ costs will be allowed.

Unless authorized elsewhere in this Contract, direct cost reimbursement items shall be limited to the required laboratory testing, reproduction of documents for legislative presentation, artistic productions, mobilization of testing equipment, laboratory costs for testing samples, or other essential testing components of the Project.

Compensation for this Contract shall not exceed the amounts per Project Phase shown in the attached Contract Order unless authorized by a Department approved Contract Modification. It shall be the Professional’s responsibility to carefully monitor their and its Subcontractors/Consultants firms Project costs, activities, and progress and to give the Project Director timely notification of any justifiable need to increase the authorized fee. The Professional may not proceed with professional services that have not been authorized by the Project Director and shall immediately notify the Project Director if such services have been requested or have become necessary.

ARTICLE III

PAYMENTS

Payment of the professional services fee shall be based on the Professional’s performance of authorized professional service(s) performed prior to the date of each submitted payment request. Payment requests shall be submitted monthly to the Project Director on a payment request form (DTMB-440). Payment for each monthly submitted payment request shall be made within thirty (30) consecutive calendar days following the Department’s approval of the payment request. Payment requests shall include signed certification by the Professional of the actual percentage of work completed as of the date of invoicing for each Phase and summarize the amounts authorized, earned, previously paid, and currently due for each Project Phase. Payment requests shall be supported by itemized records or documentation in such form and detail as the Department may require. Each of the Professional’s Subcontractors/Consultants 's submitted payment request applications shall include similar information.

This includes, but is not limited to:

a) Task Numbers for the professional services provided.

b) Itemized invoices from each of the Professional’s Subcontractors/Consultants documenting that firm’s professional services charge and the Project work related services provided.

ARTICLE IV

ACCOUNTING

The Professional shall keep current and accurate records of Project costs and expenses and all other Project related accounting document to support the Professional’s monthly application for payment. Project records shall be kept on a generally recognized accounting basis. Such records shall be available to the Department for a period of three (3) years after the Department’s final payment to the Professional. The State of Michigan reserves the right to conduct, or have conducted, an audit and inspection of these Project records at any time during the Project or following its completion.

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ARTICLE V

INSURANCE

The Professional shall purchase, maintain and require such insurance that will provide protection from claims set forth below which may arise out of or result from the Professional firm’s services under this Contract, whether such service is performed by the Professional or performed by any of the Professional firm’s Subcontractors/Consultants or by anyone directly or indirectly employed by them, or by anyone for whose acts they may be liable. The following insurance policy limits described below are intended to be the minimum coverage acceptable by the State:

For the purpose of this Section, "State" includes its departments, divisions, agencies, offices, commissions, officers, employees, and agents.

(a) The Contractor must provide proof that it has obtained the minimum levels of insurance coverage indicated or required by law, whichever is greater. The insurance must protect the State from claims that may arise out of or result from or are alleged to arise out of or result from the Contractor's or a Subcontractor's performance, including any person directly or indirectly employed by the Contractor or a Subcontractor, or any person for whose acts the Contractor or a Subcontractor may be liable.

(b) The Contractor waives all rights against the State for the recovery of damages that are covered by the insurance policies the Contractor is required to maintain under this Section. The Contractor's failure to obtain and maintain the required insurance will not limit this waiver.

(c) All insurance coverage provided relative to this Contract is primary and non-contributing to any comparable liability insurance (including self-insurance) carried by the State.

(d) The State, in its sole discretion, may approve the use of a fully funded self-insurance program in place of any specified insurance identified in this Section.

(e) Unless the State approves, any insurer must have an A.M. Best rating of "A" or better and a financial size of VII or better, or if those ratings are not available, a comparable rating from an insurance rating agency approved by the State. All policies of insurance must be issued by companies that have been approved to do business in the State. To view the latest A.M. Best’s Key Ratings Guide and the A.M. Best’s Company Reports (which include the A.M. Best’s Ratings) visit the A.M. Best Company internet web site at http://www.ambest.com.

