26-019 IFB - Attachment B - Contract.docx

Attachement B - Contract IFB Title: High Pressure Boiler Welding IFB Number: NDSCS26-019 Contract Parties This Agreement is entered into and between the North Dakota University System doing business as North Dakota State College of Science hereinafter referred to as “NDSCS” and Business Name, of city, state hereinafter referred to as “CONTRACTOR”.

Contract Contact Information NDSCS Contact for Contract Questions:

NDSCS Contact information will be included in final contract.

NDSCS Contact for Project Questions or Concerns:

NDSCS Contact information will be included in final contract.

CONTRACTOR Contact for Contract:

CONTRACTOR Contact information will be included in final contract.

CONTRACTOR Taxpayer Identification Number (TIN): TIN will be included in the final contract.

Services The services the CONTRACTOR will be expected to provide under the contract upon request of NDSCS, will include any or all of the following:

High Pressure Boiler Welding Per IFB No: 26-0016 and its terms, conditions, and specifications The CONTRACTOR is not authorized to provide any products or services until a Purchase Order is issued for a specific product or service.

IFB Scope and Schedule and accepted portions of awarded Offeror’s Response will be included into the final contract.

Scope of Work Scope of Work will be included into the final contract.

Cost Cost will be included into the final contract.

Location of Work

· North Dakota State College of Science 800 6th Street N. Stop 1245 Wahpeton, ND 58076 Special Terms and Conditions Contract Estimated Volume.

The volume of this contract is unknown. The CONTRACTOR will be required to furnish actual requirements upon receipt of an order. This contract will not include items of a similar nature, which must be bought for emergency use.

Order Confirmation The CONTRACTOR must confirm the receipt of orders by communicating with NDSCS within one (1) working day of the order placement.

Delivery Location – F.O.B. Point and Freight Delivery, freight, and passage of title under this contract shall be as follows:

· F.O.B. Destination to the location in the Specifications of the solicitation. All freight and handling is to be included in the item price. Title will pass to NDSCS upon delivery to the specified destination. The CONTRACTOR will file any claims.

NDSCS Campus 800 6th Street N, Stop 1245 Wahpeton, ND 58076 New Equipment, Used Equipment, Refurbished Equipment and Materials Certification All equipment and materials will be new and under current production for use in the United States. All equipment and assemblies of equipment will be in full compliance with all current applicable standards established by federal, state, and local governments. The equipment must be listed and labeled by a nationally recognized testing laboratory (NRTL) or certified by field evaluation and labeled by a NRTL. All costs associated with required listings will be included in the contracted cost. Each piece of equipment or assembly of equipment will be either listed and labeled or certified and labeled prior to shipment by the CONTRACTOR.

Packaging All packaging must be strong and secure in accordance with accepted commercial practices.

Pricing All prices must be in United States currency. Prices must include all discounts and deductions, and to be less federal and state taxes.

Pricing, Unit of Measure The unit prices are to be according to the unit of measurement specified in the solicitation. In the event of mathematical differences between the unit price and extended total, the unit price will prevail. (N.D.A.C. § 4-12-10-02) Background Checks for Contractor Personnel The Purchasing Agency requires all background checks to be performed on all CONTRACTOR Personnel who will access the facility.

CONTRACTOR shall provide the Purchasing Officer with the names of all individuals that will have access to the premises along with background checks for each individual for approval by the Purchasing Agency. This information must be received prior to the CONTRACTOR Personnel attempting to access the facility, and the CONTRACTOR must receive confirmation of approval. CONTRACTOR will be responsible for notifying the Purchasing Officer or designee if any CONTRACTOR Personnel changes and provide background checks for any new CONTRACTOR Personnel. Under no circumstance shall any CONTRACTOR Personnel have access to the facility without a background check and approval by the Purchasing Agency. All background check and supporting documentation shall be provided through the North Dakota Bureau of Criminal Investigation. The cost of the background checks will be the CONTRACTOR’s responsibility. At any time during the contract period, the Purchasing Agency may request the CONTRACTOR to provide updated background checks of any CONTRACTOR Personnel that have access to the premises.

