Terms and Conditions_GESA ITQ.pdf

Commonwealth of Pennsylvania Invitation to Qualify for the Guaranteed Energy Savings Program

1. Terminology:

qualified GESA Contractor or DGS Energy Consultant holding the contract. All uses of the terms nce to the -A, Section 10.

2. 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) This ITQ Contract;

2) The data resident on the ITQ web site at www.dgs.internet.state.pa.us/ITQ incorporated herein by reference at the date of execution of the Contract or issuance of an RFQ off of this Contract, whichever is later, including but not limited to the promises and certifications the Contractor made in qualifying for the Contract; and

3) The

B. If any conflicts or discrepancies should arise in the interpretation of a GESA Contract, the order of precedence shall be:

1) Any Change Order (with subsequent Change Orders governing over prior Change Orders)

2) The GESA Contract for the Project and any attachment thereto including the RFQ for the Project;

3) This ITQ Contract; and 4)

C. If any conflicts or discrepancies should arise in the interpretation of a Notice of Award issued to a DGS Energy Consultant the order of precedence shall be:

a) The Notice of Award;

b) The RFQ issued to secure the services of the Consultant for the Project;

c) This ITQ Contract; and d)

2. Contract Integration:

A This Contract, including the Contract signature pages, together with the data resident on the

ITQ web site at www.dgs.internet.state.pa.us/ITQ described in Section 2, constitutes the final, complete, and exclusive Contract between the parties containing all the terms and conditions agreed to by the parties. The Contract itself contemplates the issuance of RFQs and Purchase Orders, and Technical, Cost, and Small Diverse Business Participation proposal responses by the Contractor, the content of which will augment the Contract when issued and executed as anticipated under this Contract.

B All representations, understandings, promises, and agreements pertaining to the subject matter of this Contract made prior to or at the time this Contract is executed are superseded by this Contract.

C There are no conditions precedent to the performance of this Contract except as expressly set forth herein.

3. Purchase Orders:

A Per Part I-A, Section 12, RFQ Procedures, the issuance of a Purchase Order (PO) shall not be required to initiate the performance of the Work or services specified in an RFQ. The DGS Energy and Resource Management Office shall issue a Notice of Award to the contractor selected through the RFQ process for both service categories of this ITQ. This services specified in the RFQ. A Notice of Award will be deemed to incorporate the terms and conditions set forth in this ITQ Contract and the applicable RFQ.

B Though not required to initiate the performance of the Work of services specified in an RFQ, the DGS Energy Management Office will issue POs against this Contract as described below.

1) For RFQs issued for the GESA Contracting Services category of this ITQ, the DGS

Energy and Resource Management Office will issue a Purchase Order to the selected GESA Contractor after the final plans and ECMs for the Project have been approved as referenced in Part I-A, Section 13, General GESA Project Overview.

This PO shall constitute the GESA Contract for the Project as defined in Part I-A, Section 9.

2) At its sole discretion, the Commonwealth may elect to issue a Purchase Order to a selected GESA Contractor for a Project not executed beyond the Investment Grade Audit stage of the process outlined in Part I-A, Section 17H.

C No POs shall be issued for the GESA Project Consulting Services category. A DGS Energy Consultant selected for an RFQ issued under this service category will be compensated by the selected GESA Contractor for the Project in accordance with the payment scheduled specified in the RFQ through which the DGS Energy Consultant was selected.

D Each Notice of Award 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 or PO.

E deemed to have the meaning for the applicable Service Category as defined in A, B, and C above.

F All RFQ documents issued by DGS and all responses submitted by the Contractors must be

DGS Energy and Resource Management Office may, at its option, also require that all documents be submitted in paper format.

G Purchase Orders under ten thousand dollars ($10,000) in total amount may also be made in person or by telephone using a Commonwealth Procurement Card. When an order is placed by telephone, the Commonwealth agency shall provide the agency name, employee name, credit card number, and expiration date of the card. The Contractor agrees to accept payment through the use of the Commonwealth Procurement Card

4. Period of Performance: The Contractor, for the life of this Contract, shall complete all services as specified under the terms of this Contract, any RFQ issued against this Contract, and any PO resulting from this Contract. In no event shall the Commonwealth be responsible or liable to pay for any services provided by the Contractor prior to the Effective Date, and the Contractor hereby waives any claim or cause of action for any such services.