(f) Where specific coverage limits are listed in this Section, they represent the minimum acceptable limits. If the Contractor's policy contains higher limits, the State is entitled to coverage to the extent of the higher limits.

(g) The Contractor must maintain all required insurance coverage throughout the term of this Contract and any extensions. However, in the case of claims-made Commercial General Liability policies, the Contractor must secure tail coverage for at least three (3) years following the termination of this Contract.

(h) The minimum limits of coverage specified are not intended and may not be construed; to limit any liability or indemnity of the Contractor to any indemnified party or other persons.

(i) The Contractor is responsible for the payment of all deductibles.

(j) If the Contractor fails to pay any premium for a required insurance policy, or if any insurer cancels or significantly reduces any required insurance without the State's approval, the State may, after giving the Contractor at least 30 days’ notice, pay the premium or procure similar insurance coverage from another company or companies. The State may deduct any part of the cost from any payment due the Contractor or require the Contractor to pay that cost upon demand.

(k) In the event the State approves the representation of the State by the insurer's attorney, the attorney may be required to be designated as a Special Assistant Attorney General by the Michigan Attorney General.

(l) Workers’ Compensation Insurance: The Contractor must provide Workers' Compensation coverage according to applicable laws governing work activities in the state of the Contractor's domicile. If the applicable coverage is provided by a self-insurer, the Contractor must provide proof of an approved self-insured authority by the jurisdiction of domicile. For employees working outside of the state of the Contractor's domicile, the Contractor must provide certificates of insurance proving mandated coverage levels for the jurisdictions where the employees' activities occur.

(m) Motor Vehicle Insurance: If a motor vehicle is used in relation to the Contractor's performance, the Contractor must have vehicle liability insurance on the motor vehicle for bodily injury and property damage as required by law.

(n) Commercial General Liability Insurance: For claims for damages because of bodily injury or death of any person, other than the

Professional’s employees, or damage to tangible property of others, including loss of use resulting therefrom, to the extent that such

-6-kinds of liability are not insured by other specific liability insurance and are ordinarily insurable under general liability insurance. The Contractor must list the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents as additional insureds on the Commercial General Liability certificate. The Contractor also agrees to provide evidence that insurance policies contain a waiver of subrogation by the insurance company.

(o) Except where the State has approved a subcontract with other insurance provisions, the Professional must require any

Consultant/Subcontractor to purchase and maintain the insurance coverage required in this Article. Alternatively, the Contractor may include a Consultant/Subcontractor under the Professional’s insurance on the coverage required in that Section. The failure of a Consultant/Subcontractor to comply with insurance requirements does not limit the Professional’s liability or responsibility.

(p) If any of the required policies provide claims-made coverage, the Contractor must: (a) provide coverage with a retroactive date before the effective date of the contract or the beginning of Contract Activities; (b) maintain coverage and provide evidence of coverage for at least three (3) years after completion of the Contract Activities;

and (c) if coverage is canceled or not renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, Contractor must purchase extended reporting coverage for a minimum of three (3) years after completion of work.

(q) Contractor must: (a) provide insurance certificates to the Contract Administrator, containing the (1) project file number; (2) the project title; and (3) description of the program, at Contract formation and within 20 calendar days of the expiration date of the applicable policies; (b) require that subcontractors maintain the required insurances contained in this Section; (c) notify the Contract Administrator within 5 business days if any insurance is cancelled; and (d) waive all rights against the State for damages covered by insurance. Failure to maintain the required insurance does not limit this waiver.

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

Required Limits Additional Requirements

Commercial General Liability Insurance

Minimal Limits:

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

Operations

Deductible Maximum:

$50,000 Each Occurrence

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

Umbrella or Excess Liability Insurance

Minimal Limits:

$2,000,000 General Aggregate

Contractor must have their policy endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional insureds.

Automobile Liability Insurance

Minimal Limits:

$1,000,000 Per Occurrence

Contractor must have their policy: (1) endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional insureds; and (2) include Hired and Non- Owned Automobile coverage.

