SFD-1902~1.docx

State of Nevada

Steve Sisolak

Department of Conservation and Natural Resources

Governor

Division of Water Resources 901 S. Stewart Street Suite 2002 Carson City, NV 89701

Tim Wilson

Acting State Engineer

State of Nevada

Division of Water Resources

Request for Proposal: SFD-1902

For

Solicitation to Furnish Inundation Maps for the South Fork Dam

Deadline for Submission: No later than 4:30 PM on 04/15/2019

For additional information, please contact:

Katie Bradley, Management Analyst

State of Nevada, Division of Water Resources

901 S. Stewart St., Suite 2002

Carson City, NV 89701

Phone: 775-230-3382

Email address: kbradley@water.nv.gov

Table of Contents

This Request for Proposal (RFP) is being advertised to select one (1) firm with whom the Division of Water Resources (Division) hopes to negotiate an Agreement for the described services. Issuance of this RFP shall in no way constitute a commitment by the Division to execute an Agreement.

The Division reserves the right to issue addenda to this RFP prior to the closing date. It is the Proposer’s responsibility to check for any addenda to this procurement at www.water.nv.gov prior to Proposal submission. Submission of a Proposal constitutes acknowledgement of this RFP and all subsequent addenda. The Division reserves the right to reject any or all Proposals received in response to this RFP, or to cancel this RFP if it is deemed in the best interest of the Division to do so.

Prospective vendors are advised to review Nevada’s ethical standards requirements, including but not limited to NRS 625.530 and NAC 333.150. This RFP is not subject to the requirements of NRS 333 for competitive selection.

All applicable Nevada Revised Statutes (NRS) and Nevada Administrative Code (NAC) documentation can be found at: www.leg.state.nv.us/law1.cfm.

PROJECT OVERVIEW

The Nevada Division of Water Resources is requesting proposals for a set of inundation maps to include in the Emergency Action Plan for the South Fork Dam located in Elko County, Nevada.

GOALS AND OBJECTIVES

The goal of this request for proposal is to hire an engineering firm to provide a set of inundation maps for the South Fork Dam located near Spring Creek, Nevada (Location: 40.68332, -115.78463). The selected contractor will provide inundation maps sufficient for use in an Emergency Action Plan (EAP). The deliverables shall include, in addition to the inundation maps, a copy of the model used to generate flood parameters, elevation datasets for the potential inundation zone including base data and flood elevation data, and the model output, including the flood hydrographs.

RFP TIMELINE

The following represents the proposed timeline for this project. All times stated are Pacific Time (PT). These dates represent a tentative schedule of events. The Division reserves the right to modify these dates at any time.

EVALUATION FACTORS

The Proposal must respond to each Evaluation Factor, listed in the exact order below. Provide clearly titled sections, referencing the same number and title as the Evaluation Factor being addressed.

The Proposers must follow these guidelines in preparing their Proposals:

1. The Cover Letter must be single-spaced and must not exceed one (1) 8½” x 11” page. It must include the Proposer’s contact information including name, mailing address, telephone number, and email address.

2. The Proposal must respond to each Evaluation Factor. Each response must be contained in its own unique, numbered section bearing the same number and title as the particular Evaluation Factor being addressed and presented in the exact same order as the Evaluation Factors appear in Section 4 – Evaluation Factors.

Failure to meet the above stated requirements and limitations may result in a Proposal being deemed non-responsive in the Division’s sole discretion.

Proposals received after the specified deadline will not be considered and will be disposed of in an appropriate manner suitable to the Division, in its sole discretion.

Confidential Information, Trade Secrets, and/or Proprietary Information must be marked as such in the Proposal. The failure to mark this information shall constitute a complete waiver of any and all claims for damages caused by release of the information by the Division. If the Division reviews the confidential information and determines that the information is not considered confidential, the Division will contact the Proposer. The Proposer must advise the Division as to whether it either accepts the Division’s determination that the information is not confidential or withdraws the information. The Proposer will not be allowed to alter the Proposal after the date and time set for receipt of Proposals shown above. The Division retains its immunity pursuant to the provisions of NRS 239.012 for any “good faith” release of information, and the immunities from liability provided to it pursuant to NRS Chapter 41.

NEVADA BUSINESS LICENSE REQUIREMENT

The selected firm, prior to doing business in the State of Nevada, must be appropriately licensed by the Office of the Secretary of State pursuant to NRS 76.100. Information regarding the Nevada State Business License can be located at www.nvsos.gov.

Proposers must provide the following:

A. Nevada State Business License Number; and

B. Business Entity’s Legal Name (affirm that it is the same name under which the Proposer is doing business).

Additionally, if the Proposer is a corporation, LLC, LP, LLP, or LLLP, or non-profit corporation based out of state, it must be registered as a foreign business entity equivalent in Nevada, in active status, and in good standing with the Nevada Secretary of State.

