Statewide+Parcel+Project+FINAL+-+signed.pdf

Statewide Parcel Project #902

TECHNOLOGY CONTRACT: STATEWIDE PARCEL PROJECT #902

1. PARTIES

The parties to this contract (Contract) are the state of North Dakota, acting through its North Dakota Information Technology Department in coordination with the North Dakota Office of Management and Budget, State Procurement Office (STATE), and Applied Geographics, Inc., privately held Massachusetts corporation having its principal place of business at 33 Broad Street, Boston, MA

02109 (CONTRACTOR).

2. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide services to the STATE according to Exhibits A and B of this Contract including any other Statements of Work (SOW) and attachments and documents mentioned in Section 32 of this Contract.

3. COOPERATIVE PURCHASING CONTRACT

This contract is a cooperative purchasing contract established pursuant to North Dakota Century Code (NDCC) sections 54-44.4-13. This contract is made available to state entities, institutions under the jurisdiction of the State Board of Higher Education, other government entities (including political subdivisions, counties, cities, townships, public primary and secondary educational entities, governmental boards and commissions), nonprofit entities established on behalf of public entities, tribal agencies, transportation providers under N.D.C.C chapter 39-04.2, and the International Peace Garden. Participation in this open-ended contract is not mandated; therefore, the estimated volume of this contract is not known.

4. COMPENSATION

a. Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Contract according to any executed SOW or according to the Compensation Details document attached as Exhibit C.

The Contractual Amount is firm for the duration of this Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs or expenses incurred by CONTRACTOR except as provided by an amendment to this Contract.

b. Retainage All deliverable payments shall be subject to 15% retainage. Retained amounts due to CONTRACTOR shall be paid upon Final Acceptance.

c. Invoicing The final cost set forth on each invoice shall be equivalent to the cost for each deliverable or service as specified in the Scope of Work. CONTRACTOR shall not submit an invoice for any deliverable or service specified in the Scope of Work that STATE has not fully accepted.

d. Payment Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of an approved invoice.

http://www.legis.nd.gov/cencode/t54c44-4.pdf?20130131153805 http://www.legis.nd.gov/cencode/t39c04-2.pdf?20130131161514

Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by STATE not to constitute allowable costs, on the basis of audits conducted in accordance with the terms of this Contract. At STATE’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

For any amounts that are or will become due and payable to STATE by CONTRACTOR, STATE reserves the right to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

e. Travel CONTRACTOR acknowledges travel expenses are covered by the Contractual Amount and shall not invoice STATE for travel expenses.

f. Prepayment STATE will not make any advance payments before performance by CONTRACTOR under this Contract.

g. Payment of Taxes by State STATE is not responsible for and will not pay local, state, or federal taxes. STATE sales tax exemption number is E-2001. STATE will furnish certificates of exemption upon request by

CONTRACTOR.

h. Taxpayer ID CONTRACTOR’s federal employer ID number (FEIN) is: 04-3124927.

5. EQUIPMENT, MATERIALS, AND WORKSPACE – RESOURCES PROVIDED BY PARTIES

For periods during which the parties mutually agree that CONTRACTOR’s assigned staff is on site:

a. On site means statewide.

b. STATE agrees to provide an adequate working space, when required.

c. Equipment and software for on-site CONTRACTOR personnel is to be provided by

CONTRACTOR.

When STATE and CONTRACTOR agree that remote access to systems is required, STATE shall provide the necessary supervised remote access security to enable CONTRACTOR access to the appropriate STATE systems.

6. TERM OF CONTRACT

This Contract term (TERM) begins on its Effective Date and ends on June 30, 2022.

a. No Automatic Renewal

This Contract will not automatically renew.

b. Extension Option

STATE reserves the right to extend this Contract for an additional period of time, not to exceed 12 months, beyond the current termination date of this Contract.

c. Renewal Option STATE may renew this Contract upon satisfactory completion of the initial Contract term.

STATE reserves the right to execute up to four (4) options to renew this Contract under the same terms and conditions for a period of 12 months each.

d. Renegotiation Option In view of the fact that it is unknown how long the products and services will be used by STATE and that STATE will require ongoing maintenance and support of the products for as long as the system is operational, therefore after completion of the initial term (Term) of this Contract including any extensions and renewals, STATE and CONTRACTOR may renegotiate this Contract upon mutual agreement of the parties.

