SC484_PCN_Contract_KirKEng_Execut.pdf

STATE CONTRACT 484

Potato Cyst Nematode (PCN) Surface Soil Sampling Service

The parties to this contract (Contract) are the state of North Dakota, acting through its North Dakota State Seed Department (STATE), and KirK Engineering & Natural Resources, Inc., having its principal place of business at 136 Tuke Lane Sheridan, MT 59749 (CONTRACTOR);

1. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide the following services per CONTRACTOR’S response dated March 13, 2020 to Solicitation Number 110.7-20-014:

The North Dakota State Procurement Office, on behalf of the North Dakota State Seed Department (“NDSSD” or the “STATE”), solicited proposals for Potato Cyst Nematode (PCN) surface soil sampling services. This sampling service requires surface soil samples to be collected from selected potato grower fields in North Dakota as specified in the USDA/APHIS methodology. This Contract will include the collection and delivery of soil samples. This project involves multiple government entities; the contracting office representatives include USDA/APHIS, ND Department of Agriculture and NDSSD personnel.

The number of sites is dependent on participating potato growers in North Dakota. In 2016 there were approximately 2,550 samples taken. The STATE provides this figure only as an estimate, there is no guarantee of number of samples that may be requested. Primarily, these potato growers will be located in, but not limited to, the following counties: Walsh, Pembina, Cavalier, Towner, Rolette, Benson, Dickey, Ransom, Sargent and Williams.

a. Applicable Directives, Laws, Rules, and Federal Requirements:

All work must be completed in accordance with the USDA PCN Guidelines, which can be found at:

http://www.aphis.usda.gov/plant_health/plant_pest_info/nematode/downloads/potato_gui delines.pdf. Contractor must abide by the additional requirements as specified in Attachment 5 – Contract.

This project is subject to the following:

1) Debarment/Suspension – 7 CFR Part 3016.35 and 2 CFR Part 180 Subpart C

2) Drug Fee – 7 CFR Part 3017, Subpart F, Section 3017.600

3) Texting/Text Messaging – compliance with “Federal Leadership on Reducing Text

Messaging While Driving” signed by President Barack Obama on October 1, 2009

4) Retention of Records – 7 CFR 3016.42 CONTRACTOR is responsible for identifying and complying with all state and federal requirements that apply to this Contract.

b. Deliverables CONTRACTOR will be required to provide the following deliverables in accordance with the USDA PCN Guidelines and as required in this RFP:

1) Attachment 1 – AMS Sampler Equipment Detailed Drawing

2) Attachment 2 – PCN Surface Soil Sampling Methods – Mechanical, Hand

Requirements

3) Equipment/Transportation – CONTRACTOR will provide their own means of transportation suitable for transport between fields of all equipment, AMS Nematode sampler, and self-contained pressure washer, vehicles such as ATV’s or pickups to pull samplers repair and maintenance tools, and incidentals in accordance with the technical specifications. CONTRACTOR is required to furnish all necessary labor, specified field equipment, vehicles, ATV’s, supervision, transportation, and incidentals in accordance with the technical sampling specifications.

c. Specific, Results-Oriented Tasks:

CONTRACTOR will perform soil sampling within technical guidelines described in APHIS USDA Guidelines on Surveillance and Phytosanitary Actions for the Potato Cyst Nematodes, http://www.aphis.usda.gov/import_export/plants/manuals/domestic/downloads/gnpm.pdf:

1) Scheduling of field sampling with COR and coordinate with producers

2) Mapping of fields to be sampled utilizing GPS mapping system

3) Maintain specific chain of custody on all samples

4) Minimum 5-pound sample per acre sampled in a labeled paper bag

5) Implementation of procedures for cleaning and disinfecting between fields

6) GPS track log of all samples collected

7) Transportation of samples to USDA/NDSSD collection site in Grafton ND, loading and unloading

8) Chain of custody of all samples collected and delivered

9) Regular communication with COR and Quarterly progress reporting

i. Regular communication with the COR as samples are being taken and formal quarterly reporting due first quarter; July 15, 2020 (for the period of May 15- June 30, 2020), second quarter; October 31, 2020 (for the period of July 1- September 30, 2020), final quarter, January 31, 2021 (for the period of October 1-December 31, 2020).

ii. Quarterly reports must include Project Title, Activities Performed, Problems and Delays, Future Project Plans, and Funding Expended to Date. Final progress report for period through December 31, 2020, due January 31, 2021.

d. Public Relations:

CONTRACTOR personnel shall convey a professional image of North Dakota State Seed Department, USDA APHIS and the State of North Dakota at all times to promote positive public relations.

