SIRN+Executed+Contract.pdf

TABLE OF CONTENTS: STATEWIDE INTEROPERABLE RADIO NETWORK #111

TABLE OF CONTENTS: STATEWIDE INTEROPERABLE RADIO NETWORK #111

TECHNOLOGY CONTRACT: STATEWIDE INTEROPERABLE RADIO NETWORK

#111

1. PARTIES

2. COOPERATIVE PURCHASING CONTRACT:

3. DEFINITIONS

4. SCOPE OF WORK

5. COMPENSATION

6. EQUIPMENT, MATERIALS, AND WORKSPACE – RESOURCES

PROVIDED BY PARTIES

7. TERM OF CONTRACT

8. TERMINATION

9. SUSPENSION FOR CONVENIENCE

10. FORCE MAJEURE

11. LIQUIDATED DAMAGES

12. INJUNCTIVE RELIEF

13. RIGHT OF SETOFF DAMAGES

14. RIGHT TO WITHHOLD AMOUNTS OTHERWISE DUE IF THE

CONTRACTOR IS IN BREACH

15. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

16. NON-WAIVER

17. INDEMNITY

18. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION 17

19. REPRESENTATIONS AND WARRANTIES

20. INSURANCE

21. WORKS FOR HIRE

22. WORK PRODUCT

23. SOFTWARE LICENSE

24. LICENSE GRANT AND SCOPE OF USE

25. TECHNOLOGY STANDARDS

26. PERSONNEL

27. PROJECT MANAGEMENT

28. PRODUCT CONFORMITY

29. WARRANTY

30. SOFTWARE MAINTENANCE

31. SOFTWARE SUPPORT – SERVICE LEVEL REQUIREMENT

32. SOFTWARE ESCROW

33. SOFTWARE AUDIT

34. NOTICE

35. CONFIDENTIALITY

36. COMPLIANCE WITH PUBLIC RECORDS LAWS

37. INDEPENDENT ENTITY

38. ASSIGNMENT AND SUBCONTRACTS

39. SPOLIATION – NOTICE OF POTENTIAL CLAIMS

40. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

41. UNANTICIPATED AMENDMENTS

42. SEVERABILITY

43. APPLICABLE LAW AND VENUE

44. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

45. NONDISCRIMINATION AND COMPLIANCE WITH LAWS

46. STATE AUDIT

47. RIGHT TO INSPECT PLACE OF BUSINESS

48. F.O.B. POINT AND FREIGHT

49. EFFECTIVENESS OF CONTRACT

EXHIBIT A – Software License Agreement

1. DEFINITIONS

2. SCOPE

3. GRANT OF LICENSE

4. LIMITATIONS ON USE

5. OWNERSHIP AND TITLE

6. LIMITED WARRANTY; DISCLAIMER OF WARRANTY

7. TRANSFERS

8. TERM AND TERMINATION

9. Commercial Computer Software

10. GENERAL

EXHIBIT B – Overview

1. Information Technology Solution

2. RF Coverage

3. Radio Communications System

4. Core Radio Infrastructure

5. Radio and IP Network Monitoring & Reporting

6. Radio Network Management Terminal

7. Tower Sites

8. Dispatch Consoles

9. Subscriber Units

10. Frequency Coordination and Licensing

11. Encryption

12. Over-the-Air Rekeying

13. Over-the-Air Programming

14. GPS Location

15. Logging Recorder

16. Station Alerting

17. Paging System

18. Value Added Features

19. Traffic Loading Analysis (Phase 3 Deployment)

20. Solution Support

EXHIBIT B – Statements of Work EXHIBIT B-1 – Phase 1 Statement of Work

1. PHASE 1 SYSTEM OVERVIEW:

2. PROJECT PLAN AND SCOPE OF WORK

3. CONTRACT ADMINISTRATION

4. DELIVERABLE 1-1: PROJECT KICKOFF MEETING

5. DELIVERABLE 1-2 PROJECT PLAN (INCLUDES DELIVERABLE 1-

SCHED: PROJECT PLAN BASELINE SCHEDULE)

6. CONTRACT DESIGN REVIEW: CDR SITE SURVEYS

7. (CDR) DELIVERABLE 1-3: DATA/RADIO NETWORK CONVERSION PLAN

8. (CDR) DELIVERABLE 1-4: DATA/RADIO NETWORK CONVERSION

DESIGN

9. (CDR) DELIVERABLE 1-6: INTERFACE DESIGN

10. (CDR) DELIVERABLE 1-8: GAP ANALYSIS

11. (CDR) DELIVERABLE 1-10: TESTING MANAGEMENT PLAN

12. (CDR) DELIVERABLE 1-12: TRAINING MANAGEMENT PLAN

13. (CDR) DELIVERABLE 1-15: RADIO NETWORK IMPLEMENTATION

AND TRANSITION PLAN

14. DELIVERABLE 1-CDR: DETAILED CONTRACT DESIGN REVIEW

(CDR)

