200000001991.pdf

STATE OF MICHIGAN PROCUREMENT

Department of Natural Resources

525 W. ALLEGAN ST., LANSING, MICHIGAN 48933

P.O. BOX 30028 LANSING, MICHIGAN 48909

NOTICE OF CONTRACT

NOTICE OF CONTRACT NO. 200000001991

between

THE STATE OF MICHIGAN

and

C O

N T

R A

C T

O R

Red River Specialties Inc.

S T

A T

E P ro g ra m

M a n a g e r

Jason Hartman DNR

311 Taft Dr. 989-390-0279

Oswego, IL 60543 Hartmanj@michigan.gov

Jeff Callaway

C o n tr a c t

A d m in is tr a to r

Samantha Fusco DNR- Procurement

(371)440-7103 517-388-6763

Jeff.Callaway@rrsi.com Fuscos@michigan.gov

CV0062356

CONTRACT SUMMARY

DESCRIPTION: Herbicide for DNR

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE

INITIAL AVAILABLE

OPTIONS

EXPIRATION DATE BEFORE

CHANGE(S) NOTED BELOW

September 02, 2020 September 01, 2023 Two one-year options September 01, 2023

PAYMENT TERMS DELIVERY TIMEFRAME

Net 45 10 days

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

☐ P-card ☐ Payment Request (PRC) ☐ Other ☐ Yes ☒ No

MINIMUM DELIVERY REQUIREMENTS

N/A

MISCELLANEOUS INFORMATION

The terms and conditions of this Contract are those of RFP 200000002026, this Contract Agreement and the vendor's quote dated July 28, 2020. In the event of any conflicts between the specifications and terms and conditions indicated by the State and those indicated by the vendor, those of the State take precedence.

ESTIMATED CONTRACT VALUE AT TIME OF EXECUTION $1,557,209.00

mailto:Hartmanj@michigan.gov mailto:Jeff.Callaway@rrsi.com mailto:Fuscos@michigan.gov

STATE OF MICHIGAN

Contract No. 200000001991

Herbicides for Department of Natural Resources

SCHEDULE A

STATEMENT OF WORK

CONTRACT ACTIVITIES

SCOPE

The scope of this contract is to provide herbicides and training in storing chemicals, tank mixing and blending products, calibrating equipment, and applying herbicides on (MDNR) Michigan Department of Natural Resources managed lands.

REQUIREMENTS

1. General Requirements

1.1. Product Specifications

This is a contract for Herbicides and Training in storing chemicals, tank mixing and blending products, calibrating equipment, and applying herbicides in the right-of-way for the (MDNR) Michigan Department of Natural Resources.

1.2. Recall Requirements and Procedures

The contractor will work with all product manufacturers. In the event of a product recall, the manufacturer will notify RRSI that a product has been recalled. We will follow all guidelines set by the manufacturer as to notifying MDNR and scheduling pick-up and replacement of the product. The contractor will also make sure that the account will be credited for any product that would need to be returned.

1.3. Quality Assurance Program

The performance of the products sold by the contractor are backed by their respective manufacturers. The contractor will make sure all product is shipped in original non-damaged packaging and is not expired. Product performance complaints will be investigated by the Contract Representative along with RRSI as well as the respective manufacturer representative for that product. Any poor performance due to product quality will be corrected by RRSI and the respective manufacturer. Any product delivered in damaged packaging will be replaced immediately.

1.4 Services

Red River Specialties has the capabilities to provide herbicide custom blending services upon request.

2. Service Levels

2.1. Time Frames

All Contract Activities must be delivered within 10 business days from receipt of order. The receipt of order date is pursuant to Section 2, Notices, of the Standard Contract Terms.

2.2. Delivery

Delivery will be expected within 10 calendar days upon date of order.

2.3. Technical Support

The Contractor must provide technical support for storing chemicals, tank mixing and blending products, calibrating equipment, and applying herbicides. When providing technical support, the Call Center must resolve the caller’s issue within 24 hours.

2.4. Training

The Contractor can provide the below annual on-site or virtual trainings as requested.

Classroom training

• Herbicide Safety

• Reading Herbicide labels

• Site assessment for herbicide applications

• Performing proper herbicide applications

• Discussions on specific herbicides and mixes

Field Training

• Spill Prevention

• Calibration

• Equipment Set-up and operation

• Mix and Loading

The contractor will include at no extra cost for MDNR employees an integrated vegetation seminar. This seminar will provide training from industry experts and herbicide manufacturers throughout the country that will provide the most up to date information on Highway Right of Way herbicide application. Each attendee will receive 8 CCU credits that can be used for their State of Michigan Pesticide applicators license.

The contractor will also be available to attend the MDNR Annual Vegetation Management Conference each spring as well as any other trainings and will present a topic that is specified by the state.

2.5 Meetings

The Contractor must attend meetings as requested.

3. Staffing

3.1. Contractor Representative

Area Manager Jeff Callaway as “Contractor Representative” regarding contract activities, working with MDNR employees on ordering, product and mix recommendations as well as scheduling training.