1) All personnel must be courteous, and work shall be completed in a professional manner, without inconvenience or disruption to the property owners.

2) CONTRACTOR shall perform all work with due care, taking precautions against injury to all persons, animal, or property.

e. Scheduling Field Sampling:

CONTRACTOR shall schedule field sampling with NDSSD and producers. The ND State Seed Department will provide CONTRACTOR with locations of the fields to be sampled, soil bags, and labels. It will be the responsibility of CONTRACTOR to map all fields using the USDA IPHIS GPS mapping system and to schedule the sampling order of assigned fields and all associated daily field operations. All mechanical sampling must be conducted after harvest operations are completed (or in limited cases, pre-planting). If a field has not yet been harvested, it will be the responsibility of the CONTRACTOR to work with the grower to determine when the field is available for http://www.aphis.usda.gov/import_export/plants/manuals/domestic/downloads/gnpm.pdf sampling. The field unit size will vary greatly, approximate field size can range from <1 acre to 320 acres.

f. Delivery and Seasonal Work Time Frame:

The time frame for sampling activities will begin with hand sampling in mid-May but will primarily be after field harvest (mid-September) until weather conditions (freeze-up, excessive snow cover) necessitate the end of field work. Pre-planting sampling may also be assigned, as well as limited hand sampling during the growing season. CONTRACTOR must complete sampling as requested or seek written agreement with STATE to cease operation for the season

g. Priority of Fields:

Sampling will primarily occur in seed potato fields destined for export to Canada. Priority will be given to fields that are due to ship to Canada in the fall of the harvest year. These fields may require hand sampling be completed prior to planting. Priority fields will be identified by NDSSD and ND Department of Agriculture.

h. Data Management and GPS Mapping of Fields:

CONTRACTOR will be required to provide a GPS track log of the route the sampling operation covered in the field. CONTRACTOR must utilize USDA IPHIS GPS mapping system. The track log file must show the latitude /longitude coordinates at regular intervals. This data may be electronically transmitted to a USDA GIS Specialist or provided to the USDA through an agreed upon method such as CD or other memory device.

i. Packaging Soil Samples:

Paper sample bags will be provided by the NDSSD to package soil samples. The sample yield of 5 pounds of soil per each seed potato acre is mandatory.

j. Labeling Sample Bags:

NDSSD will provide sticky labels that must be applied to each soil sample bag. All bags must have a label. These labels will be consecutively numbered and must be recorded on a soil sample data sheet that corresponds to the field unit being sampled.

CONTRACTOR may maintain the sample data sheet in a field book but must be available to the COR for review.

k. Transport of Samples to Designated Collection Site Chain of Custody:

Following collection of soil samples, CONTRACTOR will be required to deliver them, providing loading and unloading, to the USDA soil storage and drying warehouse located into collection site in Grafton, ND. Chain of custody must be maintained for all samples collected and delivered to the USDA/NDSSD collection site in Grafton, ND.

l. Sample Delivery Frequency to Collection Site:

Delivery of sample frequency will be as determined between the Contract Officer’s Representative and CONTRACTOR. During peak workload, a daily delivery may be necessary.

1) The address of the delivery site is ND State Seed Department, 873 West 12th Street, Grafton, ND, 58237.

m. Implementation of Procedures for Cleaning and Disinfecting of Sampling

Operation:

CONTRACTOR must take all appropriate measures to prevent cross-contamination of fields and samples. Potato cyst nematodes can be accidentally transported from field to field in soil. The PCN cysts are persistent in the environment and are opportunistic hitchhikers.

1) It is mandatory that all soil be removed from the sampling implement, ATV, boots, hand sampling tools, or any field gear used in the field prior to moving to the next field to sample. Implementing measures to prevent cross contamination of fields and samples is a critical contract element. It is imperative that no cross contamination of samples between fields occur.