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

Time is of the Essence CONTRACTOR hereby acknowledges that time is of the essence for performance under this Contract unless otherwise agreed to in writing by the Parties.

Special Project Skills, Equipment, and Use of Other Contractors NDSCS reserves the right to use another CONTRACTOR or more than one CONTRACTOR if:

· The CONTRACTOR is not available or is not capable of completing a project in the time frames required. Any current projects already in progress will be finished out by issued CONTRACTOR.

· When a project or part of a project, requires specific or special skills and/or equipment.

· If the CONTRACTOR does not provide a response or quote within 2 business days.

· If workmanship is poor and/or code violations exist with documentation.

· If the timeline of work, accuracy of work, or invoice detail is not met.

NDSCS may obtain additional quotes from other CONTRACTORs and NDSCS has the right to refuse CONTRACTOR a project if deemed necessary, example: pricing / timeline.

NDSCS reserves the right to provide CONTRACTOR with owner supplied materials as mutually agreed.

Records The CONTRACTOR shall maintain accurate records of hourly duties performed under the contract on a daily basis. Project reviews with an NDSCS Representative will take place as needed.

Monthly Billing The CONTRACTOR is required to submit a detailed invoice for projects, including a breakdown of labor charges with purchase order number. Payments for large projects that take more than a month will be discussed with NDSCS before the start of the project and a payment schedule will be agreed upon by the CONTRACTOR and NDSCS. The invoice must include a breakdown of master, journeyman, and apprentice labor charges.

Tools and Equipment The CONTRACTOR shall furnish standard trade hand tools. The hourly labor rate shall have standard trade hand tools and shop overhead expenses included. Other special equipment required which may be rented and charged back or furnished by NDSCS shall require prior approval. The CONTRACTOR is responsible for paying any applicable taxes (sale, use, excise, etc.) on rentals of equipment.

Hardware and Supplies CONTRACTOR will identify, order, and furnish required supplies. The Project Coordinator will verify project materials required with all trades and CONTRACTOR prior to scheduling of project. The CONTRACTOR is responsible for paying any applicable taxes (sale, use, excise, etc.) on supplies and materials.

Service Provider The Offeror must provide a dedicated service provider to support this contract. During the contract term, the Offeror shall notify the Purchasing Officer if CONTRACTOR’S service provider changes.

Effective Date and Duration Contract Period. This Contract initial term (Term) begins on Month, Day, Year, and ends on Month, Day, Year. This Contract is not effective until fully executed by both Parties.

No Automatic Renewal. This Contract will not automatically renew.

Renewal Option. NDSCS may renew this Contract upon satisfactory completion of the initial Contract Term (2027-2028). NDSCS reserves the right to execute up to four (4) options to renew this Contract under the same terms and conditions for a period of twelve (12) months each. Five (5) year total contract. Contract will be rebid in 2032.

Amendment of Terms and Conditions by NDSCS. NDSCS reserves the right to modify the terms and conditions by signed Amendment or at the time of renewal to comply with changes in state requirements.

Extension Option. NDSCS reserves the right to extend this Contract for an additional period of time, not to exceed twelve (12) months, beyond the current termination date of this contract.

Contract Type and Price Adjustment The contract type will be as follows:

Firm Fixed Price with Adjustment. The CONTRACTOR will be required to hold the price firm during the current term except as otherwise provided in the contract. During this period, no price increases will be allowed, and the CONTRACTOR must notify NDSCS immediately of any price decreases. After the completion of the firm fixed period, the CONTRACTOR may make a written request to NDSCS for a price increase no later than sixty (60) days prior to the current contract renewal date. The request must include the basis for the cost increase, such as evidence that the price increase applies to all customers. NDSCS must approve, deny, or negotiate the requested price increase within 30 days. Price changes will become effective upon the effective date of an executed amendment. All orders placed are to be billed at prices in effect at the time of the order, not the date the shipment is made.