Jeff Callaway Phone:317-440-7103

Email: jeff.callaway@rrsi.com

3.2. Customer Service Number

The below telephone number for the State to make contact with a Representative and is available for calls during the hours of 8 am to 5 pm EST.

Kristin Cater Representative Phone: 318-226-2613 Cell: 409-224-4251 Toll Free: 1-800-256-3344

Email: kristin.cater@rrsi.com mailto:jeff.callaway@rrsi.com mailto:kristin.cater@rrsi.com

4. Pricing

4.1. Price Term

Pricing is firm for a 365-day period (“Pricing Period”). The first pricing period begins on the Effective Date.

Adjustments may be requested, in writing, by either party and will take effect no earlier than the next Pricing Period.

4.2. Price Changes

Adjustments will be based on changes in actual Contractor costs. Any request must be supported by written evidence documenting the change in costs. The State may consider sources, such as the Consumer Price Index; Producer Price Index; other pricing indices as needed; economic and industry data; manufacturer or supplier letters noting the increase in pricing; and any other data the State deems relevant.

Following the presentation of supporting documentation, both parties will have 30 days to review the information and prepare a written response. If the review reveals no need for modifications, pricing will remain unchanged unless mutually agreed to by the parties. If the review reveals that changes are needed, both parties will negotiate such changes, for no longer than 30 days, unless extended by mutual agreement.

The Contractor remains responsible for Contract Activities at the current price for all orders received before the mutual execution of a Change Notice indicating the start date of the new Pricing Period.

5. Ordering

5.1. Authorizing Document

The appropriate authorizing document for the Contract will be a delivery order.

5.2 Order Verification

The contractor must have internal controls, approved by Central Procurement Services, to verify abnormal orders and to ensure that only authorized individuals place orders.

6. Delivery

6.1. Delivery Programs

All large orders will be provided by a third-party common carrier. Smaller (50 lbs or less) orders will be provide by UPS or Fed Ex. Call ahead to delivery locations to schedule deliveries will be provided as needed.

6.2. Packaging and Palletizing

Shipments must be palletized whenever possible using manufacturer's standard 4-way shipping pallets.

Drum Specifications

• Containers must be available in each of the following sizes of returnable/refillable container: 15and 30-gallon plastic drums; 120, 180, 330, and 350-gallon totes.

• Each container must be uniform in size, equipped with a tamper evident seal and one-way Micromatic valve designed and constructed to allow unrestricted flow in one direction and no flow in the opposition direction.

• Container material shall be polyethylene plastic; containers shall meet the specification requirements of DOT Title 49

CFR Performance Oriented Packaging Standards Section 178; containers shall be natural/white in color to provide visibility of the contents; containers shall be marked with gallon and liter increments.

• Handling rings shall be provided on both top and bottom of all drums.

• Container shall have a convex bottom and center sump that allows complete removal of all material.

• A permanent number and/or bar code shall be affixed to the container to provide container tracking data.

• EPA establishment number and batch code reference shall be affixed to the drum via a label protected from the environment.

• A label identifying the blended product shall be affixed to the container; individual product label and MSDS labels in accordance with EPA regulations shall also be affixed to the container.

Custom Blending Specifications

• Supplier guarantees that blends are plus or minus 0.25% of specifications

• Custom blending facility shall have computer-controlled processing and tank monitoring system. All blending units shall be constructed of stainless steel, permanently fixed in the facility, and must be equipped with state-certified scales.

• Individual batch samples will be retained by the supplier for a minimum of three years or per EPA regulations.

• Documentation shall be available upon request confirming compatibility tests for the blend have been performed.

• The manufacturer shall provide a statement identifying the expected shelf life of each custom blend and any storage limitations that there may be.

Container Shipment and Pickup

• Supplier shall provide the ability to track order history and individual shipments online via a secure log-in.

• Supplier shall provide the ability to track containers shipped via an online tracking system using a secure log-in.

• The supplier will ship all material within three (3) days of the receipt of the order to the specified destination.

• All drums will be shipped on returnable pallets provided by the Supplier and shall be shrink-wrapped.

• The supplier’s authorized Distributor shall be responsible for arranging for the return of empty containers.

• The supplier will have a maximum of five (5) calendar days from the time of notification to arrange for pickup of empty returnable/ refillable containers.

This specification outlines the technical requirements required for returnable/refillable containers.

• Herbicide blends must be provided in accordance with the UAA BMP Closed Chain of Custody for Herbicide Use in the Utility Vegetation Management Industry Management.

• Custom blends shall conform to the technical requirements outlined herein.

• Containers must meet the specification guidelines provided herein for returnable/refillable containers. Products must be packaged in containers that are designed, constructed, and marked to comply with the requirements of DOT / UN regulations.

7. Acceptance

7.1. Acceptance, Inspection and Testing

The State will use the following criteria to determine acceptance of the Contract Activities:

The state will accept the order after verifying the quantity, brand requirement, and condition of the packaging.

Torn packages, leaking packages, and other evidence of tampering will not be accepted. Non specified products will not be accepted.

8. Invoice and Payment

8.1 Invoice Requirements

All invoices submitted to the State must include: (a) date; (b) purchase order; (c) quantity; (d) description of the Contract Activities; (e) unit price; (f) shipping cost (if any); and (g) total price.

