210000001583.pdf

STATE OF MICHIGAN

CENTRAL PROCUREMENT SERVICES

Department of Technology, Management, and Budget

320 S. WALNUT ST., LANSING, MICHIGAN 48933

P.O. BOX 30026 LANSING, MICHIGAN 48909

CONTRACT CHANGE NOTICE

Change Notice Number 3 to

Contract Number 210000001583 stewartd16@michigan.gov

Danielle Stewart

Valerie Hiltz mbell@pyramidns.com

Matthew Bell

East Syracuse, NY 13057

Pyramid Network Services, LLC

VS0194927

913-530-5796

6615 Towpath Road

(517) 249-0459 S

T A

T E

P ro g ra m

M a n a g e r

C o n tra ct

A d m in istra to r

C O

N T R A C T O

R

517-897-2698

DTMB

hiltzv@michigan.gov

$7,000,000.00

October 12, 2021 August 10, 2032

ANTENNA SITE LICENSE AGREEMENT

August 10, 2032

INITIAL AVAILABLE OPTIONS EXPIRATION DATE

BEFORE

2 - 5 Year

PAYMENT TERMS DELIVERY TIMEFRAME

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

☐ P-Card ☐ PRC ☐ Other ☒ Yes ☐ No

MINIMUM DELIVERY REQUIREMENTS

DESCRIPTION OF CHANGE NOTICE

OPTION LENGTH OF OPTION EXTENSION LENGTH OF EXTENSION REVISED EXP. DATE

☐ ☐ August 10, 2032

CURRENT VALUE VALUE OF CHANGE NOTICE ESTIMATED AGGREGATE CONTRACT VALUE

N/A

$939,044.00 $7,939,044.00

Effective April 10, 2024 this contract is adding funding necessary for the replacement of the tower at site 5802 in the amount of $939,044.00.

The Program Manager is updated to Danielle Stewart, Phone: 517-897-2698, Email: stewartd16@michigan.gov. The Contract Administrator is updated to Valerie Hiltz, Phone: (517) 249-0459, Email: hiltzv@michigan.gov

All other terms, conditions, specifications, and pricing remain the same. Per contractor and agency agreement, DTMB Central Procurement approval, and State Administrative Board approval on April 9, 2023.

INITIAL EXPIRATION DATEINITIAL EFFECTIVE DATE

N/A

DESCRIPTION

CONTRACT SUMMARY

DTMB

Department of Technology, Management, and Budget

320 S. WALNUT ST., LANSING, MICHIGAN 48933

P.O. BOX 30026 LANSING, MICHIGAN 48909

CONTRACT CHANGE NOTICE

Change Notice Number 2 to

210000001583Contract Number aprillb@michigan.gov

Brian Aprill

Emily Fedewa mbell@pyramidns.com

Matthew Bell

East Syracuse, NY 13057

Pyramid Network Services, LLC

VS0194927

913-530-5796

6615 Towpath Road

(517) 897-7321 S

T A

T E

P ro g n a g e r

C o n tra ct

A d m in istra to r

C O

N T R A C T O

R

517-284-4087

DTMB

fedewae3@michigan.gov

$7,000,000.00

October 12, 2021 August 10, 2032

ANTENNA SITE LICENSE AGREEMENT

August 10, 2032

INITIAL AVAILABLE OPTIONS EXPIRATION DATE

BEFORE

2 - 5 Year

PAYMENT TERMS DELIVERY TIMEFRAME

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

☐ P-Card ☐ PRC ☐ Other ☒ Yes ☐ No

MINIMUM DELIVERY REQUIREMENTS

DESCRIPTION OF CHANGE NOTICE

OPTION LENGTH OF OPTION EXTENSION LENGTH OF EXTENSION REVISED EXP. DATE

☐ ☐ N/A

CURRENT VALUE VALUE OF CHANGE NOTICE ESTIMATED AGGREGATE CONTRACT VALUE

N/A

$0.00 $7,000,000.00

Effective 2/2/2023, please note the Contract Administrator has been changed to Emily Fedewa.

Contact Info:

517-897-7321 fedewae3@michigan.gov

All other terms, conditions, specifications and pricing remain the same. Per contractor and agency agreement, and DTMB Central Procurement approval.