Time and Materials. The CONTRACTOR will invoice for work performed and materials actually used based upon the labor rates and materials pricing specified in the contract. The hourly rate must include wages, overhead, general and administrative expenses, and profit. Any work performed by subcontractors shall be subject to the specified labor rates. Materials must be invoiced based upon actual cost, which may include actual material shipping and handling costs.

Compensation

1. Contractual Amount NDSCS shall pay for the accepted services provided by CONTRACTOR under this Contract.

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

NDSCS may only expend public finds for any service or goods accepted within the Fiscal Year for which the funds are appropriated. NDSCS’s Fiscal Year is July 1 through June 30. An invoice for any service or goods accepted within the Fiscal Year must be dated prior to July 1 and received by NDSCS no later than June 25 of each Fiscal Year.

Payment

· NDSCS will make a single payment when all the deliverables for a project are received, and the project is completed and approved by the NDSCS project manager.

· NDSCS agrees to pay the CONTRACTOR as follows: within (Thirty) 30 days of receipt of an approved invoice from CONTRACTOR.

· Payment made in accordance with this Compensation section constitutes payment in full for the services and work performed and the deliverables and work(s) provided under this Contract and CONTRACTOR may not receive any additional compensation under this Contract.

· Payment of an invoice by NDSCS will not prejudice NDSCS’s right to object to or question that or any other invoice or matter in relation to the Contract. NDSCS may reduce CONTRACTOR's invoice for amounts included in any invoice or payment previously made which are determined by NDSCS not to constitute allowable costs, on the basis of audits conducted in accordance with the terms of this Contract. NDSCS may reduce any payments for amounts equal to prior overpayments to CONTRACTOR.

· NDSCS may deduct the amount owed or that will be owed to NDSCS by CONTRACTOR from payments that are or will become due and payable to CONTRACTOR under this Contract.

Prepayment NDSCS will not make any advanced payments before performance by the CONTRACTOR under this contract. NDSCS will make payments when the deliverables are received and invoiced.

Prompt Payment Discount Prompt Payment Discount Terms offered by the CONTRACTOR may be taken by NDSCS if payment is made within the specified terms.

Payment of Taxes by NDSCS NDSCS is not responsible for and will not pay local, state, or federal taxes. NDSCS sales tax exemption number is E-5417. NDSCS will furnish a certificate of exemption upon request by CONTRACTOR.

Payment Method Payment will be made with a Purchase/Credit Card, and the CONTRACTOR agrees to not apply or pass on any additional fee associated with the use of a credit card purchase to NDSCS.

Billing Information All invoices and payment inquires must be directed to the NDSCS email (ndscs.fm@ndscs.edu).

Billing address is:

Attn:

North Dakota State College of Science 800 6th Street North Wahpeton, ND 58076-0001 Inspection and Modification of Work The CONTRACTOR is responsible for the completion of all work set out in the contract. All work is subject to inspection, evaluation, and approval by NDSCS. NDSCS may employ all reasonable means to ensure that the work is progressing and being performed in compliance with the contract.

Should NDSCS determine that corrections or modifications are necessary to accomplish its intent, NDSCS may direct the CONTRACTOR to make changes. The CONTRACTOR will not unreasonably withhold changes.

Substantial failure of the CONTRACTOR to perform the contract may cause NDSCS to terminate the contract. In this event, NDSCS may require the CONTRACTOR to reimburse monies paid (based on the identified portion of unacceptable work received) and may seek associated damages.

Inspection and Acceptance or Rejection NDSCS reserves the right to conduct inspections and investigations related to the CONTRACTOR and the offered commodities or services, including but not limited to the firm, personnel, qualifications, and the commodities and services offered to make determinations regarding compliance with the Solicitation Response requirements and responsibility of the CONTRACTOR. All material and workmanship are subject to inspection and testing by NDSCS at the point of manufacturer, place of storage, or upon receipt. NDSCS reserves the right to reject any commodities or services and terminate the contract if the CONTRACTOR fails to comply with the specifications, terms and conditions, or the seller’s express or implied warranties. Rejected commodities will be removed at the CONTRACTOR’s expense. Failure to satisfactorily perform may result in suspension or debarment from the Bidders List.