8.2 Payment Methods

The State will make payment for Contract Activities via Electronic Funds Transfer (EFT).

9. Licensing Agreement The Contractor must Maintain and provide when requested their valid Agricultural Pesticide Dealer License from The Michigan Department of Agriculture and Rural Development in accordance with provisions of MCL 324.8310a.

10. Additional Requirements

a. Environmental and Energy Efficient Products

The Contractor must identify any energy efficient, bio-based, or otherwise environmentally friendly products used in the products. Contractor must include any relevant third-party certification, including the verification of a United States department of agriculture certified bio-based product label.

b. Hazardous Chemical Identification

In accordance with the federal Emergency Planning and Community Right-to-Know Act, 42 USC 11001, et seq., as amended, the Contractor must provide a Material Safety Data Sheet listing any hazardous chemicals, as defined in 40 CFR §370.2, to be delivered. Each hazardous chemical must be properly identified, including any applicable identification number, such as a National Stock Number or Special Item Number.

The Contractor must identify any hazardous chemicals that will be provided under this contract.

c. Mercury Content Pursuant to MCL 18.1261d, mercury-free products must be procured when possible. The Contractor must explain if it intends to provide products containing mercury, the amount or concentration of mercury, and whether cost competitive alternatives exist. If a cost competitive alternative does exist, the Contractor must provide justification as to why the particular products essential. All products containing mercury must be labeled as containing mercury.

d. Brominated Flame Retardants The State prefers to purchase products that do not contain brominated flame retardants (BFRs) whenever possible. The Contractor must disclose whether the products contain BFRs.

SCHEDULE B

PRICING

Quick payment terms: 1 % discount off invoice if paid within 10 days after receipt of invoice.

*Pricing includes freight.

Product Name Unit Price

(Unit) Estimated Annual

Amounts

Estimated 3 year

Amount

Annual Pricing

3 Year Contract Pricing

ACCORD XRT $19.00 Gal 608 1824 $11,552.00 $34,656.00

ARSENAL AC $97.50 Gal 1510 4530 $147,225.0

$441,675.00

CHOPPER GEN II $53.00 Gal 200 600 $10,600.00 $31,800.00

CYGNET PLUS $21.21 Gal 1755 5265 $37,223.55 $111,670.65

ELITE PLATINUM

NONIONIC

SURFACTANT

$16.00 Gal 63 189 $1,008.00 $3,024.00

ELITE PREMIER

BLUE BASAL OIL

$10.50 Gal 33 99 $346.50 $1,039.50

ELITE VELOCITY

DRIFT AID

$22.00 Gal 44 132 $968.00 $2,904.00

GARLON 3A $47.00 Gal 403 1209 $18,941.00 $56,823.00

MILESTONE $75.00 Quart 5.5 16.5 $412.50 $1,237.50

MILESTONE $300.00 Gal 52.5 157.5 $15,750.00 $47,250.00

NU FILM IR $39.20 Gal 2.5 7.5 $98.00 $294.00

OUST EXTRA $1.90 Ounce 2002 6006 $3,803.80 $11,411.40

POLARIS $49.00 Gal 390 927 $19,110.00 $45,423.00

RODEO $19.00 Gal 3534 10602 $67,146.00 $201,438.00

ROUNDUP

POWERMAX

$25.95 Gal 585 1755 $15,180.75 $45,542.25

ROUNDUP PRO

CONCENTRATE

$16.65 Gal 318 954 $5,294.70 $15,884.10

SUNSET

METHYLATED SEED

OIL

$8.60 Gal 30 90 $258.00 $774.00

VELPAR L $76.00 Gal 270 810 $20,520.00 $61,560.00

Weedar 64 $12.00 Gal 110 330 $1,320.00 $3,960.00

Plateau $108.00 Gal 20 60 $2,160.00 $6,480.00

Navitrol $78.50 Gal 25 75 $1,962.50 $5,887.50

Renovate 3 $105.84 Gal 5 15 $529.20 $1,587.60

Garlon 4 Ultra $65.00 Gal 31 93 $2,015.00 $6,045.00

Remedy Ultra $62.95 Gal 2.5 7.5 $157.38 $472.13

Weedone LV-4 $14.75 Gal 30 90 $442.50 $1,327.50

Polaris Herbicide $49.00 Gal 20 60 $980.00 $2,940.00

Clearcast $282.07 Gal 8 21 $2,256.56 $5,923.47

Stalker (imazapyr non-aquatic)

