Terms and Conditions - Energy Supply ITQ (Final) 4400031205.pdf

EXHIBIT A

ITQ TERMS AND CONDITIONS

ENERGY SUPPLY AND MANAGEMENT SERVICES

(2025)

ITQ 4400031205

1. Contract Integration: This Contract, including the Invitation to Qualify (ITQ), the

Contractor’s submittal, all referenced documents, and any Requests for Quotation (RFQs) and subsequent Conditional Award Notifications and Notices to Proceed constitutes the entire agreement between the parties. No agent, representative, employee, or officer of either the Commonwealth or the Contractor has the authority to make, or has made, any statement, agreement, or representation, oral or written, in connection with the Contract, which in any way can be deemed to modify, add to or detract from, or otherwise change or alter its terms and conditions. No negotiations between the parties, nor any custom or usage, shall be permitted to modify or contradict any of the terms and conditions of the contract. No modifications, alterations, changes, or waiver to the contract or any of its terms shall be valid or binding unless accomplished by a written amendment signed by both parties.

2. Definitions:

A. Agency: The department, board, commission or other Commonwealth Agency listed as the Purchasing Agency. If a COSTARS entity or external procurement activity has issued an RFQ and Notice to Proceed against this contract, that entity shall also be identified as “Agency”.

B. Contracting Officer: The person authorized to administer this Contract for the

Commonwealth and to make written determinations with respect to the Contract.

C. Days: Unless specifically indicated otherwise, days mean calendar days.

D. Services: All Contractor activity necessary to satisfy the Contract.

E. RFQ Award: A term used to refer to an award made to the Contractor resulting from the Request for Quotation (RFQ) process, inclusive of the RFQ, the Contractor’s quote in response to the RFQ, the Notice to Proceed, and if applicable, the Conditional Award Notification.

3. Order of Precedence:

A. If any conflicts or discrepancies should arise in the terms and conditions of this Contract, or the interpretation thereof, the order of precedence shall be:

1) The Contract, inclusive of the Terms and Conditions contained in this Exhibit A and the ITQ Statement of Work;

2) The Information submitted by the Contractor when seeking approval as a qualified Contractor under this ITQ.

B. If any conflicts or discrepancies should arise in the interpretation of an RFQ Award, the order of precedence shall be:

1) The applicable RFQ solicitation;

2) The Contract, inclusive of the Terms and Conditions contained in this Exhibit A and the ITQ Statement of Work;

3) The Notice to Proceed issued to the Contractor for the applicable RFQ solicitation as defined below in Section 4;

4) The Contractor’s response submitted to the applicable RFQ solicitation.

4. Notice to Proceed:

A. Purchase Orders (PO) shall not be required to initiate the performance of services specified in an RFQ. DGS shall issue a Notice to Proceed to the contractor selected through the RFQ process. This Notice to Proceed shall constitute the selected contractor’s authority to proceed with the services specified in the RFQ.

B. Each Notice to Proceed issued will be deemed to incorporate the terms and conditions set forth in this ITQ Contract and the applicable RFQ. The Contractor will be required to adhere to the requirements and/or specifications of the RFQ.

C. Any references to “purchase order” or “purchase orders” in these Terms and

Conditions shall be replaced with a reference to the defined term “RFQ Award.”

5. Term of Contract: The term of the ITQ Contract shall commence on the Effective Date (as defined below), to be no earlier than January 1, 2025, and shall expire December 31, 2034.

The Effective Date shall be either the Effective Date printed on the Contract after the Contract has been fully executed by the Commonwealth (signed and approved as required by the Commonwealth contracting procedures) or the “Valid from” date printed on the Contract, whichever is later.

The period of performance (awarded term length) specified in an RFQ may extend beyond the expiration date of the ITQ Contract. The terms and conditions of this ITQ contract shall remain binding and effective during the period of performance specified in an RFQ and subsequent Notice to Proceed.

6. Option for Separate Competitive Procurements: The Commonwealth reserves the right to purchase Services covered within the scope of this Contract through other procurement methods whenever the Commonwealth deems it to be in its best interest.

This section does not excuse the Commonwealth from any minimum quantity purchase commitments made through the award of an RFQ. Any language related to minimum/maximum quantities included in an RFQ shall apply to the services provided by the Contractor through the RFQ award as applicable.

7. Independent Prime Contractor: In performing its obligations under the Contract, the

Contractor will act as an independent contractor and not as an employee or agent of the Commonwealth. The Contractor will be responsible for all services in this Contract whether or not Contractor provides them directly. Further, the Contractor is the sole point of contact with regard to all contractual matters, including payment of any and all charges resulting from the Contract.

8. Addition of ITQ Categories: The Commonwealth reserves the right to add service categories at any time during the term of the ITQ Contract in response to changes to products or services available in the energy marketplace. Upon the addition of a new service category, the Contractor may elect to qualify under the ITQ for the additional service category.