Workers' Compensation Insurance

Minimal Limits:

Coverage according to applicable laws governing work activities.

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

Employers Liability Insurance

Minimal Limits:

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$500,000 Each Accident $500,000 Each Employee by Disease $500,000 Aggregate Disease.

Environmental and Pollution Liability (Errors and Omissions)

Minimal Limits:

$1,000,000 Each Occurrence $2,000,000 Annual Aggregate

Contractor must have their policy: (1) be applicable to the work being performed, including completed operations equal to or exceeding statute of repose; (2) not have exclusions or limitations related to Transportation (upset overturn, spills during loading or unloading, Hazardous Materials Handling, and Non Owned disposal site liability; and (3) endorsed to add “the State of Michigan, its departments, division, agencies, offices, commissions, officers, employees, and agents” as additional insured.

Professional Liability (Errors and Omissions) Insurance

Minimal limits:

$1,000,000 Each Occurrence $2,000,000 Annual Aggregate

Deductible Maximum:

$50,000 Per Loss

The Professional firm’s Errors and Omissions coverage shall include coverage for claims resulting from acts of forbearance that cause or exacerbate pollution and claims of bodily injury and property damage. This insurance is required of all Professional firms who conduct professional environmental services including, but not limited to, any of the Phase 100 – Study services:

Contractual Liability Insurance for claims for damages that may arise from the Professional’s assumption of liability on behalf of the State under Article VI concerning indemnification for errors, omissions, or negligent acts in the course of the professional service or other provision within this Contract to the extent that such kinds of contractual liability are insurable in connection with and subject to limits of liability not less than for the general liability insurance and the professional liability insurance and set forth in subsections (c) and (d) above.

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

The attached, Certificates of Insurance documents required for this Project shall be in force for this Project until the final payment by the State to the Professional is made and shall be written for not less than any limits of liability specified above. The Professional has the responsibility for having their Subcontractors/Consultants firms comply with these insurance requirements.

ARTICLE VI

INDEMNIFICATION

(a) To the extent permitted by law, the Professional shall indemnify, defend and hold harmless the State from liability, including all claims and losses, and all related costs and expenses (including reasonable attorneys’ fees and costs of investigation, litigation, settlement, judgments, interest and penalties), accruing or resulting to any person, firm or corporation that may be injured or damaged by the Professional in the performance of this Contract and that are attributable to the negligence or tortious acts of the Professional or any of its Subcontractors/Consultants, or by anyone else for whose acts any of them may be liable.

(b) Employee Indemnification: In any and all claims against the State of Michigan, its departments, divisions, agencies, boards, sections, commissions, officers, employees and agents, by any employee of the Professional or any of its Subcontractors/Consultants, the indemnification obligation under this Contract shall not be limited in any way by the amount or type of damages, compensation or benefits payable by or for the Professional or any of its Subcontractors/Consultants under worker’s disability compensation acts, disability benefit acts or other employee benefit acts. This indemnification clause is intended to be comprehensive. Any overlap in provisions, or the fact that greater specificity is provided as to some categories of risk, is not intended to limit the scope of indemnification under any other provisions.

(c) Patent/Copyright Infringement Indemnification: To the extent permitted by law, the Professional shall indemnify, defend and hold harmless the State from and against all losses, liabilities, damages (including taxes), and all related costs and expenses (including reasonable attorneys’ fees and costs of investigation, litigation, settlement, judgments, interest and penalties) incurred in connection with any action or proceeding threatened or brought against the State to the extent that such action or proceeding is based on a claim that any piece of equipment, software, -8-commodity or service supplied by the Professional or its Subcontractors/Consultants, or the operation of such equipment, software, commodity or service, or the use of reproduction of any documentation provided with such equipment, software, commodity or service infringes any United States patent, copyright, trademark or trade secret of any person or entity, which is enforceable under the laws of the United States.

