HomeMy WebLinkAboutProfessional Services ContractTHE CITY OF PHILADELPHIA
PROFESSIONAL SERVICES CONTRACT
GENERAL PROVISIONS
FOR
GENERAL CONSULTANT SERVICES
The City of Philadelphia
Professional Services Contract
General Consultant
General Provisions
TABLE OF CONTENTS
1.1
AI}A—........ _................... .......... .......... ____ ........ ___ .............. —._
\
1.2
Additional Services and Mu*ztuls................... ................ '.......... ................
l
1.3
Additional Term, Additional terms .................. ........ —.-....... —.... ........
1
1.4
Appropriated Fiscal Year ...... --............ ................ ___ ......... ___ ........... .
]
1.5
Amendment —_--....... -... -.... '......... —_—.----........ --'.......
l
1.0
Applicable Law ........ ................................... ..................................... ...........
}
1.7
Applicant ''---.----------------------'--.--
l
1.8
Certification ofRestrictions ooLobbying .......
l
1'9
City ................................. '.......................................... ..................................
I
LiO
City Cnuood'--------------------------------.
I
LllConsultant
................................... —........... ................... ....... ........ ........ --
2
1.12
Cootomt-----------------------.------------
2
1.13
Contract Cost Principles------------------._-------'
2
1]4
Contract Documents -----------------------------
2
l.15
Contributions ............ ................................................................................... .
2
1.16
Department..... ................................................................................................
2
1.17
Event nfDefault ................................................. ...........................................
2
1.18
Event ofInsolvency ........................................................................................
3
1]9
Fiscal Year .....................................................................................................
3
1.20
General Provisions .......................................... ..............................................
3
121
Initial Term .....................................................................................................
3
122
Number; Gender ............................................................... .....
J
1.23
Materials .........................................................................................................
3
124
Bid Cnntract-------------------'--..
3
1.25
Party; Parties ..................................................................................................
4
126
9eruoo--------.------------...'-----_.-----
4
127
Provider .............. ............ ..............................................................................
4
1.28
Provider Agreement ...................... ................................ .......... —....... ....
4
129
Responsible Official .......................................................................................
4
1.30
Scope o[Services ................... .......................................................................
4
1.31
Services ............................................................................................. ............
4
1.32
3ubuontoacL--------------------------------.—
4
1]3 3ubruotruotx--------- -_-....... .... --...... .------- 4
1.34 Suspension Notice .... ..... --_-.............. -_-_... ................... ..... .... 4
1.35 Suspension Period .... _--............ ......................... -_-____........ 4
1.36 Term ............ -----......... -............ ---........ .......... ....... .... ... 5
Article11:
Term ...... --...... .—............. .......... ............................. ................. ---^
i
2.1
Initial ...... ....... -................... _-........ ...... ........ ......... --
5
2.1
Additional Tnrom....... -_............. ............. .............. -'_--..............
5
Article III:
Provider's Duties and Cwvemamts....... ........... -_-_—.......... -.... ......
5
Il
Performance Requirements ...... ...... ...... ____ '...... _____ ....... ........ ........
5
3]
Compliance with Applicable Law .................... _............ ---....... ___
5
3.3
Additional Services and Materials; Change ioScope nfServices .................
5
34
Responsibility ...... -.--_......... ............... -...... ....... —_.......... _
b
3.5
Subcontracts ...... ___ ......... ---__........ ........ ____ ........ -'''____ _._�
7
3.0
Relationship� with the [lty.----------- _--_--_-_'_-_-_-'___-�
9
3.7
Time Frame for Submissions ---_....... _......... ......... ...................
9
3.8
Prompt Payment brProvider ..... ......... ..... _....... -.............. -......... -'
g
3.9
Sales and Use Tax _''-___._'........ ...... ____ ------- '-... ___ --_-......
u
Article IV:
Provider's RepresentationsumdCwveoants------.---------
10
&A
Good Standing -------.--_—'-----'------.-
18
U@
Authority to Act
]O
(c)
Legal Obligation .
10
6D
No Litigation Preventing PcTfornouoce.................................................
10
(e)
Requisite� Licensure and Qualifications ........ --........... ...................
8
A5No
Adverse Interests .............................................................................
D
(g)
NuIndebtedness unthe City ..................................................................
1l
Od
Business Privilege Licxense--------------------.--
]l
(i)
Subcontractor Licc000zc NoIndebtedness Umthe City ........................
ll
6\
, Debarment ................................................................
12
@d
Contributions .................................. ............... .....................................
12
5.1 Certification of Available Funds.................................................................... 15
5.2 Unavailability of Funds.................................................................................. 15
5.3 Crossing Fiscal Years..................................................................................... 16
5.4 Allowability of Cost Items... . . ................... ................................. 16
Article VI: Audits; Inspection Rights; Records.. ........ ............. ........ — 16
6.1
City Audit.......................................................................................................
16
6.2
Inspection.......................................................................................................
17
6.3
Availability of Records ..................................................................................
17
6.4
Retention of Records.....................................................................................
17
6.5
Audits Pursuant to Section 6-400 of the Horne Rule Charter ........................
17
ArticleVII: Assignment ...... ............. ........................ ..,............ ............... --- ................... .. 17
7.1 Assignment By Provider................................................................................ 17
7.2 Applicability in Case of Bankruptcy or Insolvency ....................................... 18
7.3 Personal Services .................... ...... ....-...... ...................... 18
Article VIII: Independent Contractor; Indemnification; Litigation Cooperation....... 18
8.1 Independent Contractor .... ,,..... .,..r�................................................................. 18
8.2 Indemnification.....................................................,............................_......,.... 18
8.3 Litigation Cooperation........_..............................._....,..,..,,................,.............. is
8.4 Notice of Claims .... ...... ---- ................ ...... .....,..._.... ............. --- ............. _._ 19
Article IX: Insurance.. .......... ....... ......—... .._....:.. ..........,...,... ..,..............._-...., 19
9.1 Insurance.............................................,......,_.....
(a) Workers' Compensation and Employers' Liability ...........I ...................... 19
(b) General Liability Insurance..................................................................... 20
c Automobile Liability ............................................. 20
(d) Professional Liability Insurance.............................................................. 20
9.2 Self-Insurance......................................................... ......-. ...... 20
............. ...........
9.3 Evidence of Insurance Coverage................................................................... 21
9.4 Fidelity Bond................................................................................................ 2I
Article X: Ownership of Materials; Proprietary Information;
Confidentiality _,... ....................... ......... ........ 2
10.1 Ownership of Materials.................................................................................. 22
10.2 Non -Disclosure ---- --------- --...— ....... ..... ..................... , ............ 23
iy,
Article XI: Events of Default ...................... .......... ............ ................._..........-...........,.. 23
11.1 Events of Default.._..__.............................................................................. 23
112 Notice and Cure.._. ......... ____ ....... ...... 24
Article XII: Remedies _._.......................
12.1 The City's Remedies.. .............. ...... ......... __ ____ ....... _ .......... 24
12.2 Concurrent Pursuit of Remedies; No Waiver... ......... ................ ........ 25
Article XIII: Termination and Suspension.._...................._....._......................_.._................ 26
13.1 Termination or Suspension for Convenience...........................................I....1 26
13.2 Provider Responsibilities upon Termination or Suspension .......................... 26
13.3 Payment of Provider upon Termination or Suspension ................................. 27
13.4 Suspension._._...., ... .......................................................................................... 27
Article Xii•V: Applicable Laws Concerning Discrimination .... ............. .....:...... ._............. 28
14.1
Non -Discrimination; Fair Practices.. ......................................... I ....................
28
14.2
The Philadelphia Code, Section 17 -400 .........................................................
28
14.3
Minority, Woman and Disabled Business Enterprise Participation ...............
29
15.4
(a) Executive Order 02-05.............................................................................
29
15.5
(b) The Philadelphia Code, Section 17-1402 ................................................
31
14.4
Federal Laws-,.-, _ . .... __......... ......... ..................... ......... ................ _., _..
32
14.5
Americans With Disabilities Act...... ........ _ ...... ___ ......... ....
32
14.6
Northern Ireland............................................................................................
32
14.7
Limited English Proficiency..........................................................................
33
14.8
Business, Corporate and Slavery Era Insurance Disclosure ..........................
34
Article XV: Miscellaneous-......._. ........ _ ........_. .......... ._._................ ...,,.... .......... 34
15.1
Governing Law.... ......... ............ ............ .....,................. ......,............_...__
34
15.2
Amendments;Waiver__._ ,........ ......_,.. _....... ...... _.,......... ...._._......... ...__,_...,
34
15.3
Integration .................... ......... ......_........... .....,... ,._._..... _.....,.. ..........
34
15.4
No Joint Venture.. ........ ... ..... ................. .._,..... ........... .........____ ...
35
15.5
No Third Party Beneficiaries.... .......___ .................. ......... ..:..;... ...._...,.
35
15.6
Counterparts....:. ...... .......... ......... ......... ......... .............. .._...
35
15.7
Severability and Partial Invalidity...,-......................... ......... ........... ..........
35
15.8
Sun�ival . ....... ..... ___ ...... ..,:.._ ,,........ .......... .,....__ .......... ____
35
15.9
Determination of Disputes ...... ......... ........, ._...._,. __.,,... ,.,.,....
35
v
15.10 Interpretation; Order of Precedence—, —.- ---- ....... ............................ 36
15.11 Headings......................................................................................................... 36
15.12 Statutes and Other Citations........................................................................... 36
15.13 Days................................................................................................................ 36
15.14 Forum Selection Clause; Consent to Jurisdiction.......................................... 36
15.15 Waiver of Jury Trial....................................................................................... 36
15.16 Notices.:.............. ......................,......,..........._.............,.,.............._..................... 36
Vi
The City of Philadelphia
Professional Services Contract
General Consultant
Geoeral Provisions
GENERAL PROVISIONS
ARTICLE 1: DEFINITIONS
1.1 ADA. "ADA" shall have the meaning set forth in Section 14.5 (Americans with
Disabilities Act) below.
1.2 Additional Services and Materials. "Additional Services and Materials" shall
have the meaning set forth in Section 3.3 (Additional Services and Materials; Change in Scope of
Services) below.
1.3 Additional Term Additional Terms. "Additional Term" and "Additional Terms"
shall have the meanings set forth in Section 2.2 (Additional Terms) below.
1.4 Appropriated Fiscal Year. "Appropriated Fiscal Year" shall have the meaning
set forth in Section 5.3 (Crossing Fiscal Years) below.
1.5 Amendment. "Amendment" means a written modification or change to any
Contract Document signed by both Parties.
1.6 Applicable Law. "Applicable Law" means all applicable present and future
federal, state or local laws, ordinances, executive orders, rules, regulations and all court orders,
injunctions, decrees and other official interpretations thereof of any federal, state or local court,
administrative agency or governmental body, including the City, the Commonwealth and the
United States of America. Applicable Law includes, without limitation, The Philadelphia Home
Rule Charter, as amended from time to time, The Philadelphia Code, as amended from time to
time, and the specific laws set forth in Article XIV (Applicable Laws Concerning Discrimination)
below hereof, each as amended from time to time.
1.7 Applicant. "Applicant" means a Person who has filed an application to be
awarded a Non -Competitively Bid Contract.
1.8 Certification of Restrictions on Lobbyinf. "Certification of Restrictions on
Lobbying," if required in the Provider Agreement, means a certificate in the form attached to the
Provider Agreement.