INITIAL EXPIRATION DATEINITIAL EFFECTIVE DATE

N/A

DESCRIPTION

CONTRACT SUMMARY

DTMB

hansesm Sticky Note

Department of Technology, Management, and Budget

320 S. WALNUT ST., LANSING, MICHIGAN 48933

P.O. BOX 30026 LANSING, MICHIGAN 48909

CONTRACT CHANGE NOTICE

Change Notice Number 1 to

210000001583Contract Number aprillb@michigan.gov

Brian Aprill

Joy Nakfoor mbell@pyramidns.com

Matthew Bell

East Syracuse, NY 13057

Pyramid Network Services, LLC

VS0194927

913-530-5796

6615 Towpath Road

(517) 249-0481 S

T A

T E

P ro g n a g e r

C o n tra ct

A d m in istra to r

C O

N T R A C T O

R

517-284-4087

DTMB

nakfoorj@michigan.gov

$7,000,000.00

October 12, 2021 August 10, 2032

ANTENNA SITE LICENSE AGREEMENT

August 10, 2032

INITIAL AVAILABLE OPTIONS EXPIRATION DATE

BEFORE

2 - 5 Year

PAYMENT TERMS DELIVERY TIMEFRAME

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

☐ P-Card ☐ PRC ☐ Other ☒ Yes ☐ No

MINIMUM DELIVERY REQUIREMENTS

DESCRIPTION OF CHANGE NOTICE

OPTION LENGTH OF OPTION EXTENSION LENGTH OF EXTENSION REVISED EXP. DATE

☐ ☐ N/A

CURRENT VALUE VALUE OF CHANGE NOTICE ESTIMATED AGGREGATE CONTRACT VALUE

N/A

$0.00 $7,000,000.00

Effective 12/14/22, the attached changes are hereby incorporated into the contract.

Please note the Contract Administrator has been changed to Joy Nakfoor.

All other terms, conditions, specifications and pricing remain the same. Per contractor and agency agreement, and DTMB Central Procurement approval.

INITIAL EXPIRATION DATEINITIAL EFFECTIVE DATE

N/A

DESCRIPTION

DTMB

CHANGE NOTICE #1 TO CONTRACT NO. 210000001583

DATED OCTOBER 12, 2021 BETWEEN

THE STATE OF MICHIGAN

AND PYRAMID NETWORK SERVICES, LLC

The State of Michigan (the “State”) and Pyramid Network Services, LLC (“Contractor”) hereby agree that the above-referenced contract (the “Contract”) will be amended as follows:

1. In Section 4 “Program Manager” of the Standard Contract Terms, the Contractor’s

Program Manager Jenine Renaud is being replaced with the following:

Chris Piatt 6615 Towpath Rd East Syracuse, NY 13057 cpiatt@pyramidns.com 312-532-9264

2. In Section 50 “Schedules” of the Standard Contract Terms, the following “Schedule C” is added to the list and is attached hereto and hereby incorporated herein:

Document Name Document Description

Schedule C Detailed Work Plan Outline

3. In Schedule A, Section 2.1 “General Requirements” of the Contract, the following sub-section “C. Co-Location Management” is amended to remove the reference to Schedule C in sub-paragraph 1.c.iii. and now reads as follows:

iii. This Contract will not limit, alter, or otherwise affect in any respect, (i) the

State's rights or relationship with any Existing State Licensees or any State Agency; or (ii) the right of any Existing State Licensee to renew an Existing Site License.

4. In Schedule A, Section 2.1 “General Requirements” of the Contract, the following sub-section “C. Co-Location Management” is amended to replace paragraph “3.

Site License Agreements” with the following paragraph:

“3. Site License Agreements

a. For Commercial State Sites and Public Safety State Sites, the State uses a Co-location License agreement. In addition, the State uses a Master and Site License agreement for large carriers with multiple site co-locations.

The License agreement templates may be revised by the State as necessary.

The State will be directly involved in the negotiations on the License agreements with potential licensee. The State of Michigan Attorney General will also be involved in aspects of the process, as required by law.

b. For ASM Sites, the Contractor will need to provide a draft Construction License and Site License Agreement template for State review and approval.

