NOTICE OF CONTRACT

NOTICE OF CONTRACT NO. 230000001000 .

between

THE STATE OF MICHIGAN

and

C O

N

TR

A C

TO

R

D-K Fence Company Inc.

ST

A

TE

Pr og ra m M an ag er

Walter Sullivan Ron Souza James Piper Justin Smith

FCTC

RFSC

CG

ACRTC

1227 W. Dickman Road

269-282-7525 517-420-7545 989-344-6325 989-590-2236

Battle Creek, MI 49037 sullivanw@michigan.gov souzar@michigan.gov james.d.piper8.mil@army.mil justin.smith.67@us.af.mil

David Wright

C on tra ct

Ad m in is tra to r Gregory Pawlak DMVA

269-965-3991 517-256-2439 dwright@dkfenceco.com pawlakg@michigan.gov

CV0023944

CONTRACT SUMMARY

DESCRIPTION: DMVA Fencing and Gate Services for Regions 3, 7 and 8

INITIAL EFFECTIVE DATE INITIAL EXPIRATION DATE

INITIAL AVAILABLE

OPTIONS

EXPIRATION DATE BEFORE

CHANGE(S) NOTED BELOW

06/15/2023 06/14/2028 Two (2) One (1) Year options

PAYMENT TERMS DELIVERY TIMEFRAME

Net 45, 2% if paid in 30 Days

ALTERNATE PAYMENT OPTIONS EXTENDED PURCHASING

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

MINIMUM DELIVERY REQUIREMENTS

N/A

MISCELLANEOUS INFORMATION

This contract is for DMVA Fencing and Gate Services in regions 3, 7 and 8 within the State of Michigan.

ESTIMATED CONTRACT VALUE AT TIME OF EXECUTION $1,270,000.00

STATE OF MICHIGAN PROCUREMENT

Department of Military and Veterans Affairs 3423 North Martin Luther King Jr. Blvd., Bldg. 30, Suite 320, Lansing MI, 48906 mailto:sullivanw@michigan.gov mailto:souzar@michigan.gov mailto:james.d.piper8.mil@army.mil mailto:justin.smith.67@us.af.mil mailto:dwright@dkfenceco.com mailto:pawlakg@michigan.gov

FOR THE CONTRACTOR:

Company Name

Authorized Agent Signature

Authorized Agent (Print or Type)

Date

FOR THE STATE:

Signature

Name & Title

Agency

Date

Mich igan .gov/MiProcure ment

SCHEDULE A – STATEMENT OF WORK

CONTRACT ACTIVITIES

Contract No. 230000001000 DMVA Fencing and Gate Services

BACKGROUND

The Department of Military and Veterans Affairs (DMVA) has the need for fence and gate services. These services include the maintenance, installation of new fencing and gates, and the clearing of fence lines at all DMVA locations when required and when funding is available. Locations for these services include:

1. Camp Grayling Joint Maneuver Training Center (CGJMTC) located in Grayling, MI.

2. Fort Custer Training Center (FCTC) located in Augusta, Michigan.

3. Various Readiness Centers/Armories within regions 3, 7 and 8. See State of

Michigan regional map below.

4. Alpena Combat Readiness Training Center (ACRTC) located in Alpena Michigan.

There is approximately 360,000 lineal feet of fence line including gates at CGJMTC, 125,000 lineal feet of fence line including gates at FCTC, 60,000 lineal feet of fence line, including gates at ACRTC and 70,000 lineal feet of fence line and including gates at our readiness centers throughout the state.

DMVA locations are sprawled throughout the state, see regional map and map with the Army and Air locations identified. D-K Fence Company will be responsible for regions 3, 7 and 8.

Michigan .gov/MiProcure ment

SCOPE

This contract is to maintain, install and clear fence lines at DMVA locations in regions 3, 7 and 8 in the State of Michigan. This contract is also for the installation and repair of gates. Additional fence and gate hardware may be added during the life of this contract.