Each Proposer shall clearly state, at the time of Proposal submission, its willingness to adhere to this requirement by providing a copy of its Nevada State Business License, a copy of its application from the Secretary of State Office, or a print out of the entity status, which can be obtained from the Nevada Business Search found on the homepage of the Nevada Secretary of State’s website at www.nvsos.gov.

Award of any Agreement is contingent on a Proposer having and holding an active and valid Nevada State Business License. The successful Proposer must satisfy this requirement within five (5) business days of issuance of the Notice of Intent. If a Proposer is unable or unwilling to adhere to this requirement, the Division will deem the Proposer to be non-responsive, and the Division will proceed to negotiate with the next most qualified firm, and so on, until an Agreement, that is acceptable to the Division, is negotiated.

To apply for a Nevada State Business License or to file appropriate formation documents with the Nevada Secretary of State’s office, please visit www.nvsos.gov.

SELECTION PROCESS

Selection will be based on the Evaluation Factors listed in the Evaluation Factors section (Section 4), which will be used by a Review Committee to evaluate the Proposals. The Review Committee will be comprised of Division staff and may include other members representing local entities, who shall remain anonymous to protect the integrity of the procurement process.

Oral interviews may be conducted, in the Division’s sole discretion, for any firm that submits a Proposal. In the event that the Division elects to conduct oral interviews, each Proposer in the competitive range will be advised of the format for such interview and will be provided with a schedule for such interview.

Competitive range refers to a list of the most highly rated Proposals based on the initial ranking of the Proposals. The final ranking will be determined based entirely on the interview scores. Technical Proposal scores will not be factored into the final ranking. Failure of a Proposer to appear at the oral interview, if the committee elects to conduct such interviews, will be considered non-responsive, and that Proposer will be eliminated from any further consideration.

The committee may use the information submitted in the Proposer’s Proposal package, the information referenced in this RFP, and the information presented at the interview, if applicable, to arrive at the final ranking. The Proposals will be ranked, and an Agreement may be negotiated following the selection of a most competent and qualified Proposer. If an acceptable Agreement cannot be reached with the highest ranked firm, the Division may proceed to negotiate with the next highest ranked firm, and so on, until an acceptable Agreement is negotiated, or the Division, in its sole discretion, elects to terminate the solicitation.

AWARD PROCESS

The Division shall issue a Notice of Intent. Any award is contingent upon the successful negotiation of final contract terms and upon approval of the Board of Examiners, when required. Negotiations shall be confidential and not subject to disclosure to competing firms. The terms agreed to by the parties shall be confidential until an Agreement is executed. If contract negotiations cannot be concluded successfully, the Division, at its sole discretion and upon written notice to all firms, may negotiate a contract with the next highest-ranking firm or withdraw the RFP and cancel this procurement.

Upon the successful negotiation and execution of an Agreement, the Division shall issue a Notice of Award, at which time Proposals are no longer confidential and can be requested from the Division via a Public Records Request.

TERMS AND CONDITIONS

1. The State reserves the right to alter, amend, or modify any provisions of this RFP, or to withdraw this RFP, at any time prior to the award of a contract pursuant hereto, if it is in the best interest of the State to do so.

2. The State reserves the right to waive informalities and minor irregularities in proposals received.

3. The failure to separately package and clearly mark confidential information, trade secrets and/or proprietary information, shall constitute a complete waiver of any and all claims for damages caused by release of the information by the State.

4. The State reserves the right to reject any or all proposals received prior to contract award.

5. The State reserves the right to limit the scope of work prior to award, if deemed in the best interest of the State.

6. Any irregularities or lack of clarity in the RFP shall be brought to the attention of Agency designee as soon as possible so that corrective addenda may be furnished to prospective vendors.

7. Proposals which appear unrealistic in the terms of technical commitments, lack of technical competence, or are indicative of failure to comprehend the complexity and risk of the project/contract, may be rejected.

8. Proposals from employees of the State of Nevada shall be considered in as much as they do not conflict with the State Administrative Manual (SAM), NRS Chapter 281 and NRS Chapter 284.

9. Proposals may be modified or withdrawn by written notice received prior to the proposal opening time. Withdrawals received after the proposal opening time shall not be considered.

10. The State is not liable for any costs incurred by vendors prior to entering into a formal contract. Costs of developing the proposals or any other such expenses incurred by the vendor in responding to the RFP, are entirely the responsibility of the vendor, and shall not be reimbursed in any manner by the State.

11. Proposals submitted per proposal submission requirements become the property of the State, and selection or rejection does not affect this right; proposals shall be returned only at the State’s option and at the vendor’s request and expense. The masters of the proposals of each response shall be retained for official files.