15. DELIVERABLE 1-SHIP: ORDER, MANUFACTURING AND

STAGING, SHIP EQUIPMENT

16. DELIVERABLE 1-9.1 through 1-9.23: SYSTEM CONFIGURATION –

FLEETMAPPING

17. DELIVERABLE 1-9.1 through 1-9.23: SYSTEM CONFIGURATION –

SITE DEVELOPMENT

18. DELIVERABLE 1-9.1 through 1-9.23 SYSTEM CONFIGURATION –

FNE INSTALLATION (includes Deliverable 1-FNE INSTALL.1-23 and

DELIVERABLE 1-DLVR)

19. DELIVERABLE 1-9.1 through 1-9.23: SYSTEM CONFIGURATION –

OPTIMIZATION

20. DELIVERABLE 1-9.1 through 1-9.23: SYSTEM CONFIGURATION –

SUBSCRIBERS

21. DELIVERABLE 1-13.2,3,5 through 23: TRAINING

22. DELIVERABLE 1-14.2,3,5 through 1-14.23: TRAINING

23. DELIVERABLE 1-5.1 through 1-5.23: DATA CONVERSION

VALIDATION

24. DELIVERABLE 1-7.1 through 1-7.23: INTERFACE DEVELOPMENT

AND RELEASE

25. DELIVERABLE 1-11.1 through 1-11.23: PHASE 1 ACCEPTANCE

TESTING

26. DELIVERABLE 1-16.1 through 1-16.23: IMPLEMENTATION

27. DELIVERABLE 1-17.1 through 1-17.23: POST-IMPLEMENTATION

REPORT

28. DELIVERABLE 1-18.1 through 23: PHASE 1 PROJECT CLOSEOUT

MEETING

29. DELIVERABLE 1-19.1 through 23: PHASE 1 FINAL ACCEPTANCE

30. Schedule

EXHIBIT B-1A – Phase 1 Draft Schedule EXHIBIT B-1B – Phase 1 Payment Schedule

EXHIBIT B-2 – Phase 2 Statement of Work

1. PHASE 2 SYSTEM OVERVIEW

2. PROJECT PLAN AND SCOPE OF WORK

3. CONTRACT ADMINISTRATION

4. DELIVERABLE 2-1: PROJECT KICKOFF MEETING

5. (CDR) DELIVERABLE 2-2 PROJECT PLAN (INCLUDES 2-SCHED:

PROJECT PLAN/BASELINE SCHEDULE)

6. CONTRACT DESIGN REVIEW: (CDR) SITE SURVEYS

7. (CDR) DELIVERABLE 2-3: DATA/RADIO NETWORK CONVERSION

PLAN

8. (CDR) DELIVERABLE 2-4: DATA/RADIO NETWORK CONVERSION

DESIGN

9. (CDR) DELIVERABLE 2-6: INTERFACE DESIGN

10. (CDR) DELIVERABLE 2-8: GAP ANALYSIS

11. (CDR) DELIVERABLE 2-10: TESTING MANAGEMENT PLAN

12. (CDR) DELIVERABLE 2-12: TRAINING MANAGEMENT PLAN

13. (CDR) DELIVERABLE 2-15: RADIO NETWORK IMPLEMENTATION

AND TRANSITION PLAN

14. DELIVERABLE 2-CDR: DETAILED CONTRACT DESIGN REVIEW

(CDR)