1. Requirements

1.1. General Requirements

A. Fence Line Clearing The Contractor will be required to completely de-stump and grub such that the clear area is able to be brush hogged. All clearing will be 20 feet wide, 10 feet on center of fence unless specified and will be completed cleared to the sky to include any overhanging vegetation from outside of the 10 feet on center. It is the Contractors responsibility to remove all stumps, where necessary and haul away all debris as part of the cost for these services. There are five types of clearing those are:

• Light Clearing: removal of vegetation 2” in diameter or less without any fence work (does not include fence repairs or removal of vegetation entangled in fence

• Medium Clearing: removal of vegetation between 2” + and 10” in diameter without any fence work (does not include fence repairs or removal of vegetation entangled in fence).

• Heavy Clearing: removal of vegetation greater than 10” + in diameter without any fence work (does not include fence repairs or removal of vegetation entangled in fence).

• Light Vegetation Clearing: disconnect the fence from the poles and rolling back the fence fabric, clearing debris and vegetation 2” in diameter or less. Then reassembling the fence back into to its original state (does not include fence repairs).

• Medium Vegetation Clearing: disconnect the fence from the poles and rolling back the fence fabric, clearing debris and removal of vegetation between 2” + and 10” in diameter without any fence work (does not include fence repairs). clearing debris and removal of vegetation 10” + in diameter without any fence work (does not include fence repairs).

B. Fencing and Post Installation and Repair

• New Fence and placement: A new fence fabric is defined as the disconnection from the poles and reattaching with new fencing to the existing poles or installation of new fence at location. This work does not include the cost of new poles or clearing.

• Post placement and replacement is the dislocation of damaged fence from the poles, replacing damaged post with new poles and reattaching the existing/new fence. This does not include fencing and clearing cost or the installation of new poles in a new location.

C. All Fencing, post, gate work and materials will be in accordance with UFC 4-22- 03 Fence Guidelines. UFC 4-022-03 Security Fences and Gates (wbdg.org)

D. The Contractor must provide all equipment, materials, and labor necessary to perform the activities detailed in this Contract.

E. It is the Contractors responsibility to contact MISS DIG on all new fence lines.

The site Program Manager will provide marking on site owned utilities.

F. The Contractor, before each contract release, must meet with the Program Manager. The Program Manager will provide the Contractor with a not-to-exceed budget. The exact lineal feet of fencing and the number of gates to be maintained/repaired/installed/cleared will also be provided. The Contractor shall provide the Program Manager with a specific projects Pricing Proposal based off the provided information.

https://www.wbdg.org/FFC/DOD/UFC/ufc_4_022_03_2013.pdf

1.2. Funding Requirements

There is no guarantee of fence, post, and gate work. The work authorized off this contract shall be contingent upon National Guard Bureau (NGB) funding.

2. Service Requirements

2.1. Timeframes

All Contract Activities must be delivered within 30 business days from receipt of order.

The receipt of order date is pursuant to the Notices section of the Standard Contract Terms.

2.2. Delivery

Delivery will be expected within 30 calendar days upon date of order. Delivery of material will be identified on the Delivery Order release for the location that requires the work.

3. Acceptance

3.1. Acceptance, Inspection, and Testing

The State will use the following criteria to determine acceptance of the Contract Activities: The Program Manager upon receiving the Contractors Pricing Proposal will request a release off contract for these services. The services are not to proceed without this release identified as a Delivery Order (DO) in section 7. (Authorizing Document). Once work is completed the Program Manager shall review the invoice for the work performed and approve/disapprove the invoice for the work performed.

4. Staffing

4.1. Contractor Representative

The Contractors appointed individual specifically assigned to State of Michigan accounts, who will respond to State inquiries regarding the Contract Activities, answer questions related to ordering and delivery, etc. (the “Contractor Representative”) is David Wright.

The Contractor must notify the Contract Administrator at least 30 calendar days before removing or assigning a new Contractor Representative.

4.2. Customer Service

The Contractors phone number for the State to contact the Contractor Representative is 269-965-3991. The Contractor Representative must be available for calls during the hours of 8:00 am to 5:00 pm EST.

4.3. Technical Support, Repairs and Maintenance

The Contractor must be available for calls and service during the hours of 8:00 am to 5:00 pm EST.