In addition, should the equipment, software, commodity, or services, or its operation, become or in the State’s or Professional’s opinion be likely to become the subject of a claim of infringement, the Professional shall at the Professional’s sole expense (i) procure for the State the right to continue using the equipment, software, commodity or service or, if such option is not reasonably available to the Professional, (ii) replace or modify to the State’s satisfaction the same with equipment, software, commodity or service of equivalent function and performance so that it becomes non-infringing, or, if such option is not reasonably available to Professional, (iii) accept its return by the State with appropriate credits to the State against the Professional’s charges and reimburse the State for any losses or costs incurred as a consequence of the State ceasing its use and returning it.

Notwithstanding the foregoing, the Professional shall have no obligation to indemnify or defend the State for, or to pay any costs, damages or attorneys’ fees related to, any claim based upon (i) equipment developed based on written specifications of the State; or (ii) use of the equipment in a configuration other than implemented or approved in writing by the Professional, including, but not limited to, any modification of the equipment by the State; or (iii) the combination, operation, or use of the equipment with equipment or software not supplied by the Professional under this Contract.

ARTICLE VII

OWNERSHIP OF DOCUMENTS

All Project deliverables, including but not limited to: reports, Bidding Documents, Contract Documents, electronic documents and data, and other Project related documents, including the copyrights, prepared and furnished by the Professional shall become the property of the State of Michigan upon completion of the Project, completion and acceptance of the professional’s work, or upon termination of the Contract. Project deliverables shall be delivered to the Department upon their request. The Professional shall have no claim for further employment or additional compensation as a result of this Contract requirement. The Professional may retain a copy of all Project documents for their files.

If the Professional is in default or breach of its obligations under this Contract, the State shall have full ownership rights of the Project deliverables, including Bidding Documents and Contract Documents, including all electronic data. If the Professional is in default or this Contract Agreement is terminated, the State shall not use the Contract Documents and deliverables of this Contract for completion of the Project by others without the involvement of other qualified Professionals who shall assume the professional obligations and liability for the Project work not completed by the Professional. To the fullest extent allowed by law, the State releases the Professional, the Professionals Subcontractors/Consultants and the agents and employees of any of them from and against legal claims, damages, losses, and expenses, including but not limited to attorneys’ fees, arising out of the State’s use of the Contract Documents other than in accordance with this Contract Agreement.

All Contract deliverables listed may be published or issued for informational purposes without additional compensation to the Professional. The Professional may not use any of the Contract Documents and Contract deliverables for any purpose that may misrepresent the professional services they provided.

The Professional shall retain full rights to the Contract Documents and deliverables and the right to reuse component information contained in them in the normal course of the Professional’s professional activities. Any other uses shall require written permission by the State.

The Contract deliverables, Contract Documents, or other documents produced under this Contract may be used by the Department, or others employed by the Department or State of Michigan, for reference in any completion, correction, remodeling, renovation, reconstruction, alteration, modification of or addition to the Project, without monetary compensation to the Professional.

The State of Michigan will not construct additional Projects or buildings based on the work of this Contract without notice to the Professional.

ARTICLE VIII

TERMINATION

The State may, by written notice to the Professional, terminate this Contract in whole or in part at any time, either for the State's convenience or because of the failure of the Professional to fulfill their Contract obligations. Upon receipt of such notice, the Professional shall:

a) Immediately discontinue all professional services affected (unless the notice directs otherwise), and

b) Deliver to the State all data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been accumulated by the Professional in performing this Contract, whether completed or in process.

8.1 If the termination is for the convenience of the State, an equitable adjustment in the Contract price shall be made, but no amount shall be allowed for anticipated profit on unperformed professional services.

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8.2 If the termination is due to the failure of the Professional to fulfill their Contract obligations, the State may take over the work and prosecute the same to completion by Contract or otherwise. In such case, the Professional shall be liable to the State for any additional cost occasioned to the State thereby.

8.3 If, after notice of termination for failure to fulfill Contract obligations, it is determined that the Professional had not so failed, the termination shall be deemed to have been affected for the convenience of the State. In such event, adjustment in the Contract price shall be made as provided in Section 8.1 of this article.