If commodities or services are rejected as being not compliant with the requirements of the solicitation, NDSCS will inform the CONTRACTOR in writing. The Purchasing Agency may provide the CONTRACTOR with a reasonable opportunity to cure, whenever practicable, as set forth in writing by the Purchasing Agency.

If the NDSCS performs an inspection, the CONTRACTOR must provide reasonable assistance.

Contract Changes During the course of this contract, no changes may be made, unless prior written approval has been obtained from the NDSCS through execution of a contract amendment. The CONTRACTOR may request changes, such as substitutions of a product, by submitting a written request to NDSCS.

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

Taxes and Taxpayer Identification The CONTRACTOR will provide its federal employer ID number to NDSCS before any payments will be made by NDSCS.

A CONTRACTOR performing any contract, including service contracts, for the United States Government, State of North Dakota, counties, cities, school districts, park board or any other political subdivisions within North Dakota is not exempt from payment of sales or use tax on material and supplies used or consumed in carrying out contracts. In these cases, the CONTRACTOR is required to file returns and pay sales and use tax just as required for contracts with private parties.

A CONTRACTOR performing any contract, including a service contract, within North Dakota is also subject to the corporation income tax, individual income tax, and withholding tax reporting requirements, whether the contract is performed by a corporation, partnership, or other business entity, or as an employee of the CONTRACTOR. In the case of employees performing the services in the state, the CONTRACTOR is required to withhold state income tax from the employees' compensation and remit to the state as required by law. Contact the North Dakota Tax Department at 701-328-1248 or visit its web site for more information.

Security Any security needs deemed necessary by a department or facility must be met by the CONTRACTOR, including but not limited to, such things as adding manufacturer security option packages to designated equipment; specialized security alterations to designated equipment; security clearances for drivers, set-up and installation people and service personnel. There may also be a requirement for “no split loads”. Trucks and personnel may be searched at any time while on NDSCS property. The contract shall comply with any and all security requirements as listed here in, and any others deemed necessary by a department or facility.

Returns NDSCS shall not accept the delivery of any product that is visibly damaged. Product will be inspected upon receipt of delivery. If a product fails inspection by the receiving facility, the product will be rejected, and the CONTRACTOR must replace it immediately at no additional cost to NDSCS.

Post Warranty Repair services (if applicable) are a component of this contract and CONTRACTOR must be able to provide access to repair and maintenance services through their billing department only for repairs to equipment they have sold. Any CONTRACTOR providing service may not add additional fees for processing payments to subcontractors providing the repair service.

Termination of Contract

a) Termination without cause. This Contract may be terminated by mutual consent of both parties, or by either party upon 30 days' written notice.

b) Early Termination in the Public Interest. NDSCS is entering into this Contract for the purpose of carrying out the public policy of the North Dakota State College of Science, as determined by its governor, its legislative assembly, the State Board of Higher Education, and its courts. If this Contract ceases to further the public policy of NDSCS, in its sole discretion, NDSCS may terminate this Contract in whole or in part by written notice to the CONTRACTOR.

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

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

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

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

iv. Further, continuation of this Contract beyond June 30 of any odd-numbered year is contingent on continued legislative appropriation of funds for the purposes of this Agreement. If those appropriations are not forthcoming, NDSCS will notify the CONTRACTOR as soon as possible and the Contract will terminate on June 30 of that year. NDSCS will not be penalized or incur any liability because of termination of this Contract as provided in this subsection.

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

vi. NDSCS may also terminate this Agreement if at the end of a State biennial period; the North Dakota State Legislature has not appropriated sufficient funds in the next biennium for the payment(s). The above remedies are in addition to any other remedies provided by law or the terms of the agreement.

d) Termination for Cause. NDSCS may terminate this Contract effective upon delivery of written notice to the CONTRACTOR, or any later date stated in the notice:

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

ii. If the CONTRACTOR fails to provide services required by this Contract within the time specified or any extension agreed to by NDSCS; or

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

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

e) Termination, Deliveries. If the Contract is terminated for any reason, the CONTRACTOR is responsible for delivery of all commodities and services ordered prior to the termination, unless those orders had been canceled by NDSCS.