5. Special Requirements: The Commonwealth reserves the right to purchase Services within the scope of this Contract through other procurement methods whenever the Commonwealth deems it to be in its best interest.

6. Other Contractors:

additional or related work, and the Contractor shall fully cooperate with other Contractors and Commonwealth employees, and coordinate its Services with such additional work as may be required. The Contractor shall not commit or permit any act that will interfere with the performance of work by any other Contractor or by Commonwealth employees. This Section shall be included in the Contracts of all Contractors with which this Contractor will be required to cooperate. The Commonwealth shall equitably enforce this Section as to all Contractors to prevent the imposition of unreasonable burdens on any Contractor.

7. Prime Contractor Responsibilities: The contract will require the selected Contractor to assume responsibility for all services offered in its proposal whether it produces them itself or by subcontract.

The Issuing Office will consider the selected Contractor to be sole point of contact with regard to contractual matters.

8. Changes to the ITQ Contract: The Commonwealth reserves the right to make changes at any time during the term of the ITQ Contract for the following reasons:

A To make changes to the services within the scope of the ITQ Contract.

B To modify the time of performance that does not alter the scope of the ITQ Contract to extend the completion date beyond the Expiration Date of the Contract thereof.

Any such change shall be made by the Contracting Officer by notifying the Contractor in writing. The change shall be effective as of the date of the change, unless the notification of change specifies a later effective date. Such increases, decreases, changes, or modifications will not invalidate the Contract. Any dispute by the Contractor in regard to the performance required by any notification of change shall be handled through Section 28, Disputes.

9. Notice: Written notice is duly served if delivered in person to the individual or member of the firm or to an officer of the corporation for whom it was intended, or mailed to its post office box address, if any, or addressed to the Contractor at its place of business as set forth in the ITQ Contract. Wherever the term "notice" is used, such notices, to be effective, shall be in writing and, if to DGS, shall be mailed by Certified or Registered mail, postage, and fees prepaid, or shall be delivered, in person, to the Deputy Secretary for Facilities Management, Department of General Services.

10. Electronic Signatures: The Commonwealth may issue this Contract and any subsequent change, and Commonwealth agencies may issue Purchase Orders against this Contract, electronically in accordance with the following terms:

A electronicallyprinted name of the purchaser represents the signature of that individual who has the authority, on behalf of DGS to legally bind the Commonwealth to this Contract.

B Pur

The electronically printed name of the purchaser represents the signature of the individual who has the authority on behalf of the Commonwealth to authorize the Contractor to perform the Services specified in the Purchase Order.

C Purchase Orders may be issued electronically or through facsimile equipment. Receipt of the electronic or facsimile transmission of the Purchase Order shall constitute receipt of an order.

The electronic transmission or facsimile of a Purchase Order shall require acknowledgement of receipt of the transmission by the Contractor.

D The Commonwealth and the Contractor specifically agree as follows:

1) No handwritten signature shall be required in order for the Contract and Purchase Order to be legally enforceable.

2) Upon receipt of a Purchase Order, the Contractor shall promptly and properly acknowledge its receipt. Any order which is issued electronically or via facsimile shall not give rise to any obligation to deliver on the part of the Contractor, or any obligation to receive and pay for delivered products on the part of the Commonwealth, unless and until the Commonwealth has properly received an acknowledgment.

3) The parties agree that no writing shall be required in order to make the Contract or Purchase Order legally binding, notwithstanding contrary requirements in any law.