9. Notice: Any written notice to any party under this Contract shall be deemed sufficient if delivered personally, or by facsimile, telecopy, electronic or digital transmission (provided such delivery is confirmed), or by a recognized overnight courier service (e.g., DHL, Federal Express, etc.) with confirmed receipt, or by certified or registered United States mail, postage prepaid, return receipt requested, and sent to following:

A. If to the Contractor: the Contractor's address as recorded in the Commonwealth's Supplier Registration system.

B. If to the Commonwealth: the address of the Issuing Office as set forth on the Contract.

10. Signatures: The Contract shall not be a legally binding contract until the fully executed

Contract has been sent to the Contractor. No Commonwealth employee has the authority to verbally direct the commencement of any work or delivery of any supply under this Contract prior to the Effective Date. The Contractor hereby waives any claim or cause of action for any service or work performed prior to the Effective Date.

The Contract may be electronically signed by the Commonwealth. The electronically printed name of the Purchasing Agent represents the signature of that individual who has the authority, on behalf of the Commonwealth, to bind the Commonwealth to the terms of the Contract. If the Contract output form does not have "Fully Executed" at the top of the first page and does not have the name of the Purchasing Agent printed in the appropriate box, the Contract has not been fully executed.

The fully executed Contract may be sent to the Contractor electronically or through facsimile equipment. The electronic transmission of the Contract shall require acknowledgement of receipt of the transmission by the Contractor. Receipt of the electronic or facsimile transmission of the Contract shall constitute receipt of the fully executed Contract.

The Commonwealth and the Contractor specifically agree as follows:

A. No handwritten signature shall be required in order for the Contract to be legally enforceable.

B. The parties agree that no writing shall be required in order to make the Contract legally binding, notwithstanding contrary requirements in any law. The parties hereby agree not to contest the validity or enforceability of a genuine Contract or acknowledgement issued electronically under the provisions of a statute of frauds or any other applicable law relating to whether certain agreements be in writing and signed by the party bound thereby. Any genuine Contract or acknowledgement issued electronically, if introduced as evidence on paper in any judicial, arbitration, mediation, or administrative proceedings, will be admissible as between the parties to the same extent and under the same conditions as other business records originated and maintained in documentary form. Neither party shall contest the admissibility of copies of a genuine Contract or acknowledgements under either the business records exception to the hearsay rule or the best evidence rule on the basis that the Contract or acknowledgement were not in writing or signed by the parties. A Contract or acknowledgment shall be deemed to be genuine for all purposes if it is transmitted to the location designated for such documents.

C. Each party will immediately take steps to verify any document that appears to be obviously garbled in transmission or improperly formatted to include re-transmission of any such document if necessary.

11. Compliance with Law: The Contractor shall comply with all federal, state, and local laws applicable to its Services, including, but not limited to, all statutes, regulations and rules that are in effect as of the date of the issuance of the Notice to Proceed. The Contractor shall maintain, at the Contractor’s expense, all licenses and/or permits necessary for the fulfillment of its obligations of an RFQ Award.

12. Taxes: The Commonwealth is exempt from all excise taxes imposed by the Internal Revenue Service and has accordingly registered with the Internal Revenue Service to make tax free purchases under Registration No. 23-23740001-K. The Commonwealth is also exempt from Pennsylvania state sales tax, local sales tax, public transportation assistance taxes and fees and vehicle rental tax. The Department of Revenue regulations provide that exemption certificates are not required for sales made to governmental entities and none will be issued.

13. Payment: The Commonwealth shall put forth reasonable efforts to make payment by the required payment date. The required payment date is: (a) the date on which payment is due under the terms of the Contract; (b) thirty (30) days after an invoice actually is received at the billing address specified in an RFQ if a date on which payment is due is not specified in the Contract; or (c) the payment date specified on the invoice if later than the dates established by (a) and (b) above. Payment may be delayed if the payment amount on the invoice is not based upon the price(s) as stated in the Contract. If any payment is not made within fifteen (15) days after the required payment date, the Commonwealth may pay interest as determined by the Secretary of Budget in accordance with Act No. 266 of 1982 and regulations promulgated pursuant thereto. Payment should not be construed by the Contractor as acceptance of the service performed by the Contractor. The Commonwealth reserves the right to reject the service if it is later determined the services provided have failed to meet specifications.

If specified in an RFQ, an RFQ Award may involve a payment arrangement through which the Contractor will invoice the Commonwealth by the inclusion of the Contractor’s charges on the monthly invoice issued to the Commonwealth by the applicable local electric distribution company (EDC) or local natural gas distribution company (LDC), often referred to as “utility consolidated billing.” For RFQ awards in which “utility consolidated billing” is specified, the payment terms established by the applicable EDC and LDC, as reviewed and approved by the PA Public Utility Commission (PUC), are the terms that will effectively apply to the Commonwealth’s payment to the Contractor. Any terms governing “utility consolidated billing” instituted by EDC or LDC that are applicable to the Contractor or any terms in an agreement between the EDC or LDC and the Contractor regarding “utility consolidated billing” are solely between the Contractor and the EDC or LDC. The Commonwealth is not a party to any payments owed by the EDC or LDC to the Contractor under “utility consolidated billing” and the Commonwealth shall not be required to intervene in any payment dispute between the Contractor and the EDC or LDC.