15. DELIVERABLE 2-FREQ: FCC LICENSING AND COORDINATION658

16. DELIVERABLE 2: ORDER & MANUFACTURING, SHIP

17. DELIVERABLE 2-9: SYSTEM CONFIGURATION – FLEETMAPPING

18. DELIVERABLE 2-9 (INCLUDES DELIVERABLE 2-CIVIL.24-68;

DELIVERABLE DELVRCIV.24-68 AND DELVRAL.24-68): SYSTEM

CONFIGURATION – SITE DEVELOPMENT

19. DELIVERABLE 2-9; 2-FNE INSTALL.1 and 24-68; DELVRFNE.1 and

24-68: SYSTEM CONFIGURATION – FNE INSTALLATION

20. DELIVERABLE 2-9.24-68: SYSTEM CONFIGURATION –

OPTIMIZATION

21. DELIVERABLE 2-9: SYSTEM CONFIGURATION – SUBSCRIBERS

22. DELIVERABLE 2-13.2,3 and 5-23: TRAINING

23. DELIVERABLE 2-14: TRAINING

24. DELIVERABLE 2-5.1 and 24 through 68: DATA CONVERSION

VALIDATION

25. DELIVERABLE 2-7.1 and 24 through 68: INTERFACE

DEVELOPMENT AND RELEASE

26. DELIVERABLE 2-11.1 and 24 through 68: PHASE 2 ACCEPTANCE

TESTING

27. DELIVERABLE 2-16.1 and 24 through 68: IMPLEMENTATION

28. DELIVERABLE 2-17.1 and 24 through 68: POST-IMPLEMENTATION

REPORT

29. DELIVERABLE 2-18.1 and 24 through 68: PHASE 2 PROJECT

CLOSEOUT MEETING

30. DELIVERABLE 2-19.1 and 24 through 68: PHASE 2 FINAL

ACCEPTANCE

31. CIVIL SCOPE OF WORK

32. Attachments

33. Schedule

EXHIBIT B-2A – Phase 2 Draft Schedule EXHIBIT B-2B – Phase 2 Payment Schedule

EXHIBIT B-3 – Phase 3 Statement of Work

1. PHASE 3 SYSTEM OVERVIEW

2. PROJECT PLAN AND SCOPE OF WORK

3. Contract Administration

4. DELIVERABLE 3-1: PROJECT KICKOFF MEETING

5. (CDR) DELIVERABLE 3-2 PROJECT PLAN (INCLUDES DELIVERABLE 3-

SCHED: PROJECT PLAN BASELINE SCHEDULE)

6. CONTRACT DESIGN REVIEW: (CDR) SITE SURVEYS

7. (CDR) DELIVERABLE 3-3: DATA/RADIO NETWORK CONVERSION PLAN

8. (CDR) DELIVERABLE 3-4: DATA/RADIO NETWORK CONVERSION

DESIGN

9. (CDR) DELIVERABLE 3-6: INTERFACE DESIGN

10. (CDR) DELIVERABLE 3-8: GAP ANALYSIS

11. (CDR) DELIVERABLE 3-10: TESTING MANAGEMENT PLAN

12. (CDR) DELIVERABLE 3-15: RADIO NETWORK IMPLEMENTATION

AND TRANSITION PLAN

13. DELIVERABLE 3-CDR DETAILED CONTRACT DESIGN REVIEW739

14. Deliverable 3-FREQ; FCC LICENSING AND COORDINATION

15. DELIVERABLE 3-SHIP.69-162: ORDER, MANUFACTURING,

STAGING, SHIP

16. DELIVERABLE 3-9: SYSTEM CONFIGURATION – FLEETMAPPING

17. DELIVERABLE 3-9; (INCLUDES DELIVERABLE 3-CIVIL.69-162;

DELIVERABLE 3-DELVRCIV.69-162 AND 3-DELVRAL.69-162):

SYSTEM CONFIGURATION – SITE DEVELOPMENT

18. DELIVERABLE 3-9; (INCLUDES DELIVERABLE 3-

DELVRFNE.25,41,44,53 AND 69-162; DELIVERABLE 3-FNE

INSTALL.25,41,44,53 AND 69-162): SYSTEM CONFIGURATION –

FNE INSTALLATION

19. DELIVERABLE 3-9. 25,41,44,53 and 69-162: SYSTEM

CONFIGURATION – OPTIMIZATION

20. DELIVERABLE 3-9: SYSTEM CONFIGURATION – SUBSCRIBERS

21. DELIVERABLE 3-5.25,41,44,53 and 69-162: DATA CONVERSION

VALIDATION

22. DELIVERABLE 3-7.25,41,44,53 and 69-162: INTERFACE

DEVELOPMENT AND RELEASE

23. DELIVERABLE 3-11.25,41,44,53 and 69-162. ACCEPTANCE TESTING (includes DELIVERABLE-CATP COVERAGE TESTING) 750

24. DELIVERABLE 3-16: IMPLEMENTATION; (Includes DELIVERABLE

ANTREM.24-68 ANTENNA REMOVAL)

25. DELIVERABLE 3-17.1-162: POST-IMPLEMENTATION REPORT .. 763

26. DELIVERABLE 3-18.1-162: PHASE 3 PROJECT CLOSEOUT

MEETING

27. DELIVERABLE 3-19.1-162: PHASE 3 FINAL ACCEPTANCE

28. CIVIL SCOPE OF WORK

29. Coverage Acceptance Test Plan

EXHIBIT B-3A – Phase 3 Draft Schedule EXHIBIT B-3B – Phase 3 Payment Schedule

EXHIBIT C – Warranty and Maintenance Exhibit C-1 – Phase 1-Console and Core Warranty / Optional Maintenance

1. Infrastructure Repair Overview

2. Description of Services

3. Scope

4. STATEMENT OF WORK OPTION: ASTRO 25 CUSTOM SYSTEM

UPGRADE AGREEMENT(C-SUA)