The parties hereby agree not to contest the validity or enforceability of a Contract or Purchase Order or acknowledgment issued electronically under the provisions of a statute of frauds or any other applicable law relating to whether certain agreements must be in writing and signed by the party bound thereby. The Contract and any Purchase Order or acknowledgment issued electronically, if introduced as evidence on paper in any judicial, arbitration, mediation, or administrative proceeding, 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 the Contract or Purchase Orders or acknowledgements under either the business records exception to the hearsay rule or the best evidence rule on the basis that the Contract or Purchase Order or acknowledgment were not in writing or signed by the parties.

11. Conduct of Services:

A Award, the Contractor shall proceed diligently with all Services and shall perform such

Services with qualified personnel, in accordance with the completion criteria set forth in the RFQ and any subsequent PO.

B In determining whether or not the Contractor has performed with due diligence hereunder, it is agreed and understood that the Commonwealth may measure the amount and quality of by way of a Notice of Award shall be monitored by the Commonwealth and designated representatives. If the Commonwealth determines that the Contractor has not performed with due diligence, the Commonwealth and the Contractor will attempt to reach agreement with respect to such matter. Failure of the Commonwealth or the Contractor to arrive at such mutual determinations shall be a dispute concerning a question of fact within the meaning of Section 28, Disputes of this Contract.

12. Notice of Delays: Whenever the Contractor encounters any difficulty which is delaying or threatens to delay the timely performance of the GESA Contract (including actual or potential labor disputes), the GESA Contractor shall promptly give notice thereof in writing to DGS and the Funding Agency stating all relevant information with respect thereto. Such notice shall not in any way constitute a basis for an extension of the delivery schedule or be construed as a waiver by the Commonwealth of any rights or remedies to which it is entitled by law or pursuant to provisions of this Contract. Failure to give such notice, however, may be grounds for denial of any request for an extension of the delivery schedule because of such delay.

13. Acceptance: No work, equipment, or materials received by the Commonwealth shall be deemed accepted until the Commonwealth has had a reasonable opportunity to inspect the work, equipment, or materials. Any work, equipment, or materials which are discovered to be defective or fail to conform to this ITQ Contract, the applicable RFQ, or GESA Contract may be rejected upon initial inspection or at any later time if the defects or the noncompliance with the ITQ Contract or applicable RFQ were not reasonably ascertainable upon the initial inspection.

The following occurrences shall not constitute acceptance of any Work, materials, or equipment:

A Approval of release of a progress payment; or

B Full or partial payment to the Contractor of any progress payment; or

C Partial or entire use or occupancy of the Project by Funding Agency

14. Abandonment of Rejected Equipment and Materials: It shall become the duty of the Contractor to remove rejected equipment or materials from the premises without expense to the Commonwealth within fifteen (15) days after notification. Rejected equipment or materials left longer than fifteen (15) days will be regarded as abandoned, and the Commonwealth shall have the right to dispose of them as its own property and shall retain that portion of the proceeds of any sale which represents that of rejection, the Contractor shall immediately replace all such rejected equipment or materials with others conforming to the specifications and which are not defective. If the Contractor fails, neglects, or refuses to do so, the Commonwealth shall then have the right to procure a corresponding quantity of such equipment or materials, and deduct from any monies due or that may thereafter become due to the Contractor, the difference between the price stated in the Contract and the cost thereof to the Commonwealth.

15. Title, Possession, and Control: The Contractor warrants and guarantees that title to all Work, materials and equipment covered by an Application for Payment, whether incorporated in a Project or not, will pass to the Commonwealth upon final acceptance by the Commonwealth. The title shall be free and clear of all liens, claims, security interests or encumbrances (hereinafter referred to in this Paragraph as "liens"). The Contractor further guarantees that no Work, materials or equipment covered by an Application for Payment was acquired by the Contractor, its employees, its Suppliers or its Subcontractors subject to an agreement under which an interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the Contractor, its employees, its Suppliers or its Subcontractors.

16. Officials Not To Benefit: No official or employee of the Commonwealth and no member of its

General Assembly who exercises any functions or responsibilities under this Contract shall participate in any decision relating to this Contract which affects their personal interest or the interest of any corporation, partnership, or association in which they are, directly or indirectly, interested; nor shall any such official or employee of the Commonwealth or member of its General Assembly have any interest, direct or indirect, in this Contract or the proceeds thereof.