1.9 City. The "City" means The City of Philadelphia, a corporation and body politic
PSC GP (GC)
Rev. Date: February 2006
Page 1
existing under the laws of the Commonwealth of Pennsylvania, and includes its various executive
and administrative departments, agencies, boards and commissions, including the Department and
its legislature, City Council. The City is a City of the First Class under the laws of the
Commonwealth of Pennsylvania.
1.10 ON Council. "City Council" means the Council of The City of Philadelphia, as
described in Article II of the Philadelphia Home Rule Charter, as it may be amended from time to
time. City Council is the legislature of the City.
1.11 Consultant. "Consultant" means any Person used by Provider to assist in
obtaining a Non -Competitively Bid Contract through direct or indirect communication by such
Person with any City Agency or any City officer or employee; if the communication is undertaken
by such Person in exchange for, or with the understanding of receiving payment from the Provider
or any other Person; provided, however, that "Consultant" shall not include a full-time employee
of the Provider.
1. i2 Contract. The "Contract" means the agreement of the Parties evidenced by the
Contract Documents, References to this "Contract" shall mean this Contract as the same may be
in effect at the time such reference becomes operative.
1,13 Contract Cost.Principles. The "Contract Cost Principles," means the "City of
Philadelphia Contract Cost Principles and Guidelines," as it may be amended from time to time,
which specifies the Department's guidelines for the qualitative and quantitative evaluation of
contract services and materials, the determination of allowable costs, and the standards to
determine the allowability of individual cost items, (copies are available from the Department
upon request),
1.14 Contract Documents. The "Contract Documents" means these General
Provisions, the Provider Agreement, and any and all other documents or exhibits incorporated by
reference in either the General. Provisions or the Provider Agreement, and any and all
Amendments to any of these documents.
1.15 Contributions. "Contributions" shall have the meaning set forth in the
Pennsylvania Election Code, 25 P.S.Section 32141.
1.16 Denartment. The "Department" means the department, board, commission or
agency of the City of Philadelphia defined as the Department in the heading of the Provider
Agreement.
1.17 Event of Default. "Event of Default" means those events defined and identified in
Section 11.1 (Events of Default) of these General Provisions.
1.18 Event of Insolvencv. "Event of Insolvency" means (a) the fling of a voluntary
PSC GP (GC)
Rev Date: February 2006
Pace 2
petition by Provider under- the Federal Bankruptcy Code or any similar state or federal law; or (b)
the filing of an involuntary petition against Provider under the Federal Bankruptcy Code or any
similar state or federal law which remains undismissed for a period of forty-five (45) days; or (c)
Provider's making of an assignment for the benefit of creditors: or (d) the appointment of a
receiver for Provider or for the property or assets of Provider, if such appointment is not vacated
within forty-five (45) days thereafter; or (e) any other proceeding under any bankruptcy or
insolvency law or liquidation law, voluntary or otherwise; or (f) Provider proves unable to pay its
obligations as they mature; or (g) Provider is insolvent as otherwise defined under any Applicable
Law.
1.19 Fiscal Year. "Fiscal Year" means the fiscal year of the City, which commences
on July 1 of each calendar year and expires on June 30 of the next succeeding calendar year.
1.24 Genera! Provisions. "General Provisions" means these "The City of
Philadelphia Professional Services Contract General Provisions for General Consultant Services",
which contains the standard provisions required by the City in its general consultant professional
services contracts, and any exhibits identified in these General Provisions.
1.21 Initial Term. "initial Term" shall have the meaning set forth in Section 2.1 (Initial
Term) below.
122 Interpretation. Number.Gender. The words "herein" "hereof' and "hereunder"
and other words of similar import refer to this Contract as a whole, including all of the Contract
Documents and not to any particular article, section, subsection or clause contained in the
Contract Documents. Whenever the context requires, words used in the singular shall be construed
to include the plural and vice versa, and pronouns of any gender shall be deemed to include the
masculine, feminine and neuter genders.
1.23 Materials. "Materials" means any and all reports, records, documents,
documentation, information, supplies, plans, original drawings, specifications, computations,
sketches, renderings, arrangements, videos, pamphlets, advertisements, statistics, and other data,
computer tapes, computer software, and other tangible work product or materials prepared or
developed by Provider in connection with the Services, or for Provider by a Subcontractor in
connection with the Services, and supplied to the City by Provider or its Subcontractor pursuant to
this Contract.
1.24 Non -Competitively Bid Contract. "Non -Competitively Bid Contract" means a
contract for the purchase of goods or services to which the City or a City Agency is a party that is
not subject to the lowest responsible bidder requirements of Section 8-200 of The Philadelphia
Home Rule Charter, including, but not limited to, a Professional Services Contract, and any
renewal of such a contract (other than a renewal term pursuant to an option to renew contained in
an executed contract).
PSC GP (GC)
Rev. Date: February 2006
Page 3
L-25 Party; Parties. A "Party" means either the City or Provider; the "Parties" incans
the City and Provider. r r
1?6 Person. "Person" means any individual, sole proprietorship, association,
company, firm, partnership, limited partnership, joint venture, corporation, limited liability
company or other form of entity or association recognized at law.
1.27 Provider. "Provider" means the Person providing Services and Materials to the
City as defined in the heading of the Provider Agreement.
1.28 Provider Agreement. The "Provider Agreement" means the instrument, part of
the Contract Documents, which sets forth the terms, covenants and conditions specific to
Provider's engagement.
1.29 Responsible Official. The "Responsible Official" means the director,
commissioner or other head of the Department.
1.30 Scope of Services. "Scope of Services" means the document(s) attached as an
exhibit (or as exhibits) to the Provider Agreement, which set(s) forth the Services to be rendered
and Materials to be provided under this Contract, the time frames within which the Services are to
be rendered and the Materials are to be provided, and other requirements Provider must satisfy in
rendering the Services and providing the Materials.
1.31 Services. "Services" means the work to be performed under this Contract as
specified in the Provider Agreement.
1.32 Subcontract. "Subcontract" means a contract made between Provider and a
Subcontractor providing for the completion of some part or parts of the Services or Materials by a
Subcontractor.
1.33 Subcontractor. "Subcontractor" means a Person performing under a contract with
Provider some part of the Services or Materials.
1.34 Suspension Notice. "Suspension Notice" means a written notice from the City to
Provider pursuant to Section 13.1 (Termination or Suspension for Convenience) below suspending
Provider's performance under this Contract.
1.35 Susoension Periost. "Suspension Period" means the period designated by the City
in a Suspension Notice during which the City has suspended Provider's performance under this
Contract.
1.36 Terns. "Term" has the meaning set forth in Section 2.1 (Initial Term) of the
PSC GP (GC)
Rev. Date: February 2006
Page 4
Provider Agreement.
1.37 Termination Notice. "Termination Notice" means a written notice from the City
to Provider pursuant to Section 13.1 (Termination or Suspension for Convenience) below
terminating this Contract.
ARTICLE II: TERIVI
2.1 Initial Term. The initial term ("Initial Term") of this Contract is set forth in
Section 2.1 of the Provider Agreement. In no event shall the Initial Term exceed one (1) year.
2.2 Additional Terms. The City may, at its sole option, amend this Contract to add
on an annual basis up to three (3) successive one (1) year terms ("_Additional Terms"), unless any
shorter term (or terms) is specified in the Provider Agreement. Unless otherwise stated in the
Provider Agreement, the same terms and conditions applicable in the Initial Term shall be
applicable in the Additional Term(s). The City shall give Provider thirty (30) days written notice
of its intent to amend this Contract to add an Additional Term prior to each annual Additional
Term. Each Additional Term shall be subject to appropriation of funds by City Council for such
Additional Term. There shall be no liability or penalty to the City for electing not to amend the
term of this Contract to add ;Additional Terms. Each Additional Term of this Contract shall be
deemed to constitute a separate contract, whose term shall not exceed one (1) year.
ARTICLE III: PROVIDER'S DUTIES AND COVENANTS
3.1 Performance Reauirements. Provider shall provide all Services and Materials in
accordance with this Contract and applicable professional standards. All payments to Provider are
contingent upon satisfactory performance of the terms and conditions set forth in this Contract, as
determined by the Responsible Official in his or her sole discretion.
3.2 Compliance with Applicable Law. Provider shall comply with the requirements
of all Applicable Law with respect to Provider's activities, Services, Materials and facilities used
in connection with any aspect of this Contract. Provider shall inform the Responsible Official, in
writing, of any notices of violations of any Applicable Law within forty-eight (48) hours of
Provider's receipt thereof, and shall correct any violations within the time prescribed by law, or
immediately in the case of any emergency.
3.3 Additional Services and Materials: Chance in Scoge of Services. At any time
during the term of this Contract, the City may, by written change order or request delivered by
notice to Provider, make changes to the Scope of Services under this Contract, and the Parties
will, if appropriate, negotiate an adjustment in compensation, subject to appropriation of funds
therefor by City Council, if necessary. Provider shall not commence to perform or provide, and
PSC GP (CC)
Rev. Date: February 2006
Page 5
the City shall not pav for, any services or materials not included in this Contract (the "Additional
Services and Materials") unless and until Provider receives written pre -authorization (by change
order or other request) from the Responsible Official that specifies the Additional Services and
Materials to be provided. In no event shall the rates charged by Provider for said Additional
Services and Materials exceed the lowest of (a) Provider's then current standard rates for such
Services or Materials, (b) such rates as the City and Provider may have negotiated for this
Contract, as set forth in the Provider Agreement, or (c) the lowest rate or rates that Provider may
then be charging to other purchasers of like Services and Materials. If Provider requests changes
to the Scope of Services, Provider must demonstrate to the satisfaction of the City, in its sole
discretion, that the changes are necessary and not due to the acts or omissions of Provider. The
City shall pay Provider additional compensation above the limit set forth in the Provider
Agreement only if and when an Amendment to this Contract is duly executed by the Parties. The
City shall have no responsibility or liability whatsoever for any fee, or for costs incurred by
Provider for any services, materials or other costs or expenses, other than the Services and
Materials and any duly approved Additional Services and Materials.
3.4 Responsil litz.
(a) Notwithstanding the acceptance and approval by the City of any Services
performed or Materials provided, Provider shall continue to be responsible for the professional
quality, technical accuracy and the coordination of all Materials and Services provided by
Provider under this Contract_ Provider shall, without additional compensation, correct any errors,
defects, deficiencies or omissions in Provider's Materials and Services.
(b) The City's review, approval or acceptance of, or payment for, any of the
Materials and Services required under this Contract shall not constitute any representation,
warranty or guaranty by the City as to the substance or quality of the matter reviewed, approved or
accepted and shall not be construed to operate as a waiver or estoppel of any of the City's rights or
privileges under this Contract or of any cause of action arising out of the performance of this
Contract. No Person shall have any right to rely in any way on the City's review, approval or
acceptance of Provider's Senices or Materials. Provider shall be and remain liable in accordance
with this Contract and Applicable Law for all damages to the City caused by Provider or the
Services or Materials provided by Provider. Review, approval or acceptance by the City or the
Responsible Official under this Contract shall not constitute approval otherwise required by any
City department, board, commission, or other regulatory agency in the exercise of such
department's, board's, commission's or agency's independent regulatory authority or police
powers under Applicable Law.