5. Upgrade Elements and Corresponding Party Responsibilities

6. System Readiness Checkpoint

7. System Upgrade

8. Upgrade Completion

9. Exclusions and Limitations

10. Special provisions Network Monitoring Overview

1. Description of Network Monitoring Services

2. Connectivity Matrix

3. CONTRACTOR Owned & Supplied Equipment Table

4. Monitored Elements Table

5. OnSite Infrastructure Response and Dispatch Service Overview

6. Description of Services

7. Scope

8. 4.0 Severity Level Definitions

9. Severity Level Response Time Commitments Security Update Service Overview

1. Description of Security Update Services

2. Scope

3. Disclaimer:

Annual Preventive Maintenance Statement of Work

1. Scope Security Monitoring Service Overview

1. Description of Security Monitoring Services

2. Scope

3. Disclaimer Technical Support Overview

1. Description of Technical Support Services

2. Scope

3. Severity Level Definitions

4. Severity Level Response Time Commitments

5. Warranty and Maintenance Overview

6. Warranty and Maintenance Statements of Work

Exhibit C-2 – Phase 2-RF Site Warranty / Optional Maintenance

1. Infrastructure Repair Overview

2. Description of Services

3. Scope

7. STATEMENT OF WORK OPTION: ASTRO 25 CUSTOM SYSTEM

UPGRADE AGREEMENT(C-SUA)

8. System Readiness Checkpoint:

Network Monitoring Overview

1. Description of Network Monitoring Services OnSite Infrastructure Response and Dispatch Service Overview

1. Description of Services

2. Scope

3. Severity Level Definitions

4. Severity Level Response Time Commitments

5. Security Update Service Overview

6. Description of Security Update Services

7. Scope

8. Disclaimer Annual Preventive Maintenance Statement of Work

1. Scope Security Monitoring Service Overview

1. Description of Security Monitoring Services

2. Scope

3. Disclaimer

4. Technical Support Overview

5. Description of Technical Support Services

6. Scope

7. Severity Level Definitions

8. Severity Level Response Time Commitments

9. OPTIONAL: Site Facility Maintenance

10. Warranty and Maintenance Overview

11. Warranty and Maintenance Statements of Work

Exhibit C-3 – Phase 3-RF Site Warranty / Optional Maintenance

1. Infrastructure Repair Overview

2. Description of Services

3. Scope

2. STATEMENT OF WORK OPTION: ASTRO 25 CUSTOM SYSTEM

UPGRADE AGREEMENT(C-SUA)

4. Upgrade Elements and Corresponding Party Responsibilities

5. System Readiness Checkpoint

6. System Upgrade

7. Upgrade Completion

8. Exclusions and Limitations

9. Special provisions Network Monitoring Overview

1. Description of Network Monitoring Services OnSite Infrastructure Response and Dispatch Service Overview

1. Description of Services

2. Scope

3. Severity Level Definitions

4. Severity Level Response Time Commitments Security Update Service Overview

1. Description of Security Update Services

2. Scope

3. Disclaimer:

Annual Preventive Maintenance Statement of Work

1. Scope

Security Monitoring Service Overview

1. Description of Security Monitoring Services

2. Scope

3. Disclaimer Technical Support Overview

1. Description of Technical Support Services

2. Scope

3. Severity Level Definitions

4. Severity Level Response Time Commitments

5. OPTIONAL: Site Facility Maintenance

6. Warranty and Maintenance Overview

7. Warranty and Maintenance Statements of Work

Exhibit C-4 – Maintenance and System Upgrade Agreement Pricing

1. Maintenance and System Upgrade Agreement

2. CONTRACTOR’S Site Facility and Tower Maintenance Plan

3. Maintenance: Items Not Executed

Exhibit D – Pricing Exhibit E – KMZ Files Exhibit F – Regions

TECHNOLOGY CONTRACT: STATEWIDE INTEROPERABLE RADIO NETWORK #111

1. PARTIES

The parties to this Contract, which includes the scope of work and all attachments (Contract) are the state of North Dakota, Information Technology Department in cooperation with the Office of Management and Budget State Procurement Office (STATE), and Motorola Solutions, Inc., a Delaware Corporation having its principal place of business at 500 W. Monroe Street, Chicago, IL 60661 (CONTRACTOR).

2. COOPERATIVE PURCHASING CONTRACT:

This contract is a cooperative purchasing contract established pursuant to North Dakota Century Code (NDCC) sections 54-44.4-13. This contract is made available to state entities, institutions under the jurisdiction of the State Board of Higher Education, other government entities (including political subdivisions, counties, cities, townships, public primary and secondary educational entities, governmental boards and commissions), nonprofit entities established on behalf of public entities, tribal agencies, transportation providers under N.D.C.C chapter 39-04.2, and the International Peace Garden.

Participation in this open-ended contract is not mandated; therefore, the estimated volume of this contract is not known.

3. DEFINITIONS

a. Software as a Service (SaaS). The capability provided to the consumer is to use the provider’s applications running on a provider’s infrastructure. The applications are accessible from various client devices through a thin client interface such as a web browser (e.g., web-based email), or a program interface. The consumer does not manage or control the underlying infrastructure including network, servers, operating systems, storage, or even individual application capabilities, with the possible exception of limited user-specific application configuration settings. This definition is based on and consistent with National Institute of Standards and Technology (NIST) Special Publication 800-145.

b. Data - means any information provided to, or collected, generated, stored, or processed by the system. Data includes user identification information and metadata which may contain Data or from which the STATE’s Data may be ascertainable.