17. Independent Capacity of Contractor:

A The parties to this Contract agree that the Services performed by the Contractor under the terms of this Contract are performed as an independent Contractor. The Services performed by the Contractor are performed neither as an employee of the Commonwealth of Pennsylvania nor as a partnership or joint venture between the Commonwealth and the Contractor.

B Neither DGS nor Funding Agency is responsible for the manner in which services are provided by the DGS Energy Consultant or the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs of the GESA Contractor.

C Except as otherwise provided by the terms of this Contract, the Commonwealth shall have no control over the manner in which the contractual Services are performed by the Contractor, or any subcontractor. Any job specifications or standards of work attached to or incorporated into this Contract or any subcontracting restrictions contained in this Contract performance of Services provided by the Contractor.

18. Compliance With Laws: 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 PO and shall procure at its expense all licenses and all permits necessary for the fulfillment of its obligation.

19. Taxes: The Contractor shall pay all sales, consumer, use and other similar taxes as required by law.

The Contractor shall be familiar with and take full advantage of all sales tax exemptions allowed by the Pennsylvania Department of Revenue. The Contractor has an affirmative duty to seek a refund or reimbursement of sales tax from the Department of Revenue for costs that were included in the Contract. Once those savings are received by the Contractor, they shall be transferred back to DGS through a credit change order(s)

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. 23740001-K.

20. Environmental Protection: In carrying out this Contract, the Contractor shall minimize pollution and shall strictly comply with all applicable environmental laws and regulations, including the Clean Streams Law, Act of June 22, 1937, as amended; the Pennsylvania Solid Waste Management Act, Act of July 7, 1980 (P.L. 380, No. 97), as amended; and the Dam Safety and Encroachment Act, Act of November 26, 1978 (P.L. 1375, No. 325), as amended.

21. Background Checks: The Contractor, at its expense, is to arrange for a background check for each of its employees, as well as for the employees of its subcontractors, who will have access to Commonwealth facilities, either through on site or remote access. Background checks are to be conducted via the Request for Criminal Record Check form and procedure found at the following link:

http://www.portal.state.pa.us/portal/server.pt?open=512&objID=4451&&PageID=458621&level=2&c ss=L2&mode=2

The background check is to be conducted prior to initial access by Contractor and annually thereafter.

Before the Commonwealth will permit Contractor access to Commonwealth facilities, the Contractor is to provide written confirmation to the office designated by the agency that the background check has been conducted. If, at any time, it is discovered that an employee of the Contractor or an employee of a subcontractor of the Contractor has a criminal record that includes a felony or misdemeanor involving terrorist threats, violence, use of a lethal weapon, or breach of trust/fiduciary responsibility; or which raises concerns about building, system, or personal security, or is otherwise job-related, the Contractor is not to assign that employee to any Commonwealth facilities, is to remove any access privileges already given to the employee, and is not to permit that employee remote access to Commonwealth facilities or systems, unless the agency consents, in writing, prior to the access being provided. The agency may withhold its consent at its sole discretion. Failure of the Contractor to comply with the terms of this paragraph may result in default of the Contractor under its contract with the Commonwealth.

The Commonwealth specifically reserves the right to conduct or require background checks over and above that described herein.

22. Small Diverse Business Compliance: The Contractor must comply with any Small Diverse Business Program requirements as included in the RFQ. The Commonwealth may modify these procedures by posting revised procedures at the website specified above and which will become effective for subsequent projects not already in the solicitation process.

The Contractor must meet and maintain any Small Diverse Business commitment it makes in its Proposal throughout the term of the contract unless a change is approved by the Funding Agency upon recommendation by BDISBO. If the Contract is assigned to another contractor, the new contractor must maintain the DB or DBE participation of the original contract.

23. Personal Responsibility and Work Opportunity Reconciliation Act: Pursuant to the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Act 58 of 1997, as amended), all employers are required to report information on newly-hired employees to a designated state agency.