(c) Without limiting Provider's responsibility as set forth above, if any act or
omission of Provider or error or deficiency or omission in the Sen6ces or Materials provided by
Provider requires any change in the Scope of Services or any portion thereof, Provider shall
promptly complete such change at no additional cost to the City.
PSC GP (GC)
Rev. Date: February 2006
Page 6
3.5 Subcontracts.
(a) Provider shall not delegate or enter into any Subcontract for the
performance of any of its obligations under this Contract, in whole or in part, without on each
occasion first obtaining the written consent of the Responsible Official.
(b) Provider shall submit to the Responsible Official copies of all proposed
Subcontract(s) to be entered into by Provider, along with Provider's written request for the City's
consent. All such Subcontracts must specify that:
(1) work performed by Subcontractor shall be in
conformity with the terms of this Contract;
(2) nothing contained in such Subcontract shall be construed
to impair the rights of the City under this Contract;
(3) the City's consent to or approval of any Subcontract shall not
create any obligation of the City to any Subcontractor;
(4) nothing contained in such Subcontract, or under this Contract, shall
create any obligation of the City to any Subcontractor;
(5) the City shall be expressly designated a third parry beneficiary
of the Subcontract;
(6) upon request by the City (at the City's sole option) and upon receipt
of written notice from the City stating that this Contract bem een the
City and Provider has been terminated, Subcontractor agrees that it
will continue to perform its obligations under the Subcontract for the
benefit of the City in conformity with the terms and conditions of
this Contract, provided the City pays Subcontractor for the Services
rendered and Materials provided by Subcontractor from and after
the date of the termination of this Contract between the City and
Provider at the same rate or in the same amount as set forth in the
Subcontract for those Services and Materials provided by
Subcontractor after such date of termination;
(7) Subcontractor shall be bound by the same terms, covenants and
conditions as Provider under this Contract; including, without
limitation, confidentiality, maintenance and preservation of records,
and audit by government representatives, under this Contract;
(8) Subcontractor shall, effective on the date of the Subcontract,
PSC GP (GC)
Rev Date: February 2006
Page 7
presently, fully and unconditionally assign, transfer and set over to
the City all of Subcontractor's right, title and interest in and to any
sales and use tax which may be refunded as a result of a claim for
refund for anv materials purchased in connection with the
Subcontract or this Contract, and Subcontractor shall covenant and
agree that, (i) other than as directed by the City, it will not file a
claim for refund for any sales or use tax which is the subject of this
assignment; and (ii) the City, in its own name or in the name of
Subcontractor, may file a claim for a refund of any sales or use tax
covered by this assignment;
(9) Subcontractor shall not be indebted to the City (to satisfy this
requirement, Provider shall include Subsection 4.1(g), "No
Indebtedness to the City," below, with appropriate adjustments for
the identity of the parties, in all Subcontracts that are entered into
for work to be performed pursuant to this Contract);
(10) Subcontractor shall comply with Section 17-400 of The Philadelphia
Code (to satisfy this requirement, Provider shall include Subsection
14.2 (a), The Philadelphia Code, Section 17-400, below, with
appropriate adjustments for the identity of the parties, in all
Subcontracts that are entered into for work to be performed pursuant
to this Contract): and
(11) Subcontractor shall comply with Section 17-104 of The Philadelphia
Code (to satisfy this requirement, Provider shall include subsection
14.6 (b) (The Philadelphia Code, Section 17-104) below, with
appropriate adjustments for the identity of the parties, in all
Subcontracts that are entered into for work to be performed pursuant
to this Contract).
(c) No permitted Subcontract shall relieve Provider of any obligation under this
Contract. Provider shall be as fully responsible for the acts and omissions of its Subcontractors
and Persons either directly or indirectly employed or retained by them as it is for the acts and
omissions of Provider and Persons directly or indirectly employed or retained by Provider.
(d) Any purported Subcontract made in violation of this Section or of any other
Section in this Contract shall be null and void.
(e) City -Related Agencies.
(1) If Provider is a City -Related Agency, as defined at Philadelphia
Code Subsection 17-1401(9), Provider shall abide by the provisions
of Philadelphia Code Section 17-1400 in awarding any contract(s)
PSC GP (GC)
Rev Date: February 2006
Page 8
Pursuant to this Contract as though such contracts were directly
subject to the provisions of Section 17-1400, except that the
exception set forth at Subsection 17-1406(8) shall apply to Provider
as if Provider were listed in that subsection.
(2) Unless approved by the City to the contrary, any approvals required
by the Philadelphia Code Section 17-1400 to be performed by the
City Solicitor shall be performed by Provider by its General
Counsel; any approvals required to be performed by the Director of
Finance shall be performed by Provider by its Chief Financial
Officer; and any approvals required to be performed by the Mayor
shall be performed by Provider by its Executive Director.
3.6 Relationship with the City. Neither Provider's personnel nor any Subcontractor
personnel shall be employees of the City. Provider shall notify the City of any Provider personnel
or any Subcontractor personnel who have any employment or other contractual relationship or
agency relationship with the City.
3.7 Time Frame for Submissions. Provider shall perform any and all Services
and shall submit any and all Materials required by this Contract within the time frames set forth in
the Scope of Services attached as an exhibit to the Provider Ageement or as mutually agreed upon
in writing by the City and Provider. Absent any such written time frames, Provider shall perform
its obligations under this Contract diligently and promptly and in any and all event before the
scheduled expiration of the Term.
3.8 Prompt Pavment by Provider. Provider agrees to pay promptly all Persons
which have furnished labor or supplies in connection with the Services, the Materials or this
Contract, including, without limitation, Subcontractors and suppliers. Provider shall provide,
upon request of the City, reasonable evidence that these Persons have been fully and timely paid.
3.9 Sales and Use Tax. The City is not subject to federal, state or local sales or use
taxes or federal excise tax. Provider hereby assigns to the City all of its right, title and interest in
any sales or use tax which may be refunded as a result of any materials, including any Materials,
purchased or services, including any Services, rendered in connection with this Contract and
unless directed otherwise by the City, Provider shall not file a claim for any sales or use tax refund
subject to this assignment. Provider authorizes the City, in its own name or the name of Provider,
to file a claim fora refund of any sales or use tax subject to this assignment.
PSC GP (GC)
Rev. Date: February 2006
Page 9
ARTICLE IV: PROVIDER'S
REPRESENTATIONS AND COVENANTS
4.1 Provider's Representations and Covenants. Provider makes the following
representations, warranties and covenants upon which the City has relied as a material
consideration for the execution and delivery by the City of this Contract:
(a) Good Standing. If Provider is not an individual, Provider is a business
corporation, limited liability company, partnership, limited partnership or other business entity
duly organized, validly existing and in good standing under the laws of the state of its
incorporation or organization. Provider is duly licensed, qualified and in good standing in the
Commonwealth of Pennsylvania and in all jurisdictions in which it conducts business activities
relating in any way to the performance of the Services and delivery of the Materials under this
Contract, including, but not Iimited to, the jurisdiction in which Provider is organized. If Provider
is a not-for-profit corporation or otherwise an entity determined to be tax exempt pursuant to
Section 501(c) of the Internal Revenue Code by the Internal Revenue Service, then Provider has
procured, and shall maintain in full force and effect, all consents and approvals necessary in
connection with such tax-exempt and non-profit status.
(b) Authority to Act. Provider has full legal power and authority to execute
and deliver this Contract, and provide the Services and Materials as set forth herein. Provider has
duly authorized by all necessary actions the execution and delivery of this Contract on behalf of
Provider by the individual or individuals signing the Provider Agreement. This Contract is the
legal, valid and binding obligation of Provider, enforceable against Provider in accordance with
the terms set forth herein. The execution and delivery of this Contract by Provider will not result
in a default under or a breach or violation of (1) Provider's certificate or articles of incorporation
or bylaws, partnership agreement, limited liability company operating agreement or other
pertinent organizational documents, as applicable; (2) any Applicable Law or any judgment,
decree order, license, permit or other instrument or obligation to which Provider is now a party or
by which Provider may be bound or affected, and (3) Provider's tax exempt status, if applicable.
No consent, approval or authorization is required of any regulatory authority or governmental
agency, or of any shareholder, partner, member, manager or other party related to Provider.
(c) Legal Obligation. This Contract has been duly authorized, executed and
delivered by Provider, by and through individuals duly authorized to execute this Contract on
behalf of Provider, and constitutes the legal, valid and binding obligation of Provider, enforceable
against Provider in accordance with its terms.
(d) No Litigation Preventing Performance. There is no litigation, claim,
consent order, settlement agreement, arbitration, agency proceeding, investigation, challenge or
other proceeding pending or threatened against Provider, its properties or business or any
individuals acting on Provider's behalf, including, without limitation, Subcontractors, in which
any Person seeks to enjoin or prohibit Provider from entering into or performing its obligations
PSC GP (GC)
Rev. Date: February_ 2006
Page 10
under this Contract.
(e) Requisite Licensure and Qualifications. Provider and all of the Persons
acting on Provider's behalf, including, without limitation, Subcontractors, in connection with the
Services and Materials under this Contract, possess and, at all times during the Tette of this
Contract, shall possess all licenses, certifications, qualifications or other credentials required in
accordance with Applicable Law and the terms of this Contract, to perform the Services and
provide the Materials. Provider shall provide the City with copies of all licenses, credentials and
certifications required under this Section within five (5) days of request by the City.
(f) No Adverse Interests. Except as disclosed in writing and approved in
advance by the Responsible Official, neither Provider nor any of its directors, officers, members,
partners or employees, has any interest, or will acquire any interest, directly or indirectly, that
would or may conflict in any manner or degree with the performance or rendering of the Services
and Materials.
(g) No Indebtedness to the City. Provider and any and all entities controlling
Provider, under common control with Provider or controlled by Provider are not currently
indebted to the City, and will not at any time during the Tenn of this Contract (including any
Additional Term(s)) be indebted to the City, for or on account of any delinquent taxes (including;
but not limited to, taxes collected by the City on behalf of the School District of Philadelphia),
water bills, sewer bills, liens, judgments, fees or other debts for which no written agreement or
payment plan satisfactory to the City has been established. Provider shall remain current during
the Term of this Contract under all such agreements and payment plans, and shall inform the
Responsible Official in writing of Provider's receipt of any notices of delinquent payments under
any such agreement or payment plan within five (S) days after receipt. In addition to any other
rights or remedies available to the City at law or in equity, Provider acknowledges that any
breach or failure to conform to this representation, warranty and covenant may, at the option of the
City, result in the withholding of payments otherwise due to Provider under this Contract or any
other agreement with the City under which the City may then owe payment of any kind, and, if
such breach or failure is not resolved to the City's satisfaction within a reasonable time frame
specified by the City in writing, may result in the offset of any such indebtedness against said
payments or the termination of this Contract for default (in which case Provider shall be Iiable for
all excess costs and other damages resulting from the termination), or both. In addition, Provider
understands that false certification, representation or warranty by it is subject to prosecution
under Title I8 Pa.C.S.A. § 4904.
(h) Business Privilege License. If Provider is a "business" as defined in The
Philadelphia Code, Section 19-2601, Provider has and shall maintain during the Term of this
Contract, a valid, current Business Privilege License, issued by the City's Department of Licenses
and Inspections, to do business in the City.