4.4. Work Hours

The Contractor must provide Contract Activities during the State’s normal working hours Monday – Friday, 7:00 a.m. to 4:00 p.m. EST and possible night and weekend hours depending on the requirements of the project.

4.5. No Subcontracting is allowed for this Contract.

4.6. Security

The Contractor will be subject the following security procedures:

The State may require the Contractor’s personnel to wear State issued identification badges.

The Contractor’s staff may be required to make deliveries to or enter State facilities. The Contractor employees complete background checks and will wear badges as needed.

D-K employees have t-shirts and jackets with their logo and name on them.

5. Project Management

5.1. Meetings

The Contractor must attend the following meetings:

The Contractor will be required to attend a Kick-off meeting within 30-calendar days of the Effective Date.

The State may request other meetings, as it deems appropriate.

5.2. Reporting

The Contractor must submit to the Program Manager Project Price Proposals when funded work is identified.

6. Pricing

6.1. 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.

6.2. 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.

7. Ordering

7.1. Authorizing Document

The appropriate authorizing document for the Contract will be Delivery Order (DO) off the Master Agreement. Work may not begin without this Delivery Order.

8. Invoice and Payment

8.1. Invoice Requirements

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

(g) vendor-generated invoice number; and (h) total price. Overtime, holiday pay, and travel expenses will not be paid.

8.2. Payment Methods

The State will make payment for Contract Activities via EFT. Invoices must be submitted to DMVA-AccountsPayable@michigan.gov with the required detail.

9. Liquidated Damages Late or improper completion of the Contract Activities will cause loss and damage to the State, and it would be impracticable and extremely difficult to fix the actual damage sustained by the State. Therefore, if there is late or improper completion of the Contract Activities the State is entitled to collect liquidated damages in the amount of $500.00 and an additional $100 per day for each day Contractor fails to remedy the late or improper completion of the Work.

mailto:DMVA-AccountsPayable@michigan.gov

SCHEDULE B - PRICING

Contract No. 230000001000 DMVA Fencing and Gate Services

1. The Contractors pricing schedule for the Contract Activities.

2. The Contractors quick payment terms are: 2% discount off invoice if paid within 30 days after receipt of invoice.

CG/FCTC DK FENCE PRICING

TOTALS

Light Clearing 12.00$ 12.00$ Medium Clearing 20.00$ 20.00$ Heavy Clearing 40.00$ 40.00$

Light Vegetation Clearing 29.00$ 29.00$ Medium Vegetation clearing 37.00$ 37.00$ Heavy Vegetation Clearing 57.00$ 57.00$

POST PLACEMENT/REPLACEMENT MATERIAL LABOR

2.875" Line Post 296.00$ 250.00$ 546.00$ 2.375" Line Post 116.02$ 60.00$ 176.02$ 1.900" Line Post 87.01$ 60.00$ 147.01$

NEW FENCE FABRIC REPLACEMENT/PLACEMENT

8' Chain link fence 19.77$ 5.00$ 24.77$ 6'chain link fence 14.74$ 5.00$ 19.74$ 4' woven fence 6.55$ 4.00$ 10.55$ 6' chain link fence with anti-climb and hardware 15.76$ 5.50$ 21.26$ 8' chain link fence with anti-climb and hardware 20.83$ 5.50$ 26.33$ 4' woven fence with anti-climb hardware 14.74$ 5.50$ 20.24$

122.89$ GATES-labor per set 6' X 36' (two 18' Gates) double rolling gate chin link gate with anti-climb and hardware plus installation. 14,837.00$ 2,000.00$ 16,837.00$ 6'X24' (two 12' gates) double rolling gates with anti-climb and hardware plus installation 14,670.00$ 2,000.00$ 16,670.00$ 8'X36' (two 18' gates) double rolling gate with anti-climb and hardware plus install 15,193.00$ 3,500.00$ 18,693.00$ 8'X24' (two 12' gates) double rolling gate with anti-climb and hardware plus install 14,363.00$ 3,500.00$ 17,863.00$ 6'X5' single swing gate with anti-climb and hardware plus installation 683.00$ 1,000.00$ 1,683.00$ 8'X5' single swing gate with anti-climb and hardware plus installation 764.00$ 1,000.00$ 1,764.00$ 4'X24' double sliding gate with anti-climb and hardware plus installation 6,575.00$ 2,000.00$ 8,575.00$

