GENERAL TERMS AND CONDITIONS
As used throughout this contract, the following terms shall have the meanings set forth below:
"CLIENT" shall mean an individual receiving services under this contract.
"COGNIZANT STATE AGENCY" shall mean the state agency from which the sub-recipient receives federal financial assistance. If funds are received from more than one state agency, the cognizant state agency shall be the agency that contributes the largest portion of federal financial assistance to the sub-recipient.
"CONTRACTOR" shall mean that agency, firm, provider organization, individual or other entity performing services under this contract. It shall include any subcontractor retained by the prime contractor as permitted under the terms of this agreement.
“CONTRACTING OFFICER” shall mean that individual authorized to execute this agreement on behalf of the Department.
"DEPARTMENT" shall mean the Department of Services for the Blind of the state of Washington, any division, section, office, unit or other entity of the DEPARTMENT or any of the officers or other officials lawfully representing that DEPARTMENT.
“PERSONAL INFORMATION” means information identifiable to any person, including, but not limited to, information that relates to a person’s name, health, finances, education, business, use or receipt of governmental services or other activities, addresses, telephone numbers, social security numbers, driver license numbers, other identifying numbers, and any financial identifiers.
"SUBCONTRACTOR" shall mean one not an employee of the contractor, who is performing all or part of those services under this contract under a separate contract with the contractor. The terms "subcontractor" and "subcontractors" mean subcontractor(s) in any tier.
“SUBRECIPIENT” shall mean a non-federal entity that expends federal awards received from a pass-through entity to carry out a federal program, but does not include an individual that is a beneficiary of such a program. It also excludes vendors that receive federal funds in exchange for goods and/or services in the course of normal trade or commerce.
A "VENDOR" is an entity that agrees to provide the amount and kind of services requested by the Department; provides services under the contract only to those beneficiaries individually determined to be eligible by the Department and, provides services on a fee-for-service or per-unit basis with contractual penalties if the entity fails to meet program performance standards.
AMERICANS WITH DISABILITIES ACT (ADA) OF 1990, PUBLIC LAW 101-336, ALSO REFERRED TO AS THE "ADA" 28 CFR PART 35
The contractor must comply with the ADA, which provides comprehensive civil rights protection to individuals with disabilities in the areas of employment, public accommodations, state and local government services, and telecommunications.
Neither this contract, nor any claim arising under this contract, shall be transferred or assigned by the contractor without prior written consent of the Department.
CERTIFICATION REGARDING DEBARMENT, SUSPENSION AND INELIGIBILITY
The contractor, by signature to this contract, certifies that the contractor is not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal department or agency from participating in transactions (debarred). The contractor also agrees to include the above requirements in any and all subcontracts into which it enters. The contractor shall immediately notify the Department if, during the term of this contract, contractor becomes debarred. The Department may immediately terminate this contract by providing contractor written notice if contractor becomes debarred during the term of this contract.
CHANGE IN STATUS
In the event of substantive change in the legal status organizational structure or fiscal reporting responsibility of the contractor, contractor agrees to notify the Department of the change. Contractor shall provide notice as soon as practicable, but no later than thirty-days after such a change takes effect.
CHANGES AND MODIFICATIONS
The contracting officer may, at any time, by written notification to the contractor, and without notice to any known guarantor or surety, make changes within the general scope of the services to be performed under the contract. If the contractor agrees to such changes, a written contract amendment reflecting such change shall be executed by the parties.
An equitable adjustment in cost or period of performance or both may be made if required by the change. Any claim for adjustment in price or period of performance must be received within thirty (30) days of the contractor's receipt of the change notice.
The contracting officer may, however, receive and act upon any such claim at any time prior to final payment under the contract at his/her discretion.
Failure to agree to any adjustment made under this section shall be an issue and may be reviewed as provided in the "Disputes" section of this agreement. Nothing in this section shall excuse the contractor from proceeding with the contract as changed.
