GUILFORD COLLEGE STANDARD CONTRACT TERMS & CONDITIONS
1. PERFORMANCE:
a) It is anticipated that the tasks and duties undertaken by the Vendor shall include Services, and/or the manufacturing, furnishing, or development of goods and other tangible features or components, as deliverables.
b) Except as provided herein, and unless otherwise mutually agreed in writing prior to award, any deliverables not subject to an agreed Vendor license and provided by Vendor in performance of this Contract shall be and remain property of the College. During performance, Vendor may provide proprietary components as part of the deliverables that are identified in this Contract. Vendor grants the College a personal, permanent, non-transferable license to use such proprietary components of the deliverables and other functionalities, as provided under this Contract. Any technical and business information owned by Vendor or its suppliers or licensors made accessible or furnished to the College shall be and remain the property of the Vendor or such other party, respectively. Vendor agrees to perform under the Contract in at least the same or similar manner provided to comparable users and customers. The College shall notify the Vendor of any defects or deficiencies in performance or failure of deliverables to conform to the standards and specifications provided in this Contract. Vendor agrees to remedy, in a timely manner, defective performance or any nonconforming deliverables on its own or upon such notice provided by the College.
c) Vendor has a limited, non-exclusive license to access and use College Data provided to Vendor, but solely for performing its obligations under and during this Contract and in confidence as further provided for herein or by law.
d) Vendor or its suppliers, as specified and agreed in the Contract, shall provide support assistance to the College related to all Services performed or other deliverables procured hereunder during the College's normal business hours. Vendor warrants that its support, customer service, and assistance will be performed at a minimum in accordance with generally accepted and applicable industry standards.
e) The College may document and take into account in awarding or renewing future procurement contracts the general reputation, performance and performance capabilities of the Vendor under this Contract as provided by G.S. 143-52 and 143-135.9 (a) and (b) (Best Value).
2. DEFAULT AND TERMINATION
a) In the event of default by the Vendor, the College may, as provided by NC law, procure goods and services necessary to complete performance hereunder from other sources and hold the Vendor responsible for any excess cost occasioned thereby. See, G.S. 25-2-712. In addition, and in the event of default by the Vendor under the Contract, or upon the Vendor filing a petition for bankruptcy or the entering of a judgment of bankruptcy by or against the Vendor, the College may immediately cease doing business with the Vendor, terminate the Contract for cause, and take action to recover relevant damages.
b) If, through any cause, Vendor shall fail to fulfill in a timely and proper manner the obligations under the Contract, including, without limitation, in these Standard Terms and Conditions, the College shall have the right to terminate the Contract by giving thirty days written notice to the Vendor and specifying the effective date thereof. In that event, any or all finished or unfinished deliverables that are prepared by the Vendor under the Contract shall, at the option of the College, become the property of the College (and under any applicable Vendor license to the extent necessary for the College to use such property), and the Vendor shall be entitled to receive just and equitable
compensation for any acceptable deliverable completed (or partially completed at the College's option) as to which such option is exercised. Notwithstanding, Vendor shall not be relieved of liability to the College for damages sustained by the College by virtue of any breach of the Contract, and the College may withhold any payment due the Vendor for the purpose of setoff until such time as the exact amount of damages due the College from such breach can be determined. The College, if insecure as to receiving proper performance or provision of goods deliverables, or if documented Vendor Services performance issues exist, under this Contract, may require at any time a performance bond or other alternative performance guarantees from a Vendor without expense to the College as provided by applicable law. G.S. 143-52(a); 01 NCAC 05B.1521; G.S. 25-2-609.
c) If this Contract contemplates deliveries or performance over a period of time, the College may terminate this Contract for convenience at any time by providing 60 days’ notice in writing from the College to the Vendor. In that event, any or all finished or unfinished deliverables prepared by the Vendor under this Contract shall, at the option of the College, become its property, and under any applicable Vendor license to the extent necessary for the College to use such property. If the Contract is terminated by the College for convenience, the College shall pay for those items or Services for which such option is exercised, less any payment or compensation previously made.