14. Small Diverse Business Compliance: If specified in an RFQ, the Contractor must comply with any Small Diverse Business Program requirements included the RFQ. The Contractor must meet and maintain any Small Diverse Business commitment it makes in its quote throughout the term of the Contract unless a change is approved by the Contracting Officer upon recommendation by Bureau of Diversity, Inclusion, and Small Business Opportunities (BDISBO). If the Contract is assigned to another contractor, the new contractor must maintain the SDB participation of the original contract.

15. Veteran-Owned Business Enterprise Compliance: If specified in an RFQ, the Contractor must comply with any Veteran-Owned Business (VBE) or Service-Disabled Veteran-Owned Business (SDVBE) requirements included the RFQ. The Contractor must meet and maintain any VBE/SDVBE commitment it makes in its quote throughout the term of the contract unless a change is approved by the Contracting Officer upon recommendation by BDISBO.

If the Contract is assigned to another contractor, the new contractor must maintain the VBE/SDVBE participation of the original contract.

16. Disputes:

A. In the event of a controversy or claim arising from this ITQ Contract and any subsequent RFQ, Notice to Proceed, or Purchase Order, the Contractor must, within six months after the cause of action accrues, file a written claim with the Issuing Office for a determination. The claim shall state all grounds upon which the Contractor asserts a controversy exists. If the Contractor fails to file a claim or files an untimely claim, the Contractor is deemed to have waived its right to assert a claim in any forum.

B. The contracting officer shall review timely-filed claims and issue a final determination, in writing, regarding the claim. The final determination shall be issued within 120 days of the receipt of the claim, unless extended by consent of the contracting officer and the Contractor. The Contracting Officer shall send his/her written determination to the Contractor. If the contracting officer fails to issue a final determination within the 120 days (unless extended by consent of the parties), the claim shall be deemed denied. The Contracting Officer's determination shall be the final order of the Commonwealth.

C. Within fifteen (15) days of the mailing date of the determination denying a claim, or within 135 days of filing a claim if no extension is agreed to by the parties, whichever occurs first, the Contractor may file a statement of claim with the Commonwealth Board of Claims. Pending a final judicial resolution of a controversy or claim, the Contractor shall proceed diligently with performance under the Contract in a manner consistent with the determination of the Contracting Officer and the Commonwealth shall compensate the Contractor pursuant to the terms of the Contract.

17. Default:

A. Contractor Default: After thirty (30) days prior written notice, with a reasonable opportunity to cure, the Commonwealth may, subject to the provisions of Section 19, Force Majeure, and in addition to its other rights under the Contract, declare the Contractor in default by written notice thereof to the Contractor, and terminate (as provided in Section 18, Termination) the whole or any part of this Contract or any award made to the Contractor through the RFQ process for any of the following reasons:

1) Failure to provide awarded services or materials to the Commonwealth in accordance with the requirements of the Contract, RFQ, or Notice to Proceed;

2) Failure to maintain any licenses or permits required to provide services or materials to the Commonwealth in accordance with the requirements of the Contract, RFQ, or Notice to Proceed;

3) Insolvency or bankruptcy;

4) Assignment made for the benefit of creditors; or

5) Breach of any material provision of the Contract.

B. Commonwealth Default (This Section 17.B. is applicable to RFQs issued and awarded under the Carbon-Free Electricity Sourced Supply Services and Renewable Natural Gas Sourced Supply Services Service Categories only):

After thirty (30) days prior written notice, with a reasonable opportunity to cure, the Contractor may, subject to the provisions of Section 19, Force Majeure, declare the Commonwealth in default by written notice thereof to the Issuing Office, and may elect to terminate (as provided in Section 18, Termination) an award made to the Contractor through the RFQ process for any of the following reasons.

1) Failure to make payment to the Contractor for services provided by the

Contractor under the applicable RFQ award in accordance with the requirements of the Contract, RFQ, or Notice to Proceed for a period of three consecutive monthly utility billing periods if and only if,

a) Payment is not made for three consecutive monthly utility billing periods for all Commonwealth utility accounts included in the RFQ award; AND

b) The failure of the Commonwealth to make payment is not caused by the temporary non-appropriation of funds as described in Section 18.B. below.

2) Breach of any material provision of the contract.

In the event the Contractor declares the Commonwealth in default and elects to terminate an RFQ Award, the RFQ Award shall be deemed to have been terminated for convenience under Section 18(A), Termination for Convenience below.

Where an RFQ Award specifies that the Contractor will invoice Commonwealth agencies for services through “utility consolidated billing” as described in Section 13, the Contractor shall not have the right to declare the Commonwealth in default under this Section if the EDC or LDC fails to pay the Contractor for any reason other than the failure of the Commonwealth to make payment to the LDC or EDC.