12. The awarded vendor shall be the sole point of contract responsibility. The State shall look solely to the awarded vendor for the performance of all contractual obligations which may result from an award based on this RFP, and the awarded vendor shall not be relieved for the non-performance of any or all subcontractors.

13. The awarded vendor shall maintain, for the duration of its contract, insurance coverages as set forth in the fully executed contract. Work on the contract shall not begin until after the awarded vendor has submitted acceptable evidence of the required insurance coverages. Failure to maintain any required insurance coverage or acceptable alternative method of insurance shall be deemed a breach of contract.

14. The State shall not be liable for Federal, State, or Local excise taxes per NRS 372.325.

15. The State reserves the right to negotiate final contract terms with any vendor selected. The contract between the parties shall consist of the RFP together with any modifications thereto, and the awarded vendor’s proposal, together with any modifications and clarifications thereto that are submitted at the request of the State during the evaluation and negotiation process. In the event of any conflict or contradiction between or among these documents, the documents shall control in the following order of precedence: the final executed contract, any modifications and clarifications to the awarded vendor’s proposal, the RFP, and the awarded vendor’s proposal. Specific exceptions to this general rule may be noted in the final executed contract. The State shall not indemnify vendor from any liability or damages, including but not limited to attorney’s fees and costs, arising under any contract resulting from this RFP.

16. Local governments (as defined in NRS 332.015) are intended third party beneficiaries of any contract resulting from this RFP and any local government may join or use any contract resulting from this RFP subject to all terms and conditions thereof pursuant to NRS 332.195. The State is not liable for the obligations of any local government which joins or uses any contract resulting from this RFP.

17. Any person who requests or receives a Federal contract, grant, loan or cooperative agreement shall file with the using agency a certification that the person making the declaration has not made, and shall not make, any payment prohibited by subsection (a) of 31 U.S.C. 1352.

18. Pursuant to NRS Chapter 613 in connection with the performance of work under this contract, the contractor agrees not to unlawfully discriminate against any employee or applicant for employment because of race, creed, color, national origin, disability, sex, sexual orientation or age, including, without limitation, with regard to employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including, without limitation apprenticeship.

18.1 The contractor further agrees to insert this provision in all subcontracts, hereunder, except subcontracts for standard commercial supplies or raw materials

18.2 The State may undertake or award supplemental contracts for work related to this project or any portion thereof. The contractor shall be bound to cooperate fully with such other contractors and the State in all cases.

18.3 All subcontractors shall be required to abide by this provision as a condition of the contract between the subcontractor and the prime contractor.

19. The vendor shall not propose an alternative that would require the State to acquire hardware or software or change processes in order to function properly on the vendor’s system unless vendor included a clear description of such proposed alternatives and clearly mark any descriptive material to show the proposed alternative.

19.1 An acceptable alternative is one the State considers satisfactory in meeting the requirements of this RFP.

19.2 The State, at its sole discretion, shall determine if the proposed alternative meets the intent of the original RFP requirement.

20. The awarded vendor shall be responsible for the proper custody and care of any State owned property furnished by the State for use in connection with the performance of the contract and shall reimburse the State for any loss or damage.

21. It is expressly understood and agreed all work done by the contractor shall be subject to inspection and acceptance by the State.

22. Any progress inspections and approval by the State of any item of work shall not forfeit the right of the State to require the correction of any faulty workmanship or material at any time during the course of the work and warranty period thereafter, although previously approved by oversight.

23. Nothing contained herein shall relieve the contractor of the responsibility for proper installation and maintenance of the work, materials and equipment required under the terms of the contract until all work has been completed and accepted by the State.

24. All travel shall be approved in writing in advance by the State.

24.1 Requests for reimbursement of travel expenses shall be submitted on the State Claim for Travel Expense Form with original receipts for all expenses.

24.2 The travel expense form, with original signatures, shall be submitted with the vendor’s invoice.

24.3 Vendor shall be reimbursed travel expenses and per diem at the rates allowed for State employees at the time travel occurs.

24.4 The State is not responsible for payment of any premium, deductible or assessments on insurance policies purchased by vendor for a rental vehicle.

25. Prior to completion of all work, the contractor shall remove from the premises all equipment and materials belonging to the contractor. Upon completion of the work, the contractor shall leave the site in a clean and neat condition satisfactory to the State.

26. All requests for the publication or release of any information pertaining to this RFP and any subsequent contract shall be in writing and sent to the Agency Head or designee.

27. No announcement concerning the award of a contract as a result of this RFP can be made without prior written approval of the Agency Head or designee.

28. As a result of the selection of the contractor to supply the requested services, the State is neither endorsing nor suggesting the contractor is the best or only solution.

29. The contractor shall not use, in its external advertising, marketing programs, or other promotional efforts, any data, pictures or other representation of any State facility, except with the specific advance written authorization of the Agency Head or designee.