3. INTERPRETATION, CONFLICT OF TERMS:
a) The definitions in the Instructions to Vendors in the relevant solicitation for this Contract, and in 01 NCAC 05A.0112 are specifically incorporated herein.
b) If federal funds are involved in the transactions under this Contract, the Vendor shall comply with all applicable state and federal requirements and laws, except where College requirements are more restrictive. See the additional federal requirements included in the “Federal Funds Provisions” section below.
c) In cases of conflict between specific provisions in this Contract and any other referenced documents, the Order of Precedence shall be (high to low) (1) any special terms and conditions specific to this Contract, including any negotiated terms; (2) requirements, specifications and administrative terms; (3) these GUILFORD COLLEGE STANDARD CONTRACT TERMS AND CONDITIONS, including the Federal Funds Provisions; (4) Definitions and other provisions in INSTRUCTIONS TO VENDORS in this solicitation, which is specifically incorporated in this Contract; (5) PRICING, and (6) Vendor’s Bid, to the extent specifically and mutually incorporated into this Contract.
d) In the event of conflict of terms between applicable provisions of the Federal Funds Provisions and the other provisions of these Guilford College Standard Contract Terms and Conditions, the more restrictive provision will govern.
4. GOVERNMENTAL RESTRICTIONS:
In the event any Governmental restrictions are imposed which necessitate alteration of the goods, material, quality, workmanship, or performance of the Services offered, prior to acceptance, it shall be the responsibility of the Vendor to notify the College Contract Lead or Administrator indicated in the Contract at once, in writing, indicating the specific regulation which requires such alterations. The College reserves the right to accept any such alterations, including any price adjustments occasioned thereby, or to cancel the Contract.
5. AVAILABILITY OF FUNDS:
Any and all payments to the Vendor shall be dependent upon and subject to the availability of funds appropriated or allocated to the College for the purpose set forth in the Contract.
6. TAXES: Any applicable taxes shall be invoiced as a separate item.
a) G.S. 105-164.4 tax imposed on retailers shall be itemized as a separate line item. North Carolina law does not exempt nonprofit organizations from payment of sales and use tax on items purchased for use or consumption. Conditions under G.S. 105-164.8(b) include: (1) Maintenance of a retail establishment or office, (2) Presence of representatives in the State that solicit sales transact business on behalf of the Vendor and (3) Systematic exploitation of the market by media-assisted, media-facilitated, or media-solicited means. By execution of the proposal document the Vendor certifies that it and all of its affiliates, (if it has affiliates), collect(s) the appropriate taxes.
7. SITUS AND GOVERNING LAWS:
a) This Contract is made under and shall be governed by and construed in accordance with the laws of the State of North Carolina, including, without limitation, the relevant provisions of G.S. Chapter 143, Article 3, and the Rules in 01 NCAC Chapter 05, and any applicable successor provisions, without regard to its conflict of laws rules, and within which State all matters, whether sounding in Contract, tort or otherwise, relating to its validity, construction, interpretation and enforcement shall be determined.
b) Vendor shall comply with all laws, ordinances, codes, rules, regulations, and licensing requirements that are applicable to the conduct of its business and its performance in accordance with the Contract, including those of federal, state, and local agencies having jurisdiction and/or authority, and including, without limitation, the applicable requirements in the Federal Funds Provisions, below.
8. NON-DISCRIMINATION COMPLIANCE:
Wholly College Funded Contracts
a) The Vendor will take affirmative action in complying with all State requirements and laws concerning fair employment and employment of people with disabilities, and concerning the treatment of all employees without regard to discrimination by reason of race, color, religion, sex, national origin or disability or rights, and will take necessary action to ensure that its internal employee policies and procedures extend workplace protections and accommodations to pregnant employees.
b) Federal Law, such as the following, applies as provided for therein: Titles VI and VII of the Civil Rights Act of 1964 (PL 88-352), and the regulations issued pursuant thereto (prohibiting discrimination on the basis race, color, national origin and ensuring that individuals are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age); Title IX of the Education Amendments of 1972 (codified as amended at 20 U.S.C. § 1681 et seq.) (prohibiting discrimination on the basis of sex); Titles I, II, III, IV, and V of the Americans with Disability Act of 1990 (prohibiting discrimination on the basis of disability); Section 504 of the Rehabilitation Act of 1973 (codified as amended at 29 U.S.C. § 794) (prohibiting discrimination on the basis of handicap); the Age Discrimination Act of 1975 (codified as amended at 42 U.S.C. § 6101 et seq.) (prohibiting age
discrimination); Executive Order 11063 as amended by Executive Order 2259; and Section 109 of the Housing and Community Development Act of 1974, as amended.