c. Data Breach - means any access, destruction, loss, theft, use, modification or disclosure of Data by an unauthorized party or that is in violation of Contract terms and/or applicable state or federal law.

d. Data Classification - means the process of defining data into relevant categories so the information has the appropriate controls in place to protect confidentiality, integrity, and availability based on the type of information.

e. Personally Identifiable Information (PII) - information about an individual maintained by an agency, including that 1) can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; or (2) is linked or linkable to an individual, such as medical, educational, financial, and employment information.

f. Recovery Point Objective (RPO) - means the point in time to which Data can be recovered and/or systems restored when service is restored after an interruption. The Recovery Point Objective is expressed as a length of time between the interruption and http://www.legis.nd.gov/cencode/t54c44-4.pdf?20130131153805 http://www.legis.nd.gov/cencode/t39c04-2.pdf?20130131161514 the most proximate backup of Data immediately preceding the interruption. The RPO is detailed in the SLA.

g. Recovery Time Objective (RTO) - means the period of time within which information technology services, systems, applications and functions must be recovered following an unplanned interruption. The RTO is detailed in the SLA.

h. Users – means contractors, subcontractors, outsourcing vendors, consultants and others who have a need to use the software for the benefit of STATE.

i. “Subsystem” means a major part of the System that performs specific functions or operations. Subsystems are described in the Technical and Implementation Documents.

j. “System” means the Equipment, including incidental hardware and materials, Software, and design, installation and implementation services that are combined together into an integrated system; the System(s) is (are) described in the Technical and Implementation Documents.”

4. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide equipment and services to construct a public safety communications system to serve all first responders throughout the state of North Dakota according to this Contract including any Statements of Work (SOW) and attachments and documents mentioned in Section 40 of this Contract. The SOW shall delineate specific, independent phases (“Phases”) of work.

Any product additions to the contract may be initiated via an email request between the parties. STATE.

5. COMPENSATION

a. Contractual Amount

The STATE shall pay for the accepted services of each Phase under the Contract for that Phase the amount set forth in the SOW for that Phase (“Phase Contractual Amount”). If the Contract continues through all Phases set forth in the SOW, the total amount STATE shall pay for the accepted services provided by CONTRACTOR under this Contract (“Total Contractual Amount”) will be an amount not to exceed the following:

1) Exhibit C-4 – Maintenance and System Upgrade Agreement Pricing

2) Exhibit D Phase 1 Pricing

3) Exhibit D Phase 2 Pricing

4) Exhibit D Phase 3 Pricing

5) Exhibit D Options Pricing The Phase Contractual Amounts and the Total Contractual Amount are firm for the duration of this Contract and constitute the entire compensation due CONTRACTOR for performance of its obligations under this Contract regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs or expenses incurred by CONTRACTOR except as provided by an amendment to this Contract.

b. Retainage All deliverable payments shall be subject to 15% retainage. Amounts retained from CONTRACTOR’s invoices shall be released to CONTRACTOR upon Final Acceptance of each Phase

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

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

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

Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation thereto within a Phase.

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

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

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

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

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

h. Taxpayer ID CONTRACTOR’s federal employer ID number is: 36-1115800.

i. Purchasing Card STATE may make a payment using a government credit card. CONTRACTOR will accept a government credit card without passing the processing fees for the government credit card back to STATE. CONTRACTOR will accept purchasing cards for payment but has a limitation of one million dollars ($1,000,000) per transaction. CONTRACTOR can process multiple transactions per invoice if required.

6. EQUIPMENT, MATERIALS, AND WORKSPACE – RESOURCES PROVIDED BY

PARTIES

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

a. On site means sites throughout the state of North Dakota.

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

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

CONTRACTOR.

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

7. TERM OF CONTRACT

This Contract begins on January 18, 2019 and ends on January 17, 2024.

a. No Automatic Renewal

This Contract will not automatically renew.

b. Extension Option

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

c. Renewal Option STATE may renew this Contract upon satisfactory completion of the initial Contract term. STATE reserves the right to execute up to three (3) options to renew this Contract under the same terms and conditions for a period of 12 months each.

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

8. TERMINATION

a. Termination by Mutual Agreement

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

b. Early Termination in the Public Interest

STATE is entering into this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly and Courts. If this Contract ceases to further the public policy of the State of North

Dakota, STATE, in its sole discretion, by written notice to CONTRACTOR, may terminate this Contract in whole or in part. The parties recognize that because of changing technology, the public policy of North Dakota may result in a need to pursue other technology , resulting in termination of this Contract at the conclusion of any Phase set forth in the SOW.

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

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

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

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

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

d. Termination for Cause.

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

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

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

3) Except for a default by STATE for failing to pay any amount when due under this Agreement which must be cured immediately, the defaulting Party will have thirty

(30) days after receipt of the notice of default to either cure the default or, if the default is not curable within thirty (30) days, provide a written cure plan. The defaulting Party will begin implementing the cure plan immediately after receipt of notice by the other Party that it approves the plan.