18. Termination:

A. For Convenience (Early Termination):

1) The Commonwealth shall have the right to terminate the Contract or any or all awards issued under it through the RFQ process upon written notice (Notice of Termination) whenever the Commonwealth shall determine that such termination is in the best interest of the Commonwealth. Any such termination shall be affected by delivery to the Contractor of a Notice of Termination specifying the extent to which performance under this Contract is terminated either in whole or in part, and the date on which such termination becomes effective. Any RFQ award not specified in the Notice of Termination shall continue in effect for the term stated in the Notice to Proceed.

2) The Contractor shall be paid for any item(s) or service(s) provided and work satisfactorily completed prior to the effective date of the termination. In addition, the Contractor may recover damages when the Contractor can demonstrate irrevocable purchase commitments made by the Contractor prior to the receipt of such termination notice, in preparation for deliveries under an RFQ award or Notice to Proceed issued against this Contract. The Contractor shall take all prudent and reasonable steps to assign, sell, or dispose of commitments at the best market price obtainable. The Commonwealth will reimburse the Contractor for costs incurred in assigning, selling, or disposing of commitments. In addition, the Commonwealth shall pay the Contractor damages equal to the difference between the price at which the commitments are sold and the price the Commonwealth would have paid under the Contract. In the event the market rate(s) for the affected service(s) is greater than the Commonwealth’s contracted rate(s), no damages shall have accrued, and the Commonwealth shall not be responsible for reimbursement under this Section. The burden of proof for such costs and damages rests solely and wholly with the Contractor. Except where specified in an RFQ as provided in Section 18(A)(3)(b) below, in no event shall the Contractor be entitled to recover loss of profits or those costs that may be charged between or among Contractor’s subsidiary or other associated corporations or entities of any type.

3) F or RFQs issued and awarded under the Carbon-Free Electricity Project Supply Services and Renewable Natural Gas Project Supply Services Service Categories only:

a) The Commonwealth will provide a written Notice of Termination no later than (90) days prior to the date upon which the termination for convenience is to be effective.

b) The mechanism to be used to determine damages may be further defined in an RFQ to reflect the workings of the marketplace for the specific service(s) to be provided through the RFQ. In no event shall an RFQ specify a methodology for calculating damages in a manner that would cause those damages to be less than they otherwise would be if calculated as described in Section 18(A)(2) above.

4) The Contractor shall cease Services as of the date set forth in the Notice of Termination and shall be paid for services provided up to and including the termination date set forth in said notice, or as may be otherwise provided for in said Notice of Termination.

The terms contained in this Subsection A are intended to address an instance in which an RFQ Award is terminated for convenience in its entirety. This Subsection does not address an instance in which the quantity purchased by the Commonwealth through an RFQ Award is less than any minimum purchase quantity commitment specified in an RFQ where that RFQ Award is still in effect. The Contractor shall address/resolve/invoice for any shortfalls in Commonwealth purchases vs. minimum purchase quantity commitments for RFQs still effect in accordance with the terms specified in the applicable RFQ.

B. For Non-Appropriation: Any payment obligation or portion thereof of the

Commonwealth created by this Contract or any RFQ award issued pursuant to this Contract is conditioned upon the availability and appropriation of funds. When funds (state or federal) are not appropriated or otherwise made available to support continuation of performance in a subsequent fiscal year period, the Commonwealth shall have the right to terminate the RFQ award. In the event of a termination for non-appropriation, the Contractor shall be reimbursed in the same manner as described in Subsection A, Termination for Convenience.

C. For Default: The Commonwealth may, in addition to its other rights under this

Contract, terminate this Contract or any RFQ award issued pursuant to this Contract in whole or in part by providing written notice of default to the Contractor if the Contractor materially fails to perform its obligations and does not cure such failure within thirty (30) days’ notice as described in Section 17, Default or, if a cure within such period is not practical, commence a good faith effort to cure such failure to perform within the specified period or such longer period as the Commonwealth may specify in the written notice specifying such failure, and diligently and continuously proceed to complete the cure. Termination of an RFQ award for default shall not affect work on other RFQ awards under which the Contractor is not in default. The Contracting Officer shall provide any notice of default or written cure notice for Contract terminations.

1) In the event the Commonwealth terminates this Contract in whole or in part as provided in this Subsection C, the Commonwealth may procure services similar or identical to those so terminated, and the Contractor shall be liable to the Commonwealth for the difference, if any, between the purchase price paid by the Commonwealth, utilizing commercially reasonable efforts for replacement, and the prices established through the Contract, RFQ, and Notice to Proceed multiplied by the anticipated quantity specified for the terminated portion of the Award.

2) Except with respect to defaults of subcontractors, the Contractor shall not be liable for any excess costs if the failure to perform the Contract arises out of causes beyond the control of the Contractor as defined in Section 19, Force Majeure.