CONFLICT OF INTEREST
The Department may, in its sole discretion, by written notice to the contractor, terminate this contract if it finds, after due notice and examination by the contracting officer, that there is a violation of the Ethics in Public Service Act, Chapter 42.52 RCW; or any similar statute involving the contractor in the procurement of or performance under, this contract.
In the event this contract is terminated as provided above, the Department shall be entitled to pursue the same remedies against the contractor as it could pursue in the event of a breach of the contract by the contractor.
The rights and remedies of the Department provided for in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law. The existence of facts upon which the contracting officer makes any determination under this clause shall be an issue and may be reviewed as provided in the "Disputes" clause of this contract.
COVENANT AGAINST CONTINGENT FEES
The contractor warrants that no person or selling agent has been employed or retained to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide established agent maintained by the contractor for the purpose of securing business. The Department shall have the right, in the event of breach of this clause by the contractor, to annul this contract without liability or, in its discretion, to deduct from the contract price or consideration or recover by other means the full amount of such commission, percentage, brokerage or contingent fees.
When a dispute arises over an issue concerning the terms of this Agreement, the parties agree to the following process to address the dispute.
The Contractor and DSB shall attempt to resolve the dispute through informal means between the Contractor and DSB Contract Officer identified in the Agreement.
- If the Contractor is not satisfied with the outcome, the Contractor may submit the disputed issue, in writing to DSB’s Administrative Unit, 3411 S. Alaska Street, Seattle, WA 98118, to be reviewed by the appropriate Assistant Director. The written submission must contain the following information:
- The Contractor’s Contact for the issue.
- The Issue in dispute.
- The Contractor’s position on the issue.
The Assistant Director may request additional information from the DSB Contract Officer and/or the Contractor. The Assistant Director shall issue a written review decision to the Contractor within thirty (30) calendar days of the receipt of all the information relevant to the issue. The review decision will be provided to the Contractor.
- If the Contractor disagrees with the written review decision of the Assistant Director, the Contractor may request the Agency Director to review all the information supplied by both parties up to that point. The Agency Director may request any additional information necessary to make the final decision. Timelines for production of any such additional information will be clearly marked within the request. The Agency Director shall issue a final written decision to the Contractor within thirty (30) calendar days of receipt of all request information.
Both parties agree to make their best efforts to resolve disputes arising from this Agreement and agree that this dispute resolution process is the sole administrative remedy available under this Agreement.
The Contractor is responsible for any audit exceptions or disallowed costs incurred by its own organization or that of its Subcontractors.
This contract shall be construed and interpreted in accordance with the laws of the state of Washington and the venue of any action brought hereunder shall be in Superior Court for Thurston County.
NOTE: The County may change depending on the location of services.
To the fullest extent permitted by law, contractor shall indemnify, defend and hold harmless state, agencies of state and all officials, agents and employees of state, from and against all claims for injuries or death arising out of or resulting from the performance of the contract. Contractors’ obligations to indemnify, defend, and hold harmless includes any claim by contractors’ agents, employees, representatives or any subcontractor or its employees.
Contractor expressly agrees to indemnify, defend, and hold harmless the state for any claim arising out of or incident to contractor's or any subcontractor's performance or failure to perform the contract. Contractor’s obligation to indemnify, defend, and hold harmless the state, shall not be eliminated or reduced by any actual or alleged concurrent negligence of state or its agents, agencies, employees and officials.
Contractor waives its immunity under Title 51 RCW to the extent it is required to indemnify, defend and hold harmless state and its agencies, officials, agents or employees.
The parties intend that an independent contractor relationship will be created by this contract. The contractor and his or her employees or agents performing under this contract are not employees or agents of the Department. The contractor will not hold himself/herself out as nor claim to be an officer or employee of the Department or of the state of Washington by reason hereof, nor will the contractor make any claim of right, privilege or benefit that would accrue to such employee under law. Conduct and control of the work will be solely with the contractor.