Force Majeure Neither Party will be held responsible for delay or default caused by fire, riot, terrorism, pandemic, acts of God, executive orders issued by the governor or U.S. President, or war if the event was not foreseeable through the exercise of reasonable diligence by the affected Party, the event is beyond the Party’s reasonable control, and the affected Party gives notice to the other Party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default. If CONTRACTOR is the affected Party and does not resume performance within fifteen (15) days or another period agreed between the Parties, NDSCS may seek all available remedies, up to and including termination of this Contract pursuant to its Termination Section, and NDSCS is entitled to a pro-rata refund of any amounts paid for which the full value has not been realized, including amounts paid toward software subscriptions, maintenance, or licenses.

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

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

Indemnification The North Dakota State College of Science (NDSCS) and CONTRACTOR each agrees to assume its own liability for any and all claims of any nature including all costs, expenses and attorneys' fees which may in any manner result from or arise out of this agreement.

Insurance Per N.D.C.C. § 32-12.2-02, CONTRACTOR shall secure and keep in force during the term of this agreement and CONTRACTOR shall require all subcontractors, prior to commencement of an agreement between CONTRACTOR and the subcontractor, to secure and keep in force during the term of this agreement, from insurance companies, government self-insurance pools or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

1) Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $2,000,000 per occurrence.

2) Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $500,000 per person and $2,000,000 per occurrence.

3) Workers’ compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of this contract.

4) Employer’s liability or “stop gap” insurance of not less than $2,000,000 as an endorsement on the workers compensation or commercial general liability insurance. (This coverage is only required for CONTRACTORs domiciled outside the state of North Dakota.)

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

1) Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the CONTRACTOR. The amount of any deductible or self-retention is subject to approval by NDSCS.

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

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

4) The North Dakota State College of Science and its agencies, officers, and employees (NDSCS) shall be endorsed on the commercial general liability policy, including any excess policies (to the extent applicable), as additional insured. NDSCS shall have all the benefits, rights and coverages of an additional insured under these policies.

5) The insurance required in this agreement, through a policy or endorsement, shall include:

a) a “Waiver of Subrogation” waiving any right to recovery the insurance company may have against NDSCS;

b) a provision that the policy and endorsements may not be canceled or modified without thirty days’ prior written notice to the undersigned NDSCS representative;

c) a provision that any attorney who represents NDSCS under this policy must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under N.D.C.C. § 54-12-08;

d) a provision that CONTRACTOR’s insurance coverage shall be primary (i.e., pay first) as respects any insurance, self-insurance or self-retention maintained by NDSCS and that any insurance, self-insurance or self-retention maintained by NDSCS shall be in excess of the CONTRACTOR’s insurance and shall not contribute with it;

e) cross liability/severability of interest for all policies and endorsements;

f) The legal defense provided to NDSCS under the policy and any endorsements must be free of any conflicts of interest, even if retention of separate legal counsel for NDSCS is necessary;

g) the insolvency or bankruptcy of the insured CONTRACTOR shall not release the insurer from payment under the policy, even when such insolvency or bankruptcy prevents the insured CONTRACTOR from meeting the retention limit under the policy.

6) The CONTRACTOR shall furnish a certificate of insurance to the undersigned NDSCS representative prior to commencement of this agreement. All endorsements shall be provided as soon as practicable.

7) Failure to provide insurance as required in this agreement is a material breach of contract entitling NDSCS to terminate this agreement immediately.

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

Pollution Liability: CONTRACTOR shall provide CONTRACTOR’s Pollution Liability coverage for Personal Injury, Property Damage and Cleanup Cost arising from pollution conditions caused by the operations of the CONTRACTOR for limits of $5,000,000. Occurrence coverage is preferred but coverage may be provided on a claims-made form that includes a three year tail coverage endorsement. Coverage shall include contractual liability coverage for claims arising out of liability of subcontractors, loading and unloading, unlimited complete operations, and non-owned disposal site coverage (if applicable).