2) A self-contained pressure washer must be used to aid in this task. For example:

following a field sampling and soil bagging operation, all equipment must be free of soil to avoid contaminating samples that will be taken from the next field.

n. Location of Work/Travel:

The location of sites is dependent on participating potato growers in North Dakota.

Primarily, these growers will be located in, but not limited to, the following counties:

Walsh, Pembina, Cavalier, Towner, Rolette, Benson, and Emmons. The collection site for soil samples is in Grafton, ND. At the collection site in Grafton, there is limited workspace provided for CONTRACTOR.

o. State-Furnished Property/Services:

The STATE will provide or make available to CONTRACTOR the following equipment and services to use during the field sampling season:

1) Soil sampling paper bags and labels;

2) Technical support;

3) Delivery point for soil samples; and

4) Limited workspace for CONTRACTOR at the collection site in Grafton, ND.

p. Quality Assurance / Safety Requirements / Risk Management Probabilities Table/ Monitoring:

CONTRACTOR will take appropriate measures to ensure the safety of its employees, state employees, the public, and property. CONTRACTOR must identify any potential risks, issues and problems associated with the project and identify ways to mitigate those potential risks.

CONTRACTOR must additionally develop and maintain an effective pro-active quality control program to ensure services are performed in accordance with this Statement of Work. CONTRACTOR shall describe quality assurance/safety requirements and risk management procedures to identify, prevent, and ensure sampling services that meet the requirements in the RFP and this Contract.

The NDSSD Contracting Officer (CO), Contracting Officer Representative (COR) and other government personnel, as appropriate, may meet periodically with CONTRACTOR to review the CONTRACTOR’s performance. The COR will have staff or designated representatives with the authority to monitor and verify all CONTRACTOR actions and performance. The monitoring will ensure all field operations are being completed as per RFP and Contract specifications. CONTRACTOR must allow these inspections at any time and cooperate with the COR as necessary to schedule monitoring activities.

Appropriate action shall be taken to resolve outstanding issues in a timely manner.

Hazard Probability Severity Consequences Corrective Action Data Management High Critical Contract Breach Chain of Custody High Critical Contract Breach Cross Contamination High Critical Contract Breach Physical Safety Moderate Moderate Contract Delay Safety Training Equipment Safety High Significant Contract Breach Training

q. Project Management Plan:

CONTRACTOR will be expected to use appropriate project management to ensure the work is accomplished on time, within budget, and meets quantity and quality standards.

1) CONTRACTOR will be required to collaborate at a “Kick off” meeting with the STATE to agree upon the Contract schedule, including a work breakdown, schedule of tasks and activities, and progress milestones. Post award preparation shall be completed prior to beginning the sampling process. Costs associated with this “Kick off” meeting will be the responsibility of the contractor.

2) CONTRACTOR will be required to coordinate with the State to develop a Human Resources plan for the CONTRACTOR and the STATE staff assigned to the project.

3) CONTRACTOR will be required to coordinate with the STATE to develop a communication plan. Any problems or unforeseen events must be communicated timely to the STATE project manager, and any changes must be agreed upon between the parties and set forth in a written amendment to the Contract. If the STATE requires corrective action, CONTRACTOR will be notified in writing.

4) Contract Closeout Plan:

When the Contract is completed, the STATE and CONTRACTOR will communicate regarding the Contract Closeout, including transition of any records. A Contract Closeout Debrief may be performed at the discretion of the procurement officer or project manager designated by the STATE. The debriefing time and location will be negotiated between the STATE and CONTRACTOR. CONTRACTOR must collaborate in development a Project Closeout Report to include feedback regarding the project implementation and any lessons learned.

r. Contract Schedule and Deliverables:

The STATE has identified the following deliverables which are significant work products or milestones in the project. The STATE requires these deliverables to be addressed in the Contract Schedule, as a minimum. CONTRACTOR shall develop a schedule for accomplishing the Scope of Work, including these specific deliverables. The final schedule shall be agreed upon between the STATE and the successful offeror and incorporated into the Contract. The approximate schedule for this Contract is as follows:

1) Contract start: May 15, 2020

2) “Kick off” meeting/conference call: to be scheduled between STATE and

CONTRACTOR during the month of April 2020.