All Construction and/or Site License agreements must comply with all applicable, federal, state and local laws, rules, regulations and requirements, including but not limited to those of the State of Michigan (e.g. Administrative Board Review, Tall Structure Act), its Authorities, the Federal Communications Commission, Federal Aviation Administration.

Federal Highway Commission and National Environmental Policy ACT (NEPA, to the extent applicable).

5. In Schedule A, Section 4.1 “Contractor Representative” and in Section 4.4 “Key Personnel” of the Contract, the Contractor’s/ASM Program Manager Jenine Renaud is replaced with the following:

Chris Piatt cpiatt@pyramidns.com 312-532-9264

6. In Schedule A, Section 4.7 “Security” of the Contract, the following sub-section

“B. Security at State Sites” is amended to replace paragraph 1.a. with the following paragraph:

1. DTMB-MPSCS State Sites –

a. Applicable MPSCS Tower Site Access Policy in effect at the time of installation or modification/amendment.

7. In Schedule A, Section 5.1 “Project Plan” of the Contract, paragraph 4 is amended to replace the reference to “Schedule G” with “Schedule C” which is attached hereto and hereby incorporated herein, and now reads as follows:

4. The Detailed Work Plan must, at a minimum include the following items:

a. All tasks, task responsibilities, procedures, sequences, time frames and decision points for all procedures for the Contractor, the State Program Manager and applicable State Agencies with respect to all of the items set forth in Schedule C.

SCHEDULE C

Detailed Work Plan Outline

A. Asset Inventory, Valuation of State Assets, and Compensation Structure

1. State asset inventory

2. Valuation of state assets and estimate of the gross and net earnings potential

3. Pricing / compensation structure for sites

4. State / Contractor compensation provisions

5. Barter and trade options

B. Customer, Stakeholder Relations, Marketing and Guidelines

1. Marketing plan, and implementation schedule for establishing third party agreements

2. Pre-licensing contact outreach process

3. Guideline / Manual for the licensing process

4. Local relations, including zoning and planning

C. Site Identification, Approval and Management

1. Site access process

2. Site identification and approval process

3. Contractor Management of On-site Process

a. Detailed process and work plan, including but not limited to:

b. Maintenance of safety of the public during all work and operations

c. Development of master and site license agreements

d. Monitoring all on-site activities

e. Public relations, including public notices, public hearings and representation of the project in local board reviews and hearings

f. Other related tasks and procedures

4. Permits, Certificates and other Approvals

a. Detailed process and work plan, including but not limited to:

b. Site assessments and surveys

c. Procurement of all necessary licenses

d. Conduct of title searches

e. Conduct of local zoning compliance searches

f. Conduct of site-specific agency authorization-to-license searches

g. Conduct of any required studies

h. Other related tasks and procedures

5. Design and Construction: Technical, Engineering and Development

a. Detailed process and work plan, including but not limited to:

b. Condition of sites

c. Design of sites

d. Co-location

e. Licensees and State's use of sites

f. State telecommunication systems

g. Existing tenants

h. Refurbishment, replacement, relocation of existing structures

i. Construction of new structures

j. Installation, replacement, repair and maintenance equipment on existing, refurbished, reconstructed or new sites – except for any State Equipment on ASM Site

k. Frequency interference

l. Access

m. Safety and security

n. Environmental, aesthetic and related considerations

o. Other related tasks and procedures

D. Compliance, Performance, Compensation and Other Management

1. Performance standards and provisions

2. Dispute resolution provisions

3. Process management, reporting requirements and meetings

4. Collection and monitoring of user fees

5. Monitoring and enforcement of master and site license agreements

6. Records and audits

7. Inspection of sites

8. Disposition of facilities at end of term

9. Other related tasks and procedures, including standard agreement provisions

10. Quality Assurance measures

11. Risk Assessment procedures

NOTICE OF CONTRACT

NOTICE OF CONTRACT NO. 210000001583 .