If CONTRACTOR’s insurance carrier cannot provide the insurance requirements listed above, CONTRACTOR will be required to purchase a project-specific insurance policy on behalf of NDSCS including but not limited to an Owner’s Protective Liability insurance policy or a Project Management Protective Liability insurance policy with an occurrence limit of not less than $2,000,000 and an aggregate of $2,000,000. Said insurance shall be kept in force until the project is accepted by NDSCS.

For some large construction projects it may be determined that the most effective insurance would be the purchase of All Risk Builder's Risk coverage. Requirements for such coverage should include:

All Risk Builder's Risk. Insuring the interest of NDSCS, CONTRACTOR(s) and subcontractors of all tiers including coverage on an All Risk basis, including but not limited to, coverage against fire, lightning, wind damage, hail, explosion, riot or civil commotions, aircraft and other vehicles, collapse, flood, earth movement, and coverage available under the so-called Installation Floater. The policy(ies) for such coverage shall be secured and maintained by CONTRACTOR in an amount equal to the Full Completed Value of the project. Any deductible amount under the policy(ies) shall be the sole responsibility of the CONTRACTOR.

An “Additional Insured” letter of endorsement is required from the CONTRACTOR’s insurance company (not the local agency) to provide the endorsement to NDSCS to the following:

Kari Hasbargen – Assistant Director of Facilities Management North Dakota State College of Science 800 6th Street North, Wahpeton, ND 58076 Ph: 701-671-2211 Email COI & Endorsement to: kari.hasbargen@ndscs.edu and ndscs.fm@ndscs.edu Works for Hire All work(s) under this Contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and CONTRACOTR assigns to NDSCS all rights and interests CONTRACTOR may have in the work(s) it prepares under this Contract, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Contract exclusively for NDSCS are the sole property of NDSCS, and CONTRACTOR assigns and transfers all its right, title, and interest in the software and related materials to NDSCS. CONTRACTOR shall execute all necessary documents to enable NDSCS to protect NDSCS’s intellectual property rights under this section.

Work Product, Equipment, and Materials All work product, equipment, or materials created exclusively for NDSCS or purchased by NDSCS under this Contract belong to NDSCS and must be immediately delivered to NDSCS at NDSCS’s request upon termination of this Contract.

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

Compliance with Public Records Law Under the North Dakota public records law and subject to the Confidentiality clause of this Contract, certain records may be open to the public upon request.

Public records may include: (a) records NDSCS receives from CONTRACTOR under this Contract, (b) records obtained by either Party under this Contract, and (c) records generated by either Party under this Contract.

CONTRACTOR agrees to contact NDSCS immediately upon receiving a request for information under the public records law and to comply with NDSCS’s instructions on how to respond to such request.

Spoliation – Preservation of Evidence CONTRACTOR agrees to promptly notify NDSCS of all potential Claims which arise from or result from this agreement. CONTRACTOR further agrees to take all reasonable steps to preserve all physical evidence and information which may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and to grant to NDSCS the opportunity to review and inspect such evidence, including the scene of the accident.

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

Applicable Law and Venue This Contract is governed by and construed in accordance with the laws of the State of North Dakota. Any action to enforce this Contract must be adjudicated exclusively in the Southeast Judicial District Court of Richland County, North Dakota. Each Party consents to the exclusive jurisdiction of the Southeast Judicial District Court located in Richland County, North Dakota and waives any claim of lack of jurisdiction or forum non conveniens.

Alternative Dispute Resolution – Jury Trial NDSCS does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The Parties may enforce the rights and remedies in judicial proceedings. NDSCS does not waive any right to a jury trial.

Attorney Fees If a lawsuit is initiated by NDSCS to obtain performance due under this contract, and NDSCS is the prevailing Party, CONTRACTOR shall pay NDSCS’s reasonable attorney fees and costs in connection with the lawsuit, unless prohibited by N.D.C.C. § 28-26-04.