7. TERMINATION

a. Termination by Mutual Agreement

This Contract may be terminated by mutual consent of both parties executed in writing.

b. Early Termination in the Public Interest

STATE is entering into this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, Agencies, and Courts. If this Contract ceases to further the public policy of the State of North Dakota, STATE, in its sole discretion, by written notice to CONTRACTOR, may terminate this Contract in whole or in part.

c. Termination for Lack of Funding or Authority STATE, by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

1) If funding from federal, state, or other sources is not obtained and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the services are no longer allowable or appropriate for purchase under this Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

3) If any license, permit, or certificate required by law or rule, or by the terms of this Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Contract under this subsection is without prejudice to any obligations or liabilities of either party already accrued prior to termination.

d. Termination for Cause.

STATE may terminate this Contract effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice:

1) If CONTRACTOR fails to provide services required by this Contract within the time specified or any extension agreed to by STATE; or

2) If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

The rights and remedies of STATE provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

8. SUSPENSION FOR CONVENIENCE

STATE shall have the right at any time to order the services of CONTRACTOR fully or partially stopped for STATE’s own convenience. STATE shall provide CONTRACTOR written notice of the reason for and duration of the suspension. The schedule shall be delayed on a day-for-day basis to the extent STATE has issued a stop work order to CONTRACTOR and such stop work order is causing delays in completing services in accordance with the schedule. CONTRACTOR shall have the right to submit claims in accordance with the terms of this Contract as a result of stop work orders issued under this section.

9. FORCE MAJEURE

Neither party shall be held responsible for delay or default caused by fire, riot, terrorism, pandemic, acts of God or war if the event is beyond the party’s reasonable control and the affected party gives notice to the other party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default.

10. INJUNCTIVE RELIEF

CONTRACTOR shall immediately report to STATE any and all unauthorized disclosures or uses of STATE’s Confidential Information or Proprietary Information of which CONTRACTOR or its staff is aware or has knowledge. CONTRACTOR acknowledges that any unauthorized publication or disclosure of STATE’s Confidential Information or Proprietary Information to others may cause immediate and irreparable harm to STATE. If CONTRACTOR should publish or disclose such Confidential Information or Proprietary Information without authorization, STATE shall immediately be entitled to injunctive relief or any other remedies to which it is entitled under law or equity without requiring a cure period. CONTRACTOR shall indemnify, defend, and hold harmless STATE from all damages, costs, liabilities, and expenses (including without limitation reasonable attorneys’ fees) caused by or arising from CONTRACTOR’s unauthorized use or disclosure of STATE’s Confidential Information or Proprietary Information. As a condition to these indemnity obligations, STATE will provide CONTRACTOR with prompt notice of any claim of which STATE is aware and for which indemnification shall be sought under this Contract and shall cooperate in all reasonable respects with CONTRACTOR in connection with any such claim.

11. RIGHT OF SETOFF DAMAGES

Amounts due STATE by CONTRACTOR, including liquidated or other damages, or claims for damages, may be deducted or set-off by STATE from any money payable to CONTRACTOR pursuant to this Contract.

12. RIGHT TO WITHHOLD AMOUNTS OTHERWISE DUE IF THE CONTRACTOR IS IN BREACH

If CONTRACTOR fails to deliver deliverables or to provide Services which satisfy CONTRACTOR’s obligations under this Contract, STATE shall have the right to withhold any and all payments due under this Contract. STATE agrees to provide thirty (30) days’ written notice before exercising its right to withhold any payments under this section and agrees to exercise this clause in good faith.

STATE may withhold any and all such payments due under this Contract to CONTRACTOR without penalty or work stoppage by CONTRACTOR, until such failure to perform is cured.

13. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

No remedy conferred by any of the specific provisions of this Contract is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given under this Contract, now or in the future existing at law or in equity or by statute or otherwise.

14. NON-WAIVER

Either party’s failure to exercise any of its rights under this Contract, its delay in enforcing any right, or its waiver of its rights on any occasion, shall not constitute a waiver of such rights on any other occasion. No course of dealing by either party in exercising any of its rights shall constitute a waiver thereof. No waiver of any provision of this Contract shall be effective unless it is in writing and signed by the party against whom the waiver is sought to be enforced.

15. INDEMNIFICATION

CONTRACTOR agrees to defend, indemnify, and hold harmless the state of North Dakota, its agencies, officers and employees (State), from and against claims based on the vicarious liability of the State or its agents, but not against claims based on the State’s contributory negligence, comparative and/or contributory negligence or fault, sole negligence, or intentional misconduct. This obligation to defend, indemnify, and hold harmless does not extend to professional liability claims arising from professional errors and omissions. The legal defense provided by CONTRACTOR to the State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the State is necessary. Any attorney appointed to represent the State must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under N.D.C.C. § 54-12-08. CONTRACTOR also agrees to defend, indemnify, and hold the State harmless for all costs, expenses and attorneys' fees incurred if the State prevails in an action against CONTRACTOR in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this Contract.

16. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

a. CONTRACTOR, at its own expense, shall defend and indemnify STATE against claims that products furnished under this Contract infringe a United States patent or copyright or misappropriate trade secrets protected under United States law.

CONTRACTOR’S obligation shall not extend to a claim based on any alleged infringement arising from any: (a) additions, changes, or modifications to the services by or on behalf of STATE; (b) incorporation of the services or any component thereof into any other product or process; or (c) use of the services other than as permitted by this Contract.

b. As to any product which is subject to a claim of infringement or misappropriation, CONTRACTOR may (a) obtain the right of continued use of the product for STATE or (b) replace or modify the product to avoid the claim. If neither alternative is available on commercially reasonable terms then, at the request of CONTRACTOR, any applicable Software license and its charges will end, STATE will stop using the product, and will return the product to CONTRACTOR. Upon return of the product, CONTRACTOR will give STATE a credit for the price paid to CONTRACTOR, less a reasonable offset for use and obsolescence.

17. REPRESENTATIONS AND WARRANTIES

CONTRACTOR represents and warrants to STATE that neither CONTRACTOR, in connection with performing the services in performance of this Contract, nor the completed product delivered by CONTRACTOR, will infringe any patent, copyright, trademark, trade secret or other proprietary right of any person. CONTRACTOR further represents and warrants to STATE that it will not use any trade secrets or confidential or proprietary information owned by any third party in performing the services related to this Contract or in delivery of the completed product unless CONTRACTOR has the authority to license, use or provide those trade secrets or confidential or proprietary information to STATE. CONTRACTOR further represents and warrants to STATE that neither CONTRACTOR nor any other company or individual performing services pursuant to this Contract is under any obligation to assign or give any work done under this Contract to any third party.

18. INSURANCE

CONTRACTOR shall secure and keep in force during the term of this Contract and CONTRACTOR shall require all subcontractors, prior to commencement of an agreement between CONTRACTOR and the subcontractor, to secure and keep in force during the term of this CONTRACT, from insurance companies, government self-insurance pools or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

a. Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $1,000,000 per occurrence

b. Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $250,000 per person and $1,000,000 per occurrence

c. Workers compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of this Contract

d. Employer’s liability or “stop gap” insurance of not less than $1,000,000 as an endorsement on the workers compensation or commercial general liability insurance

e. Professional errors and omissions with minimum limits of $1,000,000 per occurrence and in the aggregate, CONTRACTOR shall continuously maintain such coverage during the Contract period and for three years thereafter. In the event of a change or cancellation of coverage, CONTRACTOR shall purchase an extended reporting period to meet the time periods required in this section.

The insurance coverages listed above must meet the following additional requirements:

a. Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the CONTRACTOR.

b. This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-” rating must be approved by the State. The policies shall be in form and terms approved by the State.

c. The duty to defend, indemnify, and hold harmless the State under this agreement shall not be limited by the insurance required in this agreement.

d. The state of North Dakota and its agencies, officers, and employees (State) shall be endorsed on the commercial general liability policy, including any excess policies (to the extent applicable), as additional insured. The State shall have all the benefits, rights and coverages of an additional insured under these policies that shall not be limited to the minimum limits of insurance required by this agreement or by the contractual indemnity obligations of the

CONTRACTOR.

e. A Waiver of Subrogation” waiving any right to recovery the insurance company may have against the State.

f. CONTRACTOR shall furnish a certificate of insurance to the undersigned STATE representative prior to commencement of this agreement. All endorsements shall be provided as soon as practicable.

g. Failure to provide insurance as required in this agreement is a material breach of contract entitling STATE to terminate this agreement immediately.

h. CONTRACTOR shall provide at least 30 day notice of any cancellation or material change to the policies or endorsements. CONTRACTOR shall provide on an ongoing basis, current certificates of insurance during the term of the contract. A renewal certificate will be provided 10 days prior to coverage expiration. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

19. WORKS FOR HIRE

CONTRACTOR acknowledges that all work(s) under this Contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby assigns to STATE all rights and interests CONTRACTOR may have in the work(s) it prepares under this Contract, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Contract for STATE shall be the sole property of STATE, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to STATE. CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE’s intellectual property rights under this section. CONTRACTOR retains all rights in any and all products, ideas, inventions, and software that it created prior to or not directly for the State under this Contract.

20. WORK PRODUCT

All work product, equipment or materials created for STATE or purchased by STATE under this Contract belong to STATE and must be immediately delivered to STATE at STATE'S request upon termination of this Contract. Work product does not include third party software or CONTRACTOR products or existing applications, code bases, ideas or methods that existed prior to the commencement of work for the STATE or that were not created solely for the STATE.