(i) Subcontractor Licensure; No Indebtedness to the City. Each
PSC GP (GC)
Rev. Date: February 2006
Page 11
Subcontractor, if any, holds a valid, current Business Privilege License to do business in the City,
if required by Applicable Law. To the best of Provider's knowledge, information and belief, the
representations made in any Subcontract that Subcontractor is not indebted to the City are true and
correct.
(j) Non -Suspension. Debarment. Provider and all of' the individuals acting
on Provider's behalf including, without limitation, Subcontractors, are not under suspension or
debarment from doing business with the Commonwealth of Pennsylvania, any other state, or the
federal government, or any department, agency or political subdivision of any of the foregoing. if
Provider cannot so warrant, then Provider shall submit to the Responsible Official a full, complete
written explanation as to why Provider cannot so warrant. Provider shall reimburse the City for
the reasonable cost of investigation incurred by the City or the Commonwealth of Pennsylvania
Office of Inspector General for investigation of Provider's compliance with the terms of this or
any other contract between Provider and the City which results in the suspension or debarment of
Provider. Such costs shall include, but are not limited to, salaries of investigators, including
overtime, travel and lodging expenses, expert witness and documentary fees and attorney fees and
expenses. Provider shall not be responsible for costs of investigations which do not result in
Provider's suspension or debarment.
(k) Contributions. In accordance with Section 17-1402 of The Philadelphia
Code, Provider represents on behalf of itself and its Subcontractor(s) that no contribution(s) have
been made and none shall be made during the term of the Contract by Provider, any
Subcontractor, or any party from which a contribution can be attributed to the Provider or
Subcontractor, that would render the Provider or Subcontractor, as applicable, ineligible to apply
for or enter into a Non -Competitively Bid Contract under the provisions of Philadelphia Code
Sections 17-1404(1) and 17-1405: and that disclosures made as part of its application to receive a
Non -Competitively Bid Contract contain no material misstatements or ornissions. Breach of this
covenant shall constitute an event of default and render the Contract voidable at the City's option,
and shall make the Provider liable for liquidated damages to the City in the amount of ten percent
(10%) of the maximum payments to the Provider allowed under the Contract, regardless whether
actually paid. The City may exercise any or all of the remedies set forth in this Subsection 4.1(k)
(Contributions), each of which may be pursued separately or in conjunction with such other
remedies as the City in its sole discretion shall determine. No extension or indulgence granted by
the City to Provider shall operate as a waiver of any of the City's rights in connection with this
Contract. The rights and remedies of the City as described in this Subsection 4.1(k)
(Contributions) and as described elsewhere in this Contract shalt not be exclusive and are in
addition to any other rights or remedies available to the City under this Contract at law or in
equity.
(1) Pursuant to the attribution rules of Section 17-1405, Provider shall,
during the term of the Contract and for one year thereafter, disclose
any contribution of money or in-kind assistance the Provider,
Subcontractor or any Consultant has made during such time period
to a candidate for nomination or election to any public office in the
PSC GP (CC)
Rev. Date: February 2006
Page 12
Commonwealth of Pennsylvania or to an individual who holds such
office, or to any political committee or state party in the
Commonwealth of Pennsylvania, or to any group, committee or
association organized in support of any such candidate, office
holder, political committee or state party, and the date and amount
of such contribution.
a) Such disclosure shall be made on a form provided by the
Department awarding the Contract, and the form shall be
signed and filed with such Department within five (5)
business days of the contribution. The Department receiving
the disclosure form shall forward copies to the President and
Chief Clerk of Council, and to the Mayor, Finance Director,
Procurement Department, and the Department of Records.
The attribution rules of Section 17-1405 shall apply to
determine what contributions must be disclosed under this
provision as contributions of the Provider or of a Consultant.
h? It shall not be a violation of Subsection 4.1(k)(1) if Provider
fails to disclose a contribution made by a Consultant because
the Provider was unable to obtain such information from the
Consultant, provided the Provider demonstrates that it used
reasonable efforts to attempt to obtain such information,
including, at a minimum:
V) Entering into a written agreement with the Consultant
for such Consultant's services, before the filing of the
application for the Contract, and before the
Consultant communicated with a City department or
office, official or employee on behalf of the Provider;
I Including in such agreement a provision requiring the
Consultant to provide the Provider in a timely
manner with all information required to be disclosed
under the provisions of Philadelphia Code Section
17-1400, and providing, in effect, that the agreement
will be terminated by the Provider if the Consultant
fails to provide all required information on a timely
basis and that no further payments, including
payments owed for services performed prior to the
date of termination, will be made to the Consultant
by or on behalf of the Provider as of the date of such
termination;
PSC GP (GC)
Rev. Date: February 2006
Page 13
>> Communicating regularly with the Consultant
concerning the Consultant's obligations to provide
timely information to permit the Provider to comply
with the provisions of Philadelphia Code Section 17-
1400; and
4) Invoking the termination provisions of the written
agreement in a full and timely, manner.
(2) The Provider shall, during the Term of the Contract and for one year
thereafter, disclose the name and title of each City officer or employee who,
during such time period, asked the Provider, any officer, director or
management employee of the Provider, or any Person representing the
Provider, to give money, services, or any other thing of value (other than a
Contribution as defined in Section 17-1401) to any Person, and any
payment of money, provision of services, or any other thing of value (other
than a Contribution as defined in Section 17-1401) given to any Person in
response to any such request. The Provider shall also disclose the date of
any such request, the amount requested, and the date and amount of any
payment made in response to such request.
a) Such disclosure shall be made on a form provided by the
Department awarding the contract, and the form shall be signed and
filed with the Department within five (5) business days after a
request was made or a payment in response to a request was made,
as the case may be.
b i The Department receiving the disclosure form shall forward copies
to the President and Chief Clerk of Council, and to the Mayor,
Finance Director, Procurement Department, and the Department of
Records.
The above representations, warranties and covenants shall continue
throughout the Tenn of this Contract. In the event said representations, warranties and covenants
are or become untrue or inaccurate, Provider shall promptly give notice thereof to the City,
specifying the manner in which said representation, warranty or covenant is untrue or inaccurate.
(1) Executive Order 42-04: Gifts.
(a) Pursuant to Executive Order 02-04, no official or employee in the
Executive and Administrative Branch of the City shall solicit or accept, directly or indirectly,
anything of value, including any gift, gratuity, favor, entertainment or loan from any of the
following sources:
PSC GP (GC)
Rev. Date: February 2006
Page 14
I) A person seeking to obtain business from, or who has financial
relations with the City;
'11 A person whose operations or activities are regulated or inspected
by any City a(yency;
} A person engaged, either as principal or attorney, in proceedings
before any City agency or in court proceedings in which the City is
an adverse party;
4) A person seeking legislative or administrative action by the City; or
5) A person whose interests may be substantially affected by the
performance or nonperformance of the official's or employee's
official duties_
(b) Provider understands and agrees that if it offers anything of value to a City
official or employee under circumstances where the receipt of such item would violate the
provisions of this Executive Order, Provider shall be subject to sanctions with respect to future
City contracts. Such sanctions may range from disqualification from participation in a particular
contract to debarment, depending on the nature of the violation.
ARTICLE V: COMPENSATION
5.1 Certification of Available Funds. Provider acknowledges that payments under
this Contract shall not exceed the amount certified by or on behalf of the City's Director of
Finance as available for this Contract. A copy of the form signed by the Finance Department
showing the amount of currently available funds will be attached to the fully executed Contract
returned to Provider. During the Initial Term and any Additional Term(s) of this Contract, the
City reserves the right to fund any remaining balance of this Contract amount in varying amounts
from time to time as funds become available, not to exceed in total the maximum amount stated in
this Contract. Provider agrees that the City shall not be obligated to fund this Contract except out
of funds certified by or on behalf of the City's Director of Finance as currently available, even if
those funds are less than the maximum amount stated in this Contract, If sufficient funds are not
certified as available at any time, the City may exercise its options described in Section 5.2
(Unavailability of Funds) below.
5.2 Unavailability of Funds. If funding for this Contract from any source is not
obtained and continued at an aggregate level sufficient to allowfor payment for the Services
performed and Materials delivered under this Contract, the City may exercise one of the following
options without liability or penalty to the City:
(a) Terminate this Contract effective upon a date specified in a Termination
PSC GP (GC)
Rev. Date: February 2006
Pane 15
Notice; or
(b) Continue this Contract by reducing, through written notice to Provider, the
amount of this Contract and Services and Materials, consistent with the nature, amount and
circumstances of available funding.
The City's exercise of either option under this Section shall not affect any
obligations or liabilities of either Party accruing prior to such termination or reduction of Services
or Materials. Provider shall be compensated in accordance with the terms of this Contract for
Services and Materials satisfactorily performed and delivered prior to such termination or
modification of this Contract under this Section.
5.3 Crossing Fiscal Years. If any portion of the compensation set forth in this
Contract is to be paid in any City fiscal year following the fiscal year in which the Initial Term or
any Additional Term of this Contract commences (in either case, "Appropriated Fiscal Year"),
Provider understands and agrees that the portion of the compensation under this Contract payable
with City funds for any period following the Appropriated Fiscal Year is subject to the discretion
of City Council as to future appropriations. If, for any reason, funds for any such portion of the
compensation are not appropriated by City Council in any Fiscal Year following the Appropriated
Fiscal Year, this Contract and the City's liability under this Contract shall automatically terminate
at the end of the then current Appropriated Fiscal Year; provided, however; that Provider shall be
compensated in accordance with the terms of this Contract for Services and Materials
satisfactorily performed and delivered prior to the end of the then current Appropriated Fiscal
Year.
5.4 Allowability of Cost Items. All payments by the City to Provider under this
Contract shall be subject to the Iimitations on the allowability of cost items imposed by the
Contract Cost Principles.
ARTICLE VI: AUDITS; INSPECTION RIGHTS; RECORDS
6.I City Audit. From time to time during the Initial Term and any Additional
Term(s) of this Contract, and for a period of five (5) years after the expiration or termination of
this Contract, the City may audit any and all aspects of Provider's performance under this
Contract, including but not limited to its billings and invoices. Audits may be conducted by
representatives, agents or contractors of the City, including the Department, or other authorized
City representatives including, without limitation, the City Controller. If requested by the City,
Provider shall submit to the City all vouchers or invoices presented for payment pursuant to this
Contract, all cancelled checks, work papers, books, records and accounts upon which the vouchers
or invoices are based, and any and all documentation and justification in support of expenditures
or fees incurred pursuant to this Contract. All books, invoices, vouchers, records, reports,
cancelled checks and other materials shall be subject to periodic review or audit by the City.
PSC GP (GC)
Rev. Date: February 2006
Page 16
6.2 Inspection_ All Services and Materials shall be subject to inspection and review
by City, federal and state representatives, as may be applicable, or their designees, at the offices of
Provider in the City, or in another location with the City's consent. Provider shall cooperate with
all City, state and federal inspections and reviews conducted in accordance with the provisions of
this Contract. Such inspection and review of Provider's Services and Materials, including, without
limitation, programs and facilities, shall be in the sole discretion of the inspecting or reviewing
entity. Such inspection or review may include, without Iimitation, meetings with consumers,
review of staffing ratios and job descriptions, and meetings with any of Provider's staff members
who are either directly or indirectly involved in providing Services or Materials.