INDUSTRIAL INSURANCE COVERAGE
The contractor shall comply with the provisions of Title 51 RCW, Industrial Insurance. If the contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, the Department may collect from the contractor the full amount payable to the Industrial Insurance accident fund. The Department may:
Deduct the amount owed by the contractor to the accident fund from the amount payable to the contractor by department under this contract. and
- Transmit the deducted amount to the Department of Labor and Industries (L&I), Division of Insurance Services.
This provision does not waive any of L&I’s rights to collect from the contractor.
LICENSING AND ACCREDITATION STANDARDS
The contractor shall comply with all applicable local, state, and federal licensing, accreditation and registration requirements/standards, necessary in the performance of this contract.
LIMITATION OF AUTHORITY
Only the contracting officer or his/her delegate by writing (delegation to be made prior to action) shall have the express, implied or apparent authority to alter, amend, modify or waive any clause or condition of this contract. Furthermore, any alteration, amendment, modification or waiver of any clause or condition of this contract is not effective or binding unless made in writing and signed by the contracting officer.
During the performance of this contract, the contractor shall comply with all federal and state nondiscrimination laws, regulations and policies. In the event of the contractor’s noncompliance or refusal to comply with any nondiscrimination law, regulation or policy, this contract may be rescinded, canceled or terminated in whole or in part, and the contractor may be declared ineligible for further contracts with the Department. The contractor shall, however, be given a reasonable time in which to cure this noncompliance. Any dispute may be resolved in accordance with the “Disputes” procedure set forth herein.
OVERPAYMENTS AND ASSERTION OF LIEN
In the event that the Department establishes overpayments or erroneous payments made to the contractor under this contract, the Department may secure repayment, plus interest, if any, through the filing of a lien against the contractor's real property or by requiring the posting of a bond, assignment of deposit or some other form of security acceptable to the Department or by doing both.
Personal information collected, used or acquired in connection with this contract shall be used solely for the purposes of this contract. Contractor and its subcontractors agree not to release, divulge, publish, transfer, sell or otherwise make known to unauthorized persons personal information without the express written consent of the Department or as provided by law.
Contractor agrees to implement physical, electronic and managerial safeguards to prevent unauthorized access to personal information.
The Department reserves the rights to monitor, audit or investigate the use of personal information collected, used or acquired by the contractor through this contract. The monitoring, auditing or investigating may include but is not limited to “salting” by the Department.
Contractor shall certify the return or destruction of all personal information upon expiration of this contract. Salting is the act of placing a record containing unique but false information in a database that can be used later to identify inappropriate disclosure of data contained in the database.
Any breach of this provision may result in termination of the contract and the demand for return of all personal information. The contractor agrees to indemnify and hold harmless the Department for any damages related to the contractor’s unauthorized use of personal information.
For the purposes of this provision, personal information includes but is not limited to information identifiable to an individual that relates to a natural person’s health, finances, education, business, use or receipt of governmental services or other activities, names, addresses, telephone numbers, social security numbers, driver license numbers, financial profiles, credit card numbers, financial identifiers and other identifying numbers.
RECORDS, DOCUMENTS, AND REPORTS
The contractor shall maintain all books, records, documents, data and other evidence relating to this contract and performance of the services described herein, including but not limited to accounting procedures and practices, which sufficiently and properly reflect all direct and indirect costs of any nature expended in the performance of this contract.
Contractor shall retain such records for a period of six years following the date of final payment. At no additional cost, these records, including materials generated under the contract, shall be subject at all reasonable times to inspection, review or audit by the Department, personnel duly authorized by the Department, the Office of the State Auditor, and federal and state officials so authorized by law, regulation or agreement.
If any litigation, claim or audit is started before the expiration of the six (6) year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved.
REGISTRATION WITH DEPARTMENT OF REVENUE
The contractor shall complete registration with the Department of Revenue, General Administration Building, Olympia WA 98504, and be responsible for payment of all taxes due on payments made under this contract.
RIGHT OF INSPECTION
The contractor shall provide right of access to its facilities to the Department or any of its officers at all reasonable times, in order to monitor and evaluate performance, compliance, and/or quality assurance under this contract on behalf of the Department.