8.4 The rights and remedies of the State provided in this article are in addition to any other rights and remedies provided by law or under this

Contract.

ARTICLE IX

SUCCESSORS AND ASSIGNS

This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that neither of the parties hereto shall assign this Contract without the prior written consent of the other.

ARTICLE X

GOVERNING LAW

This Contract shall be construed in accordance with the laws of the State of Michigan.

ARTICLE XI

NONDISCRIMINATION

In connection with the performance of the Project under this, the Professional agrees as follows:

a) The Professional will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, age, sex (as defined in Executive Directive 2019-09), height, weight, marital status, or a physical or mental disability that is unrelated to the individual's ability to perform the duties of the particular job or position. The Professional will provide equal employment opportunities to ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, national origin, age, sex, height, weight, marital status, or a physical or mental disability that is unrelated to the individual's ability to perform the duties of the particular job or position. Such action shall include, but not be limited to, the following:

employment, upgrading, demotion, or transfer; recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.

b) The Professional will, in all solicitations or advertisements for employees placed by or on behalf of the Professional, state that all qualified applicants will receive equal employment opportunity consideration for employment without regard to race, color, religion, national origin, age, sex, height, weight, marital status, or a physical or mental disability that is unrelated to the individual's ability to perform the duties of the particular job or position.

c) The Professional or their collective bargaining representative will send to each labor union or representative of workers with which is held a collective bargaining agreement or other Contract or understanding, a notice advising the said labor union or workers' representative of the Professional’s nondiscrimination commitments under this article.

d) The Professional will comply with the Elliot-Larsen Civil Rights Act, 1976 PA 453, as amended, MCL 37.2201 et seq; the Michigan

Persons with Disabilities Civil Rights Act, 1976 PA 220, as amended, MCL 37.1101 et seq; Executive Directive 2019-09; and all published rules, regulations, directives and orders of the Michigan Civil Rights Commission which may be in effect on or before the date of award of this Contract.

e) The Professional will furnish and file nondiscrimination compliance reports within such time and upon such forms as provided by the

Michigan Civil Rights Commission; said forms may also elicit information as to the practices, policies, program, and employment statistics of the Professional and of each of their Subcontractors/Consultant firms. The Professional will permit access to all books, records, and accounts by the Michigan Civil Rights Commission, and/or its agent, for purposes of investigation to ascertain nondiscrimination compliance with this Contract and with rules, regulations, and orders of the Michigan Civil Rights Commission relevant to Article 6, 1976 PA 453, as amended.

f) In the event that the Michigan Civil Rights Commission finds, after a hearing held pursuant to its rules, that the Professional has not complied with the contractual nondiscrimination obligations under this Contract, the Michigan Civil Rights Commission may, as part of its order based upon such findings, certify said findings to the State Administrative Board of the State of Michigan, which the State

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Administrative Board may order the cancellation of the Contract found to have been violated, and/or declare the Professional ineligible for future Contracts with the State and its political and civil subdivisions, departments, and officers, and including the governing boards of institutions of higher education, until the Professional complies with said order of the Michigan Civil Rights Commission. Notice of said declaration of future ineligibility may be given to any or all of the persons with whom the Professional is declared ineligible to Contract as a contracting party in future Contracts. In any case before the Michigan Civil Rights Commission in which cancellation of an existing Contract is a possibility, the State shall be notified of such possible remedy and shall be given the option by the Michigan Civil Rights Commission to participate in such proceedings.

g) The Professional shall also comply with the nondiscrimination provisions of 1976 PA 220, as amended, concerning the civil rights of persons with physical or mental disabilities.

h) The Professional will include, or incorporate by reference, the nondiscrimination provisions of the foregoing paragraphs a) through g) in every subcontract or Contract Order unless exempted by the rules, regulations or orders of the Michigan Civil Rights Commission, and will provide in every subcontract or Contract Order that said nondiscrimination provisions will be binding upon each of the Professional’s Subcontractors/Consultants or seller.