between

THE STATE OF MICHIGAN

and

C O

N

TR

A C

TO

R

Pyramid Network Services, LLC

ST

A

TE

Pr og an ag er Brian Aprill DTMB

6615 Towpath Road 517-284-4087

East Syracuse, NY 13057 aprillb@michigan.gov

Matthew Bell

C on tra ct

Ad in is tra to r Jillian Yeates DTMB

913-530-5796 517-275-1131 mbell@pyramidns.com yeatesj@michigan.gov

VS0194927

DESCRIPTION: Antenna Site License Agreement

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE

INITIAL AVAILABLE

OPTIONS

EXPIRATION DATE BEFORE

CHANGE(S) NOTED BELOW

October 12, 2021 August 10, 2032 Two, Five-Year August 10, 2032

PAYMENT TERMS DELIVERY TIMEFRAME

Net 45 N/A

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

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

MINIMUM DELIVERY REQUIREMENTS

N/A

MISCELLANEOUS INFORMATION

THIS IS NOT AN ORDER: This Contract Agreement is awarded on the basis of our inquiry bearing the solicitation #210000001383. Orders for delivery will be issued directly by the Department in accordance to Section 7.1, Authorizing Document.

ESTIMATED CONTRACT VALUE AT TIME OF EXECUTION $7,000,000.00

STATE OF MICHIGAN PROCUREMENT

Department of Technology, Management & Budget 525 W. Allegan St., Lansing, MI 48933 PO Box 30026, Lansing, MI 48909

CONTRACT NO. 210000001583

FOR THE CONTRACTOR:

Company Name

Authorized Agent Signature

Authorized Agent (Print or Type)

Date

FOR THE STATE:

Signature

Name & Title

Agency

Date

Michigan.gov/MiProcurement

STANDARD CONTRACT TERMS

This STANDARD CONTRACT (“Contract”) is agreed to between the State of Michigan (the “State”) and Pyramid Network Services, LLC (“Contractor”), a New York Limited Liability Company. This Contract is effective on October 12, 2021 (“Effective Date”), and unless terminated, expires on August 10, 2032.

This Contract may be renewed for up to two (2) additional five (5) 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:

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.

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:

Jillian Yeates 525 W. Allegan St.

Lansing, MI 48933 yeatesj@michigan.gov 517-275-1131

Scott H. McCabe 6519 Towpath Rd.

East Syracuse, NY 13057 smccabe@pyramidns.com 315-701-1301

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:

Jillian Yeates 525 W. Allegan St.

Lansing, MI 48933 yeatesj@michigan.gov 517-275-1131

Ronald Brunozzi 6519 Towpath Rd.

East Syracuse, NY 13057 rbrunozzi@pyramidns.com 315-278-1275

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:

Brian Aprill 7150 Harris Drive Dimondale, MI 48821 Aprillb@michigan.gov 517-284-4087

Jenine Renaud 6519 Towpath Rd.

East Syracuse, NY 13057 jrenaud@pyramidns.com 314-922-6535

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 – Statement of Work) if, in the opinion of the State, it will ensure performance of the Contract.

Insurance Requirements. Contractor, at its sole expense, must maintain the insurance coverage identified below. 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.

mailto:smccabe@pyramidns.com mailto:rbrunozzi@pyramidns.com mailto:Aprillb@michigan.gov mailto:jrenaud@pyramidns.com

Required Limits Additional Requirements Commercial General Liability Insurance

Minimum Limits:

$1,000,000 Each Occurrence $1,000,000 Personal & Advertising Injury $2,000,000 Products/Completed Operations $2,000,000 General Aggregate

Contractor must have their policy endorsed to add “the State of Michigan, its departments, divisions, agencies, offices, commissions, officers, employees, and agents” as additional insureds using endorsement CG 20 10 11 85, or both CG 2010 07 04 and CG 2037 07 04.

Automobile Liability Insurance Minimum Limits:

$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 Minimum Limits:

Coverage according to applicable laws governing work activities.

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

Employers Liability Insurance Minimum Limits:

$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 twenty (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 five (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).

Administrative Fee and Reporting. Contractor must pay an administrative fee of 0.5% on all payments made to Contractor under the Contract including transactions with the MiDEAL members, and other states (including governmental subdivisions and authorized entities). Administrative fee payments must be made online by check or credit card at: https://www.thepayplace.com/mi/dtmb/adminfee Contractor must submit an itemized purchasing activity report, which includes at a minimum, the name of the purchasing entity and the total dollar volume in sales.

Reports should be mailed to MiDeal@michigan.gov.

The administrative fee and purchasing activity report are due within 30 calendar days from the last day of each calendar quarter.

Extended Purchasing Program. This contract is extended to MiDEAL members.