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

If the Contract is terminated for any reason other than default, the STATE is responsible to CONTRACTOR for the cost of all services rendered and all equipment shipped up until the notice of termination in accordance with acceptance criteria and change management. The STATE will also be responsible for any negotiated, mutually agreed upon costs incurred by CONTRACTOR to shut down the work in process. The STATE must provide a 30-day formal written notice of termination for cause.

9. SUSPENSION FOR CONVENIENCE

STATE shall have the right at any time to order the services of CONTRACTOR fully or partially stopped for STATE’s own convenience. STATE shall provide CONTRACTOR written notice of the reason for and duration of the suspension. The schedule, which includes the payment schedule, shall be delayed on a day-for-day basis to the extent STATE has issued a stop work order to CONTRACTOR and such stop work order is causing delays in completing services in accordance with the schedule. The parties shall execute a change order setting forth all material terms that the stoppage is anticipated to have on the schedule. CONTRACTOR shall have the right to submit claims in accordance with the terms of this Contract that result from delays caused by any stop work orders issued under this section. STATE agrees to be responsible for payment of reasonable delay charge claims. Delay charge claims may include costs incurred by CONTRACTOR or its subcontractors for additional freight, warehousing and handling of equipment; extension of the warranties; travel; suspending and re-mobilizing the work;

additional engineering, project management, and standby time calculated at then current rates; and preparing and implementing an alternative implementation plan.

10. FORCE MAJEURE

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

11. LIQUIDATED DAMAGES

The parties agree that STATE may suffer damages due to a failure by CONTRACTOR to provide deliverables or services under this Contract. Because it is difficult to fix the actual damages sustained in the event of such delays, STATE and CONTRACTOR agree that the amount of damages will be determined as per this section. In the event of any non-performance, CONTRACTOR shall pay that amount as liquidated damages and not as a penalty. Amounts due to STATE as liquidated damages may be deducted by STATE from any amounts payable to CONTRACTOR during the Phase in which liquidated damages were recognized, and any amount outstanding over and above the amounts deducted from the invoice will be promptly tendered by check from CONTRACTOR to

STATE.

Delays due to causes of Force Majeure or due to the responsibility of STATE shall extend the time for performance on a day-for-day basis. STATE will not assess liquidated damages against CONTRACTOR when the delay in delivery or performance is beyond the control and without the fault or negligence of CONTRACTOR.

If CONTRACTOR fails to complete a Deliverable per the approved project schedule (as defined within the relevant Statement of Work) by the specified deadline agreed to during the contract design review (or revised deadline as agreed upon between the parties through the Integrated Change Control Process), CONTRACTOR shall pay liquidated damages to STATE in the amount of $1,500 per calendar day for each day the Deliverable is delayed.

In no event will liquidated damages for a Phase exceed fifteen percent (15%) of the dollar amount for the Phase as identified in the SOW, nor in any event will liquidated damages exceed fifteen percent (15%) of the Contract as a whole.

12. INJUNCTIVE RELIEF

CONTRACTOR shall immediately report to STATE any and all unauthorized disclosures or uses of STATE’s Confidential Information or Proprietary Information of which

CONTRACTOR or its staff is aware or has knowledge. CONTRACTOR acknowledges that any unauthorized publication or disclosure of STATE’s Confidential Information or Proprietary Information to others may cause immediate and irreparable harm to STATE.

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

13. RIGHT OF SETOFF DAMAGES

Amounts due STATE by CONTRACTOR, including liquidated or other damages, or claims for damages, may be deducted or set-off by STATE from any money payable to CONTRACTOR pursuant to this Contract. All other amounts or damages not related to this Contract, i.e. State tax, are not subject to offset.

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

BREACH

If CONTRACTOR fails to deliver Deliverables or to provide Services which satisfy CONTRACTOR’s obligations under this Contract, STATE shall have the right to withhold any and all payments due during that Phase under this Contract. STATE may withhold any and all such payments due under this Contract to CONTRACTOR without penalty or work stoppage by CONTRACTOR, until such failure to perform is cured.

15. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

Unless specifically stated in another provision of the Contract, 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.

16. 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.

17. INDEMNITY

CONTRACTOR will indemnify, defend and hold STATE harmless from any and all liability, expense, judgment, suit, cause of action, except for direct loss that cannot be limited pursuant to N.D.C.C. § 32-12.2-15 which may accrue against STATE to the extent it is caused by the negligence of CONTRACTOR, its subcontractors, or their employees or agents, while performing their duties under this Agreement, if STATE gives CONTRACTOR prompt, written notice of any claim or suit. STATE will cooperate with CONTRACTOR in its defense or settlement of the claim or suit. This section sets forth the full extent of CONTRACTOR’s general indemnification of STATE from liabilities that are in any way related to CONTRACTOR’s performance under this Agreement and constitutes STATE’s sole and exclusive remedy for indemnification.