6.3 Availability of Records. Provider shall make available, in the City at
reasonable times during the Term of this Contract and for the period set forth in Section 6.4
(Retention of Records) below, all records pertaining to this Contract for the purpose of inspection,
audit or reproduction by any authorized representative (including any agent or contractor and the
City Controller) of the City, the Commonwealth of Pennsylvania Auditor General, and any other
federal and state auditors, as may be applicable.
6.4 Retention of Records. Provider shall retain all records, books of account
and documentation pertaining to this Contract for a period of five (5) years following expiration or
termination of this Contract; however, if any litigation, claim or audit is commenced prior to
expiration of said five (5) year period, then the records shall be retained until all litigation, claims
or audit findings have been completely terminated or resolved, without right of further appeal, or
if Applicable Law requires a longer period, then the records shall be retained for such longer
period.
6.5 Audits Pursuant to Section 6-400 of the Nome Rule Charter. Any Provider
that is an Agency, .as defined in Section 6-404 of the Philadelphia Home Rule Charter, shall permit
the City Controller to audit its affairs as authorized in Section 6-400 during the Initial Term or any
Additional Tenn. Under Section 6-400, an Agency is any entity that a) receives funds from the
City, and either b) is created by, or whose board of directors is in whole or part appointed by, one
or more City officials or bodies; or c) is organized pursuant to legal authority granted to it by City
ordinance.
ARTICLE N11: ASSIGNMENT
7.1 Assianment By Provider. Provider shall not assign this Contract, or any part of
this Contract, or delegate performance of this Contract (other than to its awn work forces), without
obtaining the prior written consent of the Responsible Official. The decision whether to consent
to an assignment, the timing of consent (if any), and conditions to such consent, if any, shall each
be at the City's sole discretion. Any consent to the assignment of any monies to be paid under this
Contract shall not relieve Provider from the faithful performance of any of its obligations under
this Contract or change any of the terms and conditions of this Contract. Any purported
PSC GP (GC)
Rev. Date: February 2006
Page 17
assignment in violation of this provision shalt be void and of no effect. The City's consent to an
assignment shall not release the assignor from any liability accrued or thereafter accruing tinder
this Contract. Any assignment or purported assignment shall be in writing and shall contain an
express assumption by the assignee of all liability accrued or thereafter accruing under this
Contract. Consent by the City to any assignment shall not be deemed a course of conduct, dealing
or performance with respect to any other assignment or proposed assignment. For purposes of this
Section 7.1 (Assignment by Provider), an assignment includes the acquisition of Provider, or a
controlling interest therein, through a corporate or other merger, and the appointment of a receiver
or bankruptcy trustee, and the transfer of this Contract or Provider in any bankruptcy or other
insolvency proceeding.
7.2 ,applicability in Case of Bankruptcy or Insolvencv. A receiver or trustee of or
for Provider in any federal or state bankruptcy; insolvency or other proceedings concerning
Provider shall comply with the requirements set forth in Section 7.1 (Assignment by Provider)
above.
7.3 Personal Services. Provider acknowledges that the Services and Materials are
the personal services of Provider and the City shall have no obligation to accept performance by a
third party without the Responsible Official's prior and express written consent.
ARTICLE VIII: (INDEPENDENT
CONTRACTOR; INDEMNIFICATION; LITIGATION COOPERATION
8.1 Independent Contractor. Provider is an independent contractor and shall not in
any way or for any purpose be deemed or intended to be an employee or agent of the City.
Neither Provider nor its agents, employees or Subcontractors shall in any way represent that they
are acting as employees, officials or agents of the City.
8.2 Indemnification. Provider shall indemnify, defend and hold harmless the City,
its officers, employees and agents, from and against any and all losses, costs (including, but not
limited to, litigation and settlement costs and counsel fees and expenses), claims, suits, actions,
damages, liability and expenses, occasioned wholly or in part by Provider's act or omission or
negligence or fault or the act or omission or negligence or fault of Provider's agents,
Subcontractors, independent contractors, suppliers, employeesor servants in connection with this
Contract, including, but not limited to, those in connection with loss of life, bodily injury, personal
injury, damage to property, contamination or adverse effects on the environment, intentional acts,
failure to pay any Subcontractors and suppliers, any breach of this Contract, and any infringement
or violation of any proprietary right (including, but not limited to, patent, copyright, trademark,
service mark and trade secret).
8.3 Litigation Cooperation. If, at any time, the City becomes involved in a
dispute or receives notice of a claim or is involved in Iitigation concerning the Services and
PSC GP (GC)
Rev. Date: February 2006
Page 18
Materials provided under this Contract, the resolution of which requires the services or
cooperation of Provider, and Provider is not otherwise obligated to indemnify and defend the City
pursuant to the provisions of Section 8.2 (Indemnification) above, Provider agrees to provide such
services and to cooperate with the City in resolving such claim or litigation as Additional Services
and Materials under Section 3.3 (Additional Services and Materials; Change in Scope of Services)
above.
8.4 Notice of Claims. If Provider receives notice of a legal claim against it in
connection with this Contract, Provider shall subnut appropriate written notice of such claim to its
insurance carrier within the time frame required for submission of claims by the applicable
insurance policy and, within ten (10) business days of receipt of notice of the claim, to the
Responsible Official.
ARTICLE IX: INSURANCE
9.1 Insurance. Unless otherwise approved by the City's Risk Management Division
in writing, Provider shall, at its sole cost and expense, procure and maintain, or cause to be
procured and maintained, in full force and effect, the types and minimum limits of insurance
specified below, covering Provider's performance of the Services and the delivery of the
Materials. Provider shall procure, or cause to be procured, all insurance from reputable insurers
admitted to do business on a direct basis in the Commonwealth of Pennsylvania or otherwise
acceptable to the City. All insurance herein, except Professional Liability insurance, shall be
written on an "occurrence" basis and not a "claims -made" basis. In no event shall Provider
perform any Services or other work until Provider has delivered or caused to be delivered to the
City's Risk Management Division the required evidence of insurance coverages. All insurance
coverages shall provide for at least thirty (30) days prior written notice to be given to the City in
the event coverage is materially changed, cancelled, or non -renewed. The City, its officers,
employees, and agents, shall be named as additional insureds on the General Liability insurance
policy. Provider shall also deliver or cause to be delivered to the City an endorsement stating that
the coverage afforded the City and its officers, employees and agents, as additional insureds, will
be primary to any other coverage available to them and that no act or omission of the City, its
officers, employees or agents shall invalidate the coverage.
(a) Wormers' Compensation and Employers' Liability.
(1) Workers' Compensation: Statutory Limits
(2) Employers' Liability: $100,000 Each Accident - Bodily Injury by
Accident; $100,000 Each Employee - Bodily Injury by Disease; and
$500,000 Policy Limit- Bodily Injury -by Disease.
(3) Other states insurance including Pennsylvania.
PSC GP (GC)
Rev. Date. February 2006
Page 19
(b) General Liability trtsurance.
(1) Limit of Liability: $1,000,000 per occurrence combined single limit
for bodily injury (including death) and property damage liability;
$1,000,000 advertising injury; 52,000,000 general aggregate and
$1,000,000 aggregate for products and completed operations. The
City may require higher limits of liability if, in the City's sole
discretion, the potential risk warrants.
(2) Coverage: Premises operations; blanket contractual liability;
personal injury liability; products and completed operations;
independent contractors, employees and volunteers as additional
insureds; cross liability; and broad form property damage (including
completed operations).
(c) Automobile Liability Insurance.
(1) Limit of Liability: $1,000,000 per occurrence combined single limit
for bodily injury (including death) and property damage liability.
(2) Coverage: Owned, non -owned, and hired vehicles.
(d) Professional Liability Insurance.
(1) Limit of Liability: $1,000,000 with a deductible not to exceed
$50,000.
(2) Coverage: Errors and omissions including liability assumed under
Contract.
(3) Professional Liability Insurance may be written on a claims -made
basis provided that coverage for occurrences happening during the
performance of the Services required under this Contract shall be
maintained in full force and effect under the policy or "tail"
coverage for a period of at least two (2) years after completion of
the Services.
9.2 Self -Insurance. Provider may not self -insure any of the coverages required
under this Contract without the prior written approval of the Responsible Official and the City's
Risk Manager. In the event that Provider wants to self -insure any of the coverages listed above, it
shall submit to the Responsible Official and the City's Risk Management Division, prior to
Provider's commencement of Services or delivery of any Materials hereunder, a certified copy of
PSC GP (GC)
Rev. Date: February 2006
Page 20
Provider's most recent audited financial statement, and such other evidence of its qualifications to
act as self -insurer (e.g. state approval) as may be requested by the Responsible Official or the
City's Risk Manager. In the event the City grants such approval, Provider understands and agrees
that the City, its officers, employees and agents shall be entitled to receive the same coverages and
benefits under Provider's self insurance program that they would have received had the insurance
requirements set forth above been satisfied by a reputable insurer admitted and duly authorized to
do business in the Commonwealth of Pennsylvania or otherwise acceptable to the City. If at the
time of commencement of the Term of this Contract, Provider self -insures its professional liability
or workers' compensation and employers' liability coverage, Provider may, in lieu of the
foregoing, furnish to the City a current copy of the state certification form for self-insurance or a
current copy of the State Insurance Commissioner's letter of approval, whichever is appropriate.
The insurance (including self-insurance) requirements set forth herein are not intended and shall
not be construed to modify, limit or reduce the indemnifications made in this Contract by Provider
to the City, or to limit Provider's liability under this Contract to the limits of the policies of
insurance (or self-insurance) required to be maintained by Provider hereunder_
9.3 Evidence of Insurance Covern . Certificates of insurance evidencing the
required coverages must specifically reference the City contract number for which they are being
submitted. The original certificates of insurance must be submitted to the City's Risk Manager at
the following address:
The City of Philadelphia
Finance Department
Divisiou of Risk Management
1515 Arch Street, 14`}' FIoor
Philadelphia, PA 19102-1579
(Fax No.: 215-683-I705).
A copy of the certificates of insurance shall be submitted to the Responsible Official at the address
of the Department set forth in the Notice Section of the Provider Agreement. Both submissions
must be made at least ten (10) days before work is begun and at least ten (10) days before each
Additional Term. The City, in its sole discretion, may waive the ten (10) day requirement for
advance documentation of coverage in situations where such waiver will benefit the City, but
under no circumstances shall Provider actually begin work (or continue work, in the case of an
Additional Term) without providing the required evidence of insurance. The actual endorsement
adding the City as an additional insured must specifically reference the City contract number and
be submitted to the City's Risk Management Division at the above address. The City reserves the
right to require Provider to furnish certified copies of the original policies of all insurance required
under this Contract at any time upon ten (10) days written notice to Provider.
9A Fidelitv Bond. When required by the City, Provider shall, at its sole cost
and expense, obtain and maintain during the Initial Term and any Additional Term(s) of this
Contract, a fidelity bond in an amount equal to the greater of (a) Ten Thousand Dollars ($10,000)
PSC GP (GC)
Rev. date: February 2006
Page 21
or (b) the amount specified in the Provider Agreement, covering Provider's employees who have
financial responsibilities related to the receipt and disbursement of funds under this Contract. In
lieu of a fidelity bond, Provider may obtain coverage for crime insurance with limits that are the
greater of (a) $10,000 or (b) the amount specified in the Provider Agreement. The fidelity bond
or crime insurance, whichever is obtained by Provider, shall name the City as a beneficiary.