The Commonwealth of Pennsylvania has designated the Department of Labor and Industry as that agency. For information concerning this requirement call 1-888-PAHIRES.

24. Public Works Employment Verification Act: The Contractor is hereby notified that this contract is for a public work and the Contractor is therefore subject to the provisions, duties, obligations, remedies and penalties of the Public Works Employment Verification Act, 43 P.S. §§167.1-167.11, which is incorporated herein by reference as if fully set forth herein. Contractors subject to said Public Works Employment Verification Act are required to utilize the Federal E-Verify program to verify the employment eligibility of each new employee hired after January 1, 2013 and to submit to the Department a Commonwealth Public Works Employment Verification Form available on the www.dgs.pa.gov

25. Steel Products Procurement Act: The Contractor is hereby notified that this contract is for a public work and the Contractor is therefore subject to the provisions, duties, obligations, remedies and penalties of the Steel Product Procurement Act, 73 P.S. §§1881-1887, as amended, which is incorporated herein by reference as if fully set forth herein. The Contractor must refer to the

Act and the current list of exempt machinery and equipment steel products

26. Prevailing Minimum Wage Predetermination: This Contract is subject to the provisions, duties, obligations, remedies and penalties of the Pennsylvania Prevailing Wage Act, 43 P.S. §165-1 et seq., as amended, which is incorporated herein by reference as if fully set forth herein. In compliance with said Pennsylvania Prevailing Wage Act, the Prevailing Minimum Wage Predetermination is hereto attached and made part hereof as approved by the Secretary of Labor and Industry. If a job classification is not covered by the Prevailing Wage Predetermination, the Contractor may not pay individuals in that classification less than the lowest rate for laborers, as set out in the predetermination. Reference Part I-B, Section 15 for additional information.

27. Enhanced Minimum Wage Provisions:

A Enhanced Minimum Wage: Contractor agrees to pay no less than $10.15 per hour to its employees for all hours worked directly performing the services called for in this Contract, the contracted services when such employee spends at least twenty per cent (20%) of their time performing ancillary services in a given work week.

B Adjustment: Beginning January 1, 2017, and annually thereafter, Contractor shall pay its employees described in Paragraph 1. above an amount that is no less than the amount previously in effect; increased from such amount by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (United States city average, all items, not seasonally adjusted), or its successor publication as determined by the United States Bureau of Labor Statistics; and rounded to the nearest multiple of $0.05.

The applicable adjusted amount shall be published in the Pennsylvania Bulletin by March 1 of each year to be effective the following July 1.

C Exceptions: These Enhanced Minimum Wage Provisions shall not apply to employees:

1) Exempt from the 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: Contractor shall post these Enhanced Minimum Wage Provisions 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.

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

F Sanctions: Failure to comply with these Enhanced Minimum Wage Provisions may result in the imposition of sanctions, which may include, but shall not be limited to, termination of the contract, nonpayment, debarment, or referral to the Office of General Counsel for appropriate civil or criminal referral.

G Subcontractors: Contractor shall include the provisions of these Enhanced Minimum

Wage Provisions in every subcontract so that these provisions will be bindng upon each subcontractor.

28. Disputes:

A In the event of a controversy or claim arising from this ITQ Contract and any subsequent RFQ, Notice of Award, 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.

29. Default: The Commonwealth may, subject to the provisions of Section 31, 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 30, Termination) the whole or any part of this Contract or any PO for any of the following reasons:

A Failure to begin Work or Services within the time specified in the Contract, RFQ, or GESA

Contract or as otherwise specified;

B Failure to perform the Services with sufficient labor, equipment, or material to cause the completion of the specified Services in material accordance with the Contract, RFQ, or GESA Contract.