3) First CONTRACTOR work period: May 15, 2020 thru December 31, 2020

4) CONTRACTOR submits progress reports: September 1, 2020, October 15, 2020

5) Review of report by STATE: September 2020 to October 2020

6) STATE provides CONTRACTOR with comments for revision as needed: September

2020 to October 2020.

7) CONTRACTOR submits deliverables to the STATE: Ongoing throughout Contract period.

Contract Closeout Plan: Prior to expiration of all Contract renewal and extension periods.

s. CONTRACTOR Project Team Personnel:

CONTRACTOR must inform the STATE of any changes to the CONTRACTOR’s project team members named in the proposal, in advance and in writing. The personnel changes of key CONTRACTOR project team members that are not acceptable to STATE may be grounds for the STATE to terminate the Contract.

2. COMPENSATION

a. Contract Pricing

Pricing, Firm-Fixed, with Adjustment. This Contract is a Firm Fixed Price per sample, with Adjustment under Contract renewal. The total price is to include all discounts and deductions, and is to be less federal and state taxes, for which exemption certificates will be furnished upon request. Pricing shall be firm for the first Contract period, after which time CONTRACTOR may submit a request for a price increase to the Procurement Officer. Requests for a price increase or decrease must include a copy of the manufacturer's official notice or other evidence that the increase or decrease is applicable to all customers. The STATE reserves the right to accept or reject, within 30 days, or cancel the Contract. The price changes will become effective as set forth in a written amendment to the Contract. All shipments are to be billed at prices in effect at the time of the order, not the date the shipment is made.

b. Contractual Amount STATE will pay for the services provided by CONTRACTOR under this contract an amount equal to $32 per sample collected. STATE will pay for services within 30 days of receipt of correct invoice from CONTRACTOR.

The STATE will not make any advanced payments before performance by the contractor under this contract.

c. Payment

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

2) STATE shall make payment under this Contract within thirty (30) calendar days after receipt of a correct invoice.

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

4) For any amounts that are or will become due and payable to STATE by

CONTRACTOR, STATE reserves the right to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

d. Travel

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

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

f. 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 the CONTRACTOR.

g. Taxpayer ID CONTRACTOR’S federal employer ID number is: 20-4024726.

h. 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.

3. TERM OF CONTRACT

This Contract begins on May 15, 2020 or its effective date, and ends on May 14, 2021.

a. No Automatic Renewal This Contract will not automatically renew.

b. Extension Option STATE reserves the right to extend the Contract for an additional period of time, not to exceed twelve (12) months, beyond the current termination date of the 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 four (4) options to renew this Contract under the same terms and conditions for a period of twelve (12) months each.

4. 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, Agencies 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.

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.

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.

5. 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.

6. CONTIGENT LIABILITY

During the term of this Grant Award, and for three (3) years after this Grant Award expires or is terminated, CONTRACTOR agrees to reimburse the STATE for any claims submitted by the STATE for federal financial participation in the cost of this Grant Award to the extent those claims are disallowed by any federal agency for failure on the part of CONTRACTOR to comply with this Grant Award or any federal or state statutory or regulatory provisions which govern the source of funding. STATE agrees to give CONTRACTOR prompt written notice of any disallowed claims subject to reimbursement by CONTRACTOR. Any amount disallowed as described is a debt owing to STATE. Action may be brought by STATE as allowed by law.

7. INDEMNIFICATION

CONTRACTOR agrees to defend, indemnify, and hold harmless the state of North Dakota, its agencies, officers and employees (STATE), from and against claims based on the vicarious liability of the STATE or its agents, but not against claims based on the STATE’s contributory negligence, comparative and/or contributory negligence or fault, sole negligence, or intentional misconduct. The legal defense provided by CONTRACTOR to the STATE under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the STATE is necessary. Any attorney appointed to represent the STATE 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. CONTRACTOR also agrees to reimburse the STATE for all costs, expenses and attorneys' fees incurred if the STATE prevails in an action against CONTRACTOR in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this agreement.