Evidence of the existence of the fidelity bond or crime insurance shall be submitted to the City
prior to the commencement of Services in conformity with the requirements of Section 9.3
(Evidence of Insurance Coverage) above.
ARTICLE X: OWNERSHIP OF MATERIALS;
PROPRIETARY INFORMATION; CONFIDENTIALITY
10.1 Ownership of Materials.
(a) Subject to Applicable Law, all Materials shall be the sole and absolute
property of the City and the City shall have title thereto and unrestricted use thereof. To the extent
that any Materials relating to this Contract developed by or for Provider embody a copyrightable
work, including, but not limited to, a "compilation" as that term is used in 17 U_S.C. §101, as
amended from time to time, the City and Provider agree that such copyrightable work(s) shall be
considered as one or more "works made for hire" by Provider for the City, as that term is used in
17 U.S.C. §§101 and 201(b), as amended from time to time. To the extent that any Materials
relating to this Contract developed by or for Provider embody one or more copyrightable works
but are neither a "compilation" nor any other form of "work made for hire," Provider hereby
assigns, and agrees to execute instruments evidencing such assignment, all copyrights in all of
such works to the City. Provider shall cause all Materials developed or produced by Provider and
an), Subcontractor in connection with this Contract which embody a copyrightable work to bear
the following designation: "CDi The City of Philadelphia" [complete then current year in
blank line].
(b) Provider shall make available to the City, upon the City's request, a copy of
any Materials prepared by or for Provider in performance of this Contract, at no cost to the City.
(c) All computer programs, tapes and software developed under this Contract
shall be compatible with specifications set by the Department.
(d) Provider hereby grants, and shall require its Subcontractors to grant, to the
City a royalty -free, nonexclusive and irrevocable right to publish, translate, reproduce, deliver,
perform and authorize others to do so, all studies, media, curricula, reports and other Materials not
owned by the City under this Contract but which relate to the performance of the Services,
Materials or this Contract; provided, however, that Provider shall not be _required to grant such
right to the City with respect to any Materials for which Provider would be liable to pay
compensation to third parties because of such grant.
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Rev. Date: February 2006
Page Z
10.2 Non -Disclosure. During the Initial Term and any Additional Term(s) of this
Contract and thereafter, except with the prior written consent of the Responsible Official, Provider
will not:
(a) Issue, publish or divulge any Services or Materials developed or used in the
performance of this Contract in any public statement, thesis, writing, lecture or other verbal or
written communication; or
(b) Disclose, or use to its advantage or gain, confidential information of any
nature acquired from the City or acquired as a result of Providers activities in connection with
this Contract.
ARTICLE XI: EVENTS OF DEFAULT
11.1 Events of Default. Each of the following shall be an Event of Default by
Provider under this Contract:
(a) Failure by Provider to comply with any provision of this Contract;
(b) Occurrence of an Event of Insolvency with respect to Provider;
(c) Falseness or inaccuracy of any warranty or representation of Provider
contained in this Contract or in any other document submitted to the City by Provider;
(d) .Any act, omission, or misrepresentation which renders the Provider
ineligible for a City contract or renders the contract voidable under Philadelphia Code Section 17-
1400;
(e) Misappropriation by Provider of any funds provided under this Contract or
failure by Provider to notify the City upon discovery of any misappropriation;
(f) A violation of law which results in a guilty plea, a plea of nolo contendere,
or conviction of a criminal offense by Provider, its directors, employees, or agents (1) directly or
indirectly relating to this Contract or the Services or Materials provided under this Contract,
whether or not such offense is ultimately adjudged to have occurred; or (2) which adversely
affects the performance of this Contract;
(g) Indictment of or other issuance of formal criminal charges against Provider,
its directors, employees or agents for any criminal offense or any other violation of Applicable
Law directly relating to this Contract or Services or Materials, or which adversely affects
Provider's performance of this Contract in accordance with its terms, whether or not such offense
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Rev. Date: Februaryy2006
Page 23
OT violation is ultimately adjudged to have occurred; and,'or
(h) Debarment or suspension of Provider or any agent, employee or
Subcontractor of Provider under a federal, state or local law; rule or regulation.
11.2 Notice and Cure. The City agrees that the City will not exercise any right or
remedy provided for in Section 12.1 (The City's Remedies) below because of any Event of Default
unless the City shall have first given written notice of the Event of Default to Provider, and
Provider, within a period of ten (10) days thereafter, or such additional cure period as the City
may authorize, shall have failed to correct the Event of Default; provided, however, that no such
notice from the City shall be required nor shall the City permit any period for cure if-
Materials;
f
(a) Provider has temporarily or permanently ceased providing Services and
Materials;
(b) The Event of Default creates an emergency which requires, as determined
by the City in the City's sole discretion, immediate exercise of the City's rights or remedies;
(c) The City has previously notified Provider in the preceding twelve (12)
month period of any Event of Default under this Contract;
(d) An Event of Default occurs as described in 11.1(e) above or 11.1(f) above;
or
(e) Provider has failed to obtain or maintain the insurance or any bond required
under this Contract.
Nothing contained in this Section shall limit the City's rights under Article XII
(Remedies) below.
ARTICLE X11: REMEDIES
12.1 The Citv's Remedies.
(a) In the event Provider has committed or permitted an Event of Default and
has been notified thereof in accordance with Section 11.2 (Notice and Cure) above, then the City
may, but shall not be obligated to, without further notice to or demand on Provider and without
waiving or releasing Provider from any of its obligations under this Contract:
(1) perform (or cause a third party to perform) this Contract, in whole or
in part, including, without limitation, obtaining or paying for any
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Rev. Date: February 2006
Page 24
required insurance or performing other acts capable of performance
by the City. Provider shall be liable to the City for all sums paid by
the City and all expenses incurred by the City (or a third party)
pursuant to this Section 12.1(a)(1), together with interest at the
highest legal rate permitted in the Commonwealth of Pennsylvania
thereon from the date the City or its agent incurs such costs. The
City shall not in any event be liable for inconvenience, expense or
other damage incurred by Provider by reason of the City's
performance or paying such costs or expenses, and the obligations
of Provider under this Contract shall not be altered or affected in any
manner by the City's exercise of its rights under this Section 12.1;
(The City's Remedies).
(2) withhold payment of, or offset against, any funds payable to or for
the benefit of Provider;
{3) collect, foreclose or realize upon any bond, collateral, security or
insurance provided by or on behalf of Provider; or
14) exercise any other right the City has or may have at law, in equity,
or under this Contract.
(b) In the event Provider has committed or permitted an Event of Default and
has been notified thereof in accordance with Section 11.2 (Notice and Cure) above, then the City
may, but shall not be obligated to, without waiving or releasing Provider from any of its
obligations under this Contract, terminate or suspend this Contract in whole or in part, as set forth
more fully in Article XIII (Termination and Suspension) below. In the event of partial termination
or suspension, Provider shall continue the performance of this Contract to the extent not
terminated or suspended. If this Contract is terminated, the City shall issue a written Termination
Notice which shall set forth the effective date of the termination.
(c) The Services and Materials purchased from Provider are unique and not
otherwise readily available. Accordingly, Provider acknowledges that, in addition to all other
remedies to which the City is entitled, the City shall have the right, to the fullest extent permitted
under Applicable Law, to enforce the terms of this Contract without limitation, by a decree of
specific performance or by injunction restraining a violation, or attempted or threatened violation,
of any provision of this Contract.
12.2 Concurrent Pursuit of Remedies; No Waiver. The City may exercise any or
all of the remedies set forth in this Article XII (Remedies), each of which may be pursued
separately or in conjunction with such other remedies as the City in its sole discretion shall
determine. No extension or indulgence granted by the City to Provider shall operate as a waiver
of any of the City's rights in connection with this Contract. The rights and remedies of the City as
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Rev. Date: February 2006
Page 25
described in this Articie X11 (Remedies) and as described elsewhere in this Contract shall not be
exclusive and are in addition to an), other rights or remedies available to the City under this
Contract at law or in equity.
ARTICLE KIIL• TERMINATION AND SUSPENSION
t3.1 Termination or Suspension for Convenience. In addition to its rights under
Articles V (Compensation) and XII (Remedies) above, the City shall have the right to terminate
this Contract or suspend Provider's performance under this Contract at any time during the Term
of this Contract, for any reason, including, without limitation, the convenience of the City. If this
Contract is terminated solely for the City's convenience, the City shall issue a written Termination
Notice, which shall set Forth the effective date of the termination. If this Contract is suspended
solely for the City's convenience, the City shall issue a written Suspension Notice, which shall set
forth the effective date of the suspension.
13.2 Provider Responsibilities Upon Termination or Suspension.
(a) Upon the City's transmission of a Termination Notice or a Suspension
Notice under any provision of this Contract, Provider and its agents, employees and
Subcontractors, shall
( 1) take immediate action in an orderly manner to discontinue Services
and Materials, and demobilize work forces to minimize the
incurrence of costs; and
(2) upon request by the City by notice to Provider, collect, assemble and
transmit to the City all Materials in such state of completion as may
exist as of the effective date of the termination or suspension. All
such Materials shall be clearly labeled and indexed to the
satisfaction of the Responsible Official and delivered to the
Responsible Official by Provider on or before the date set forth in
the Termination Notice for delivery of the Materials or, if no such
date is set forth in the Termination Notice, then before the effective
date of termination set forth in the Termination Notice. Provider
waives and releases any and all right to any retaining or charging
liens or similar right or remedy in favor of Provider.
(b) The City's termination or suspension of this Contract shall not affect any
obligations or liabilities of either Party accruing prior to the effective date of such termination or
suspension.
(c) There shall be no liability, cost or penalty to the City for termination or
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Rev. Date: February 2006
Page 26
suspensioti of this Contract.
13.3 Pavment of Provider upon Termination or Suspension.
(a) upon termination or suspension of this Contract by the City for an .Event of
Default, Provider shall be entitled to payment of such an amount, to be determined by the City and
subject to audit, as shall compensate it for the work satisfactorily performed prior to the
termination date; provided, however, that:
(1) no allowance shall be included for termination expenses or for
anticipated profits, unabsorbed or underabsorbed overhead, or
unperformed Services; and
(2) the City shall deduct from any amount due and payable to Provider
prior to the termination date, but withheld or not paid, the total
amount of fees, costs or additional expenses incurred by the City in
order to satisfactorily complete the Services and Materials required
to be performed by Provider under this Contract, including the
expense of engaging another provider for this purpose, and such
other damages, costs, losses and expenses of the City as may be
incurred or result from such termination for an Event of Default.
(b) In the event of termination or suspension of this Contract by the City for the
City's convenience, Provider shall be paid such an amount as shall compensate Provider for the
portion of the Services satisfactorily performed and Materials satisfactorily delivered prior to the
date of termination. The City shall not pay Provider any amount for Provider's termination or
suspension expenses or .anticipated profits, unabsorbed or underabsorbed overhead or
unperformed Services and Materials not satisfactorily delivered.
13.4 Suspension. Suspension of Provider's performance under this Contract after an
Event of Default shall not constitute a waiver or release of any liability of Provider for such Event
of Default or any of the City's damages or other remedies arising out of such Event of Default; nor
shall such suspension be deemed an election of remedies in derogation of any other remedy.