Contracts Partially or Wholly Federally Funded.
To the extent federal funding is involved in this procurement, in whole or in part, compliance with the following is required:
c) The Vendor shall comply with all Federal Funds Provisions requirements (below) and not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The Vendor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Vendor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.
d) The Vendor shall, in all solicitations or advertisements for employees placed by or on behalf of the Vendor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin:
e) The Vendor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the Vendor's legal duty to furnish information.
f) The Vendor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the Vendor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
g) The Vendor shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.
h) The Vendor shall furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and shall permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
i) In the event of the Vendor's noncompliance with the nondiscrimination clauses of this Contract or with any of the said rules, regulations, or orders, this Contract may be canceled, terminated, or suspended in whole or in part and the Vendor may be declared ineligible for further Government contracts or federally assisted construction Contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law.
j) The Vendor shall include the portion of the sentence immediately preceding paragraph (a) and the provisions of paragraphs (a) through (g) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The Vendor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided, however, that in the event a Vendor (or herein “applicant,” as applicable in context within these Federal Funds Provisions) becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the Vendor may request the United States to enter into such litigation to protect the interests of the United States.
k) The Vendor further agrees that it shall be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: Provided, that if the Vendor so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the Contract.
l) The Vendor agrees that it shall assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of Vendors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it shall furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it shall otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance.
m) The Vendor further agrees that it shall refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a Vendor debarred from, or who has not demonstrated eligibility for, Government Contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon Vendors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, the Vendor agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part any relevant grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the Vendor under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such Vendor; and refer the case to the Department of Justice for appropriate legal proceedings.
9. PAYMENT TERMS:
Payment terms are net 45 days after receipt of a correct invoice or acceptance of goods, whichever is later, unless otherwise specified in the Purchase Order. All quotes and amounts paid under the order shall be in US Dollars. Seller shall bear the risk of fluctuation in foreign exchange rate. All invoices subject to discount period will be calculated from the date correct invoice is received or goods and/or services are received, whichever is later. Invoices must include the PO Number and be emailed to AccountsPayable@guilford.edu upon completion of delivery. Except as expressly provided in the Order, payment shall not be due until final acceptance by Guilford College. The College shall have the right to reduce and set off against amounts payable under the Order any indebtedness or other claim the College may have against the Seller, however and whenever arising. Vendor invoices that do not have official Guilford Purchase Order will be returned to the Vendor.
10. CONDITION AND PACKAGING:
Unless otherwise expressly provided by special terms and conditions or specifications in the Contract or by express, specific federal law or rule, it is understood and agreed that any item offered or shipped has not been sold or used for any purpose, is newly manufactured, and shall be in first class condition. All containers/packaging shall be suitable for handling, storage or shipment.
11. INTELLECTUAL PROPERTY WARRANTY AND INDEMNITY:
Vendor shall hold and save the College, its officers, agents and employees, harmless from liability of any kind, including costs and expenses, resulting from infringement of the rights of any third party in any Services or copyrighted material, patented or patent-pending invention, article, device or appliance delivered in connection with the Contract.
a) Vendor warrants to the best of its knowledge that:
i) Performance under the Contract does not infringe upon any intellectual property rights of any third party; and
ii) There are no actual or threatened actions arising from, or alleged under, any intellectual property rights of any third party.
b) Should any deliverables supplied by Vendor become the subject of a claim of infringement of a patent, copyright, trademark or a trade secret in the United States, the Vendor, shall at its option and expense, either procure for the College the right to continue using the deliverables, or replace or modify the same to become non-infringing. If neither of these options can reasonably be taken in Vendor’s judgment, or if further use shall be prevented by injunction, the Vendor agrees to cease provision of any affected deliverables and refund any sums the College has paid Vendor for such deliverables and make every reasonable effort to assist the College in procuring substitute deliverables. If, in the sole opinion of the College, the cessation of use by the College of any such deliverables due to infringement issues makes the retention of other items acquired from the Vendor under this Agreement impractical, the College shall then have the option of terminating the Agreement, or applicable portions thereof, without penalty or termination charge; and Vendor agrees to refund any sums the College paid for unused Services or other deliverables.