ARTICLE XII

CONTRACT CLAIMS AND DISPUTES

In any claim or dispute by the Professional which cannot be resolved by negotiation, the Professional shall submit the claim or dispute for an administrative decision by the Department of Technology, Management and Budget, Director of Design & Construction within thirty (30) consecutive calendar days of the end of the disputed negotiations, and any decision of the Director of Design & Construction may be appealed to the Michigan Court of Claims within one (1) year of the issuance of the Director’s decision. The Professional agrees that the Department’s appeal procedure to the Director of Design & Construction is a prerequisite to filing a suit in the Michigan Court of Claims.

ARTICLE XIII

DEFINITION OF TERMS

The capitalized defined terms utilized in this Contract have the following definitions:

BUDGET: Shall mean the maximum legislatively authorized Budget amount to be provided by the State of Michigan and available for a specific purpose or combination of purposes to accomplish the Project Scope of Work for this Contract.

CONTRACT CHANGE ORDER: A written order issued and signed by the State of Michigan and signed by the Professional which amends the Contract Documents for changes in the attached Appendix 1 – Project/Program Statement Scope of Work requirements or an adjustment in Contract price and/or Contract time, or both.

CONTRACT DOCUMENT: Shall mean the Scope of Work, the Professional’s laboratory testing services, and all attachments as may be necessary to comprise a Contract for the Project Scope of Work requirements.

CONTRACT MODIFICATION: A written amendment to the Contract Scope of Work requirements signed by the Department and the Professional.

The preparation of bulletins and Contract Change Orders resulting from changes in the attached Appendix 1 – Project/Program Statement Scope of Work requirements as approved by the Department, State Project Manager and the Department of Technology, Management and Budget, Design and Construction Division’s, Project Director will be compensated to the Professional by way of the Contract Modification in accordance with the Article II, Compensation text of this Contract. Any Contract Modification of this Contract must be in writing, signed by duly authorized representatives of the parties, and shall be in such format and detail as the Department may require. No Contract Modification may be entered into to compensate the Professional for correcting, or for responding to claims or litigation for the Professional’s laboratory testing errors, omissions or neglect on the part of the Professional.

CONTRACT ORDER: A written order issued and signed by the State of Michigan authorizing a professional firm to: (1) Begin to incur Project expenses and proceed with the Project Scope of Work; and (2) Provide the professional services stipulated in the fully executed Contract scope of work for the not-to-exceed fee dollar ($) amount designated in the Phases of the Contract Order. Issuance of this document by the State of Michigan certifies that: (1) The State will enter into a Professional Services Contract with a professional firm for the professional services described in the Phases of this Contract; and that (2) The proper two (2) sets of Original Certificate of Insurance documents have been received and accepted by the State along with the signing of the Contract by the Director of the Department of Technology, Management and Budget.

DEPARTMENT: The term "Department" shall mean the State of Michigan in its governmental capacity, including its departments, agencies, boards, commissions, officers, employees and agents; and for purposes of this Contract, its duly authorized representative shall be the Director of the Department of Technology, Management and Budget, or their designee. The Department will represent the State of Michigan in all matters

-11-pertaining to this Contract. The Department will administer and interpret the Contract on a day-to-day basis during the term of the Contract scope of work.

DIRECTOR: The Director of the Department of Technology, Management and Budget or their authorized State of Michigan representative.

KEY PRINCIPAL PERSONNEL/EMPLOYEE: Shall mean all personnel/employees who are essential for the successful completion of the Project Scope of Work for this Contract and whose professional laboratory testing credentials and experience were evaluated by the Department for the purpose of awarding an laboratory testing services Contract, including but not limited to quality assurance officers, laboratory managers, and analysts performing the laboratory testing services.

PHASE: A discretely distinguishable laboratory testing Phase step necessary to produce the Project's Scope of Work in the course of the Professional providing laboratory testing services.

PRIME PROFESSIONAL SERVICE LABORATORY CONTRACTOR/PROFESSIONAL: Shall mean an individual, firm, partnership, corporation, association, or…