30. Throughout the term of the contract, the contractor shall secure the written approval of the State prior to the release of any information pertaining to work or activities covered by the contract.

31. Sensitive information in existing legacy applications shall encrypt data as is practical.

32. Confidential personal data shall be encrypted.

33. Any electronic transmission of personal information shall comply with NRS 603A.215 (2 & 3).

34. Sensitive Data shall be encrypted in all newly developed applications.

ATTACHMENT A – SCOPE OF SERVICES

The division is going to require, at a minimum, the following deliverables from the selected engineering firm:

1. Inundation map set shall be in conformance to the standard format suggested by the State Engineer as outlined in that publication known as “Emergency Action Planning for Dam Owners” (FEMA 64). Major components shall include, but not be limited to:

a. Inundation limits.

b. Flood wave arrival time at critical facilities.

c. Maximum flood depth at critical facilities.

d. Maximum flood velocity at critical facilities.

e. Structures and facilities potentially affected.

2. Inundation map set shall be produced in a manner that allows easy reading and reference and that may remain legible and understandable when copied in black and white.

3. Copies of the developed dam break and flood propagation models.

4. Copies of any elevation data, mapping or survey utilized in the development of the models or inundation map set.

5. Conditions to be modeled to include the following:

a. Maximum Operational (Outlet and Service Spillway) Release

b. Maximum Emergency Spillway (Fuse Plug) Failure Release

c. Non-flooding “sunny day” Main Dam Failure

d. Failure During Probable Maximum Flood Event (Fuse Plug Failure with Storm Event)

e. Safe Channel Capacity (Maximum Release prior to flooding first residence).

Terrain elevation interval is to be not greater than three feet (3’) or one meter (1m), where potential impacts are expected. A greater interval may be allowed in other areas. A 2-D model will be necessary to adequately model the dam breach. The results of the model must be broad enough to adequately address all areas of potential impacts downstream.

ATTACHMENT B – CONTRACT FORM

Vendors shall review the terms and conditions of the standard contract used by the State for all services of independent contractors. It is not necessary for vendors to complete the contract form with their proposal.

To open the document, double click on the icon.

ATTACHMENT C – INSURANCE REQUIREMENTS

Vendors shall review the Insurance Schedule, as this shall be the schedule used for the scope of work identified within the RFP.

To open the document, double click on the icon.

DWR Solicitation – 03/06/19 RFP SFD-1902 Page 4 of 15 image2.emf

Standard Contract Form.docx

CETS#

RFP#

CONTRACT FOR SERVICES OF INDEPENDENT CONTRACTOR

A Contract Between the State of Nevada

Acting by and Through its

Agency Name:

Address:

City, State, Zip Code:

Contact:

Phone:

Fax:

Email:

Contractor Name:

Address:

City, State, Zip Code:

Contact:

Phone:

Fax:

Email:

WHEREAS, NRS 333.700 authorizes officers, departments, institutions, boards, commissions, and other agencies in the Executive Department of the State Government which derive their support from public money in whole or in part to engage, subject to the approval of the Board of Examiners (BOE), services of persons as independent contractors; and

WHEREAS, it is deemed that the service of Contractor is both necessary and in the best interests of the State of Nevada.

NOW, THEREFORE, in consideration of the aforesaid premises, the parties mutually agree as follows:

REQUIRED APPROVAL. This Contract shall not become effective until and unless approved by the Nevada State Board of Examiners.

DEFINITIONS.

“State” – means the State of Nevada and any State agency identified herein, its officers, employees and immune contractors as defined in NRS 41.0307.

“Contracting Agency” – means the State agency identified above.

“Contractor” – means the person or entity identified above that performs services and/or provides goods for the State under the terms and conditions set forth in this Contract.

“Fiscal Year” – means the period beginning July 1st and ending June 30th of the following year.

“Contract” – Unless the context otherwise requires, “Contract” means this document entitled Contract for Services of Independent Contractor and all Attachments or Incorporated Documents.

“Contract for Independent Contractor” – means this document entitled Contract for Services of Independent Contractor exclusive of any Attachments or Incorporated Documents.

1. CONTRACT TERM. This Contract shall be effective as noted below, unless sooner terminated by either party as specified in Section 10, Contract Termination. Contract is subject to Board of Examiners’ approval (anticipated to be Date ).

Effective from:

Date

To:

Date

NOTICE. All communications, including notices, required or permitted to be given under this Contract shall be in writing and directed to the parties at the addresses stated above. Notices may be given: (i) by delivery in person; (ii) by a nationally recognized next day courier service, return receipt requested; or (iii) by certified mail, return receipt requested. If specifically requested by the party to be notified, valid notice may be given by facsimile transmission or electronic mail to the address(es) such party has specified in writing.