c) The Vendor, at its own expense, shall defend any action brought against the College or it's affiliates to the extent that such action is based upon a claim that the deliverables supplied by the Vendor, their use or operation, infringe on a patent, copyright, trademark or violate a trade secret in the United States. The Vendor shall pay those costs and damages finally awarded or agreed in a settlement against the College or affiliates in any such action. Such defense and payment shall be conditioned on the following:
i) That the Vendor shall be notified within a reasonable time in writing by the College or affiliates of any such claim; and
ii) That the Vendor shall have the sole control of the defense of any action on such claim and all negotiations for its settlement or compromise provided, however, that the affiliates shall have the option to participate in such action at its own expense.
d) Vendor will not be required to defend or indemnify the College to the extent any claim by a third party against the College for infringement or misappropriation results solely from the College's material alteration of any Vendor-branded deliverables or Services, or from the continued use of the Services or other deliverables after receiving written notice from the Vendor of the claimed infringement.
12. ADVERTISING:
Vendor agrees not to use the existence of the Contract or the name of the College as part of any commercial advertising or marketing of products or Services. A Vendor may inquire whether the College is willing to be included on a listing of its existing customers. This request must be approved Finance VP.
13. ACCESS TO PERSONS AND RECORDS:
During the relevant period required for retention of records by State law (G.S. 121-5, 132-1 et seq., typically five years), the State Auditor and any of the College’s internal auditors shall have access to persons and records related to the Contract to verify accounts and data affecting fees or performance under the Contract, as provided in G.S. 143-49(9). However, if any audit, litigation or other action arising out of or related in any way to this project is commenced before the end of the such retention of records period, the records shall be retained for one (1) year after all issues arising out of the action are finally resolved or until the end of the record retentions period, whichever is later.
14. ASSIGNMENT OR DELEGATION OF DUTIES:
a) As a convenience to the Vendor, the College may include any person or entity designated by the
Vendor in writing as a joint payee on the Vendor’s payment check. In no event shall such approval and action obligate the College to anyone other than the Vendor.
b) If Vendor requests any assignment, or delegation of duties, the Vendor shall remain responsible for fulfillment of all Contract obligations. Upon written request, the College may, in its unfettered discretion, approve an assignment or delegation to another responsible entity acceptable to the College, such as the surviving entity of a merger, acquisition or a corporate reorganization if made as part of the transfer of all or substantially all of the Vendor’s assets. 01 NCAC 05B.1507. Any purported assignment or delegation made in violation of this provision shall be void and a material breach of the Contract. G.S. 143-58.
15. INSURANCE:
This section provides minimum insurance coverage rates that are applicable to most moderate risk solicitations. College risk analysis will determine if higher insurance coverage amounts are needed based on the likelihood and severity of exposure to the College. The analysis considers the following non-exclusive factors:
1. Potential for damage to College property or property of a third party,
2. Potential for bodily injury to College employees or third parties,
3. Whether Vendor will transport College property, clients, or employees,
4. Use of a vehicle to accomplish the work or to travel to or from College locations,
5. Anticipated physical contacts of the Vendor with the College,
6. Anticipated number and activity of Vendor personnel within the College, and
7. Any other unique considerations that could result in harm, bodily injury, or property damage.
a) REQUIREMENTS - Providing and maintaining adequate insurance coverage is a material obligation of the Vendor and is of the essence of the Contract. All such insurance shall meet all laws of the State of North Carolina. Such insurance coverage shall be obtained from companies that are authorized to provide such coverage and that are authorized by the NC Commissioner of Insurance to do business in North Carolina. The Vendor shall at all times comply with the terms of such insurance policies, and all requirements of the insurer under any such insurance policies. Vendor shall place on file with the Purchasing Department copies of Worker's Compensation coverage, commercial general liability insurance and commercial auto mobile insurance (if used in the course of the work). The College shall be added as Additional Insured and Certificate Holder on ACORD forms. The limits of coverage under each insurance policy maintained by the Vendor shall not be interpreted as limiting the Vendor’s liability and obligations or the indemnification requirements under the Contract. The College, upon evaluation and substantiation of the significant risk of bodily injury and/or property or other damage in the Contract, may require and enforce higher coverage limits to mitigate the potential risk of liability to the College.