21. TECHNOLOGY STANDARDS

CONTRACTOR shall comply with applicable STATE enterprise architecture technology standards.

These standards can be found on STATE’s website at http://www.nd.gov/itd/standards.

22. PERSONNEL

a. STATE will designate a Project Manager to serve as the primary project manager for this

Contract. If, during the course of this Contract, it becomes necessary for STATE to change the person assigned as STATE’s Project Manager, STATE will notify CONTRACTOR in writing, pursuant to Notice section of this Contract.

b. Unless STATE otherwise notifies CONTRACTOR, STATE’s Project Manager shall carry out STATE’s administrative and management functions under this Contract, shall be responsible for acceptance of the Contract deliverables, and shall provide support and overall direction to

CONTRACTOR.

c. CONTRACTOR will designate a Project Manager and provide individuals to meet the requirements and accomplish the work as stated in this Contract including any mutually agreed upon Scope of Work.

d. CONTRACTOR agrees and understands that STATE’s execution of this Contract is predicated, in part and among other considerations, on the utilization of the specific individuals and personnel qualifications as identified; primary being Michele Giorgianni, Brian Coolidge and Kate Hickey. Therefore, CONTRACTOR agrees that:

1) Prior to assignment of personnel, CONTRACTOR shall obtain written approval from STATE for all personnel to be assigned to this project

2) The personnel assigned must have the knowledge necessary to complete requirements as defined in this Contract.

http://www.nd.gov/itd/standards

3) CONTRACTOR shall warrant that all personnel assigned to perform tasks in response to this Contract will remain assigned for the agreed-upon length of time.

4) No replacement, reassignment or substitution of any assigned individuals and personnel qualifications shall be made without the prior written approval of STATE and that such replacement, reassignment or substitution shall be made at no additional cost to STATE.

5) Any substitution made pursuant to this paragraph must be of equal or higher skills, knowledge, and abilities than those personnel originally proposed and that STATE’s approval of a substitution is not construed as an acceptance of the substitution’s performance potential. STATE agrees that an approval of a substitution will not be unreasonably withheld.

6) CONTRACTOR shall assign personnel if necessary on a full-time basis. In the event that a work assignment does not justify full-time participation, CONTRACTOR shall assign personnel on a part-time basis with prior written approval of STATE’s Project Manager.

However, if the part-time assignments are specified in this Contract, no written approval from STATE’s Project Manager is necessary except for substitution of CONTRACTOR personnel.

e. Upon request by STATE, CONTRACTOR shall replace any CONTRACTOR personnel that STATE determines, in its sole discretion, to be unable to perform the responsibilities of this Contract acceptably, e.g., inappropriate or unprofessional personal conduct, professional inabilities, etc.

f. STATE's working hours are Monday through Friday from 8:00 AM until 5:00 PM (CST or CDT) with one hour for lunch. STATE Project Manager may approve alternate work schedules.

g. According to STATE policy, STATE personnel are only obligated to work a forty-hour workweek, Monday through Friday, and are allowed reasonable vacation, sick and educational absences.

h. CONTRACTOR’s personnel are not expected to work on State holidays or other mandatory leave days.

i. CONTRACTOR agrees that STATE may require contracted staff and subcontractors assigned by CONTRACTOR to perform work under this Contract to submit to a criminal history record check in accordance with N.D.C.C. § 54-59-20 and §12-60-24. STATE shall have the right to reject any individual assigned to perform work under this Contract if, in its sole discretion, it determines that the results of the criminal history record check make the individual unacceptable.

23. PROJECT MANAGEMENT

a. Reporting

1) CONTRACTOR personnel will be responsible for providing written, every other week time utilizations, for each individual, to STATE’s Project Manager, or STATE’s project staff, as STATE’s Project Manager may assign.

2) CONTRACTOR’s Project Manager shall deliver to STATE’s Project Manager, every other week reports of CONTRACTOR’s progress on the project and meeting the objective/deliverables as stated in the Scope of Work. Each report must contain a description of the current status of the project, the tasks on which time was spent, the estimated progress to be made in the next reporting period, and the problems encountered the proposed solutions to them and their effect, if any, on the project budget/schedule.

3) Project Variance Reporting – CONTRACTOR must provide data to allow STATE’s project manager to calculate cost and schedule variance in accordance with N.D.C.C. § 54-59-23 as determined by STATE. If STATE’s analysis shows a negative cost or schedule variance http://www.legis.nd.gov/cencode/t54c59.pdf http://www.legis.nd.gov/cencode/t12c60.pdf http://www.legis.nd.gov/cencode/t54c59.pdf exceeding 20%, a subsequent report must also provide proposed corrective measures to address the issues.

b. Integrated Change Control Process CONTRACTOR and STATE will utilize an integrated change control process to manage changes during the life of a project.