$75.00 Quart 20 60 $1,500.00 $4,500.00

Transline $155.00 Gal 30 90 $4,650.00 $13,950.00

Prowl - Water $50.00 Gal 5 15 $250.00 $750.00

Duel Magnum II $88.00 Gal 5 15 $440.00 $1,320.00

NuArbor Surfactant $40.85 Gal 5 15 $204.25 $612.75

Scythe $65.00 Gal 20 60 $1,300.00 $3,900.00

RRSI Liquid AMS $6.80 Gal 1 3 $6.80 $20.40

Clethodim $48.25 Gal 15 45 $723.75 $2,171.25

Garlon 4 $65.00 Gal 20 60 $1,300.00 $3,900.00

Tordon RTU $11.95 Ounce 24 72 $286.80 $860.40

Element 3A $39.50 Gal 12 36 $474.00 $1,422.00

Crossbow $44.95 Gal 6 18 $269.70 $809.10

Capreno $430.00 Gal 6 18 $2,580.00 $7,740.00

Simazine 4L $15.95 Gal 20 60 $319.00 $957.00

Clethoderm $45.00 Gal 10 30 $450.00 $1,350.00

RRSI Pacer $8.25 Gal 10 30 $82.50 $247.50

Element 4 $44.00 Gal 2000 6000 $88,000.00 $264,000.00

Penetron $13.70 Gal 300 900 $4,110.00 $12,330.00

Total $1,557,209.00

Version 9 (11/2019)

STATE OF MICHIGAN

STANDARD CONTRACT TERMS

This STANDARD CONTRACT (“Contract”) is agreed to between the State of Michigan (the “State”) and Red

River Specialties LLC.(“Contractor”), This Contract is effective on September 2nd, 2020 (“Effective Date”), and unless terminated, expires on September 1st , 2023

This Contract may be renewed for up to two additional one-year period(s). Renewal is at the sole discretion of the State and will automatically extend the Term of this Contract. The State will document its exercise of renewal options via Contract Change Notice.

The parties agree as follows:

1. Duties of Contractor. Contractor must perform the services and provide the deliverables described in Schedule A – Statement of Work (the “Contract Activities”). An obligation to provide delivery of any commodity is considered a service and is a Contract Activity.

Contractor must furnish all labor, equipment, materials, and supplies necessary for the performance of the Contract Activities, and meet operational standards, unless otherwise specified in Schedule A.

Contractor must: (a) perform the Contract Activities in a timely, professional, safe, and workmanlike manner consistent with standards in the trade, profession, or industry; (b) meet or exceed the performance and operational standards, and specifications of the Contract; (c) provide all Contract Activities in good quality, with no material defects; (d) not interfere with the State’s operations; (e) obtain and maintain all necessary licenses, permits or other authorizations necessary for the performance of the Contract; (f) cooperate with the State, including the State’s quality assurance personnel, and any third party to achieve the objectives of the Contract; (g) return to the State any State-furnished equipment or other resources in the same condition as when provided when no longer required for the Contract; (h) not make any media releases without prior written authorization from the State; (i) assign to the State any claims resulting from state or federal antitrust violations to the extent that those violations concern materials or services supplied by third parties toward fulfillment of the Contract; (j) comply with all State physical and IT security policies and standards which will be made available upon request; and (k) provide the State priority in performance of the Contract except as mandated by federal disaster response requirements. Any breach under this paragraph is considered a material breach.

Contractor must also be clearly identifiable while on State property by wearing identification issued by the State, and clearly identify themselves whenever making contact with the State.

2. Notices. All notices and other communications required or permitted under this Contract must be in writing and will be considered given and received: (a) when verified by written receipt if sent by courier; (b) when actually received if sent by mail without verification of receipt; or (c) when verified by automated receipt or electronic logs if sent by facsimile or email.

If to State: If to Contractor:

Samantha Fusco

525 W. Allegan St.

Jeff Callaway

311 Taft Drive

Lansing, MI 48933 fuscos@michigan.gov

517-388-6763

Oswego IL,60543 jeff.callaway@rrsi.com

317-440-7103

3. Contract Administrator. The Contract Administrator for each party is the only person authorized to modify any terms of this Contract, and approve and execute any change under this Contract (each a “Contract Administrator”):

State: Contractor:

Samantha Fusco 525 W.

Allegan St.

Lansing, MI 48933 fuscos@michigan.gov

517-388-6763

Chad Chambliss

1324 N Hearne Ave. Ste. 120

Shreveport, LA 71107 chad.chambliss@rrsi.com

318-226-2604 / 409-224-9332

4. Program Manager. The Program Manager for each party will monitor and coordinate the day-to-day activities of the Contract (each a “Program Manager”):

State: Contractor:

Jason Hartman Hartmanj@michigan.gov 517-390-0279

Jeff Callaway

311 Taft Drive

Oswego, IL 60543 jeff.callaway@rrsi.com

317- 440- 7103

5. Performance Guarantee. Contractor must at all times have financial resources sufficient, in the opinion of the State, to ensure performance of the Contract and must provide proof upon request. The State may require a performance bond (as specified in Schedule A) if, in the opinion of the State, it will ensure performance of the Contract.

6. Insurance Requirements. Contractor must maintain the insurances identified below and is responsible for all deductibles. All required insurance must: (a) protect the State from claims that may arise out of, are alleged to arise out of, or result from Contractor's or a subcontractor's performance; (b) be primary and non-contributing to any comparable liability insurance (including self-insurance) carried by the State; and (c) be provided by a company with an A.M. Best rating of "A-" or better, and a financial size of VII or better.