MiDEAL members include local units of government, school districts, universities, community colleges, and nonprofit hospitals. A current list of MiDEAL members is available at www.michigan.gov/mideal.

Upon written agreement between the State and Contractor, this contract may also be extended to: (a) other states (including governmental subdivisions and authorized entities) and (b) State of Michigan employees.

If extended, Contractor must supply all Contract Activities at the established Contract prices and terms. The State reserves the right to impose an administrative fee and negotiate additional discounts based on any increased volume generated by such extensions.

Contractor must submit invoices to, and receive payment from, extended purchasing program members on a direct and individual basis.

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.

Contractor hereby acknowledges that the State is and will be the sole and exclusive owner of all right, title, and interest in the Contract Activities and all associated intellectual property rights, if any. Such Contract Activities are works made for hire as defined in Section 101 of the Copyright Act of 1976. To the extent any Contract Activities and related intellectual property do not qualify as works made for hire under the Copyright Act, Contractor will, and hereby does, immediately on its creation, assign, transfer and otherwise convey to the State, irrevocably and in perpetuity, https://www.thepayplace.com/mi/dtmb/adminfee http://www.michigan.gov/mideal throughout the universe, all right, title and interest in and to the Contract Activities, including all intellectual property rights therein.

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.

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

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.

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.

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.

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

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.

Reserved.

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.

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.

Terms of Payment.

The State has the right to dispute 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. Acceptance of 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.

The Contractor will disburse payments under this Contract through Electronic Funds Transfer (EFT). Contractor must register with the State at http://www.michigan.gov/SIGMAVSS. 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 Contractor to the State under this Contract.

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

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.

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 http://www.michigan.gov/SIGMAVSS 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.

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 25, 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.

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 365 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 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.

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.

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.

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.

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.

State Data. All data and information provided to Contractor by or on behalf of the State, and all data and information derived therefrom, is the exclusive property of the State (“State Data”); this definition is to be construed as broadly as possible. Upon request, Contractor must provide to the State, or a third party designated by the State, all State Data within 10 calendar days of the request and in the format requested by the State. Contractor will assume all costs incurred in compiling and supplying State Data. No State Data may be used for any marketing purposes.

Reserved.

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.

Reserved.

Payment Card Industry Data Security Standard.

a. Undertaking by Contractor. Contractors that process, transmit, store or affect the security of credit/debit cardholder data, must adhere to the Payment Card Industry Data Security Standard (PCI DSS). The Contractor is responsible for the security of cardholder data in its possession. The data may only be used to assist the State or for other uses specifically authorized by law.

b. Cooperation to Notify of Breach. The Contractor must notify the State’s Contract Administrator, within 48 hours of discovery, of any breaches in security where cardholder data has been compromised. In that event, the Contractor must provide full cooperation to the card associations (e.g. Visa, MasterCard, and Discover) and state acquirer representative(s), or a PCI approved third party, to conduct a thorough security review. The review must validate compliance with the PCI Data Security Standard for protecting cardholder data. The Contractor must provide, at the request of the State, the results of such third-party security review.

At the State’s sole discretion, the State may perform its own security review, either by itself or through a PCI approved third party.

c. Responsibilities for Costs Incurred. The Contractor is responsible for all costs incurred as the result of the breach. Costs may include, but are not limited to, fines/fees for non-compliance, card reissuance, credit monitoring, and any costs associated with a card association, PCI approved third party, or State initiated security review. Without limiting Contractor’s obligations of indemnification as further described in this Contract, Contractor must indemnify, defend, and hold harmless the State for any and all claims, including reasonable attorneys’ fees, costs, and incidental expenses, which may be suffered by, accrued against, charged to, or recoverable from the State in connection with the breach.

d. Disposing of Cardholder Data. The Contractor must dispose of cardholder data when it is no longer needed in compliance with PCI DSS policy. The Contractor must continue to treat cardholder data as confidential upon contract termination.

e. Audit by Contractor. The Contractor must provide the State’s Contract Administrator with an annual Attestation of Compliance or a Report on Compliance showing the contractor is in compliance with the PCI Data Security Standard. The Contractor must notify the State’s Contract Administrator of all failures to comply with the PCI Data Security Standard.

Reserved.

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.

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…