1) A change request must be in writing to document the potential change. The write-up for the proposed change must be submitted to CONTRACTOR and STATE’s project managers who will in turn provide it to relevant parties for assessment.

2) All change requests will be logged and tracked. STATE’s project manager will record the request in the project repository and will update the repository throughout the process.

3) The change will be reviewed and, if acceptable to STATE, CONTRACTOR will submit to STATE an estimate of the impact to cost, schedule, scope, and quality.

4) CONTRACTOR will continue performing the services in accordance with the original Contract unless otherwise agreed upon by STATE’s project manager. Work shall not commence on any new activities related to the change request until all parties agree in writing.

5) CONTRACTOR’s project manager and STATE’s project manager will adapt the Project Management Plan to incorporate approved changes.

6) Each change request duly authorized in writing by the parties shall be incorporated into and considered part of this Contract.

7) During the course of this Contract, if CONTRACTOR determines or could reasonably determine any STATE actions or directions constitute a requirement to perform additional work, CONTRACTOR shall notify STATE within thirty (30) calendar days that STATE has requested CONTRACTOR to perform additional work in the form of a change request utilizing the process above. CONTRACTOR understands that it waives the right to request additional time and reimbursable costs if CONTRACTOR fails to notify STATE within thirty

(30) calendar days of determining or reasonably being able to determine that any STATE actions or directions constitute a requirement to perform additional work under this Contract.

c. Deliverable Acceptance

1) Upon completion of a deliverable, CONTRACTOR will furnish STATE with the deliverable and associated documentation, the expected performance, and agreed upon Acceptance Criteria.

2) After receipt of items in Paragraph 27(c)(1), STATE will have five (5) working days or a different period of time as is agreed to by the parties, in which to accept or reject each item in writing. STATE will accept by signature. If STATE rejects it, STATE will specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to revise any issues for the deliverables to be acceptable to STATE within the following five (5) working days. If STATE rejects it a second time, STATE will have the option of repeating the procedure as described in this acceptance statement above, escalating the issue to the Executive Steering Committee, or terminating this Contract upon written notice to CONTRACTOR.

d. Final Acceptance

1) The successful completion of all deliverables as stated in the Scope of Work in accordance with the deliverable acceptance process AND

2) The final delivered product fully implemented in STATE’s live production environment AND

3) STATE has thirty (30) calendar days thereafter in which to accept or reject it in writing. If

STATE rejects it, STATE shall specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to make the product conform to the requirements of this Contract as soon as possible and at no additional cost to STATE. CONTRACTOR shall continue to use its best efforts to make the product conform to the requirements of this Contract until STATE accepts the product or terminates this Contract upon written notice to CONTRACTOR.

24. WARRANTY

CONTRACTOR shall provide a 90 day warranty upon Final Acceptance.

25. MAINTENANCE

The maintenance period begins upon final acceptance and continues on an annual basis through the term of the Contract.

During the maintenance period, CONTRACTOR shall support the STATE by providing technical assistance on a time and materials basis should it be needed as described in Exhibit C.

a. Maintenance Fee Cap

CONTRACTOR agrees that any change to the annual Maintenance Services fee may increase by not more than the lower of 3% or Consumer Price Index (CPI). The rates shall be adjusted in accordance with the index titled “All Urban Consumers (CPI-U). for the U.S. City Average. All Items 1982-84=100”, prepared by the U.S. Bureau of Labor Statistics .

26. NOTICE

All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date postmarked when addressed to the parties at the following addresses:

STATE CONTRACTOR

Greg Hoffman Kate Hickey Director, Administrative Services Vice President, Consulting Services 4201 Normandy Street 33 Broad Street, 4th Floor Bismarck, ND 58503 Boston, MA 02109

Notice provided under this provision does not meet the notice requirements for monetary claims against STATE found at N.D.C.C § 32-12.2-04.

27. CONFIDENTIALITY

CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by STATE. STATE shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STATE determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 44-04. The duty of STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the Term of this Contract.

http://www.legis.nd.gov/cencode/t32c12-2.pdf http://www.legis.nd.gov/cencode/t44c04.pdf

28. COMPLIANCE WITH PUBLIC RECORDS LAWS

CONTRACTOR understands that, in accordance with this Contract’s Confidentiality section in this Contract, STATE must disclose to the public upon request any records it receives from CONTRACTOR. CONTRACTOR further understands that any records obtained or generated by CONTRACTOR under this Contract may, under certain circumstances, be open to the public upon request under the North Dakota public records law. CONTRACTOR agrees to contact STATE promptly upon receiving a request for information under the public records law and to comply with STATE’s instructions on how to respond to the request.