Americans with Disabilities act (ADA) – Nondiscrimination – Compliance with Laws

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

b. ADA Compliance –CONTRACTOR shall ensure that all user-facing components of the solution comply with the Americans with Disabilities Act (ADA) and at a minimum, conform to 28 CFR § 35.200 federal Requirements for Web and Mobile Accessibility; available at: 28 CFR § 35.200. CONTRACTOR shall verify accessibility compliance through automated and manual testing prior to delivery and shall provide reports to NDSCS quarterly or as mutually agreed by NDSCS and CONTRACTOR.

CONTRACTOR is responsible for maintaining accessibility compliance of the solution throughout the Term of the Contract, including all renewals and extensions. If a compliance issue is discovered, CONTRACTOR shall provide a remediation plan, including timelines and impacts, to NDSCS. CONTRACTOR shall indemnify NDSCS for any and all claims, including penalties, costs, and expenses, related to accessibility claims under the ADA related to the solution.

c. CONTRACTOR shall file all required reports timely, make required payroll deductions, and pay all taxes and premiums owed timely, including sales and use taxes, and unemployment compensation and workers' compensation premiums.

d. CONTRACTOR shall have and keep current and in good standing all licenses and permits required by law during the Term of this Contract.

e. CONTRACTOR is prohibited from boycotting Israel for the duration of this Contract. (See N.D.C.C. § 54-44.4-15.) CONTRACTOR represents that it does not and will not engage in boycotting Israel during the term of this Contract. If NDSCS receives evidence that CONTRACTOR boycotts Israel, NDSCS shall determine whether the company boycotts Israel. The foregoing does not apply to contracts with a total value of less than $100,000 or if CONTRACTOR has fewer than ten (10) full-time employees.

CONTRACTOR’s failure to comply with this section is a material breach by CONTRACTOR and NDSCS may terminate this Contract in accordance with its Termination for Cause section.

Audit Pursuant to N.D.C.C. § 54-10-19, all records, regardless of physical form, and the accounting practices and procedures of CONTRACTOR relevant to this Contract are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or Federal auditors, if required. CONTRACTOR shall maintain these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. NDSCS, State Auditor, or Auditor’s designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

On-Campus Parking All CONTRACTOR’s personnel, delivery persons, and vendors parking on campus are required to obtain a NDSCS parking permit while conducting business at NDSCS. It is the responsibility of the CONTRACTOR to have its driver’s park legally and obey all parking restrictions on campus.

On-Campus Notification The CONTRACTOR shall keep NDSCS informed of where the CONTRACTOR will be while on campus and when the CONTRACTOR will be on campus, including date(s) and arrival and departure times. CONTRACTORs may contact NDSCS Facilities Management by phone 701-671-2313, email ndscs.fm@ndscs.edu, or by stopping at the Patterson Maintenance Center, 1245 7th St N, Wahpeton, ND.

Safety Requirements The CONTRACTOR shall keep informed of and comply with all federal, state, and local laws, regulations, and other legal requirements governing the safety, health, sanitation, and performance of the contract in general. In addition, the CONTRACTOR shall provide, inspect and maintain all safeguards, safety devices, protective equipment, safety programs and other needed actions the CONTRACTOR determines necessary to reasonably protect the life, health and property of the CONTRACTOR, subcontractor, NDSCS, the public and each of the employees, officers, assigns and agents of the CONTRACTOR, subcontractor, and NDSCS, in connection with the performance of work resulting from or arising out of the contract.

NDSCS will advise the CONTRACTOR if the CONTRACTOR is required to submit a copy of their written safety program to be used as guidelines and direction for the CONTRACTOR's and subcontractors' activities. This program must meet all federal, state and local laws, regulations and other legal requirements and include the following minimum provisions: (1) a worksite safety policy and mission statement; (2) assigned responsibilities among management, supervisors and employees; (3) a system for periodic self-inspections, including inspections of job sites, materials, work performance and equipment; (4) a thorough accident and injury reporting and investigation process; (5) a safety orientation program including first aid, medical attention, emergency facilities, fire protection and prevention, housekeeping, illumination, sanitation, personal protective equipment, and occupational noise exposure; and (6) a safety training program including safety "tool box" meetings and other systems for ongoing training and also including training for employees on the recognition, avoidance and prevention of unsafe conditions.