ALTHOUGH THE PARTIES ACKNOWLEDGE THE POSSIBILITY OF SUCH LOSSES

OR DAMAGES, THEY AGREE THAT CONTRACTOR WILL NOT BE LIABLE FOR ANY

COMMERCIAL LOSS, INCONVENIENCE, LOSS OF USE, LOSS TIME, DATA,

GOODWILL, REVENUEs, PROFITS OR SAVINGS; OR OTHER SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED

TO OR ARISING FROM THIS AGREEMENT, THE SALE OR USE OF THE

EQUIPMENT OR SOFTWARE, OR THE PERFORMANCE OF SERVICES BY

CONTRACTOR PURSUANT TO THIS AGREEMENT.

18. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

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

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

c. CONTRACTOR’s duties to defend and indemnify are conditioned upon: STATE promptly notifying CONTRACTOR in writing of the Infringement Claim; CONTRACTOR having control of the defense of the suit and all negotiations for its settlement or compromise;

and STATE providing to CONTRACTOR cooperation and, if requested by CONTRACTOR, reasonable assistance in the defense of the Infringement Claim. In addition to CONTRACTOR’s obligation to defend, and subject to the same conditions, CONTRACTOR will pay all damages finally awarded against STATE by a court of competent jurisdiction for an Infringement Claim or agreed to, in writing, by CONTRACTOR in settlement of an Infringement Claim.

d. CONTRACTOR will have no duty to defend or indemnify for any infringement claim that is based upon: (a) the combination of the CONTRACTOR Product with any software, apparatus or device not furnished by CONTRACTOR; (b) the use of ancillary equipment or software not furnished by CONTRACTOR and that is attached to or used in connection with the CONTRACTOR Product; (c) CONTRACTOR Product designed or manufactured in accordance with STATE’s designs, specifications, guidelines or instructions, if the alleged infringement would not have occurred without such designs, specifications, guidelines or instructions; (d) a modification of the CONTRACTOR Product by a party other than CONTRACTOR; (e) use of the CONTRACTOR Product in a manner for which the CONTRACTOR Product was not designed or that is inconsistent with the terms of this Agreement; or (f) the failure by STATE to install an enhancement release to the CONTRACTOR Software that is intended to correct the claimed infringement. In no event will CONTRACTOR’s liability resulting from its indemnity obligation to STATE extend in any way to royalties payable on a per use basis or the STATE’s revenues, or any royalty basis other than a reasonable royalty based upon revenue derived by CONTRACTOR from STATE from sales or license of the infringing CONTRACTOR Product.

e. This Section provides STATE’s sole and exclusive remedies and CONTRACTOR’s entire liability in the event of an infringement claim. STATE has no right to recover and CONTRACTOR has no obligation to provide any other or further remedies, whether under another provision of this Agreement or any other legal theory or principle, in connection with an infringement claim. In addition, the rights and remedies provided in this Section are subject to and limited by the restrictions set forth in N.D.C.C. § 32-12.2- 15.

19. REPRESENTATIONS AND WARRANTIES

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

20. INSURANCE

Upon receipt of the Notice of Intent to Award, the successful offeror must obtain the required insurance coverage and provide the procurement officer with proof of coverage upon contract execution. The coverage must meet required insurance stated below. The successful offeror’s failure to provide evidence of insurance coverage is a material breach and grounds for termination of the contract.

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

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

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

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

d. Employer’s liability or “stop gap” insurance of $1,000,000 as an endorsement on the workers compensation or commercial general liability insurance

e. Professional errors and omissions that include cyber liability with limits of $1,000,000 per claim and in the aggregate, CONTRACTOR shall continuously maintain such coverage during the Contract period and for three (3) years thereafter. In the event of a change or cancellation of coverage, CONTRACTOR shall purchase an extended reporting period to meet the time periods required in this section.

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

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

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

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

d. The state of North Dakota and its agencies, officers, and employees shall be included on the commercial general liability policy, including any excess policies (to the extent applicable), as additional insured.

e. The insurance required in this agreement, through a policy or endorsement, shall include:

1) Waiver of Subrogation” waiving any right to recovery the insurance company may have against the State with regard to the workers compensation policy

2) CONTRACTOR’s insurance coverage shall be primary (i.e., pay first)

3) Cross liability/severability of interest under general liability policy

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

5) 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

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

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

h. CONTRACTOR shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements.”

Comments: If applicable to the contract, the professional liability that includes cyber liability shall include coverage of a data breach:

a. CONTRACTOR shall defend, indemnify, save and hold harmless, the STATE, its officers, agents and employees from liability of any nature or kind, including costs and expenses, for or on account of any and all suits, claims, or damages of any character whatsoever, resulting from injuries or damages sustained by any person or persons or property by virtue of performance of this contract, arising or resulting in whole or in part from the fault, negligence, wrongful act or omission of the Contractor, or any subcontractor, or their employees or agents.