8. INSURANCE

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:

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

b) Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $250,000 per person and $1,000,000 per occurrence.

c) 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.

d) Employer’s liability or “stop gap” insurance of not less than $1,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

e) Professional errors and omissions with minimum limits of $1,000,000 per claim and in the aggregate, CONTRACTOR shall continuously maintain such coverage during the contract period and for three 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. The amount of any deductible or self-retention is subject to approval by the STATE.

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 form and terms approved by the STATE.

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 (STATE) shall be endorsed on the commercial general liability policy on a primary and noncontributory basis, including any excess policies (to the extent applicable), as additional insured. The STATE shall have all the benefits, rights and coverages of an additional insured under these policies that shall not be limited to the minimum limits of insurance required by this agreement or by the contractual indemnity obligations of the CONTRACTOR.

e) A “Waiver of Subrogation” waiving any right to recovery the insurance company may have against the STATE.

f) The CONTRACTOR shall furnish a certificate of insurance to the undersigned STATE representative prior to commencement of this agreement. All 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 the 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. 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

9. WORKS FOR HIRE

CONTRACTOR acknowledges that 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 hereby assigns to STATE 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 for STATE shall be the sole property of STATE, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to STATE. CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE’s intellectual property rights under this section.

10. 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.

11. INSPECTION & MODIFICATION – REIMBURSEMENT FOR UNACCEPTABLE

DELIVERABLES

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 the project manager designated by the STATE. The STATE may employ all reasonable means to ensure that the work is progressing, and the work being performed is in compliance with the Contract. Should NDSSD determine that corrections or modifications are necessary in order to accomplish its intent; the project manager may direct the CONTRACTOR to make changes. The CONTRACTOR shall not unreasonably withhold changes.

Failure of the contractor to timely perform the contract, including any corrections or modifications directed by the STATE, may cause the STATE to terminate the contract, for default by the CONTRACTOR. In this event, the State may require the CONTRACTOR to reimburse, within 30 days of the STATE'S notice to terminate, all payments made to contractor for the deficient work. the STATE shall return deliverables and services which are deficient, and further has the option of returning all deliverables and services which the STATE previously accepted, but which are affiliated with the deficient deliverables and which, without the deficient deliverables, are rendered incapable of performance or impractical for the STATE to retain.

CONTRACTOR shall also, within 30 days thereafter of the STATE'S notice to terminate, reimburse the STATE for payments made for such previously accepted but subsequently returned deliverables and services. This clause does not restrict the STATE'S right to seek associated damages, for CONTRACTOR’S failure to timely perform its obligations, including corrections and modifications, under the Contract.

12. SPECIAL CONDITIONS

CONTRACTOR shall meet all applicable special conditions as specified in the Grant Award.

13. NOTICE

All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date mailed when addressed to the parties at the following addresses:

STATE CONTRACTOR

Jamie Bostyan, ND State Procurement Office

Scott Payne, KirK Engineering & Natural Resources, Inc.

State Procurement Officer President

14th Floor Capitol Tower 600 E Boulevard Ave, Dept 012

P.O. Box 636, 136 Tuke Lane

Bismarck, ND 58505-0310 Sheridan, MT 59749-0636

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

14. CONFIDENTIALITY

CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE 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 STATE. STATE shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STATE 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 STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the term of this Contract.

15. COMPLIANCE WITH PUBLIC RECORDS LAWS

CONTRACTOR understands that, STATE must disclose to the public upon request any records it receives from CONTRACTOR. CONTRACTOR further understands that any records obtained or generated by CONTRACTOR under this Contract, except for records that are confidential http://www.legis.nd.gov/cencode/t44c04.pdf under this Contract, may, under certain circumstances, be open to the public upon request under the North Dakota public records law. CONTRACTOR agrees to contact STATE promptly upon receiving a request for information under the public records law and to comply with STATE’s instructions on how to respond to the request.

16. RETENTION OF RECORDS

CONTRACTOR hereby agrees to comply with regulation 7 CFR 3016.42, to maintain financial records, supporting documents, statistical records, and other pertinent records for a period of at least three (3) years after submission and acceptance of final report officially closing out the grant program. In cases where litigation, a claim, or an audit is initiated prior to expiration of the three-year period, records must be retained until completion of the action and resolution of issues or the end of the three year period, whichever is later. Retention is required for purposes of Federal or STATE examination or audit and is subject to examination.