INCORPORATED DOCUMENTS. The parties agree that this Contract, inclusive of the following attachments, specifically describes the scope of work. This Contract incorporates the following attachments in descending order of constructive precedence:

ATTACHMENT AA:

STATE SOLICITATION OR RFP # and AMENDMENTS #

ATTACHMENT BB:

INSURANCE SCHEDULE

ATTACHMENT CC:

CONTRACTOR’S RESPONSE

Any provision, term or condition of an Attachment that contradicts the terms of this Contract for Independent Contractor, or that would change the obligations of the State under this Contract for Independent Contractor, shall be void and unenforceable.

CONSIDERATION. The parties agree that Contractor will provide the services specified in Section 5, Incorporated Documents at a cost as noted below:

per

Total Contract or installments payable at:

Total Contract Not to Exceed:

The State does not agree to reimburse Contractor for expenses unless otherwise specified in the incorporated attachments. Any intervening end to a biennial appropriation period shall be deemed an automatic renewal (not changing the overall Contract term) or a termination as the result of legislative appropriation may require.

ASSENT. The parties agree that the terms and conditions listed on incorporated attachments of this Contract are also specifically a part of this Contract and are limited only by their respective order of precedence and any limitations specified.

BILLING SUBMISSION: TIMELINESS. The parties agree that timeliness of billing is of the essence to the Contract and recognize that the State is on a Fiscal Year. All billings for dates of service prior to July 1 must be submitted to the state no later than the first Friday in August of the same calendar year. A billing submitted after the first Friday in August, which forces the State to process the billing as a stale claim pursuant to NRS 353.097, will subject Contractor to an administrative fee not to exceed one hundred dollars ($100.00). The parties hereby agree this is a reasonable estimate of the additional costs to the state of processing the billing as a stale claim and that this amount will be deducted from the stale claim payment due to Contractor.

INSPECTION & AUDIT.

Books and Records. Contractor agrees to keep and maintain under generally accepted accounting principles (GAAP) full, true and complete records, contracts, books, and documents as are necessary to fully disclose to the State or United States Government, or their authorized representatives, upon audits or reviews, sufficient information to determine compliance with all State and federal regulations and statutes.

Inspection & Audit. Contractor agrees that the relevant books, records (written, electronic, computer related or otherwise), including, without limitation, relevant accounting procedures and practices of Contractor or its subcontractors, financial statements and supporting documentation, and documentation related to the work product shall be subject, at any reasonable time, to inspection, examination, review, audit, and copying at any office or location of Contractor where such records may be found, with or without notice by the State Auditor, the relevant State agency or its contracted examiners, the department of Administration, Budget Division, the Nevada State Attorney General’s Office or its Fraud Control Units, the state Legislative Auditor, and with regard to any federal funding, the relevant federal agency, the Comptroller General, the General Accounting Office, the Office of the Inspector General, or any of their authorized representatives. All subcontracts shall reflect requirements of this Section.

Period of Retention. All books, records, reports, and statements relevant to this Contract must be retained a minimum three (3) years, and for five (5) years if any federal funds are used pursuant to the Contract. The retention period runs from the date of payment for the relevant goods or services by the state, or from the date of termination of the Contract, whichever is later. Retention time shall be extended when an audit is scheduled or in progress for a period reasonably necessary to complete an audit and/or to complete any administrative and judicial litigation which may ensue.

CONTRACT TERMINATION.

Termination Without Cause. Regardless of any terms to the contrary, this Contract may be terminated upon written notice by mutual consent of both parties. The State unilaterally may terminate this contract without cause by giving not less than thirty (30) days’ notice in the manner specified in Section 4, Notice. If this Contract is unilaterally terminated by the State, Contractor shall use its best efforts to minimize cost to the State and Contractor will not be paid for any cost that Contractor could have avoided.

State Termination for Non-Appropriation. The continuation of this Contract beyond the current biennium is subject to and contingent upon sufficient funds being appropriated, budgeted, and otherwise made available by the State Legislature and/or federal sources. The State may terminate this Contract, and Contractor waives any and all claims(s) for damages, effective immediately upon receipt of written notice (or any date specified therein) if for any reason the contracting Agency’s funding from State and/or federal sources is not appropriated or is withdrawn, limited, or impaired.