3) Nothing in this Subsection C shall abridge the Commonwealth’s right to suspend, debar, or take other administrative action against the Contractor.

4) If it is later determined that the Commonwealth erred in terminating the Contract for default, then, at the Commonwealth’s discretion, the Contract shall be deemed to have been terminated for convenience under Subsection A, Termination for Convenience.

D. The rights and remedies of the Commonwealth provided in this Section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

E. The Commonwealth’s failure to exercise any rights or remedies provided in this

Section shall not be construed to be a waiver by the Commonwealth of its rights and remedies in regard to the event of default or any succeeding event of default.

F. Following exhaustion of the Contractor’s administrative remedies as set forth in

Section 16, Disputes, the Contractor's exclusive remedy shall be to seek damages in the Board of Claims.

19. Force Majeure: Neither party will incur any liability to the other if its performance of any obligation under this Contract is prevented or delayed by causes beyond its control and without the fault or negligence of either party. Causes beyond a party’s control may include, but aren’t limited to, acts of God or war, changes in controlling law, regulations, orders or the requirements of any governmental entity, severe weather conditions, civil disorders, natural disasters, fire, epidemics and quarantines, general strikes throughout the trade, and freight embargoes.

The Contractor shall notify the Commonwealth in writing within ten (10) days of the date on which the Contractor becomes aware, or should have reasonably become aware, that such cause would prevent or delay its performance. Such notification shall (i) describe fully such cause(s) and its effect on performance, (ii) state whether performance under the contract is prevented or delayed and (iii) if performance is delayed, state a reasonable estimate of the duration of the delay. The Contractor shall have the burden of proving that such cause(s) delayed or prevented its performance despite its diligent efforts to perform and shall produce such supporting documentation as the Commonwealth may reasonably request. After receipt of such notification, the Commonwealth may elect to terminate the Contract or RFQ award for convenience in accordance with Section 18(A) or the Commonwealth and the Contractor shall agree upon an adjustment to performance as reasonably necessary.

20. Confidentiality: The Contractor agrees to protect the confidentiality of the Commonwealth’s confidential information. The Commonwealth agrees to protect the confidentiality of Contractor’s confidential information. In order for information to be deemed confidential, the party claiming confidentiality must designate the information as “confidential” in such a way as to give notice to the other party (notice may be communicated by describing the information, and the specifications around its use or disclosure, in the Contractor’s response to an RFQ). Neither party may assert that information owned by the other party is such party’s confidential information. The parties agree that such confidential information shall not be copied, in whole or in part, or used or disclosed except when essential for authorized activities under this Contract and, in the case of disclosure, where the recipient of the confidential information has agreed to be bound by confidentiality requirements no less restrictive than those set forth herein. Each copy of such confidential information shall be marked by the party making the copy with any notices appearing in the original. Upon termination or cancellation of this Contract or any license granted hereunder, the receiving party will return to the disclosing party all copies of the confidential information in the receiving party’s possession, other than one copy, which may be maintained for archival purposes only and which will remain subject to this Contract’s security, privacy, data retention/destruction and confidentiality provisions (all of which shall survive the expiration of this Contract). Both parties agree that a material breach of these requirements may, after failure to cure within the time frame specified in this Contract, and at the discretion of the non-breaching party, result in termination for default pursuant to Section 18(C), in addition to other remedies available to the non-breaching party.

Insofar as information is not otherwise protected by law or regulation, the obligations stated in this Section do not apply to information:

A. Already known to the recipient at the time of disclosure other than through the contractual relationship;

B. Independently generated by the recipient and not derived by the information supplied by the disclosing party;

C. Known or available to the public, except where such knowledge or availability is the result of unauthorized disclosure by the recipient of the proprietary information;

D. Disclosed to the recipient without a similar restriction by a third party who has the right to make such disclosure; or

E. Required to be disclosed by law, regulation, court order, or other legal process.

There shall be no restriction with respect to the use or disclosure of any ideas, concepts, know-how, or data processing techniques developed alone or jointly with the Commonwealth in connection with services provided to the Commonwealth under this Contract.

The Contractor shall use the following process when submitting information to the Commonwealth it believes to be confidential and/or proprietary information or trade secrets:

A. Prepare an un-redacted version of the appropriate document.

B. Prepare a redacted version of the document that redacts the information that is asserted to be confidential or proprietary information or a trade secret.

C. Prepare a signed written statement that states:

1) The attached document contains confidential or proprietary information or trade secrets;

2) The Contractor is submitting the document in both redacted and un-redacted format in accordance with 65 P.S.§ 67.707(b); and

3) the Contractor is requesting that the document be considered exempt under 65

P.S. § 67.708(b)(11) from public records requests.

D. Submit the two documents along with the signed written statement to the Commonwealth.

20. Releases to Media: The Contractor shall not issue any news releases pertaining to the Contract or an RFQ Award without the prior consent of the Commonwealth.