Required Limits Additional Requirements

Commercial General Liability Insurance

Minimum Limits:

$1,000,000 Each Occurrence Limit

Contractor must have their policy endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as mailto:fuscos@michigan.gov mailto:jeff.callaway@rrsi.com mailto:fuscos@michigan.gov mailto:chad.chambliss@rrsi.com mailto:jeff.callaway@rrsi.com

$1,000,000 Personal & Advertising Injury Limit $2,000,000 General Aggregate Limit

$2,000,000 Products/Completed Operations

Deductible Maximum:

$50,000 Each Occurrence additional insureds using endorsement CG 20 10 11 85, or both CG 2010 07 04 and CG 2037 07 04.

Umbrella or Excess Liability Insurance

$5,000,000 General Aggregate

Contractor must have their policy follow form.

Automobile Liability Insurance

$1,000,000 Per Accident

Contractor must have their policy: (1) endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional insureds; and (2) include Hired and Non-Owned Automobile coverage.

Workers' Compensation Insurance

Coverage according to applicable laws governing work activities.

Waiver of subrogation, except where waiver is prohibited by law.

Employers Liability Insurance

$500,000 Each Accident

$500,000 Each Employee by Disease

$500,000 Aggregate Disease.

If any of the required policies provide claims-made coverage, the Contractor must: (a) provide coverage with a retroactive date before the effective date of the contract or the beginning of Contract Activities; (b) maintain coverage and provide evidence of coverage for at least three (3) years after completion of the Contract Activities; and (c) if coverage is cancelled or not renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, Contractor must purchase extended reporting coverage for a minimum of three (3) years after completion of work.

Contractor must: (a) provide insurance certificates to the Contract Administrator, containing the agreement or delivery order number, at Contract formation and within 20 calendar days of the expiration date of the applicable policies; (b) require that subcontractors maintain the required insurances contained in this Section;

(c) notify the Contract Administrator within 5 business days if any insurance is cancelled; and (d) waive all rights against the State for damages covered by insurance. Failure to maintain the required insurance does not limit this waiver.

This Section is not intended to and is not to be construed in any manner as waiving, restricting or limiting the liability of either party for any obligations under this Contract (including any provisions hereof requiring Contractor to indemnify, defend and hold harmless the State).

7. Reserved.

8. Reserved.

9. Independent Contractor. Contractor is an independent contractor and assumes all rights, obligations and liabilities set forth in this Contract. Contractor, its employees, and agents will not be considered employees of the State. No partnership or joint venture relationship is created by virtue of this Contract. Contractor, and not the State, is responsible for the payment of wages, benefits and taxes of Contractor’s employees and any subcontractors. Prior performance does not modify Contractor’s status as an independent contractor.

10. Subcontracting. Contractor may not delegate any of its obligations under the Contract without the prior written approval of the State. Contractor must notify the State at least 90 calendar days before the proposed delegation and provide the State any information it requests to determine whether the delegation is in its best interest. If approved, Contractor must: (a) be the sole point of contact regarding all contractual matters, including payment and charges for all Contract Activities; (b) make all payments to the subcontractor; and (c) incorporate the terms and conditions contained in this Contract in any subcontract with a subcontractor.

Contractor remains responsible for the completion of the Contract Activities, compliance with the terms of this Contract, and the acts and omissions of the subcontractor. The State, in its sole discretion, may require the replacement of any subcontractor.

11. Staffing. The State’s Contract Administrator may require Contractor to remove or reassign personnel by providing a notice to Contractor.

12. Background Checks. Pursuant to Michigan law, all agencies subject to IRS Pub. 1075 are required to ask the Michigan State Police to perform fingerprint background checks on all employees, including Contractor and Subcontractor employees, who may have access to any database of information maintained by the federal government that contains confidential or personal information, including, but not limited to, federal tax information. Further, pursuant to Michigan law, any agency described above is prohibited from providing Contractors or Subcontractors with the result of such background check. For more information, please see Michigan Public Act 427 of 2018. Upon request, or as may be specified in Schedule A, Contractor must perform background checks on all employees and subcontractors and its employees prior to their assignment. The scope is at the discretion of the State and documentation must be provided as requested. Contractor is responsible for all costs associated with the requested background checks. The State, in its sole discretion, may also perform background checks.

13. Assignment. Contractor may not assign this Contract to any other party without the prior approval of the

State. Upon notice to Contractor, the State, in its sole discretion, may assign in whole or in part, its rights or responsibilities under this Contract to any other party. If the State determines that a novation of the Contract to a third party is necessary, Contractor will agree to the novation and provide all necessary documentation and signatures.

14. Change of Control. Contractor will notify within 30 days of any public announcement or otherwise once legally permitted to do so, the State of a change in Contractor’s organizational structure or ownership. For purposes of this Contract, a change in control means any of the following: (a) a sale of more than 50% of Contractor’s stock; (b) a sale of substantially all of Contractor’s assets; (c) a change in a majority of Contractor’s board members; (d) consummation of a merger or consolidation of Contractor with any other entity; (e) a change in ownership through a transaction or series of transactions; (f) or the board (or the stockholders) approves a plan of complete liquidation. A change of control does not include any consolidation or merger effected exclusively to change the domicile of Contractor, or any transaction or series of transactions principally for bona fide equity financing purposes.