Provider acknowledges that the City shall have the right, at its sole discretion, to suspend
Provider's performance in the event City Council does not appropriate funds for the performance
of this Contract. In the event that the City issues a Suspension Notice to Provider, such
suspension shall continue from the effective date specified in the Suspension Notice until a date
specified in the Suspension Notice which shall be not more than one hundred and eighty (180)
days after the effective date (such period, the "Suspension Period"). On or prior to the expiration
Df the Suspension Period, the City shall either terminate this Contract by giving a Termination
Notice pursuant to Section 13.1 (Termination a Suspension for Convenience) above, or by notice
to Provider, instruct Provider to resume the delivery of Services and Materials pursuant to this
Contract upon the expiration of the Suspension Period. After issuing a Suspension Notice, the
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Rev. Date: February 2006
Page 27
City shall pay any invoices submitted by Provider for Services rendered prior to the
commencement of the Suspension Period or otherwise payable by the City to Provider under this
Contract, subject to all of the City's rights and remedies against Provider, including but not
limited to its rights of set off and its right to review and accept Services and Materials prior to
payment therefor.
ARTICLE XIV: APPLICABLE LAWS CONCERNING DISCRIMINATION
The provisions of this Article are not intended to limit the applicability of the other
provisions of this Contract, including, without limitation, Provider's agreement to comply with all
Applicable Law.
14.1 Non -Discrimination; Fair Practices. This Contract is entered into under the
terms of the Philadelphia Home Rule Charter, as it may be amended from time to time, and in
performing this Contract, Provider shall not discriminate or permit discrimination against any
individual because of race, color, religion or national origin. In addition, Provider shall, in
performing this Contract, comply with the provisions of the Fair Practices Ordinance of The
Philadelphia Code (Section 9-1100) and the Mayor's Executive Order No. 04-86, as each may be
amended from time to time and which, as applicable, prohibit, among other things, discrimination
against individuals in employment, housing, and/or services in places of public accommodation
because of race, color, sex, sexual orientation, gender identity, religion, national origin, ancestry,
age, handicap (including, but not limited to, Human Immunodeficiency Virus infection), marital
status, presence of children or source of income_ In the event of any breach of this Section 14.1
(Non -Discrimination; Fair Practices), the City may, in addition to any other rights or remedies
available under this Contract, at law or in equity, suspend or terminate this Contract forthwith.
14.2 The Philadelphia Code. Section 17400.
(a) In accordance with Section I7-400 of The Philadelphia Code, as .it may be
amended from time to time, Provider agrees that its payment or reimbursement of membership
fees or other expenses associated with participation by its employees in an exclusionary private
organization, insofar as such participation confers an employment advantage or constitutes or
results in discrimination with regard to hiring, tenure of employment, promotions, terms,
privileges or conditions of employment on the basis of race, color, sex, sexual orientation.,
religion, national origin or ancestry, constitutes, without limiting the applicability of Articles XI
(Events of Default) and XII (Remedies) above, a substantial breach of this Contract entitling the
City to all rights and remedies provided in this Contract or otherwise available at law or in equity.
(b) Provider agrees to cooperate with the Commission on Human Relations of
the City in any manner which .the Commission deems reasonable and necessary for the
Commission to carry out its responsibilities under Section 17-400 of The Philadelphia Code.
Provider's failure to so cooperate shall constitute, without limiting the applicability of Articles XI
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Rev. Date: February 2006
Page 28
(Events of Default) and XII (Remedies) above, a substantial breach of this Contract entitling the
City to all rights and remedies provided in this Contract or otherwise available at law or in equity.
14.3 Minority, Woman and Disabled Business Enterprise Participation
(a) Executive Order 42-05. In accordance with Executive Order 02-05, as it
may be amended from time to time, the City has established an antidiscrimination policy that
relates to the solicitation and inclusion of Minority Business Enterprises ("MBE"), Woman
Business Enterprises ("WBE"), and Disabled Business Enterprises ("DSBE") (collectively,
"A"/DSBE") in City contracts. The purpose of Executive Order 02-05 is to ensure that all
businesses desiring to do business with the City have an equal opportunity to compete by creating
access to the City's procurement process and meaningfully increasing opportunities for the
participation by M/W/DSBEs in City contracts at all tiers of contracting, as prime contractors,
subcontractors and joint venture partners. In furtherance of this policy, the City will, from time to
time, establish participation ranges for City Contracts and City Related Special Projects. Provider
agrees to comply with the requirements of Executive Order 02-05, and where participation ranges
are established by the City, Provider agrees, without limitation, to submit documentation
responsive to each of the participation ranges established for the Contract.
(1) In furtherance of the purposes of Executive Order 02-05, Provider
agrees to the following:
a) Provider, if it has achieved participation commitments with
M/W/DSBEs, represents that it has entered into legally
binding agreement(s) with TAIW.IDSBEs as participants
under this Contract for the services and in the dollar
amount(s) and percentage(s) as specified in the M/W/DSBE
Participation Exhibit to this Contract.
b) Provider shall secure the prior written approval of the
Minority Business Enterprise Council ("MBEC"), before
making any changes . or modifications to any Contract
commitments made by Provider herein, including, without
limitation, substitutions for its N BEs, WBEs andlor DSBEs,
changes or reductions in the services provided by its
IWW/DSBE Subcontractors, or changes or reductions in the
dollar and/or percentage amounts of commitments with its
M/'W/DSBE Subcontractors.
C) unless otherwise specified in a legally binding agreement as
described in (2) (a) above, Provider shall, within five (5)
business days after receipt of a payment from the City for
work performed under the Contract, deliver to its
MiW/DSBE Subcontractors the proportionate share of such
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Rev. Date: February 2006
Page 29
payment for services performed by its M/W,,'DSBE
Subcontractors. In connection with payment of its
MAWDSBE Subcontractors, Provider agrees to fully comply
with the City's payment reporting process which may
include the use of electronic payment verification systems.
di Provider shall, in the event of an increase in units of work
and/or compensation under the Contract, increase its
commitments with its Ivl/WiDSBE Subcontractors
proportionately. The MBEC may from time to time request
documentation from Provider evidencing compliance with
this provision.
0 Provider shall submit, within the time frames prescribed by
the City, any and all documentation the City may request,
including, but not limited to, copies of Subcontract(s) with
M/W/DSBEs, participation summary reports, 14 W/DSBE
Subcontractor invoices, telephone logs and correspondence
with M/W/DSBE Subcontractors, cancelled checks and
certification of payments. Provider shall maintain all
documentation related to this Section for a period of five (5)
years from the date of Provider's receipt of final payment
under the Contract.
i Provider- agrees that the City may, in its sole discretion,
conduct periodic reviews to monitor Provider's compliance
with the terms of Executive Order 02-05.
g) Provider agrees that in the event the Director of Finance
determines that Provider has failed to comply with any of the
requirements of Executive Order 02-05, the City may, in
addition to any other rights and remedies it may have under
the Contract which includes termination of the Contract,
exercise one or more of the following remedies which shall
be deemed cumulative and concurrent:
1) Debar Provider from proposing on and/or
participating in any future contracts for a maximum
period of three (3) years.
1 Recover as liquidated damages, one percent (1%) of
the total dollar amount of the Agreement, which
amount shall include any increase by way of
amendments to the Contract, for each one percent
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Rev. Date: February 2006
Page 30
(or fraction thereof) of the shortfall in
commitment(s) to Provider's DBE Subcontractors.
h) No privity of contract exists between the City and any
M/W/DSBE Subcontractor identified herein and the City
does not intend to give or confer upon any such M/W/DSBE
Subcontractor(s) any legal rights or remedies in connection
with the subcontracted services under Executive Order 02-05
or by reason of this Contract except such rights or remedies
that the M/W/DSBE Subcontractor may seek as a private
cause of action under any legally binding contract to which it
may be a party. The remedies enumerated above are for the
sole benefit of the City and City's failure to enforce any
provision or the City's indulgence of any non-compliance
with any provision hereunder, shall not operate as a waiver
of any of the City's rights in connection with this Contract
nor shall it give rise to actions by any third parties including
identified M/W/DSBE Subcontractors.
(2) In the event the Provider is a non-profit, the Contract is not subject
to M/W/DSBE participation ranges, but Provider shall demonstrate
its compliance with Executive Order 02-05 in the following manner:
a) Provide to the MBEC annually, a written diversity program
identifying the race, gender and ethnic composition of its
board of directors, its employment profile, a list of all
vendors that the non-profit does business with in its
M/W/DSBE procurement program and a statement of the
geographic area(s) where its services are most concentrated;
and
b) Demonstrate, to the MBEC's satisfaction, that the non -
profit's organization makes appropriate efforts to maintain a
diverse workforce and board of directors and operates a fair
and .effective M/W/DSBE procurement program.
(3) It is understood that false certification or representation made in
connection with Executive Order 02-05 may be subject to
prosecution under Title 18 Pa.C.S. Sections 4107.2 and 4904.
(b) The Philadelphia Code Section 1',-1402. In accordance with Section 17-
1402 (f) of The Philadelphia Code, the Provider shall during the Term of the Contract, disclose the
name and title of each City officer or employee who directly or indirectly advised the Provider,
any officer, director or management employee of the Provider, or any Person representing the
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Rev. Date: February 2006
Page 31
Provider that a particular Person could be used by the Provider to satisfy any goals established in
the Contract for the participation of minority, women, disabled or disadvantaged business
enterprises.
(1) The Provider shall also disclose the date the advice was provided,
and the name of such particular Person.
(2) Such disclosure shall be made on a form provided by the
Department awarding the contract, and the form shall be signed and
filed with the Department within five business days after the
Provider was so advised.
The Department receiving the disclosure form shall forward copies to the President and Chief
Clerk of Council, and to the Mayor; Finance Director, Procurement Department, and the
Department of Records.
14.4 Federal Laws. Provider shall comply with the provisions of Title VI of the
Civil Rights Act of 1964 (42 U.S.C. Sections 2000d - 2000d_7), Section 504 of the Federal
Rehabilitation Act of 1973 (29 U.S.C. Section 794), the Age Discrimination Act of 1975, (42
U.S.C. Sections 6101 - 6107), Title IX of the Education Amendments of 1972 (20 U.S.C. Section
168I), and 45 C.F.R. Part 92, as they may be amended from time to time, which together prohibit
discrimination on the basis of race, color, national origin, sex, handicap, age and religion.
14.5 Americans With (Disabilities Act. Provider understands and ab ees that no
individual with a disability shall, on the basis of the disability, be excluded from participation in
this Contract or from providing Services or Materials under this Contract. By executing and
delivering this Contract, Provider covenants to comply with all provisions of the Americans 'With
Disabilities Act (the "ADA"), 42 U.S.C. §§12101 - 12213, and all regulations promulgated
thereunder, as the ADA and regulations may be amended from time to time, which are applicable
(a) to Provider; (b) to the benefits, Services, Materials, activities, facilities and programs provided
in connection with this Contract; (c) to the City, or the Commonwealth of Pennsylvania; (d) to the
benefits, services, activities, facilities and programs of the City or of the Commonwealth; and (e)
if any funds under this Contract are provided by the federal government, which are applicable to
the federal government and its funds, benefits, services, activities, facilities and programs
applicable to this Contract. Without limiting the applicability of the preceding sentence, Provider
shall comply with the "General Prohibitions Against Discrimination," 28 C.F.R. Part 35.130, and
all other regulations promulgated under Title II of the ADA, as they may be amended from time to
time, which are applicable to the benefits, services, facilities, programs and activities provided by
the City through contracts with outside contractors.