21. Assignability:

A. Subject to the terms and conditions of this Section, the Contract is binding upon the parties and their respective successors and assigns.

B. The Contractor may not assign, in whole or in part, the Contract or its rights, duties, obligations, or responsibilities hereunder without the prior written consent of the Commonwealth, which consent may be withheld at the sole and absolute discretion of the Commonwealth. Notwithstanding, the Commonwealth shall not unreasonably withhold its consent to the assignment of this contract.

C. Notwithstanding the foregoing, the Contractor may, without the consent of the

Commonwealth, assign its rights to payment to be received under the Contract, provided that the Contractor provides written notice of such assignment to the Contracting Officer together with a written acknowledgement from the assignee that any such payments are subject to all of the terms and conditions of the Contract.

D. For the purposes of the Contract, the term “assign” shall include, but shall not be limited to, the sale, gift, assignment, pledge, or other transfer of any ownership interest in the Contractor provided, however, that the term shall not apply to the sale or other transfer of stock of a publicly traded company.

E. Any assignment consented to by the Commonwealth shall be evidenced by a written assignment agreement executed by the Contractor and its assignee in which the assignee agrees to be legally bound by all of the terms and conditions of the Contract and to assume the duties, obligations, and responsibilities being assigned.

F. A change of name by the Contractor, following which the Contractor’s federal identification number remains unchanged, is not considered to be an assignment. The Contractor shall give the Contracting Officer written notice of any such change of name.

22. Audit Provisions: The Commonwealth shall have the right, at reasonable times and at a site designated by the Commonwealth, to audit the books, documents and records of the Contractor to the extent that the books, documents and records relate to costs or pricing data for the Contract. The Contractor agrees to maintain records which will support the prices charged and costs incurred for the Contract. The Contractor shall preserve books, documents, and records that relate to costs or pricing data for the Contract for a period of three (3) years from date of final payment. The Contractor shall give full and free access to all records to the Commonwealth and/or their authorized representatives.

23. Single Audit Act of 1984: In compliance with the Single Audit Act of 1984, the Contractor agrees to the following:

A. This Contract is subject to audit by federal and state agencies or their authorized representative in accordance with the auditing standards promulgated by the

Comptroller General of the United States and specified in Government Auditing Standards, 1994 Revisions (Yellow Book).

B. The audit requirement of this Contract will be satisfied if a single audit is performed under the provisions of the Single Audit Act of 1984, 31 U.S.C. § 7501, et seq., and all rules and regulations promulgated pursuant to the Act.

C. The Commonwealth reserves the right for federal and state agencies or their authorized representatives to perform additional audits of a financial/compliance, economy/efficiency, or program results nature, if deemed necessary.

D. The Contractor further agrees to comply with requirements that may be issued by the state agency upon receipt of additional guidance received from the federal government regarding the Single Audit Act of 1984.

24. Assignment of Anti-Trust Claims: The Contractor and the Commonwealth recognize that in actual economic practice, overcharges by the Contractor's suppliers resulting from violations of state or federal antitrust laws are in fact borne by the Commonwealth. As part of the consideration for the award of the Contract, and intending to be legally bound, the Contractor assigns to the Commonwealth all right, title and interest in and to any claims the Contractor now has, or may acquire, under state or federal antitrust laws relating to the products and services which are the subject of this Contract.

25. Limitation of Liability: The Contractor's liability to the Commonwealth under this Contract shall be limited to the incremental cost, if any, for services obtained by the Commonwealth to replace any terminated services that were to be provided by the Contractor as described in Section 18(C)(1). This limitation will apply, except as otherwise stated in this Section 25, regardless of the form of action, whether in contract or in tort, including negligence. This limitation does not, however, apply to damages for:

A. Bodily injury;

B. Death;

C. Intentional injury; or

D. Damage to real property or tangible personal property for which the Contractor is legally liable.

26. Enhanced Minimum Wage:

A. Enhanced Minimum Wage. Contractor shall pay no less than $15.00 per hour to its employees for all hours worked directly performing the services called for in this contract/lease, and for an employee’s hours performing ancillary services necessary for the performance of the services or lease when the employee spends at least 20% of their time performing ancillary services in a given work week.

B. Adjustment. Beginning July 1, 2023, and annually thereafter, the minimum wage rate will be increased by an annual cost-of-living adjustment using the percentage change in the Consumer Price Index for All Urban Consumers (CPI-U) for Pennsylvania, New Jersey, Delaware, and Maryland. The Commonwealth will publish applicable adjusted amount in the Pennsylvania Bulletin by March 1 of each year to be effective the following July 1.

C. Exceptions. These Enhanced Minimum Wage Provisions do not apply to employees

1) Exempt from minimum wage under the Minimum Wage Act of 1968;

2) covered by a collective bargaining agreement;

3) required to be paid a higher wage under another state or federal law governing the services, including the Prevailing Wage Act and Davis-Bacon Act; or

4) required to be paid a higher wage under any state or local policy or ordinance.