In the event of a change of control, Contractor must require the successor to assume this Contract and all of its obligations under this Contract.

15. Ordering. Contractor is not authorized to begin performance until receipt of authorization as identified in Schedule A.

16. Acceptance. Contract Activities are subject to inspection and testing by the State within 30 calendar days of the State’s receipt of them (“State Review Period”), unless otherwise provided in Schedule A. If the Contract Activities are not fully accepted by the State, the State will notify Contractor by the end of the State Review Period that either: (a) the Contract Activities are accepted but noted deficiencies must be corrected; or (b) the Contract Activities are rejected. If the State finds material deficiencies, it may: (i) reject the Contract Activities without performing any further inspections; (ii) demand performance at no additional cost; or (iii) terminate this Contract in accordance with Section 23, Termination for Cause.

Within 10 business days from the date of Contractor’s receipt of notification of acceptance with deficiencies or rejection of any Contract Activities, Contractor must cure, at no additional cost, the deficiency and deliver unequivocally acceptable Contract Activities to the State. If acceptance with deficiencies or rejection of the Contract Activities impacts the content or delivery of other non-completed Contract Activities, the parties’ respective Program Managers must determine an agreed to number of days for re-submission that minimizes the overall impact to the Contract. However, nothing herein affects, alters, or relieves Contractor of its obligations to correct deficiencies in accordance with the time response standards set forth in this Contract.

If Contractor is unable or refuses to correct the deficiency within the time response standards set forth in this Contract, the State may cancel the order in whole or in part. The State, or a third party identified by the State, may perform the Contract Activities and recover the difference between the cost to cure and the Contract price plus an additional 10% administrative fee.

17. Delivery.

Contractor must deliver all Contract Activities F.O.B. destination, within the State premises with transportation and handling charges paid by Contractor, unless otherwise specified in Schedule A. All containers and packaging become the State’s exclusive property upon acceptance.

18. Risk of Loss and Title.

Until final acceptance, title and risk of loss or damage to Contract Activities remains with Contractor.

Contractor is responsible for filing, processing, and collecting all damage claims. The State will record and report to Contractor any evidence of visible damage. If the State rejects the Contract Activities, Contractor must remove them from the premises within 10 calendar days after notification of rejection. The risk of loss of rejected or non-conforming Contract Activities remains with Contractor. Rejected Contract Activities not removed by Contractor within 10 calendar days will be deemed abandoned by Contractor, and the State will have the right to dispose of it as its own property. Contractor must reimburse the State for costs and expenses incurred in storing or effecting removal or disposition of rejected Contract Activities.

19. Warranty Period.

The warranty period, if applicable, for Contract Activities is a fixed period commencing on the date specified in Schedule A. If the Contract Activities do not function as warranted during the warranty period, the State may return such non-conforming Contract Activities to the Contractor for a full refund.

20. Terms of Payment. Invoices must conform to the requirements communicated from time-to-time by the State.

All undisputed amounts are payable within 45 days of the State’s receipt. Contractor may only charge for Contract Activities performed as specified in Schedule A. Invoices must include an itemized statement of all charges. The State is exempt from State sales tax for direct purchases and may be exempt from federal excise tax, if Services purchased under this Agreement are for the State’s exclusive use. All prices are exclusive of taxes, and Contractor is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by the State under this Contract.

The State has the right to withhold payment of any disputed amounts until the parties agree as to the validity of the disputed amount. The State will notify Contractor of any dispute within a reasonable time. Payment by the State will not constitute a waiver of any rights as to Contractor’s continuing obligations, including claims for deficiencies or substandard Contract Activities. Contractor’s acceptance of final payment by the State constitutes a waiver of all claims by Contractor against the State for payment under this Contract, other than those claims previously filed in writing on a timely basis and still disputed.

The State will only disburse payments under this Contract through Electronic Funds Transfer (EFT). Contractor must register with the State at http://www.michigan.gov/SIGMAVSS to receive electronic fund transfer payments. If Contractor does not register, the State is not liable for failure to provide payment. Without prejudice to any other right or remedy it may have, the State reserves the right to set off at any time any amount then due and owing to it by Contractor against any amount payable by the State to Contractor under this Contract.

21. Liquidated Damages.

Liquidated damages, if applicable, will be assessed as described in Schedule A.

22. Stop Work Order. The State may suspend any or all activities under the Contract at any time. The State will provide Contractor a written stop work order detailing the suspension. Contractor must comply with the stop work order upon receipt. Within 90 calendar days, or any longer period agreed to by Contractor, the State will either: (a) issue a notice authorizing Contractor to resume work, or (b) terminate the Contract or delivery order.

The State will not pay for Contract Activities, Contractor’s lost profits, or any additional compensation during a stop work period.

23. Termination for Cause. The State may terminate this Contract for cause, in whole or in part, if Contractor, as determined by the State: (a) endangers the value, integrity, or security of any location, data, or personnel; (b) becomes insolvent, petitions for bankruptcy court proceedings, or has an involuntary bankruptcy proceeding filed against it by any creditor; (c) engages in any conduct that may expose the State to liability; (d) breaches any of its material duties or obligations; or (e) fails to cure a breach within the time stated in a notice of breach.