b) COVERAGE - During the term of the Contract, the Vendor at its sole cost and expense shall provide commercial insurance of such type and with such terms and limits as may be reasonably associated with the Contract. At a minimum, the Vendor shall provide and maintain the following coverage and limits, subject to higher requirements by the College after the risk analysis indicated above:
1. Commercial General Liability insurance written on an occurrence form with the minimum limits of liability shall not be less than a combined single limit of one million dollars ($1,000,000) per occurrence, two million dollars($2,000,000) general aggregate, two million ($2,000,000) product/ completed operations aggregate. A "per location or project endorsement" shall be included, so that the general aggregate limit applies separately to the location or project that is the subject of the contract.
2. Comprehensive Automobile Liability covering owned, non-owned, and hired vehicles shall have a limit of liability not less than a combined single limit of one million dollars ($1,000,000) per occurrence if vendor will use vehicles in the performance of work.
3. Worker's Compensation insurance shall be provided and maintained to protect the employees of the contracting party and any subcontractor who will be engaged in the performance of the contract. If any work is sub-contracted, the Vendor shall require the Sub-contractor to provide the same coverage for any of its employees engaged in any work under the contract with the College. Employers Liability Protection limit of liability with minimum limits not less than $500,000 is required. Member exclusions should be named and those individuals are not allowed on the work site for the noted contract.
16. GENERAL INDEMNITY:
The Vendor shall hold and save the College, its officers, agents, and employees, harmless from liability of any kind, including all claims and losses accruing or resulting to any other person, firm, or corporation furnishing or supplying work, Services, materials, or supplies in connection with the performance of the Contract, and also from any and all claims and losses accruing or resulting to any person, firm, or corporation that may be injured or damaged by the Vendor in the performance of the Contract that are attributable to the negligence or intentionally tortious acts of the Vendor, provided that the Vendor is notified in writing within 60 days from the date that the College has knowledge of such claims. The Vendor represents and warrants that it shall make no claim of any kind or nature against the College’s agents who are involved in the delivery or processing of Vendor deliverables or Services to the College. As part of this provision for indemnity, if federal funds are involved in this procurement, the Vendor warrants that it will comply with all relevant and applicable federal requirements and laws, and will indemnify and hold and save the College harmless from any claims or losses resulting to the College from the Vendor’s noncompliance with such federal requirements or law in this Contract. The representations and warranties in this section shall survive the termination or expiration of the Contract.
17. INDEPENDENT CONTRACTOR:
Vendor shall be considered to be an independent contractor and as such shall be wholly responsible for the work to be performed and for the supervision of its employees. Vendor represents that it has, or will secure at its own expense, all personnel required in performing the services under this Contract. Such employees shall not be employees of or have any individual contractual relationship with the College.
18. SUBCONTRACTING:
Performance under the Contract by the Vendor shall not be subcontracted without prior written approval of the College’s assigned Contract Lead. Unless otherwise agreed in writing, acceptance of a vendor’s proposal shall include approval to use the subcontractor(s) that have been specified therein.
19. CARE OF COLLEGE DATA AND PROPERTY:
Any College property, information, data, instruments, documents, studies or reports given to or prepared or assembled by or provided to the Vendor under the Contract shall be kept as confidential, used only for the purpose(s) required to perform the Contract and not divulged or made available to any individual or organization without the prior written approval of the College. The College's data and property in the hands of the Vendor shall be protected from unauthorized disclosure, loss, damage, destruction by a natural event or another eventuality. The Vendor agrees to reimburse the College for loss or damage of College property while in Vendor’s custody. Such College Data shall be returned to the College in a form acceptable to the College upon the termination or expiration of this Agreement.
The Vendor shall notify the College of any security breaches within 24 hours as required by G.S. 143B-1379. For further information, see, G.S. 75-60 et seq. Notice is given to the Vendor that the NC Department of Information Technology (DIT) has requirements relating to the security of the State network, and rules relating to the use of the State network, IT software and equipment, that the Vendor must comply with, as applicable. See, e.g., G.S. 143B-1376.
20. OUTSOURCING, RELOCATION, & CALL CENTER USE:
a) Any Vendor or subcontractor providing call or contact center services to the College shall disclose to inbound callers the location from which the call or contact center services are being provided.
b) Vendor shall give notice to the College of any intended relocation or outsourcing of any portion of performance under a College Contract to a location outside of the United States.