Termination with Cause for Breach. A breach may be declared with or without termination. A notice of breach and termination shall specify the date of termination of the Contract, which shall not be sooner than the expiration of the Time to Correct, if applicable, allowed under subsection 10D. This Contract may be terminated by either party upon written notice of breach to the other party on the following grounds:

If Contractor fails to provide or satisfactorily perform any of the conditions, work, deliverables, goods, or services called for by this Contract within the time requirements specified in this Contract or within any granted extension of those time requirements; or

If any state, county, city, or federal license, authorization, waiver, permit, qualification or certification required by statute, ordinance, law, or regulation to be held by Contractor to provide the goods or services required by this Contract is for any reason denied, revoked, debarred, excluded, terminated, suspended, lapsed, or not renewed; or

If Contractor becomes insolvent, subject to receivership, or becomes voluntarily or involuntarily subject to the jurisdiction of the Bankruptcy Court; or

If the State materially breaches any material duty under this Contract and any such breach impairs Contractor’s ability to perform; or

If it is found by the State that any quid pro quo or gratuities in the form of money, services, entertainment, gifts, or otherwise were offered or given by Contractor, or any agent or representative of Contractor, to any officer or employee of the State of Nevada with a view toward securing a contract or securing favorable treatment with respect to awarding, extending, amending, or making any determination with respect to the performing of such contract; or

If it is found by the State that Contractor has failed to disclose any material conflict of interest relative to the performance of this Contract.

Time to Correct. Unless the breach is not curable, or unless circumstances do not permit an opportunity to cure, termination upon declared breach may be exercised only after service of formal written notice as specified in Section 4, Notice, and the subsequent failure of the breaching party within fifteen (15) calendar days of receipt of that notice to provide evidence, satisfactory to the aggrieved party, showing that the declared breach has been corrected. Upon a notice of breach, the time to correct and the time for termination of the contract upon breach under subsection 10C, above, shall run concurrently, unless the notice expressly states otherwise.

Winding Up Affairs Upon Termination. In the event of termination of this Contract for any reason, the parties agree that the provisions of this Section survive termination:

The parties shall account for and properly present to each other all claims for fees and expenses and pay those which are undisputed and otherwise not subject to set off under this Contract. Neither party may withhold performance of winding up provisions solely based on nonpayment of fees or expenses accrued up to the time of termination;

Contractor shall satisfactorily complete work in progress at the agreed rate (or a pro rata basis if necessary) if so requested by the Contracting Agency;

Contractor shall execute any documents and take any actions necessary to effectuate an assignment of this Contract if so requested by the Contracting Agency;

Contractor shall preserve, protect and promptly deliver into State possession all proprietary information in accordance with Section 21, State Ownership of Proprietary Information.

REMEDIES. Except as otherwise provided for by law or this Contract, the rights and remedies of the parties shall not be exclusive and are in addition to any other rights and remedies provided by law or equity, including, without limitation, actual damages, and to a prevailing party reasonable attorneys’ fees and costs. For purposes of an award of attorneys’ fees to either party, the parties stipulate and agree that a reasonable hourly rate of attorneys’ fees shall be one hundred and fifty dollars ($150.00) per hour. The State may set off consideration against any unpaid obligation of Contractor to any State agency in accordance with NRS 353C.190. In the event that Contractor voluntarily or involuntarily becomes subject to the jurisdiction of the Bankruptcy Court, the State may set off consideration against any unpaid obligation of Contractor to the State or its agencies, to the extent allowed by bankruptcy law, without regard to whether the procedures of NRS 353C.190 have been utilized.

LIMITED LIABILITY. The State will not waive and intends to assert available NRS Chapter 41 liability limitations in all cases. Contract liability of both parties shall not be subject to punitive damages. Damages for any State breach shall never exceed the amount of funds appropriated for payment under this Contract, but not yet paid to Contractor, for the Fiscal Year budget in existence at the time of the breach. Contractor’s tort liability shall not be limited.

FORCE MAJEURE. Neither party shall be deemed to be in violation of this Contract if it is prevented from performing any of its obligations hereunder due to strikes, failure of public transportation, civil or military authority, act of public enemy, accidents, fires, explosions, or acts of God, including without limitation, earthquakes, floods, winds, or storms. In such an event the intervening cause must not be through the fault of the party asserting such an excuse, and the excused party is obligated to promptly perform in accordance with the terms of the Contract after the intervening cause ceases.

INDEMNIFICATION AND DEFENSE. To the fullest extent permitted by law, Contractor shall indemnify, hold harmless and defend, not excluding the State’s right to participate, the State from and against all liability, claims, actions, damages, losses, and expenses, including, without limitation, reasonable attorneys’ fees and costs, arising out of any breach of the obligations of Contractor under this contract, or any alleged negligent or willful acts or omissions of Contractor, its officers, employees and agents. Contractor’s obligation to indemnify the State shall apply in all cases except for claims arising solely from the State’s own negligence or willful misconduct. Contractor waives any rights of subrogation against the State. Contractor’s duty to defend begins when the State requests defense of any claim arising from this Contract.