Any reference to specific breaches being material breaches within this Contract will not be construed to mean that other breaches are not material.

If the State terminates this Contract under this Section, the State will issue a termination notice specifying whether Contractor must: (a) cease performance immediately, or (b) continue to perform for a specified period.

If it is later determined that Contractor was not in breach of the Contract, the termination will be deemed to have been a Termination for Convenience, effective as of the same date, and the rights and obligations of the parties will be limited to those provided in Section 24, Termination for Convenience.

The State will only pay for amounts due to Contractor for Contract Activities accepted by the State on or before the date of termination, subject to the State’s right to set off any amounts owed by the Contractor for the State’s reasonable costs in terminating this Contract. The Contractor must pay all reasonable costs incurred by the State in terminating this Contract for cause, including administrative costs, attorneys’ fees, court costs, transition costs, and any costs the State incurs to procure the Contract Activities from other sources.

24. Termination for Convenience. The State may immediately terminate this Contract in whole or in part without penalty and for any reason, including but not limited to, appropriation or budget shortfalls. The termination notice will specify whether Contractor must: (a) cease performance of the Contract Activities immediately, or

(b) continue to perform the Contract Activities in accordance with Section 26, Transition Responsibilities. If the State terminates this Contract for convenience, the State will pay all reasonable costs, as determined by the State, for State approved Transition Responsibilities.

25. Transition Responsibilities. Upon termination or expiration of this Contract for any reason, Contractor must, for a period of time specified by the State (not to exceed 90 calendar days), provide all reasonable transition assistance requested by the State, to allow for the expired or terminated portion of the Contract Activities to continue without interruption or adverse effect, and to facilitate the orderly transfer of such Contract Activities to the State or its designees. Such transition assistance may include, but is not limited to: (a) continuing to perform the Contract Activities at the established Contract rates; (b) taking all reasonable and necessary measures to transition performance of the work, including all applicable Contract Activities, training, equipment, software, leases, reports and other documentation, to the State or the State’s designee; (c) taking all necessary and appropriate steps, or such other action as the State may direct, to preserve, maintain, protect, or return to the State all materials, data, property, and confidential information provided directly or indirectly to Contractor by any entity, agent, vendor, or employee of the State; (d) transferring title in and delivering to the State, at the State’s discretion, all completed or partially completed deliverables prepared under this Contract as of the Contract termination date; and (e) preparing an accurate accounting from which http://www.michigan.gov/SIGMAVSS the State and Contractor may reconcile all outstanding accounts (collectively, “Transition Responsibilities”).

This Contract will automatically be extended through the end of the transition period.

26. General Indemnification. Contractor must defend, indemnify and hold the State, its departments, divisions, agencies, offices, commissions, officers, and employees harmless, without limitation, from and against any and all actions, claims, losses, liabilities, damages, costs, attorney fees, and expenses (including those required to establish the right to indemnification), arising out of or relating to: (a) any breach by Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable) of any of the promises, agreements, representations, warranties, or insurance requirements contained in this Contract; (b) any infringement, misappropriation, or other violation of any intellectual property right or other right of any third party; (c) any bodily injury, death, or damage to real or tangible personal property occurring wholly or in part due to action or inaction by Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable); and (d) any acts or omissions of Contractor (or any of Contractor’s employees, agents, subcontractors, or by anyone else for whose acts any of them may be liable).

The State will notify Contractor in writing if indemnification is sought; however, failure to do so will not relieve Contractor, except to the extent that Contractor is materially prejudiced. Contractor must, to the satisfaction of the State, demonstrate its financial ability to carry out these obligations.

The State is entitled to: (i) regular updates on proceeding status; (ii) participate in the defense of the proceeding; (iii) employ its own counsel; and to (iv) retain control of the defense if the State deems necessary.

Contractor will not, without the State’s written consent (not to be unreasonably withheld), settle, compromise, or consent to the entry of any judgment in or otherwise seek to terminate any claim, action, or proceeding. To the extent that any State employee, official, or law may be involved or challenged, the State may, at its own expense, control the defense of that portion of the claim.

Any litigation activity on behalf of the State, or any of its subdivisions under this Section, must be coordinated with the Department of Attorney General. An attorney designated to represent the State may not do so until approved by the Michigan Attorney General and appointed as a Special Assistant Attorney General.

27. Infringement Remedies. If, in either party’s opinion, any piece of equipment, software, commodity, or service supplied by Contractor or its subcontractors, or its operation, use or reproduction, is likely to become the subject of a copyright, patent, trademark, or trade secret infringement claim, Contractor must, at its expense:

(a) procure for the State the right to continue using the equipment, software, commodity, or service, or if this option is not reasonably available to Contractor, (b) replace or modify the same so that it becomes non-infringing; or (c) accept its return by the State with appropriate credits to the State against Contractor’s charges and reimburse the State for any losses or costs incurred as a consequence of the State ceasing its use and returning it.