21. WORKS FOR HIRE

CONTRACTOR will not provide any “work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) under this Contract. CONTRACTOR, the third-party manufacturer of any equipment provided, and the copyright owner of any non- CONTRACTOR software own and retain all of their respective proprietary rights in the equipment and software provided by Contractor, and nothing in this Agreement is intended to restrict their proprietary rights. All intellectual property developed, originated, or prepared by CONTRACTOR in connection with providing to STATE the equipment, software, or related services remain vested exclusively in CONTRACTOR, and this Agreement does not grant to STATE any shared development rights of intellectual property. Except as explicitly provided in the software license agreement, CONTRACTOR does not grant to STATE, either directly or by implication, estoppel, or otherwise, any right, title or interest in CONTRACTOR’s proprietary rights. STATE will not modify, disassemble, peel components, decompile, otherwise reverse engineer or attempt to reverse engineer, derive source code or create derivative works from, adapt, translate, merge with other software, reproduce, distribute, sublicense, sell or export the Software, or permit or encourage any third party to do so. The preceding sentence does not apply to open source software which is governed by the standard license of the copyright owner.

22. WORK PRODUCT

All work product, equipment, or materials created for STATE or purchased by STATE under this Contract belong to STATE and must be immediately delivered to STATE at STATE'S request upon termination of this Contract. Notwithstanding, in no event will the intellectual property rights embodied in the work product transfer to the State. As stated above, CONTRACTOR will retain ownership in any and all intellectual property rights.

23. SOFTWARE LICENSE

All ownership rights to CONTRACTOR’s software provided to STATE under this Contract shall remain with CONTRACTOR. Any Contractor software, including subsequent releases, is licensed to State solely in accordance with the CONTRACTOR Software License Agreement in Exhibit A below. “Software License Agreement”). State hereby accepts and agrees to abide by all of the terms and restrictions of the Software License Agreement. Any third party software provided by CONTRACTOR is licensed to the State in accordance with the standard license, terms, and restrictions of the copyright owner on the effective date of the Agreement, unless the copyright owner has granted to CONTRACTOR the right to sublicense the software pursuant to the Software License Agreement, in which case it applies and the copyright owner will have all of Licensor’s rights and protections under the Software License Agreement. CONTRACTOR makes no representations or warranties of any kind regarding third party software. Third party software may include open source software. To the extent any aspect of the goods or services set forth in this Contract are modified to incorporate any additional third-party software, STATE retains the right to negotiate the terms of the Contract related to any licensing agreement associated with the additional third party software. At no cost to the STATE, STATE shall have the right to reject any modification to the goods or services that contain that additional third-party software and continue using the prior version of CONTRACTOR’s goods or services.

24. LICENSE GRANT AND SCOPE OF USE

a. Licensing

1) CONTRACTOR grants to STATE a perpetual, nonexclusive license to use the software and associated documentation, plus any additional software which shall be added by mutual agreement of the parties during the term of this Contract.

2) CONTRACTOR grants to STATE, including any federal, state or local governmental entity or emergency service provider in the state of North Dakota that uses the State’s System, a personal, non-exclusive license to use the software and associated documentation, plus any additional software which shall be added by mutual agreement of the parties during the term of this Contract.

3) The license grant shall not be extended to any contractors, subcontractors, outsourcing vendors, consultants or others without the express, written consent of

CONTRACTOR.

4) There shall be no limit on the number of machines, number of locations, or size of processors on which STATE can operate the software.

b. Software Functionality and Replacement This software licensed by CONTRACTOR to STATE provides the following functionality:

1. ASTRO25 Public Safety Radio Communications System Regarding the aforementioned software functionality licensed by CONTRACTOR to STATE, CONTRACTOR agrees that:

1) If CONTRACTOR reduces or replaces the functionality contained in the licensed product and provides this functionality as a separate or renamed product, then STATE shall be entitled to license such software product at no additional license or maintenance fee.

2) If CONTRACTOR releases an option, future product or other release that has substantially the same functionality as the software product licensed to STATE, and it ceases to provide maintenance for the older software product, then STATE shall have the option to exchange licenses for such replacement product or function at no additional charge.

c. Purchase of Additional Licenses STATE may purchase additional software licenses during the term of this Contract at the same price offered by CONTRACTOR under the terms of this Contract.

d. Delivery of Authorized Software Only CONTRACTOR shall not ship any software to STATE that STATE is not authorized to use.

e. Authorized Software Platform STATE may transfer the software, at no additional cost, to any hardware platform, software operating system or database that CONTRACTOR supports for the software.

25. TECHNOLOGY STANDARDS

CONTRACTOR shall comply with applicable STATE enterprise architecture technology standards. These standards can be found on STATE’s website at http://www.nd.gov/itd/standards.

26. PERSONNEL

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

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

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

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

d. CONTRACTOR agrees and understands that STATE’s execution of this Contract is predicated, in part and among other considerations, on the utilization of the specific individuals and personnel qualifications as identified. Therefore, CONTRACTOR agrees that:

1) Prior to assignment of personnel, CONTRACTOR shall obtain written approval from

STATE for all personnel to be assigned to this project

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

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

4) No replacement, reassignment or substitution of any assigned…