29. INDEPENDENT ENTITY

CONTRACTOR is an independent entity under this Contract and is not a STATE employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act. CONTRACTOR retains sole and absolute discretion in the manner and means of carrying out CONTRACTOR’s activities and responsibilities under this Contract, except to the extent specified in this Contract.

30. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Contract, whether by merger, reorganization, operation of law, or otherwise.

Should Assignee be a business or entity with whom STATE is prohibited from conducting business, STATE shall have the right to terminate without cause.

CONTRACTOR may enter into subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments.

CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of STATE.

31. SPOLIATION – NOTICE OF POTENTIAL CLAIMS

CONTRACTOR shall promptly notify STATE of all potential claims that arise or result from this Contract. CONTRACTOR shall also take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to STATE the opportunity to review and inspect such evidence, including the scene of an accident.

32. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Contract, including the following documents, constitutes the entire agreement between the parties. There are no understandings, agreements, or representations, oral or written, not specified within this Contract. This Contract may not be modified, supplemented or amended, in any manner, except by written agreement signed by both parties.

Notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this Contract, the documents must control in this order of precedence:

a. The terms of this Contract as may be amended;

b. STATE’s Best and Final Offer to Request for Proposal (“RFP”) number112-1926 dated February

7, 2020;

c. STATE’s Solicitation Amendment 1 to RFP number112-1926 dated December 6, 2019;

d. STATE’s Request for Proposal RFP number 112-1926, dated November 20, 2019;

e. CONTRACTOR’s Best and Final proposal dated February 14, 2020 in response to RFP number 112-1926.

f. CONTRACTOR’s proposal dated December 30, 2019 in response to RFP number 112-1926.

All automated end-user agreements (e.g., click-through, shrink-wrap, or browse-wrap) are specifically excluded and null and void. Clicking shall not represent acknowledgement or agreement to any terms and conditions contained in those agreements.

33. UNANTICIPATED AMENDMENTS

If additional work is required within the scope of this Contract due to a legitimate unforeseen circumstance, STATE shall provide CONTRACTOR a written description of the additional work and request CONTRACTOR to submit a proposal for accomplishing the scope of work. CONTRACTOR will not commence additional work until all parties agree in writing.

34. SEVERABILITY

If any term of this Contract is declared to be illegal or unenforceable by a court having competent jurisdiction, the validity of the remaining terms is unaffected and, if possible, the rights and obligations of the parties are to be construed and enforced as if this Contract did not contain that term.

35. APPLICABLE LAW AND VENUE

This Contract is governed by and construed in accordance with the laws of the State of North Dakota. Any action to enforce this Contract must be brought adjudicated exclusively in the state District Court of Burleigh County, North Dakota. Each party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

36. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

By entering into this Contract, STATE does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The parties may enforce the rights and remedies in judicial proceedings. STATE does not waive any right to a jury trial.

37. NONDISCRIMINATION - COMPLIANCE WITH LAWS

CONTRACTOR agrees to comply with all applicable federal and state laws, rules, and policies, including those relating to nondiscrimination, accessibility and civil rights. (See N.D.C.C. Title 34 – Labor and Employment, specifically N.D.C.C. ch. 34-06.1 Equal Pay for Men and Women.)

CONTRACTOR agrees to timely file all required reports, make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes, unemployment compensation and workers' compensation premiums. CONTRACTOR shall have and keep current at all times during the Term of this Contract all licenses and permits required by law.

CONTRACTOR’s failure to comply with this section may be deemed a material breach by CONTRACTOR entitling STATE to terminate in accordance with the Termination for Cause section of this Contract.

38. STATE AUDIT

All records, regardless of physical form, and the accounting practices and procedures of CONTRACTOR relevant to this Contract are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or Federal auditors, if required. CONTRACTOR shall maintain all of these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. STATE, State Auditor, or Auditor’s designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

http://www.legis.nd.gov/cencode/t34c01.pdf http://www.legis.nd.gov/cencode/t34c01.pdf http://www.legis.nd.gov/cencode/t34c06-1.pdf

39. F.O.B. POINT AND FREIGHT

All commodities purchased through this Contract shall be Free on Board (“F.O.B.”) final destination, freight prepaid. Unless specifically stated otherwise, all prices offered must include the delivery costs to any location within the state of North Dakota. Title shall pass to STATE at destination, and the vendor shall be responsible for any freight claims.

40. EFFECTIVENESS OF CONTRACT

This Contract is not effective until fully executed by all parties. If no start date is specified in the Term of Contract, the most recent date of the signatures of the parties shall be deemed the Effective Date.