All inspections and evaluations shall be performed in such a manner that will not unduly interfere with the contractor’s business or work hereunder.
RIGHTS IN DATA
Unless otherwise provided, data that originates from this contract shall be "works for hire" as defined by the U.S. Copyright Act of 1976 and shall be owned by the Department. Data shall include, but not be limited to, reports, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions. Ownership includes the right to copyright, patent, register and the ability to transfer these rights.
Data that is delivered under the contract, but that does not originate there from, shall be transferred to the Department with a nonexclusive, royalty-free, irrevocable license to publish, translate, reproduce, deliver, perform, dispose of, and to authorize others to do so; provided that such license shall be limited to the extent that the contractor has a right to grant such a license.
The contractor shall exert all reasonable effort to advise the Department, at the time of delivery of data furnished under this agreement, of all known or potential invasions of privacy contained therein and of any portion of such document, which was not produced in the performance of this agreement.
The Department shall receive prompt written notice of each notice or claim of copyright infringement received by the contractor with respect to any data delivered under this agreement. The Department shall have the right to modify or remove any restrictive markings placed upon the data by the contractor.
SAFEGUARDING OF INFORMATION
The contractor shall not use or disclose any:
Personal Information gained by reason of this contract, or
- Information that may be classified as confidential for any purpose not directly connected with the administration of this contract except (1) with prior written consent of the Department or (2) as may be required by law. The contractor shall safeguard such information and shall return or certify destruction of the information upon contract expiration or termination.
In the event funding from state, federal or other sources is withdrawn, reduced or limited in any way after the effective date of this contract and prior to normal completion, the Department may terminate the contract under the "Termination for Convenience" clause, without advance notice, subject to renegotiation at the Department’s discretion under those new funding limitations and conditions.
If any provision of this contract or any provision of any document incorporated by reference shall be held invalid, such invalidity shall not affect the other provisions of this contract that can be given effect without the invalid provision, if such remainder conforms to the requirements of applicable law and the fundamental purpose of this contract, and to this end the provisions of this contract are declared to be severable.
SINGLE AUDIT ACT REQUIREMENTS
If the contractor is a subrecipient of federal awards as defined by Office of Management and Budget (OMB) Circular A-133, the contractor shall maintain records that identify all federal funds received and expended. Such funds shall be identified by the appropriate OMB Catalog of Federal Domestic Assistance Numbers.
The contractor shall make the contractor’s records available for review or audit by officials of the federal awarding agency, the General Accounting Office, the Department, and the Washington State Auditor’s Office. The contractor shall incorporate OMB Circular A-133 audit requirements into all contracts between the contractor and its subcontractors who are subrecipients. The contractor shall comply with any future amendments to OMB Circular A-133 and any successor or replacement Circular or regulation.
If the contractor expends $500,000 or more in federal awards from any and/or all sources in any fiscal year ending after December 31, 2003, the contractor shall procure and pay for a single or program-specific audit for that year.
Upon completion of each audit, the contractor shall submit to the contracting officer named in this contract the data collection form and reporting package specified in OMB Circular A-133, reports required by the program-specific audit guide (if applicable).
NOTE: The single audit requirements above do not apply to "vendors" (as defined in this contract) who provide goods or services.
Neither the contractor nor any Subcontractor shall enter into subcontracts for any of the work contemplated under this contract without obtaining prior written approval of the Department.
In no event shall the existence of the subcontract operate to release or reduce the liability of the contractor to the Department for any breach in the performance of the contractor’s duties.
This clause does not include contracts of employment between the contractor and personnel assigned to work under this contract.
TERMINATION FOR CONVENIENCE
Except as otherwise provided in this contract, the contracting officer may, by ten (10) days written notice, beginning on the second day after the mailing, terminate this contract in whole or in part. If this contract is so terminated, the Department shall be liable only for payment required under the terms of this contract for services rendered or goods delivered prior to the effective date of termination.