GRAND TOTAL CG/FCTC 83,394.81$

25,412.00$

ALPENA DK FENCE

POST PLACEMENT/REPLACEMENT Material Labor TOTAL 2.875" Line Post 296.00$ 250.00$ 546.00$ 2.375" Line Post 116.02$ 60.00$ 176.02$ 1.900" Line Post 87.01$ 60.00$ 147.01$

NEW FENCE FABRIC REPLACEMENT/PLACEMENT

8' chain link fence 19.77$ 5.00$ 24.77$ 6' Chain link fence 14.74$ 5.00$ 19.74$ 4' woven fence 6.55$ 4.00$ 10.55$ 6' chain link fence 15.76$ 5.50$ 21.26$ 8' chain link fence 20.83$ $5.50 26.33$ 4' woven fence 14.74$ 5.50$ 20.24$

Material Labor GATES-labor per set 14,837.00$ 2,000.00$ 16,837.00$ 6' X 36' (two 18' Gates) double rolling gate chin link gate with anti-climb and hardware plus installation. 14,670.00$ 2,000.00$ 16,670.00$ 6'X24' (two 12' gates) double rolling gates with anti-climb and hardware plus installation 15,193.00$ 3,500.00$ 18,693.00$ 8'X36' (two 18' gates) double rolling gate with anti-climb and hardware plus install 14,363.00$ 3,500.00$ 17,863.00$ 8'X24' (two 12' gates) double rolling gate with anti-climb and hardware plus install 683.00$ 1,000.00$ 1,683.00$ 6'X5' single swing gate with anti-climb and hardware plus installation 764.00$ 1,000.00$ 1,764.00$ 8'X5' single swing gate with anti-climb and hardware plus installation 6,575.00$ 2,000.00$ 8,575.00$

ADDITONAL ITEMS Material Labor Tension Wire 7ga per foot 1.00$ 1.25$ 2.25$ 16'Swing Gate(ea) 2,800.00$ 1,000.00$ 3,800.00$ 16' double Gate 32' opening 5,600.00$ 2,000.00$ 7,600.00$ 3' single pedestrian gate 682.00$ 500.00$ 1,182.00$ 6' slide gate 24' opening 14,670.00$ 2,000.00$ 16,670.00$ Sliding Gate 16' opening 7,335.00$ 1,000.00$ 8,335.00$ Single Rolling Gate 14' 7,335.00$ 1,000.00$ 8,335.00$ Single Rolling Gate 12' 7,335.00$ 1,000.00$ 8,335.00$ Single Rolling Gate 32' 14,000.00$ 2,000.00$ 16,000.00$

Grand Total 153,336.17$

TOTALS OF CG/FCTC/ALPENA 236,730.98$

STANDARD CONTRACT TERMS

This STANDARD CONTRACT (“Contract”) is agreed to between the State of Michigan (the “State”) and D-K Fencing Company Inc. (“Contractor”), a Michigan corporation.

This Contract is effective on June, 15, 2023 (“Effective Date”), and unless terminated, will expire on June, 14, 2028 (the “Term”).

This Contract may be renewed for up to two (2) additional one (1) year options.

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 (the “Contract Activities”) described in a Statement of Work, the initial Statement of Work is attached as Schedule A – Statement of Work. 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 unless otherwise specified in a Statement of Work.

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; © 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) 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; (i) comply with all State physical and IT security policies and standards which will be made available upon request; and (j) 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:

See Contract Administrator information shown below.

David Wright 1227 W. Dickman Road Battle Creek, MI, 49037 dwright@dkfenceco.com 269-965-3991

Contract Administrator. The Contract Administrator, or the individual duly authorized 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:

Gregory Pawlak – Procurement 3423 N. Martin Luther King Jr. Blvd., Bldg.30, Suite, 320.