C Unsatisfactory performance of the Work or Services;

D Failure to perform the Services in accordance with laws, ordinances, rules, regulations or orders of any public authority having jurisdiction over a Project;

E Failure to deliver item(s) within the time specified in the Contract, RFQ, or GESA Contract or as otherwise specified;

F Failure to provide an item(s) which is in conformance with the specifications referenced in the Contract, RFQ, or GESA Contract;

G Failure or refusal to remove material, or remove, replace or perform any Services rejected as defective or noncompliant;

H Discontinuance of Services without approval or as otherwise allowed pursuant to the Contract or PO;

I Failure to resume work, which has been discontinued, within a reasonable time after notice to do so (unless the failure to resume is pursuant to the Contract, RFQ, or GESA Contract);

J Insolvency;

K Assignment made for the benefit of creditors;

L Failure or refusal within 10 days after written notice by the Contracting Officer, to make payment or show cause why payment should not be made, of any amounts due subcontractors for materials furnished, labor supplied or performed, for equipment rentals, or for utility services rendered;

M Failure to protect, to repair, or to make good any damage or injury to property;

N Material breach of any provision of the Contract;

O Failure to comply with representations made in the Contractor's bid/Proposal; or

P Failure to comply with applicable industry standards, customs, and practice.

Q awarded through this ITQ Contract.

30. Termination:

A For Convenience:

1) The Commonwealth may terminate this Contract and any or all POs issued under it without cause by giving Contractor thirty (30) days prior written notice (Notice of Termination) whenever the Commonwealth shall determine that such termination is in the best interest of the Commonwealth (Termination for Convenience). The Notice of Termination shall specify which, if any, POs will terminate with termination of the Contract. Any such termination shall be effected 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 PO not so specified in the Notice of Termination shall continue in effect for the term stated in the PO.

2) The Commonwealth may terminate any PO issued without cause, by giving Contractor Notice of Termination prior to the effective date of termination. In the event of termination hereunder, Contractor shall receive payment for:

a) All Services performed consistent with the terms of the PO prior to the effective date of termination;

b) All actual and reasonable costs incurred by the Contractor in terminated the

PO;

In no event shall the Contractor be paid for any loss of anticipated profit (by the Contractor or any subcontractor), loss of use of money, or administrative or overhead costs. Failure to agree on any termination costs shall be a dispute handled in accordance with Section 22, Disputes of this Contract.

3) The Contractor shall cease Services as of the date set forth in the Notice of Termination, and shall be paid only for such Services as have already been satisfactorily rendered up to and including the termination date set forth in said notice, or as may be otherwise provided for in said Notice of Termination, and for such services performed during the thirty (30) day notice period, if such services are requested by the Commonwealth under any POs being terminated, for the collection, assembling, and transmitting to the Commonwealth of at least all materials, manuals, magnetic media, studies, drawings, computations, maps, supplies, and survey notes including field books, which were obtained, prepared, or developed as part of the Services required under the terminating POs.

4) Contract for any reason as permitted by the other provisions of this Contract, or under applicable statuary law or regulations.

B For Non-Appropriation: Any payment obligation or portion thereof of the Commonwealth created by this Contract or any PO 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 PO. The Contractor shall be reimbursed in the same manner as that described in this section related to Termination for Convenience to the extent that appropriated funds are available.

C For Default: The Commonwealth may, in addition to its other rights under this Contract, terminate this Contract or any PO in whole or in part by providing written notice of default to the Contractor if the Contractor materially fails to perform its obligations under a PO and does not cure such failure within the time specified in the PO or, if no time is specified in the PO, within thirty (30) days 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 a PO for default shall not affect work on other POs 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) Subject to the Limitation of Liability in Section 28 of this Contract, 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 to those so terminated, and the Contractor, in addition to liability for any liquidated damages, shall be liable to the Commonwealth for the difference between the Contract price for the terminated portion of the services and the actual and reasonable cost (but in no event greater than the fair market value) of producing substitute equivalent services for the terminated services, provided that the Contractor shall continue the performance of this Contract to the extent not terminated under the provisions of this Section.