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

Clery Act Notification The Owner has an obligation to make information available to the campus on where to get information about Registered Sex Offenders who are working on NDSCS property. CONTRACTOR is, therefore, obligated to inform NDSCS, in advance of its employees being on NDSCS property, of any employee who is a Registered Sex Offender. This obligation includes property owned or controlled by the institution that is at locations other than the main campus.

Project Staffing Prior to start of projects, NDSCS and CONTRACTOR will review schedules and required staffing.

NDSCS reserves the right to restrict the access of individuals, registered as sex offenders, to NDSCS buildings & NDSCS property.

NDSCS reserves the right to approve or disapprove of workers assigned to perform work. The owner expects quality work and work to be expedited in a timely and efficient manner. Consideration will be given to past performance, ability to meet timelines, general cooperation, knowledge and expertise of those individuals who will be part of the project team. SKILLS ASSOCIATED WITH THE VARIOUS TRADES LEVEL MUST BE COMPARABLE TO THAT LEVEL. NDSCS RESERVES THE RIGHT TO EVALUATE WORKER PERFORMANCE AS RELATED TO THE SKILL LEVEL.

Assignments and Subcontractors CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without NDSCS’s express written consent, provided, however, that CONTRACTOR may assign its rights and obligations hereunder in the event of a change of control or sale of all or substantially all of its assets related to this Contract, whether by merger, reorganization, operation of law, or otherwise. Should Assignee be a business or entity with whom NDSCS is prohibited from conducting business, NDSCS shall have the right to terminate in accordance with the Termination for Cause section of this Contract.

CONTRACTOR may enter subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments. CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of NDSCS.

Access to Records The CONTRACTOR shall adequately account for and maintain reasonable records for his performance under this Agreement and allow access to these records by NDSCS, the ND State Auditor or their agents as may be necessary for audit purposes and in determining compliance with the terms of this Agreement. The CONTRACTOR shall submit a record of expenditures incurred for the performance and completion of this agreement. NDSCS may verify all expenditure receipts and disperse funds in an amount equal to the approved expenditures. The CONTRACTOR must retain all records pertaining to this Agreement for a period of three years from the completion date of this Agreement. If any litigation, claim or audit is started before the expiration of the three-year period, the records must be retained until the litigation, claim or audit findings have been resolved.

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

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

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

b. NDSCS’s Solicitation Amendment(s) to Invitation For Bid (IFB) number 26-019;

c. NDSCS’s Invitation For Bid (IFB) number 26-019, dated (add date);

d. CONTRACTOR’s proposal dated (add date) in response to IFB number 26-019.

Unless negotiated between the Parties and incorporated into this Contract by reference, all automated end-user agreements (e.g., click-through, shrink-wrap, or browse-wrap) are specifically excluded and null and void. Clicking shall not represent acknowledgement or agreement to any terms or conditions contained in those agreements.

Terms and conditions contained within any document furnished by the CONTRACTOR, including quotes, packing slips, and invoices, are specifically excluded and null and void.

Notice All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date postmarked when addressed to the Contract Contact persons at the address provided for in the Contract.

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

Tobacco Policy NDSCS prohibits the use of tobacco on campus property at all times. This prohibition includes indoors, outdoors, college vehicles, and/or personal vehicles while on campus. This policy applies to all employees, students, and visitors. This policy will be reflected in all agreements/contracts for use of NDSCS grounds or property by individuals and/or companies.

Tobacco usage includes all tobacco products, including, but not limited to cigarettes, cigars, pipes, e-cigarettes, chewing tobacco, snuff, smokeless pouches, and other forms of loose-leaf tobacco.

Execution Table 1: Contract Execution Signatures