28. Limitation of Liability and Disclaimer of Damages. IN NO EVENT WILL THE STATE’S AGGREGATE

LIABILITY TO CONTRACTOR UNDER THIS CONTRACT, REGARDLESS OF THE FORM OF ACTION,

WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR BY STATUTE OR OTHERWISE, FOR ANY CLAIM RELATED TO OR ARISING UNDER THIS CONTRACT, EXCEED THE MAXIMUM

AMOUNT OF FEES PAYABLE UNDER THIS CONTRACT. The State is not liable for consequential, incidental, indirect, or special damages, regardless of the nature of the action.

29. Disclosure of Litigation, or Other Proceeding. Contractor must notify the State within 14 calendar days of receiving notice of any litigation, investigation, arbitration, or other proceeding (collectively, “Proceeding”) involving Contractor, a subcontractor, or an officer or director of Contractor or subcontractor, that arises during the term of the Contract, including: (a) a criminal Proceeding; (b) a parole or probation Proceeding; (c) a Proceeding under the Sarbanes-Oxley Act; (d) a civil Proceeding involving: (1) a claim that might reasonably be expected to adversely affect Contractor’s viability or financial stability; or (2) a governmental or public entity’s claim or written allegation of fraud; or (e) a Proceeding involving any license that Contractor is required to possess in order to perform under this Contract.

30. Reserved.

31. Reserved.

32. Non-Disclosure of Confidential Information. The parties acknowledge that each party may be exposed to or acquire communication or data of the other party that is confidential, privileged communication not intended to be disclosed to third parties. The provisions of this Section survive the termination of this Contract.

a. Meaning of Confidential Information. For the purposes of this Contract, the term “Confidential

Information” means all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; and, (c) should reasonably be recognized as confidential information of the disclosing party. The term “Confidential Information” does not include any information or documentation that was: (a) subject to disclosure under the Michigan Freedom of Information Act (FOIA); (b) already in the possession of the receiving party without an obligation of confidentiality; (c) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (d) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (e) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party). For purposes of this Contract, in all cases and for all matters, State Data is deemed to be Confidential Information.

b. Obligation of Confidentiality. The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with this Contract or to use such Confidential Information for any purposes whatsoever other than the performance of this Contract. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential. Disclosure to a subcontractor is permissible where: (a) use of a subcontractor is authorized under this Contract; (b) the disclosure is necessary or otherwise naturally occurs in connection with work that is within the subcontractor's responsibilities; and (c) Contractor obligates the subcontractor in a written contract to maintain the State's Confidential Information in confidence. At the State's request, any employee of Contractor or any subcontractor may be required to execute a separate agreement to be bound by the provisions of this Section.

c. Cooperation to Prevent Disclosure of Confidential Information. Each party must use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party must advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Contract and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

d. Remedies for Breach of Obligation of Confidentiality. Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, in the case of the State, at the sole election of the State, the immediate termination, without liability to the State, of this Contract or any Statement of Work corresponding to the breach or threatened breach.

e. Surrender of Confidential Information upon Termination. Upon termination of this Contract or a Statement of Work, in whole or in part, each party must, within 5 calendar days from the date of termination, return to the other party any and all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession, custody, or control; provided, however, that Contractor must return State Data to the State following the timeframe and procedure described further in this Contract. Should Contractor or the State determine that the return of any Confidential Information is not feasible, such party must destroy the Confidential Information and must certify the same in writing within 5 calendar days from the date of termination to the other party. However, the State’s legal ability to destroy Contractor data may be restricted by its retention and disposal schedule, in which case Contractor’s Confidential Information will be destroyed after the retention period expires.

33. Reserved.

34. Reserved.

35. Reserved.

36. Records Maintenance, Inspection, Examination, and Audit. The State or its designee may audit Contractor to verify compliance with this Contract. Contractor must retain and provide to the State or its designee and the auditor general upon request, all financial and accounting records related to the Contract through the term of the Contract and for 4 years after the latter of termination, expiration, or final payment under this Contract or any extension (“Audit Period”). If an audit, litigation, or other action involving the records is initiated before the end of the Audit Period, Contractor must retain the records until all issues are resolved.

Within 10 calendar days of providing notice, the State and its authorized representatives or designees have the right to enter and inspect Contractor's premises or any other places where Contract Activities are being performed, and examine, copy, and audit all records related to this Contract. Contractor must cooperate and provide reasonable assistance. If any financial errors are revealed, the amount in error must be reflected as a credit or debit on subsequent invoices until the amount is paid or refunded. Any remaining balance at the end of the Contract must be paid or refunded within 45 calendar days.

This Section applies to Contractor, any parent, affiliate, or subsidiary organization of Contractor, and any subcontractor that performs Contract Activities in connection with this Contract.

37. Warranties and Representations. Contractor represents and warrants: (a) Contractor is the owner or licensee of any Contract Activities that it licenses, sells, or develops and Contractor has the rights necessary to convey title, ownership rights, or licensed use; (b) all Contract Activities are delivered free from any security interest, lien, or encumbrance and will continue in that respect; (c) the Contract Activities will not infringe the patent, trademark, copyright, trade…