17. RESTRICTIONS FOR LOBBYING

This Grant Award is subject to restrictions on the use of federal funds for lobbying of federal or STATE legislative bodies. Under the provisions of 31 U.S.C. Section 1352, recipients are prohibited from using appropriated federal funds for lobbying Congress or any federal agency in connection with the award of a particular contract, grant, cooperative agreement, or loan. This includes grant/cooperative agreements that, in whole or in part, involve participants to lobby or to instruct participants on how to lobby.

Public Law No. 104-208, Section 503 expressly prohibits the use of appropriated funds for indirect or “grass roots” lobbying efforts that are designed to support or defeat legislation pending before state legislatures. No part of any appropriation contained in this Act shall be used, other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes, for the preparation, distribution, or use of any kit, pamphlet, booklet, publication, radio, television, or video presentation designed to support or defeat legislation pending before the Congress, except in presentation to the Congress or any State legislative body itself.

18. INDEPENDENT ENTITY

CONTRACTOR is an independent entity under this Contract and is not a STATE 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.

19. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’S express written consent. However, CONTRACTOR may enter into 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 STATE.

20. SPOLIATION – PRESERVATION OF EVIDENCE

CONTRACTOR shall promptly notify STATE of all potential claims that arise or result from this Contract. CONTRACTOR shall also take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to STATE the opportunity to review and inspect the evidence, including the scene of an accident.

21. 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, in the event of any inconsistency or conflict among the documents making up this Contract, the documents must control in this order of precedence:

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

c. STATE’s Request for Proposal (“RFP”) number 110.7-20-014, dated 02-20-2020;

d. CONTRACTOR’s proposal dated March 13, 2020 in response to RFP number 110.7-20-

014.

e. All terms and conditions contained in any automated end-user agreements (e.g., click-throughs, shrink wrap, or browse wrap) are specifically excluded and null and void, and shall not alter the terms of this Contract.

22. 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 that term.

23. DEBARMENT/SUSPENSION

CONTRACTOR is advised that the signature on the Grant Award form certifies that the CONTRACTOR or any person associated therewith is not currently under suspension, debarment, voluntary exclusion, or determination of ineligibility by any federal agency, as implemented by 7 CFR Part 3016.35 and 2 CFR Part 180 Subpart C; has not been suspended, debarred, voluntary excluded, or determined ineligible by any federal agency within the past three years; and has not been indicted, convicted, or had a civil judgment rendered against it by a court of competent jurisdiction on any matter involving fraud or official misconduct within the past three years.

24. 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 state District Court of Burleigh County, North Dakota. Each party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

25. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

By entering into this Contract, STATE 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. STATE does not waive any right to a jury trial.

26. ATTORNEY FEES

In the event a lawsuit is instituted by STATE to obtain performance due under this Contract, and STATE is the prevailing party, CONTRACTOR shall, except when prohibited by N.D.C.C. § 28 26 04, pay STATE’s reasonable attorney fees and costs in connection with the lawsuit.

27. NONDISCRIMINATION AND COMPLIANCE WITH LAWS

CONTRACTOR agrees to 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.)

CONTRACTOR agrees to timely file all required reports, make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes, unemployment compensation and workers' compensation premiums. CONTRACTOR shall have and keep current at all times during the Term of this Contract all licenses and permits required by law.

CONTRACTOR’s failure to comply with this section may be deemed a material breach by CONTRACTOR entitling STATE to terminate in accordance with the Termination for Cause section of this Contract.

28. POLITICAL ACTIVITY

CONTRACTOR will comply with the provisions of the Hatch Act (5 U.S.C. 1501-1508 and 7324- 7328) which limit the political activities of employees whose principal employment activities are funded in whole or part with federal funds

29. DRUG FREE

CONTRACTOR certifies in accordance with the Drug Free Workplace Act of 1988, as implemented by 7 CFR Part 3017, Subpart F, Section 3017.600, Purpose, that it will provide a drug-free workplace, or in a case of an individual, certify that his or her conduct of grant activity will be drug free, certify that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited under this Grant Award.