D. Notice. The Contractor shall: (1) post this Enhanced Minimum Wage Provision for the entire period of the contract conspicuously in easily-accessible and well-lighted places customarily frequented by employees at or near where the contracted services are performed; or (2) for the entire period of the contract, provide electronic notice of this clause to its employees not less than annually.

E. Records. Contractor must maintain and, upon request and within the time periods requested by the Commonwealth, provide to the Commonwealth all employment and wage records necessary to document compliance with these Enhanced Minimum Wage Provisions.

F. Sanctions. Contractor’s failure to comply with these Enhanced Minimum Wage

Provisions may result in the imposition of sanctions, which may include, but are not limited to, termination of the contract or lease, nonpayment, debarment, or referral to the Office of General Counsel for appropriate civil or criminal referral.

G. Subcontractors. The Contractor shall include these Enhanced Minimum Wage

Provisions in its subcontracts under this contact or lease to ensure that these provisions are binding on its subcontractors.

27. Indemnification:

A. Contractor Obligations. The Contractor shall indemnify the Commonwealth against all third-party claims, suits, demands, losses, damages, costs, and expenses, including without limitation, litigation expenses, attorneys' fees, and liabilities, arising out of or in connection with any activities performed by the Contractor or its employees and agents that are related to this contract, as determined by the Commonwealth in its sole discretion.

B. Commonwealth Attorneys Act. The Commonwealth shall provide the Contractor with prompt notice of any claim or suit of which it learns. Pursuant to the Commonwealth Attorneys Act (71 P.S. Section 732-101, et seq.), the Office of Attorney General (OAG) has the sole authority to represent the Commonwealth in actions brought against the Commonwealth. The OAG may, however, in its sole discretion and under any terms as it deems appropriate, delegate its right of defense.

If OAG delegates the defense to the Contractor, the Commonwealth will cooperate with all reasonable requests of Contractor made in the defense of such suits.

C. Settlement. Notwithstanding the above, neither party may enter into a settlement of any claim or suit without the other party's written consent, which will not be unreasonably withheld. The Commonwealth may, in its sole discretion, allow the Contractor to control the defense and any related settlement negotiations.

28. Nondiscrimination/Sexual Harassment:

A. Representations. The Contractor represents that it is presently in compliance with and will remain in compliance with all applicable federal, state, and local laws, regulations, and policies relating to nondiscrimination and sexual harassment for the term of the contract. The Contractor shall, upon request and within the time periods requested by the Commonwealth, furnish all necessary employment documents and records, including EEO-1 reports, and permit access to its books, records, and accounts by the Commonwealth for the purpose of ascertaining compliance with provisions of this Nondiscrimination/Sexual Harassment Clause.

B. Nondiscrimination/Sexual Harassment Obligations. The Contractor shall not:

1) in any manner discriminate in the hiring of any employee(s) for the manufacture of supplies, performance of work, or any other activity required under this contract or any subcontract, by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the Pennsylvania Human Relations Act (“PHRA”) and applicable federal laws, against any citizen of this Commonwealth who is qualified and available to perform the work to which the employment relates.

2) in any manner discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the PHRA and applicable federal laws, against or intimidate any employee involved in the manufacture of supplies, the performance of work, or any other activity required under this contract.

3) in any manner discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the PHRA and applicable federal laws, in the provision of services under this contract.

4) in any manner discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of PHRA and applicable federal laws, against any subcontractor or supplier who is qualified to perform the work to which this contract relates.

5) in any manner discriminate against employees by reason of participation in or decision to refrain from participating in labor activities protected under the Public Employee Relations Act, Pennsylvania Labor Relations Act or National Labor Relations Act, as applicable and to the extent determined by entities charged with such Acts’ enforcement and shall comply with any provision of law establishing organizations as employees’ exclusive representatives.

C. Establishment of Contractor Policy. The Contractor shall establish and maintain a written nondiscrimination and sexual harassment policy that complies with the applicable law and these Nondiscrimination/Sexual Harassment provisions and shall inform its employees in writing of the policy. The policy must contain a provision that states that sexual harassment will not be tolerated and employees who practice it will be disciplined. For the entire period of the contract, the Contractor shall: (1) post its written nondiscrimination and sexual harassment policy or these Nondiscrimination/Sexual Harassment provisions conspicuously in easily accessible and well-lighted places customarily frequented by employees at or near where the contracted services are performed; or (2) provide electronic notice of the policy or this clause to its employees not less than annually.

D. Notification of Violations. The Contractor’s obligations pursuant to these provisions are ongoing from the effective date and through the termination date of the contract.

Accordingly, the Contractor shall notify the Commonwealth if, at any time during the term of this contract, it becomes aware of any actions or occurrences that would result in violation of these provisions.