21. ENTIRE AGREEMENT:
The Contract (including any documents mutually incorporated specifically therein) resulting from a relevant solicitation represents the entire agreement between the parties and supersedes all prior oral or written statements or agreements. All promises, requirements, terms, conditions, provisions, representations, guarantees, and warranties contained herein shall survive the Contract expiration or termination date unless specifically provided otherwise herein, or unless superseded by applicable Federal or State statutes of limitation.
22. AMENDMENTS:
This Contract may be amended only by a written amendment duly executed by the College
and the Vendor.
23. NO WAIVER:
Notwithstanding any other language or provision in the Contract or in any Vendor-supplied material, nothing herein is intended nor shall be interpreted as a waiver of any right or remedy otherwise available to the College under applicable law. The waiver by the College of any right or remedy on any one occasion or instance shall not constitute or be interpreted as a waiver of that or any other right or remedy on any other occasion or instance.
24. FORCE MAJEURE:
Neither party shall be deemed to be in default of its obligations hereunder if and so long as it is prevented from performing such obligations as a result of events beyond its reasonable control, including, without limitation, fire, power failures, any act of war, hostile foreign action, nuclear explosion, riot, strikes or failures or refusals to perform under subcontracts, civil insurrection, earthquake, hurricane, tornado, other catastrophic epidemic or pandemic, natural event or Act of God.
25. SOVEREIGN IMMUNITY:
Notwithstanding any other term or provision in the Contract, nothing herein is intended nor shall be interpreted as waiving any claim or defense based on the principle of sovereign immunity or other State or federal constitutional provision or principle that otherwise would be available to the College under applicable law.
26. CERTIFICATIONS: Vendor certifies to each of the following:
a) that its quote is submitted competitively and without collusion.
b) that none of its officers, directors or controlling owners has been convicted of any violations of Chapter 78A of the General Statutes, the Securities Act of 1933, or the Securities Exchange Act of 1934.
c) that no employee or agent of Vendor has offered, and no employee has accepted, any gift or gratuity in connection with this contract,
d) that it, and each of its sub-contractors under this contract, complies with the requirements of Article 2 of Chapter 64 of the NC General Statutes, including the requirement for each employer with more than 25 employees in North Carolina to verify the work authorization of its employees.
e) The Vendor is not an ineligible vendor due to being identified on the Final Divestment List of entities that the State Treasurer has determined engages in investment activities in Iran, in accordance with the Iran Divestment Act of 2015, G.S. 147-86.55 et seq. The Treasurer’s Divestment List may be reviewed at: https://www.nctreasurer.com/inside-the- department/OpenGovernment/Pages/Iran-Divestment-Act- Resources.asp.
27. FEDERAL FUNDS PROVISIONS:
Where federal funds are utilized in connection with this procurement, and to the extent applicable and absent stricter or controlling State provisions, the following federal provisions may apply. Relevant federal authorities may require additional provisions depending on the scope and context of the Contract. Failure or unwillingness of the Vendor to continually meet any of these requirements, as applicable, may result in Contract termination.
a) No governmental non-competes. Vendor shall not impose or enforce any non-competition agreement upon the employees included in Vendor’s bid that would prevent those employees from accepting any offer of employment from the State of North Carolina outside of the first Term of the Contract. By executing this Contract, the Vendor affirms this condition. This affirmation is a material condition for the College’s award of any work under this Contract.
b) Program Monitoring. Vendor agrees to assist and cooperate with the Federal grantor or funding agency and the College or the duly designated representatives in the monitoring of the project or projects to which this Contract relates, and to provide in form and manner approved by the College such monitoring reports, progress reports, and the like as may be required and to provide such reports at the times specified.
c) Remedies and Termination. For purposes of this section the State Remedies and Termination provisions above apply as written.
d) Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708).
Compliance with the Contract Work Hours and Safety Standards Act.
1. Overtime requirements. No Vendor or subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.
2. Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in 29 C.F.R. §5.5(b)(1) the Vendor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such Vendor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in 29 C.F.R. §5.5(b)(1), in the sum of $26 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in 29 C.F.R. §5.5(b)(1).