30. TEXTING/TEXT MESSAGING

CONTRACTOR hereby agrees to comply with the Executive Order entitled “Federal Leadership on Reducing Text Messaging While Driving” signed by President Barack Obama on October 1, 2009, by prohibiting CONTRACTOR employees, recipients, sub-recipients, contractors, and subcontractors from texting while driving on official business and/or in Federally-owned, rented, or leased vehicles (collectively government owned vehicles) or privately owned vehicles when on official Government business or when performing any work for or on behalf of or in cooperation with the Federal government.

For purposes of this Grant Award, the following definitions apply:

a. “Texting” or “Text Messaging” means reading from or entering data into any handheld or other electronic device, including for the purpose of SMS texting, e-mailing, instant messaging, obtaining navigational information, or engaging in any other form of electronic data retrieval or electronic data communication.

b. “Driving” means operating a motor vehicle on an active roadway with the motor running, including while temporarily stationary because of traffic, a traffic light or stop sign, or otherwise. It does not include operating a motor vehicle with or without the motor running when one has pulled over to the side of, or off, an active roadway and has halted in a location where one can safely remain stationary.

31. CIVIL RIGHTS

CONTRACTOR shall comply with Title VI of the Civil Rights Acts of 1964, Executive Order 11246 and Executive Order 11375. In accordance with the aforementioned act, no person shall, on the grounds of race, color, national origin, age, handicap, sex, or religion be excluded from participation in or be subjected to discrimination in any program or activity funded, in whole or in part, by federal funds.

32. STATE AUDIT

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 all of these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. STATE, State Auditor, or Auditor’s designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

33. FEDERAL AUDIT REQUIREMENTS

CONTRACTOR agrees to keep financial records necessary to fully disclose the complete financial status of the grant. CONTRACTOR is responsible for obtaining audits in accordance with OMB Circular A-133, “Audits for States, Local Governments, and Non-Profit Organizations”.

CONTRACTOR that expend $500,000 or more in Federal awards in a fiscal year are required to have an audit performed. As per the provisions of the Single Audit Amendments of 1996 (P.L.

104-156), the CONTRACTOR will submit a copy of the A-133 audit upon its completion to the Department. Additionally, CONTRACTOR agrees to spend all federal assistance received from Department in accordance with applicable laws and regulations such as; the Common Rule for Uniform Administrative Requirements for Grants and Cooperative Agreements with State and Local Government; and OMB Circular A-87, Cost Principles for State, Local and Indian Tribal Governments, which are made a part of this grant by reference here. Organizations receiving less than $500,000 must have records available for review upon request of the State or Federal agency.

34. CASH MANAGEMENT/ALLOWABLE COSTS/APPLICABLE REGULATIONS

CONTRACTOR shall maintain accounting and project records that are sufficient to prepare required reports, track funds to level of expenditure, provide internal control by progress, provide budget control, assure allowable costs per the applicable grant circulars (http://www.whitehouse.gov/omb/circulars) and the Codification of Government wide Grants Requirements (Common Rule) as found in the applicable Code of Federal Regulations (http://www.access.gpo.gov/nara/cfr/cfr-table-search.html);

a. OMB Circular A-87, “Cost Principles for State, Local, and Indian Tribal Governments” (2 CFR part 225).

b. OMB Circular A-21, “Cost Principles for Educational Institutions” (2 CFR part 220) – All institutions of higher education are subject to the cost principles contained in OMB Circular A-21, which incorporates the four Cost Accounting Standards Board (CASB) Standards and the Disclosure Statement (DS-2) requirements, as described in OMB Circular A-21, sections C.10 through C.14 and Appendices A and B.

c. OMB Circular A-122, “Cost Principles for Non-Profit Organizations” (2 CFR part 230) – Non-profit organizations are subject to OMB Circular A-122, except those non-profit organizations listed in OMB Circular A-122, Attachment C that are subject to the commercial cost principles contained in the Federal Acquisition Regulation (FAR) at 48 CFR part 31. Also, by contract terms and conditions, some non-profit organizations may be subject to the CASB’s Standards and the Disclosure Statement (DS-1) requirements.

35. FEDERAL PROVISIONS

CONTRACTOR agrees that all aspects of this Grant Award shall be executed according to all applicable parts of USDA’s Uniform Federal Assistance Regulations, 7 CFR Part 3015; Uniform

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