E. Cancellation or Termination of Contract. The Commonwealth may cancel or terminate this contract and all money due or to become due under this contract may be forfeited for a violation of the terms and conditions of these Nondiscrimination/Sexual Harassment provisions. In addition, the agency may proceed with debarment or suspension and may place the Contractor in the Contractor Responsibility File.

F. Subcontracts. The Contractor shall include these Nondiscrimination/Sexual

Harassment provisions in its contracts with all subcontractors providing goods or services under this contract. The incorporation of these provisions in the Contractor’s subcontracts does not create privity of contract between the Commonwealth and any subcontractor, and no third-party beneficiaries are created by those provisions. If the Contractor becomes aware of a subcontractor’s violation of this clause, the Contractor shall use its best efforts to ensure the subcontractor’s compliance with these provisions.

29. Contractor Integrity:

A. Definitions. For purposes of these Contractor Integrity Provisions, the following definitions apply:

1) “Affiliate” means two or more entities where (a) a parent entity owns more than 50% of the voting stock of each of the entities; (b) a common shareholder or group of shareholders owns more than 50% of the voting stock of each of the entities; or (c) the entities have a common proprietor or general partner.

2) “Contractor” means the individual or entity, that has entered into this contract with the Commonwealth.

3) “Contractor Related Parties” means any Affiliates of the Contractor and the

Contractor’s executive officers, Pennsylvania officers and directors, or owners of five percent or more interest in the Contractor.

4) “Financial Interest” means ownership of more than a five percent interest in any business or holding a position as an officer, director, trustee, partner, employee, or holding any position of management.

5) “Gratuity” means tendering, giving, or providing anything of more than nominal monetary value including, but not limited to, cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind. The exceptions set forth in the Governor’s Code of Conduct, Executive Order 1980-18, as may be amended, 4 Pa. Code §7.153(b), apply.

6) “Non-bid Basis” means a contract awarded or executed by the

Commonwealth with Contractor without seeking bids or proposals from any other potential bidder or offeror.

B. Representations and Warranties.

1) Contractor Representation and Warranties. The Contractor represents to the best of its knowledge and belief, and warrants that within the last five years neither the Contractor nor Contractor Related Parties have:

a) been indicted or convicted of a crime involving moral turpitude or business honesty or integrity in any jurisdiction;

b) been suspended, debarred, or otherwise disqualified from entering into any contract with any governmental agency;

c) had any business license or professional license suspended or revoked;

d) had any sanction or finding of fact imposed as a result of a judicial or administrative proceeding related to fraud, extortion, bribery, bid rigging, embezzlement, misrepresentation or anti-trust; and

e) been, and are not currently, the subject of a criminal investigation by any federal, state or local prosecuting or investigative agency or civil antitrust investigation by any federal, state, or local prosecuting or investigative agency.

2) Contractor Explanation. If the Contractor cannot make the representations and warranties set forth above at the time of its submission of its bid or proposal or if this contract is awarded on a non-bid basis at the time of the execution of the contract, the Contractor shall submit a written explanation outlining the reasons why it cannot make those representations and warranties. The Commonwealth may, based on its evaluation of the explanation provided, determine whether it is in the Commonwealth’s best interest to execute the contract.

3) Further Representations. By submitting any bills, invoices, or requests for payment pursuant to this contract, the Contractor further represents that it has not violated any of these Contractor Integrity Provisions during the term of the contract.

4) Notice. The Contractor shall immediately notify the Commonwealth, in writing, if at any time during the term of the contract it becomes aware of any event that would cause the Contractor's certification or explanation to change.

The Contractor acknowledges that the Commonwealth may, in its sole discretion, terminate the contract for cause if it learns that any of the certifications made in these provisions are currently false or misleading due to intervening factual circumstances or were false or misleading or should have been known to be false or misleading when entering into the contract.

C. Contractor Responsibilities. During the term of this contract, the Contractor shall:

1) maintain the highest standards of honesty and integrity.

2) take no action in violation of any applicable laws, regulations, or other requirements applicable to the Contractor that govern Commonwealth contracting and procurement.

3) establish and implement a written business integrity policy that includes, at a minimum, the requirements of these provisions as they relate to the Contractor’s activity with the Commonwealth and Commonwealth employees and ensure that its employees comply with the policy.

4) not accept, agree to give, offer, confer, agree to confer, or promise to confer, directly or indirectly, any gratuity or pecuniary benefit to any person, or to influence or attempt to influence any person in violation of any federal or state law, regulation, executive order, statement of policy, management directive, or bulletin applicable to the provision of goods or services under this contract.

5) not have a financial interest in any other contractor, subcontractor, or supplier providing services, labor, or material under this contract, unless the financial interest is disclosed to the Commonwealth in writing and the Commonwealth consents to Contractor’s financial interest. The Contractor must disclose the financial interest to the Commonwealth at the time of bid or proposal submission, or if no bids or proposals are solicited, no later than the date the Contractor signs the contract. The Commonwealth shall be deemed to have consented if the required disclosure is received and all of the required Commonwealth signatures are affixed.

6) comply with the…