Lansing MI, 48906 pawlakg@michigan.gov 517-256-2439

David Wright 1227 W. Dickman Road Battle Creek, MI, 49037 dwright@dkfenceco.com 269-965-3991

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:

Walter Sullivan - FCTC 2501 26th Street DPW Building Augusta MI, 49012 sullivanw@michigan.gov 269-282-7525

Brad Zimmerman – CFMO - FM South 3423 N. Martin Luther King Jr. Blvd.

Lansing MI, 48906 zimmermanb@michigan.gov 248-606-8821

Ron Souza – CFMO – FM Central 3423 N. Martin Luther King Jr. Blvd.

Lansing MI, 48906 souzar@michigan.gov 517-420-7545

Alvar Maki – CFMO – FM North 900 Palms Avenue Ishpeming MI, 49849 maki@michigan.gov 906-235-5880

David Wright 1227 W. Dickman Road Battle Creek, MI, 49037 dwright@dkfenceco.com 269-965-3991 mailto:dwright@dkfenceco.com mailto:pawlakg@michigan.gov mailto:dwright@dkfenceco.com mailto:sullivanw@michigan.gov mailto:zimmermanb@michigan.gov mailto:souzar@michigan.gov mailto:maki@michigan.gov mailto:dwright@dkfenceco.com

James Piper – CGTC Bldg. 36 Beaver Creek Road Camp Grayling MI, 49739 James.d.piper8.mil@army.mil 989-344-6325

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

Insurance Requirements.

a. General Requirements. Contractor, at its sole expense, must maintain the insurance coverage as specified herein for the duration of the Term. Minimum limits may be satisfied by any combination of primary liability, umbrella or excess liability, and self-insurance coverage. To the extent damages are covered by any required insurance, Contractor waives all rights against the State for such damages. Failure to maintain required insurance does not limit this waiver.

b. Qualification of Insurers. Except for self-insured coverage, all policies must be written by an insurer with an A.M. Best rating of A- VII or higher unless otherwise approved by DTMB Enterprise Risk Management.

c. Primary and Non-Contributory Coverage. All policies for which the State of Michigan is required to be named as an additional insured must be on a primary and non-contributory basis.

d. Claims-Made Coverage. If any required policies provide claims-made coverage, Contractor must:

(1) Maintain coverage and provide evidence of coverage for at least 3 years after the later of the expiration or termination of the Contract or the completion of all its duties under the Contract.

(2) Purchase extended reporting coverage for a minimum of 3 years after completion of work if coverage is cancelled or not renewed, and not replaced with another claims-made policy form with a retroactive date prior to the Effective Date of this Contract

e. Proof of Insurance

(1) Insurance certificates showing evidence of coverage as required herein must be submitted to the Contract Administrator within 10 days of the contract execution date.

(2) Renewal insurance certificates must be provided on annual basis or as otherwise commensurate with the effective dates of coverage for any insurance required herein.

mailto:James.d.piper8.mil@army.mil

(3) Insurance certificates must be in the form of a standard ACORD Insurance Certificate unless otherwise approved by DTMB Enterprise Risk Management.

(4) All insurance certificates must clearly identify the Contract Number (e.g., notated under the Description of Operations on an ACORD form).

(5) The State may require additional proofs of insurance or solvency, including but not limited to policy declarations, policy endorsements, policy schedules, self-insured certification/authorization, and balance sheets.

(6) In the event any required coverage is cancelled or not renewed, Contractor must provide written notice to the Contract Administrator no later than 5 business days following such cancellation or nonrenewal.

f. Subcontractors. Contractor is responsible for ensuring its subcontractors carry and maintain insurance coverage.

g. Limits of Coverage & Specific Endorsements. (See Table 6.1 Below)

h. Non-Waiver. This Section 6 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.

TABLE 6.1

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 20 10 12 19 and CG 20 37 12 19.

Coverage must not have exclusions or limitations related to sexual abuse and molestation liability.

Automobile Liability Insurance Minimum Limits:

$1,000,000 Per Accident

Required Limits Additional Requirements 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

RESERVED

Relationship of the Parties. The relationship between the parties is that of independent contractors. 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. Neither party has authority to contract for nor bind the other party in any manner whatsoever.

Intellectual Property Rights. If a Statement of Work requires Contractor to create any intellectual property, 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, 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 providing services 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 a Statement of Work, 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 the State, within 30 days of any public announcement or otherwise once legally permitted to do so, 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 a Statement of Work.