2) In the event of the default of a GESA Contractor, DGS may, without prejudice to any of its other rights or remedies, give the GESA Contractor and its Surety written notice the default. If the GESA Contractor fails to cure the default within the specified time, DGS may terminate the GESA Contract and may take possession of the site and of all materials and equipment, which has been paid for by the Commonwealth as of the date of termination. The Commonwealth may finish the Work by whatever method the Department may deem expedient. Upon termination, the GESA Contractor is not entitled to receive any further payment until the Work is finished, at which time the Contractor shall be paid any excess remaining. The discretion to declare the Contractor in default rests solely with DGS. No party, whether bound by GESA Contract to the Commonwealth or attempting to raise a third party relationship, which this ITQ Contract specifically precludes, may state a cause of action against the Commonwealth alleging failure of the Commonwealth to exercise its discretion to terminate the Contractor.

a) If the unpaid balance of the Project cost exceeds the cost of finishing the Work, including any remaining payments due to the DGS Energy Consultant (if applicable) and any other damages incurred by DGS or the Funding Agency in accordance with the RFQ, such excess shall be paid to the Surety.

If such costs exceed the unpaid balance, the Contractor or the Surety or both shall pay the difference to the Department.

b) If DGS terminates a GESA Contract for cause, the surety will have thirty (30) days from the date of the termination letter to replace the terminated GESA

Contractor with qualified GESA Completion Contractor that is acceptable to DGS and Funding Agency.

c) If the surety fails to provide an acceptable Completion Contractor within thirty

(30) days from the date of the termination letter, the Commonwealth shall have the right to contract with an ITQ Qualified Contractor of its choosing to complete the Work in accordance with the RFQ Documents.

d) The Commonwealth will hold the Surety responsible for any additional cost termination for cause, including but not limited to, delay cost, acceleration cost, direct cost and consequential and incidental cost incurred by the Commonwealth.

3) 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. Such causes may include, but are not limited to, acts of God or of the public enemy, fires, floods, epidemics, quarantine restrictions, strikes, work stoppages, freight embargoes, acts of terrorism, and unusually severe weather. The Contractor shall notify the DGS Energy Management Office and the Funding Agency promptly in writing of its inability to perform because of a cause beyond the control of the Contractor.

4) debar, or take other administrative action against the Contractor.

5) If it is later determined that the Commonwealth erred in terminating the Contract for default, then, at the have been terminated for convenience under Subsection A.

D If this Contract or a PO is terminated as provided by Subsection C, the Commonwealth may, in addition to any other rights provided in this Subsection, and subject to Section 35, Ownership Rights of this Contract, require the Contractor to deliver to DGS and/or the Funding Agency such reports and other documentation as the Contractor has specifically produced or specifically acquired for the performance of such part of the Contract or PO as has been terminated. Payment for such reports and documentation will be made consistent with the Contract or PO.

E 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.

F 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.

G the Contractor's exclusive remedy shall be to seek damages in the Board of Claims.

31. 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 beyon 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 orally within five (5) days and 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 cancel the Contract, cancel the PO, or to extend the time for performance as reasonably

In the event of a declared emergency by competent governmental authorities, the Commonwealth by notice to the Contractor, may suspend all or a portion of the Contract or PO.

32. Claims for Damages, Legal Relations, and Responsibilities: This Contract and all subsequent Purchase Orders shall not be construed as being made for the benefit of any person or political subdivision not a party to this Contract, nor shall this Contract be construed to authorize any person or political subdivision, not a party to this Contract, to maintain any lawsuit hereunder, nor shall this Contract be construed to constitute the basis for the maintenance of any lawsuit by any person, or political subdivision not a party hereto.

33. Confidentiality:

confidential informa confidential information. In order for information to be deemed confidential, the party claiming 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 RFQ). Neither party may assert that information owned by the 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 may be maintained for archival purposes only. 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 30C), 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;

B Independently generated by the recipient and not derived from 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 the recipient 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.