3. Withholding for unpaid wages and liquidated damages. The College shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Vendor or subcontractor under any such contract or any other Federal contract with the same prime Vendor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Vendor, such sums as may be determined to be necessary to satisfy any liabilities of such Vendor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in 29 C.F.R. §5.5(b)(2).
4. Sub-Contracts. The Vendor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (b)(1) through (4) of 29 C.F.R. §5.5 and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime Vendor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in 29 C.F.R. §5.5(b)(2) through (4).
e) CLEAN AIR ACT AND THE FEDERAL WATER POLLUTION CONTROL ACT.
Clean Air Act
1. The Vendor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.
2. The Vendor agrees to report each violation to the College and understands and agrees that the College will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.
3. The Vendor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance.
Federal Water Pollution Control Act
1. The Vendor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.
2. The Vendor agrees to report each violation to the College and understands and agrees that the College will, in turn, report each violation as required to assure notification to the federal agency providing funds hereunder, and the appropriate Environmental Protection Agency Regional Office.
3. The Vendor agrees that these requirements will be included in each subcontract exceeding
$150,000 financed in whole or in part with Federal assistance.
f) Debarment and Suspension.
1. This Contract, if federal funding is used, is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such, the Vendor is required to verify that none of the Vendor’s principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).
2. The Vendor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.
3. This certification is a material representation of fact relied upon by a federal agency providing federal funds herein and the College. If it is later determined that the Vendor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to federal agency providing federal funds herein and the College, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.
4. The Vendor agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of the Contract resulting from a relevant solicitation herein. The Vendor further agrees to include a provision requiring such compliance in its lower tier covered transactions.
g) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352) (as Amended).
Vendor certifies that they will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any Federal Contract, grant, or any other award.
h) Procurement of Recovered Materials.
1. Unless specified otherwise in the Contract, in the performance of this Contract, the Vendor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired:
• Competitively within a timeframe providing for compliance with the Contract performance schedule;
• Meeting Contract performance requirements; or
• At a reasonable price.
2. Information about this requirement, along with the list of EPA designated items, is available at EPA’s Comprehensive Procurement Guidelines web site: https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program.
3. The Vendor also agrees to comply with all other applicable requirements of Section 6002 of the Solid Waste Disposal Act.”
i) Access to Records. The following access to records requirements apply to the contract:
1. The Vendor agrees to provide the College, the Administrator of the federal agency providing funds hereunder, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Vendor which are directly pertinent to this Contract for the purposes of making audits, examinations, excerpts, and transcriptions.
2. The Vendor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.
3. The Vendor agrees to provide the Administrator of the federal agency providing funds hereunder or his authorized representative access to construction or other work sites pertaining to the work being completed under the Contract.
4. In compliance with the Disaster Recovery Act of 2018, the College and the Vendor acknowledge and agree that no language in this Contract is intended to prohibit audits or internal reviews by the Administrator of the federal agency providing funds hereunder or the Comptroller General of the United States.
j) Modifications to Contract. Modifications to the Contract shall be noted as Amendments and approval and signature by any federal official may also be required.
k) Records Retention. All records required to be kept on the project shall be maintained for at least five (5) years after final payments and until all other pending matters under the grant for this project have been closed. However, if any audit, litigation or other action arising out of or related in any way to this project is commenced before the end of the five (5) year period, the records shall be retained for one (1) year after all issues arising out of the action are finally resolved or until the end of the five (5) year period, whichever is later.
l) Energy Efficiency. All participants in the projects funded hereby shall recognize mandatory standards and policies relating to energy efficiency, which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (PL 94-163).
m) Program Fraud and False or Fraudulent Statements or Related Acts. Vendor acknowledges that 31
U.S.C. Chapter 38 (Administrative Remedies for False Claims and Statements) applies to its actions pertaining to the Contract.
n) No Obligation by Federal Government. The Federal Government is not a party to this Contract and is not subject to any obligations or liabilities to the non-Federal entity, Vendor, or any other party pertaining to any matter resulting from the Contract.
o) Compliance with Federal Law, Regulations, and Executive Orders. This is an acknowledgement that federal financial assistance may be used to fund all or a portion of the Contract. The Vendor will comply with all applicable Federal law, regulations, executive orders, the policies of the federal agency(ies) providing funding, procedures, and directives.
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