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 a Statement of Work. 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 24, 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.

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 a Statement of Work. All containers and packaging become the State’s exclusive property upon acceptance.

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 a Statement of Work. 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.

Invoices and 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 provided as specified in a Statement of Work. 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. Notwithstanding the foregoing, all fees 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.

Excluding federal government charges and terms, Contractor warrants and agrees that each of the fees, economic or product terms or warranties granted pursuant to this Contract are comparable to or better than the equivalent fees, economic or product term or warranty being offered to any commercial or government customer (including any public educational institution within the State of Michigan) of Contractor. If Contractor enters into any arrangements with another customer of Contractor to provide the products or services, available under this Contract, under more favorable prices, as the prices may be indicated on Contractor’s current U.S.

and International price list or comparable document, then this Contract will be deemed amended as of the date of such other arrangements to incorporate those more favorable prices, and Contractor will immediately notify the State of such fee and formally memorialize the new pricing in a change notice.

Liquidated Damages. Liquidated damages, if applicable, will be assessed as described in a Statement of Work. The parties understand and agree that any liquidated damages (which includes but is not limited to applicable credits) set forth in this Contract are reasonable estimates of the State’s damages in accordance with applicable law. The parties acknowledge and agree that Contractor could incur liquidated damages for more than 1 event. The assessment of liquidated damages will not constitute a waiver or release of any other remedy the State may have under this Contract for Contractor’s breach of this Contract, including without limitation, the State’s right to terminate this Contract for cause under Section 24 and the State will be entitled in its discretion to recover actual damages caused by Contractor’s failure to perform its obligations under this Contract. However, the State will reduce such actual damages by the amounts of liquidated damages received for the same events causing the actual damages. Amounts due the State as liquidated damages may be set off against any fees payable to Contractor under this Contract, or the State may bill Contractor as a separate item and Contractor will promptly make payments on such bills.

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 http://www.michigan.gov/SIGMAVSS 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. (a) The State may terminate this Contract for cause, in whole or in part, if Contractor, as determined by the State: (i) endangers the value, integrity, or security of any facility, data, or personnel; (ii) becomes insolvent, petitions for bankruptcy court proceedings, or has an involuntary bankruptcy proceeding filed against it by any creditor; (iii) engages in any conduct that may expose the State to liability; (iv) breaches any of its material duties or obligations under this Contract; or (v) fails to cure a breach within the time stated by the State in a notice of breach, if in its sole discretion the State has chosen to provide a time to cure. Any reference to specific breaches being material breaches within this Contract will not be construed to mean that other breaches are not material.

(b) If the State terminates this Contract under this Section, the State will issue a termination notice specifying whether Contractor must: (i) cease performance immediately. Contractor must submit all invoices for Contract Activities accepted by the State within 30 days of the date of termination. Failure to submit an invoice within that timeframe will constitute a waiver by Contractor for any amounts due to Contactor for Contract Activities accepted by the State under this Contract or (ii) 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 25, 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. Contractor must promptly reimburse to the State any fees prepaid by the State prorated to the date of such termination, including any prepaid fees. 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 or no 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. Contractor must submit all invoices for Contract Activities accepted by the State within 30 days of the date of termination. Failure to submit an invoice within that timeframe will constitute a waiver by Contractor for any amounts due Contractor for Contract Activities accepted by the State under this Contract, 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 to the extent the funds are available.

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) 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 (d) 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.

Return of State Property. Upon termination or expiration of this Contract for any reason, Contractor must take 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 the Contractor by any entity, agent, vendor, or employee of the State.

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, at its own cost and expense, if the State deems necessary. Contractor will not, without the State’s prior 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.

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.

The State is constitutionally prohibited from indemnifying Contractor or any third parties.

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 (3) any complaint filed in a legal or administrative proceeding alleging the Contractor or its subcontractors discriminated against its employees, subcontractors, vendors, or suppliers during the term of this Contract; or (e) a Proceeding involving any license that Contractor is required to possess in order to perform under this Contract.

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.

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; or, (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 or is: (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…