REPRESENTATIONS REGARDING INDEPENDENT CONTRACTOR STATUS. Contractor represents that it is an independent contractor, as defined in NRS 333.700(2) and 616A.255, warrants that it will perform all work under this contract as an independent contractor, and warrants that the State of Nevada will not incur any employment liability by reason of this Contract or the work to be performed under this Contract. To the extent the State incurs any employment liability for the work under this Contract; Contractor will reimburse the State for that liability.

INSURANCE SCHEDULE. Unless expressly waived in writing by the State, Contractor must carry policies of insurance and pay all taxes and fees incident hereunto. Policies shall meet the terms and conditions as specified within this Contract along with the additional limits and provisions as described in Attachment BB, incorporated hereto by attachment. The State shall have no liability except as specifically provided in the Contract.

Contractor shall not commence work before Contractor has provided the required evidence of insurance to the Contracting Agency. The State’s approval of any changes to insurance coverage during the course of performance shall constitute an ongoing condition subsequent to this Contract. Any failure of the State to timely approve shall not constitute a waiver of the condition.

Insurance Coverage. Contractor shall, at Contractor’s sole expense, procure, maintain and keep in force for the duration of the Contract insurance conforming to the minimum limits as specified in Attachment BB, incorporated hereto by attachment. Unless specifically stated herein or otherwise agreed to by the State, the required insurance shall be in effect prior to the commencement of work by Contractor and shall continue in force as appropriate until:

Final acceptance by the State of the completion of this Contract; or Such time as the insurance is no longer required by the State under the terms of this Contract; whichever occurs later.

Any insurance or self-insurance available to the State shall be in excess of and non-contributing with, any insurance required from Contractor. Contractor’s insurance policies shall apply on a primary basis. Until such time as the insurance is no longer required by the State, Contractor shall provide the State with renewal or replacement evidence of insurance no less than thirty (30) days before the expiration or replacement of the required insurance. If at any time during the period when insurance is required by the Contract, an insurer or surety shall fail to comply with the requirements of this Contract, as soon as Contractor has knowledge of any such failure, Contractor shall immediately notify the State and immediately replace such insurance or bond with an insurer meeting the requirements.

General Requirements.

Additional Insured: By endorsement to the general liability insurance policy, the State of Nevada, its officers, employees and immune contractors as defined in NRS 41.0307 shall be named as additional insureds for all liability arising from the Contract.

Waiver of Subrogation: Each insurance policy shall provide for a waiver of subrogation against the State of Nevada, its officers, employees and immune contractors as defined in NRS 41.0307 for losses arising from work/materials/equipment performed or provided by or on behalf of Contractor.

Cross Liability: All required liability policies shall provide cross-liability coverage as would be achieved under the standard ISO separation of insureds clause.

Deductibles and Self-Insured Retentions: Insurance maintained by Contractor shall apply on a first dollar basis without application of a deductible or self-insured retention unless otherwise specifically agreed to by the State. Such approval shall not relieve Contractor from the obligation to pay any deductible or self-insured retention. Any deductible or self-insured retention shall not exceed fifty thousand dollars ($50,000.00) per occurrence, unless otherwise approved by the Risk Management Division.

Policy Cancellation: Except for ten (10) days notice for non-payment of premiums, each insurance policy shall be endorsed to state that without thirty (30) days prior written notice to the State of Nevada, c/o Contracting Agency, the policy shall not be canceled, non-renewed or coverage and/or limits reduced or materially altered, and shall provide that notices required by this Section shall be sent by certified mail to the address shown on page one (1) of this contract.

Approved Insurer: Each insurance policy shall be:

Issued by insurance companies authorized to do business in the State of Nevada or eligible surplus lines insurers acceptable to the State and having agents in Nevada upon whom service of process may be made; and

Currently rated by A.M. Best as “A-VII” or better.

Evidence of Insurance.

Prior to the start of any work, Contractor must provide the following documents to the contracting State agency:

Certificate of Insurance: The Acord 25 Certificate of Insurance form or a form substantially similar must be submitted to the State to evidence the insurance policies and coverages required of Contractor. The certificate must name the State of Nevada, its officers, employees and immune contractors as defined in NRS 41.0307 as the certificate holder. The certificate should be signed by a person authorized by the insurer to bind coverage on its behalf. The State project/Contract number; description and Contract effective dates shall be noted on the certificate, and upon renewal of the policies listed, Contractor shall furnish the State with replacement certificates as described within Section 16A, Insurance Coverage.

Mail all required insurance documents to the State Contracting Agency identified on Page one of the Contract.

Additional Insured Endorsement: An Additional Insured Endorsement (CG 20 10 11 85 or CG 20 26 11 85), signed by an authorized insurance company representative, must be submitted to the State to evidence the endorsement of the State as an additional insured per Section 16B, General Requirements.

Schedule of Underlying Insurance Policies: If Umbrella or Excess policy is evidenced to comply with minimum limits, a copy of the underlying Schedule from the Umbrella or Excess insurance policy may be required.