14.6 Northern Ireland..
(a) In accordance with Section 17-104 of The Philadelphia Code, Provider by
execution of this Contract certifies and represents that (1) Provider (including any parent
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Rev- Date: .February 2006
Page 32
company, subsidiary, exclusive distributor or company affiliated with Provider) does not have,
and will not have at any time during the Term of this Contract (including any extensions of the
Term), any investments, licenses, franchises, management agreements or operations in Northern
Ireland and (2) no product to be provided to the City under this Contract will originate in Northern
Ireland, unless Provider has implemented the fair employment principles embodied in the
MacBride Principles.
(b) In the performance of this Contract, Provider agrees that it will not use any
suppliers, Subcontractors or subeonsultants at any tier (1) who have (or whose parent, subsidiary,
exclusive distributor or company affiliate have) any investments, Iicenses, franchises,
management agreements or operations in Northern Ireland or (2) who will provide products
originating in Northern Ireland unless said supplier, subconsultant or Subcontractor has
implemented the fair employment principles embodied in the MacBride Principles.
(c) Provider agrees to cooperate with the City's Director of Finance in any
manner which the said Director deems reasonable and necessary to carry out the Director's
responsibilities under Section 17-104 of The Philadelphia Code. Provider expressly understands
and agrees that any false certification or representation in connection with this Section 14.6 (The
Philadelphia Code, Section 17-104) and any failure to comply with the provisions of this Section
14.6 (The Philadelphia Code, Section 17-104) shall constitute a substantial breach of this Contract
entitling the City to all rights and remedies provided in this Contract or otherwise available at law
(including, but not limited to, Section 17-104 of The Philadelphia Code) or in equity. In addition,
Provider understands that false certification or representation is subject to prosecution under Title
18 Pa.C.S.A. Section 4904.
14.7 Limited English Proficiency. Provider understands and agrees that no
individual who is limited in his or her English language proficiency shall be denied access to
Services provided under this Contract on the basis of that limitation. As a condition of accepting
and executing this Contract, Provider shall comply with all provisions of Title VI of the Civil
Rights Act of 1964, the President of the United States of America Executive Order No. 12250, the
Mayor of the City's City of Philadelphia `_Access to Federally Funded City Programs and
Activities for Individuals with Limited English Proficiency" dated September 29, 2001, and all
regulations promulgated thereunder, as the Act and regulations may be amended from time to
time, which are applicable (a) to Provider, (b) to the benefits, services, activities and programs
provided in connection with this Contract, (c) to the City, or the Commonwealth of Pennsylvania,
and (d) to the benefits, services, activities and programs of the City or of the Commonwealth, and
if any funds under this Contract are provided by the federal government, which are applicable to
the federal government and its benefits, services, activities and programs. Without Iimiting the
applicability of the preceding sentence, Provider shall comply with 45 C_F.R. 80 et. seq. and all
other regulations promulgated under Title VI of the Civil Rights Act of 1964, as they may be
amended from time to time, which are applicable to the benefits, services, programs and activities
provided by the City through contracts with outside contractors.
14.8 Business, Corporate and Slavery Era Insurance Disclosure. In accordance
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Rev. Date: February 2006
Page 33
with Section 17-104 of The Philadelphia Code, the Provider, after execution of this Agreement,
will complete an affidavit certifying and representing that the Provider (including any parent
company, subsidiary, exclusive distributor or company affiliated with Provider) has searched any
and all records of the Provider or any predecessor company regarding records of investments or
profits from slavery or slaveholder insurance policies during the slavery era. The names of any
staves or slaveholders described in those records must be disclosed in the affidavit.
The Provider expressly understands and agrees that any false certification or
representation in connection with this Paragraph and/or any failure to comply with the provisions
of this Paragraph shall constitute a substantial breach of this Agreement entitling the City to all
rights and remedies provided in this Agreement or otherwise available in law (including, but not
limited to, Section 17-104 of The Philadelphia Code} or equity and the contract will be deemed
voidable. In addition, it is understood that false certification or representation is subject to
prosecution under Title 18 Pa.C.S.A. Section 4904.
ARTICLE XV: MISCELLANEOUS
15.1 Governing Law_ This Contract shall be deemed to have been made in
Philadelphia, Pennsylvania_ This Contract and all disputes arising under this Contract shall be
governed, interpreted, construed and determined in accordance with the laws of the
Commonwealth of Pennsylvania, without giving effect to principles of Pennsylvania law
concerning conflicts of taws.
15.2 Amendments. Waiver. This Contract may not be amended, supplemented,
altered, modified or waived, in whole or in part, except by a written Amendment signed by the
Parties. Except to the extent that the Parties may have otherwise agreed in writing in an
Amendment, no waiver, whether express or implied, by either Party of any provision of this
Contract shall be deemed: (a) to be a waiver by that Party of any other provision in this Contract;
or (b) to be a waiver by that Party of any breach by the other Party of its obligations under this
Contract. Any forbearance by a Party in seeking a remedy for any noncompliance or breach by
the other Parry shall not be deemed to be a waiver of rights and remedies with respect to such
noncompliance or breach.
15.3 Integration. The Contract Documents forming this Contract, including the
Provider Agreement and the General Provisions and the exhibits incorporated by reference
therein, contain all the terms and conditions agreed upon by the Parties, constitute the entire
agreement among the Parties pertaining to the subject matter hereof, and supersede all prior
agreements, understandings, negotiations and discussions, whether oral or written, of the Parties
(except to the extent specifically set forth herein). No other prior or contemporaneous agreements,
covenants, representations or warranties, oral or otherwise, regarding the subject matter of this
Contract shall be deemed to exist or to bind any Party or to vary any of the terms contained in this
.PSC GP (GC)
Rev. Date: February 2Go6
Page 34
Contract.
15.4 No Joint Venture. The Parties do not intend to create, and nothing contained in
this Contract shall be construed as creating, a ioint venture arrangement or partnership between
the City and Provider with respect to the Services or the Materials.
15.5 No Third Partv Beneficiaries. Nothing in this Contract, express or implied, is
intended or shall be construed to confer upon or give to any Person, other than the Parties, any
rights, remedies, or other benefits, including but not limited to third -party beneficiary rights, under
or by reason of this Contract. This Contract shall not provide any third party with any remedy,
claim; liability, reimbursement, cause of action or other right other than any such remedy, claim,
etc. existing without reference to the term of or the existence of this Contract.
15.6 Counterparts. This Contract may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which, taken together, shall constitute one
and the same instrument.
15.7 Severabilih, and Partial Invalidity. The provisions of this Contract shall be
severable. If any provision of this Contract or the application thereof for any reason or in any
circumstance shall to any extent be held to be invalid or unenforceable, the remaining provisions
of this Contract and the application of such provision to Persons, or circumstances, other than
those as to which it is held invalid or unenforceable, shall not be affected thereby, and each
provision of this Contract shall be valid and enforceable to the fullest extent permitted by law_
15.8 Survival. Any and all provisions set forth in this Contract which, by its or their
nature, would reasonably be expected to be performed after the termination of this Contract shall
survive and be enforceable after such termination. Any and all liabilities, actual or contingent,
which shall have arisen in connection with this Contract shall survive the expiration or earlier
termination of this Contract, along with the following: Provider's representations, warranties and
covenants set forth in Article IV (Provider's Representations, Warranties and Covenants) above;
Provider's obligation to indemnify, defend and hold harmless the City, its officers, employees and
agents as set forth in Section 8.2 (Indemnification) above; and the Parties' rights and obligations
set forth in Article X (Ownership of Materials; Proprietary Information; Confidentiality) above.
15.9 Determination of Disputes. Any dispute arising between the City and Provider
under or with respect to either Party's covenants, obligations, powers, rights or duties under this
Contract shall be submitted to and decided by the Responsible Official or his or her designee. The
Responsible Official or his or her designee shall render and reduce to writing his or her decision,
and furnish a copy to Provider by notice under this Contract. In connection with any dispute
under this Contract, the Responsible Official shall offer Provider an opportunity to offer evidence
in support of its position concerning the subject matter of the dispute. This section shall not be
construed to limit the benefit to the City of Articles h7 (Events of Default) or XII (Remedies)
above.
PSC GP (CC}
Rev. Date: February 2006
Page 35
15. 10 Interpretation: Order of Precedence. In the event of a conflict or
inconsistency between the terms of these General Provisions and the terms of the Provider
Agreement, the teams of these General Provisions shall control, except to the extent (if any) that
the Provider .Agreement contains an express change, by specific reference, to the General
Provisions.
15.11 Headings_ The titles, captions or headings of Articles, Sections and Exhibits or
schedules in this Contract are inserted for convenience of reference only; do not in any way
define, limit, describe or amplify the provisions of this Contract or the scope or intent of the
provisions, and are not a part of this Contract.
15.12 Statutes and Other Citations. All statutory or other citations of law referenced
in the Contract shall refer to the statute or citation referenced, as it may be amended or superseded
from time to time.
15.13 Days. Anv references to a number of days in this Contract shall mean calendar
days unless this Contract specifies business days.
15.14 Forum Selection Clause: Consent to Jurisdiction. The Parties irrevocably
consent and agree that any lawsuit, action, claim, or legal proceeding involving, directly or
indirectly, any matter arising out of or related to this Contract, or the relationship created or
evidenced thereby, shall be brought exclusively in the United States District Court for the Eastern
District of Pennsylvania or the Court of Common Pleas of Philadelphia County. It is the express
intent of the Parties that jurisdiction over any lawsuit, action, claim, or legal proceeding shall lie
exclusively in either of these two (2) forums. The Parties further irrevocably consent and agree
not to raise any objection to any lawsuit, action, claim, or legal proceeding which is brought in
either of these two (2) forums on grounds of venue or forum non conveniens, and the Parties
expressly consent to the jurisdiction and venue of these two (2) forums. The Parties further agree
that service of original process in any such lawsuit, action, claim, or legal proceeding may be duly
effected by mailing a copy thereof, by certified mail, postage prepaid to the addresses specified in
Section 5.1 (Notice) of the Provider Agreement.
15.15 Waiver of Jury Trial. Provider hereby waives trial by jury in any legal
proceeding in which the City is a party and which involves, directly or indirectly, any matter
(whether sounding in tort, contract or otherwise) in any way arising out of or related to this
Contract or the relationship created or evidenced hereby. This provision is a material
consideration upon which the City relied in entering into this Contract.
15.16 Notices. All notices, demands, requests, waivers, consents, approvals or other
communications which are required or may be given under this Contract shall be in writing and
shall be deemed to have been duly made (a) when received or refused if delivered by hand with
receipt given or refused-, (b) on the next business day if delivered by a nationally recognized
P_,C GP (GC)
P.ev. Date: February 2006
Page 36
overnight courier service (e.g., Federal Express or United Parcel Service); (c) on the date
confirmed for receipt by facsimile if delivered by facsimile; and (d) upon receipt or refusal of
delivery if sent by certified or registered United States mail, return receipt requested. In each case
notices shall be sent to the addresses set forth in Section 5,1 (Notice) of the Provider Agreement,
or to such other address as either Party may specify to the other by a notice complying with the
ternis of this Section 15.16 (Notices).
PSC GP (CC)
Rev. Date: February 2006
Page 37
71- 41
DATE 511 V200'9
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AMT OF CONTRACT
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(Far Director of Finar, (Date)
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(1]ate)
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71- 41