CONTRACTOR STATE OF NORTH DAKOTA

Applied Geographics, Inc. Acting through its North Dakota Information Technology Department

BY: BY:

Kate Hickey Greg Hoffman

Vice President, Consulting Services Director, Administrative Services

Date: Date:

STATE OF NORTH DAKOTA

Acting through its ND OMB, SPO

BY:

Angie Scherbenske

Procurement Officer II

Date:

Kate Hickey (Jun 4, 2020 13:56 EDT) Kate Hickey

06/04/2020

Angie Scherbenske (Jun 4, 2020 14:44 CDT) Angie Scherbenske

06/04/2020

06/04/2020 https://na2.documents.adobe.com/verifier?tx=CBJCHBCAABAAhKXoFxpYlOeQt-CW7ZawFgwqF_3LxQ6a https://na2.documents.adobe.com/verifier?tx=CBJCHBCAABAAhKXoFxpYlOeQt-CW7ZawFgwqF_3LxQ6a https://na2.documents.adobe.com/verifier?tx=CBJCHBCAABAAhKXoFxpYlOeQt-CW7ZawFgwqF_3LxQ6a

EXHIBIT A – Statement of Work – Phase 1 – Statewide Parcel Aggregation

1. DELIVERABLE 1: PROJECT KICKOFF MEETING / PROJECT INITIATION

a. Description:

CONTRACTOR shall coordinate with STATE to schedule a Kickoff Meeting using remote web meeting technology, with the core project team. CONTRACTOR shall lead the meeting. The Kickoff Meeting must facilitate the introduction of CONTRACTOR and STATE core project team members and level-set understanding and awareness of project objectives, scope, governance, schedule and project risks and issues.

1) CONTRACTOR shall collaborate with STATE and provide agenda to attendees in advance of the meeting.

2) CONTRACTOR and STATE shall facilitate the meeting, discuss and further define the following:

i. Effective project communication

ii. Project vision, background, purpose and objectives

iii. Project governance structure, project roles and responsibilities

iv. Approach to creating the Project Management Plan

v. Initial risk assessment

3) CONTRACTOR shall create and provide to the STATE kickoff meeting summary notes.

4) STATE will review and approve the meeting summary notes. If changes are required, STATE will inform the CONTRACTOR who will make appropriate changes and redeliver.

b. Expectations of STATE:

1) STATE shall coordinate the logistics and co-facilitate the Kickoff Meeting.

2) STATE shall collaborate with CONTRACTOR to prepare kickoff meeting agenda

3) STATE Project Sponsor and project team members shall participate in the Kickoff Meeting.

4) STATE shall review and collaborate with CONTRACTOR to finalize and approve the kickoff meeting summary notes.

5) The STATE shall designate a point person/project manager who will be the consistent point of contact and counterpart for CONTRACTOR’s project management team through all phases of the entire project. This Project Manager will make, or coordinate with the STATE’s team members to make, all day-to-day project decisions in conjunction with the

CONTRACTOR PM.

6) The STATE will help facilitate regular status meetings and milestone meetings, such as arranging for needed facilities and helping to coordinate the availability of key attendees.

CONTRACTOR’s Project Manager will be prepared to run these meetings.

c. Completion Date:

CONTRACTOR shall start work with STATE within five (5) working days after the signing of this Contract to schedule the Kickoff Meeting. The Kickoff Meeting/Project Initiation deliverable is due on 06/30/20 or alternate date as mutually agreed upon and documented in the continuously maintained project schedule Gantt chart.

d. Acceptance Criteria:

For the acceptance of this deliverable to occur, the Project Kickoff Meeting/Project Initiation results in:

1) Facilitation of Kickoff Meeting utilizing a clearly defined agenda

2) An introduction of CONTRACTOR and STATE resources assigned to the project

3) Review of project purpose, business objectives, project governance structure, roles and responsibilities, and scope

4) Discussion of communications approach and structure

5) Discussion of known project risks and issues

6) Approval of the kickoff meeting summary notes

2. DELIVERABLE 2: PROJECT MANAGEMENT PLAN

a. Description:

The STATE’s project manager shall prepare a Project Management Plan using the STATE’s methodology and applicable template. The CONTRACTOR shall provide information necessary to prepare the Project Management Plan.

The STATE’s project manager will direct and manage the project on a day-to-day basis and will have the primary responsibility for management of the project. The contractor’s project manager and lead consultants will report to the STATE’s project manager within the project’s governance structure.