Review and Approval: Documents specified above must be submitted for review and approval by the State prior to the commencement of work by Contractor. Neither approval by the State nor failure to disapprove the insurance furnished by Contractor shall relieve Contractor of Contractor’s full responsibility to provide the insurance required by this Contract. Compliance with the insurance requirements of this Contract shall not limit the liability of Contractor or its subcontractors, employees or agents to the State or others, and shall be in additional to and not in lieu of any other remedy available to the State under this Contract or otherwise. The State reserves the right to request and review a copy of any required insurance policy or endorsement to assure compliance with these requirements.

COMPLIANCE WITH LEGAL OBLIGATIONS. Contractor shall procure and maintain for the duration of this Contract any state, county, city or federal license, authorization, waiver, permit qualification or certification required by statute, ordinance, law, or regulation to be held by Contractor to provide the goods or services required by this Contract. Contractor shall provide proof of its compliance upon request of the Contracting Agency. Contractor will be responsible to pay all taxes, assessments, fees, premiums, permits, and licenses required by law. Real property and personal property taxes are the responsibility of Contractor in accordance with NRS 361.157 and NRS 361.159. Contractor agrees to be responsible for payment of any such government obligations not paid by its subcontractors during performance of this Contract.

WAIVER OF BREACH. Failure to declare a breach or the actual waiver of any particular breach of the Contract or its material or nonmaterial terms by either party shall not operate as a waiver by such party of any of its rights or remedies as to any other breach.

SEVERABILITY. If any provision contained in this Contract is held to be unenforceable by a court of law or equity, this Contract shall be construed as if such provision did not exist and the non-enforceability of such provision shall not be held to render any other provision or provisions of this Contract unenforceable.

ASSIGNMENT/DELEGATION. To the extent that any assignment of any right under this Contract changes the duty of either party, increases the burden or risk involved, impairs the chances of obtaining the performance of this Contract, attempts to operate as a novation, or includes a waiver or abrogation of any defense to payment by State, such offending portion of the assignment shall be void, and shall be a breach of this Contract. Contractor shall neither assign, transfer nor delegate any rights, obligations nor duties under this Contract without the prior written consent of the State.

STATE OWNERSHIP OF PROPRIETARY INFORMATION. Any data or information provided by the State to Contractor and any documents or materials provided by the State to Contractor in the course of this Contract (“State Materials”) shall be and remain the exclusive property of the State and all such State Materials shall be delivered into State possession by Contractor upon completion, termination, or cancellation of this Contract.

PUBLIC RECORDS. Pursuant to NRS 239.010, information or documents received from Contractor may be open to public inspection and copying. The State has a legal obligation to disclose such information unless a particular record is made confidential by law or a common law balancing of interests. Contractor may label specific parts of an individual document as a “trade secret” or “confidential” in accordance with NRS 333.333, provided that Contractor thereby agrees to indemnify and defend the State for honoring such a designation. The failure to so label any document that is released by the State shall constitute a complete waiver of any and all claims for damages caused by any release of the records.

CONFIDENTIALITY. Contractor shall keep confidential all information, in whatever form, produced, prepared, observed or received by Contractor to the extent that such information is confidential by law or otherwise required by this Contract.

FEDERAL FUNDING. In the event federal funds are used for payment of all or part of this Contract, Contractor agrees to comply with all applicable federal laws, regulations and executive orders, including, without limitation the following:

Contractor certifies, by signing this Contract, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from participation in this transaction by any federal department or agency. This certification is made pursuant to Executive Orders 12549 and 12689 and Federal Acquisition Regulation subpart 9.4, and any relevant program-specific regulations. This provision shall be required of every subcontractor receiving any payment in whole or in part from federal funds.

Contractor and its subcontracts shall comply with all terms, conditions, and requirements of the Americans with Disabilities Act of 1990 (P.L. 101-136), 42 U.S.C. 12101, as amended, and regulations adopted thereunder, including 28 C.F.R. Section 35, inclusive, and any relevant program-specific regulations.

Contractor and it subcontractors shall comply with the requirements of the Civil Rights Act of 1964 (P.L. 88-352), as amended, the Rehabilitation Act of 1973 (P.L. 93-112), as amended, and any relevant program-specific regulations, and shall not discriminate against any employee or offeror for employment because of race, national origin, creed, color, sex, religion, age, disability or handicap condition (including AIDS and AIDS-related conditions.)

LOBBYING. The parties agree, whether expressly prohibited by federal law, or otherwise, that no funding associated with this Contract will be used for any purpose associated with or related to lobbying or influencing or attempting to lobby or influence for any purpose the following:

Any federal, state, county or local agency, legislature, commission, council or board;

Any federal, state, county or local legislator, commission member, council member, board member, or other elected official; or

Any…