34. Patent, Copyright, Trademark, and Trade Secret Protection:

A The Contractor shall hold the Commonwealth harmless for any suit or proceeding which may be brought against the Commonwealth for the alleged infringement of any United States or foreign patents, copyrights, or trademarks, or for a misappropriation of trade secrets arising out of performance of this Contract, including all work, services, materials, reports, studies, and computer programs provided by the Contractor, and in any such suit or proceeding will satisfy any final award for such infringement, including costs. The Commonwealth agrees to give Contractor prompt notice of any such claim of which it learns. Pursuant to the Commonwealth Attorneys Act 71 P.S. § 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 the terms 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. If OAG does not delegate its right of defense, OA will request that OAG seek to join the Contractor as a third party. If OAG does not agree to seek to join the Contractor as a third party, the Contractor shall seek to intervene in the matter. If the Contractor is not joined as a third party either through the OAG's joinder or through the Contractor's intervention, there will be no contractual obligation on the part of the Contractor to indemnify. No settlement which prevents the Commonwealth from continuing to use the Developed Materials as provided herein shall be made without the Commonwealth's prior written consent. In all events, the Commonwealth shall have the right to participate in the defense of any such suit or proceeding through counsel of its own choosing. It is expressly agreed by the Contractor that, in the event it requests that the Commonwealth provide support to the Contractor in defending any such claim, the Contractor shall reimburse the

B The Contractor shall pay all damages and costs awarded therein against the Commonwealth. If information and assistance are furnished by the Commonwealth at the or

C furnished hereunder are likely to or do become subject to a claim of infringement of a United States or foreign patent, copyright, or trademark, or for a misappropriation of trade secret, may, at its option, substitute functional equivalents for the alleged infringing products, obtain the rights for the Commonwealth to continue the use of such products, materials, reports, studies, or computer programs.

D If any of the products, materials, reports, studies, or computer programs provided by the

Contractor are in such suit or proceeding held to constitute infringement and the use or publication thereof is enjoined, the Contractor shall, at its own expense and at its option, either procure the right to publish or continue use of such infringing products, materials, reports, studies, or computer programs, replace them with non-infringing items, or modify them so that they are no longer infringing.

E If the Contractor is unable to do any of the preceding, the Contractor agrees to pay the

Commonwealth:

1) Any amounts paid by the Commonwealth less a reasonable amount based on the acceptance and use of the deliverable;

2) Any license fee less an amount for the period of usage of any software; and

3) The prorated portion of any service fees representing the time remaining in any period of service for which payment was made.

F The obligations of the Contractor under this Section continue without time limit and survive the termination of this contract

G The obligation to indemnify the Commonwealth, under the terms of this Section, shall be the ligation for the infringement or misappropriation of intellectual property.

35. Royalties and Patents: The Contractor shall pay all royalties and license fees. The Contractor shall defend all suits or claims for infringement of any patent rights and shall hold the Commonwealth harmless from loss on account thereof.

36. 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

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

Commonwealth, assign its rights to payment to be received under the Contract or a PO, provided that the Contractor provides written notice of such assignment to the Contracting Officer, the DGS Energy and Resource Management Office, and the Funding Agency 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 Contra 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 number remains unchanged, is not considered to be an assignment. The Contractor shall give the Contracting Officer, DGS Energy and Resource Management Office, and the Funding Agency written notice of any such change of name

37. Change of Ownership: In the event that the Contractor should change ownership for any reason whatsoever, the Commonwealth shall have the exclusive option of continuing under the terms and conditions of this Contract with the Contractor or its successors or assigns for the full remaining term of this Contract, or continuing under the terms and conditions of this Contract with the Contractor or its successors or assigns for such period of time as is necessary to replace the products, materials, reports, studies, or computer programs, or immediately terminating this Contract.

38. Examination of Records:

A Unless otherwise specified in a PO, the Contractor agrees to maintain, using its standard procedures, and in accordance with Generally Accepted Accounting Principles, books, records, documents, and other evidence pertaining to the charges under any PO to the extent and in such detail as will properly reflect all charges for which reimbursement is claimed under the provisions of this Contract.

B The Contractor agrees to make available at the office of the Contractor at all reasonable times, and upon reasonable written notice, during the term of this Contract and the period set forth in Subsection c.