During the planning phase, CONTRACTOR shall be responsible for providing applicable content for the project management related tasks/information specified below. CONTRACTOR shall participate, contribute, and collaborate with STATE, led by STATE’s Project Manager, to develop a baseline Project Management Plan that provides the following:

1) A mutually agreed upon detailed baseline scope and schedule for the project

i. Collaborate in the development of detailed schedule with fixed deadlines to include:

a. A work breakdown structure;

b. Schedule including tasks, activities, activity duration, sequencing and dependencies;

c. Completion date of each task;

d. Milestones; including entrance and exit criteria for specific milestones;

2) Management plans to control scope, schedule, cost and quality, including the variance

i. Provide a Quality Management Plan to include the methodology for maintaining quality of the code and workmanship, and related subcontractor(s) activities where appropriate.

3) The governance structure for the project - a management framework within which project decisions are made.

4) Quality assurance and quality control plans

i. Provide a Quality Assurance plan, which if followed, will ensure the finished product meets all criteria

ii. Provide a Test Management Plan which describes how the CONTRACTOR and the

STATE shall verify the product meets the requirements.

5) An integrated change control process. Describes the process of reviewing all change requests, approving changes, managing changes to deliverables with documentation and communicating decisions that have been made.

6) A human resource management plan to include:

i. Staff assigned and their location and schedule;

ii. The project resources required;

iii. Resource allocation percentage by role;

iv. CONTRACTOR’s resources;

v. STATE's resources.

7) A communication management plan including: a plan for generation, documentation, storage, transmission and disposal of project information.

8) A risk management plan to ensure that risks are identified, planned for, analyzed, communicated and acted upon effectively.

9) An issue management plan to define procedures for handling issues.

10) A procurement management plan

11) An implementation and transition plan. This plan shall describe the steps necessary to turn the final deliverables over to the STATE. The plan shall contain sufficient information to assure that all necessary steps are identified and that each step has sufficient resources assigned.

12) A system performance plan concisely describing key performance metrics for technical deliverables.

13) A system security plan concisely describing security best practices that will be maintained throughout the duration of the project.

b. Expectations of STATE:

1) STATE’S Project Manager shall be responsible for the final product.

2) The Project Management Plan shall follow STATE template.

3) The STATE’s Project Manager will guide the CONTRACTOR as to what CONTRACTOR-specific information is needed for each component of the plan.

c. Completion Date:

CONTRACTOR shall start work with STATE within five (5) working days after the signing of this Contract to create the above described content for the Project Management Plan. The final content for the Project Management Plan deliverable is due on 06/30/20 or alternate date as mutually agreed upon and documented in the continuously maintained project schedule Gantt chart.

d. Acceptance Criteria:

For the acceptance of this deliverable to occur, CONTRACTOR shall provide content to the STATE for the following sections of the Project Management Plan regarding all services, tasks, and products delivered by CONTRACTOR:

1) A mutually agreed upon detailed baseline scope and schedule for the project

2) Management plans to control scope, schedule, cost and quality, including the variance

3) The governance structure for the project

4) Quality assurance and quality control plans

5) An integrated change control process

6) A human resource management plan

7) A communication management plan

8) A risk management plan

9) An issue management plan

10) A procurement management plan

11) An implementation and transition plan

12) A system performance plan

13) A system security plan

3. DELIVERABLE 3: ESTABLISH BASELINE STATUS

a. Description:

CONTRACTOR shall develop a statewide baseline and inventory study using the following procedure and assumptions:

1) Build Project Contact List. CONTRACTOR will use the County and City (I.e., data owners) contact information provided by the STATE and will work to identify any missing contacts.

CONTRACTOR will identify those data owners who work with vendors and obtain a point of contact for the vendor where appropriate. From this information, CONTRACTOR will build and maintain a Project Contact List which will be used for all data owner and data provider communications. The list will include County Name, City Name, Contact Name, Department, Position, Phone Number, Email Address, Vendor Name, Vendor Contact, Vendor Phone, Vendor Email wherever available. In addition, any special notes, such as working business hours and preference for phone or email will be noted if applicable. The STATE will review the list to confirm its acceptability for the project needs.

CONTRACTOR will also use this Project Contact List as a mechanism for tracking data requests and responses. For instance, CONTRACTOR will track the dates of the outreach attempts made for data requests and the responses received at those times.

All communications will include the data owner Contact, their vendor and the STATE (if the STATE wishes to be in the loop on all communications). Essentially, although CONTRACTOR may need to work directly with a vendor for efficiency or effectiveness, the data owner contact will always be aware of the email communication.

2) Set up Project Website. Utilize the existing statewide parcel project website (https://www.gis.nd.gov/parcel-project) as needed, and set up a new site (e.g., ArcGIS Hub) to include details about the project that can act as an up-to-date resource for all Stakeholders (State, CONTRACTOR, Counties, Cities, Tribes and vendors). Include info about scope of project, timeline, benefits, contacts, status, etc. Keep project status available so that stakeholders can check in on the project progress.