TERMINATION FOR DEFAULT
The contracting officer may terminate this contract for default, in whole or in part, by written notice to the contractor if the Department has a reasonable basis to believe that the contractor has:
- Failed to meet or maintain any requirement for contracting with the Department.
- Failed to ensure the health or safety of any client for whom services are being provided under this contract.
- Failed to perform under or otherwise breached, any term or condition of this contract. and/or
- Violated any applicable law or regulation.
If it is later determined that the contractor was not in default, the termination shall be considered a termination for convenience.
Upon termination of this contract the Department, in addition to any other rights provided in this contract, may require the contractor to deliver to the Department any property specifically produced or acquired for the performance of such part of this agreement as has been terminated. The provisions of the "Treatment of Assets" clause shall apply in such property transfer.
The Department shall pay to the contractor the agreed upon price, if separately stated, for completed work and services accepted by the Department and the amount agreed upon by the contractor and the contracting officer for:
- Completed work and services for which no separate price is stated.
- Partially completed work and services.
- Other property or services that are accepted by the Department.
- The protection and preservation of the property, unless the termination is for default, in which case the contracting officer shall determine the extent of the liability of the Department. Failure to agree with such determination shall be a dispute within the meaning of the "Disputes" clause of this agreement.
The Department may withhold from any amounts due the contractor for such completed work or services such sum as the contracting officer determines to be necessary to protect the Department against potential loss or liability.
The rights and remedies of the Department provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this agreement.
After receipt of a notice of termination, and except as otherwise directed by the contracting officer, the contractor shall:
- Stop work under the agreement on the date and to the extent specified in the notice.
- Place no further orders or subcontracts for materials, services or facilities except as necessary to complete such portion of the work not terminated.
- Assign to the Department, in the manner, at the times, and to the extent directed by the contracting officer, all of the rights, titles, and interest of the contractor under the orders and subcontracts in which case the Department has the right, at its discretion, to settle or pay any or all claims arising out of the termination of such orders and subcontracts.
- Settle all outstanding liabilities and all claims arising out of such termination of orders and subcontracts, with the approval or ratification of the contracting officer to the extent he/she may require, which approval or ratification shall be final for all the purposes of this clause.
- Transfer title to the Department and deliver, in the manner, at the times and to the extent as directed by the contracting officer, any property which, if the contract had been completed, would have been required to be furnished to the Department.
- Complete performance of such part of the work not terminated by the contracting officer.
- Take such action as may be necessary or as the contracting officer may direct, for the protection and preservation of the property related to this agreement that is in the possession of the contractor and in which the Department has or may acquire an interest.
TREATMENT OF ASSETS
Title to all property financed or furnished by the Department shall remain in the Department. Title to all property purchased by the contractor, for which the contractor is entitled to be reimbursed as a direct item of cost under this contract, shall pass to and vest in the Department upon delivery of such property to the contractor.
Title to other property, the cost of which is reimbursable to the contractor under the contract, shall pass to and vest in the Department upon:
- Issuance for use of such property in the performance of this contract or
- Commencement of use of such property in the performance of this contract, or
- Reimbursement of the cost thereof by the Department in whole or in part, whichever first occurs.
- Any property of the Department furnished to the contractor shall, unless otherwise provided herein or approved by the Department, be used only for the performance of this contract.
- The contractor shall be responsible for any loss or damage to property of the Department that results from the negligence of the contractor or that results from the failure on the part of the contractor to maintain and administer that property in accordance with sound management practices.
- If any department property is lost, destroyed or damaged, the contractor shall notify the Department and shall take all reasonable steps to protect the property from further damage.
- The contractor shall surrender to the Department all property of the Department prior to settlement upon completion, termination or cancellation of this agreement.
- All reference to the contractor under this clause shall include contractor’s employees, agents or subcontractors.
WAIVER OF DEFAULT
Waiver of any default or breach shall not be deemed to be a waiver of any subsequent default or breach. Waiver shall not be construed to be a modification of the terms of the contract unless stated to be such in writing, signed by the contracting officer of the Department.