Contract+SWCAP_Maximus_ND_SIGNED_FINAL+.pdf

STATEWIDE COST ALLOCATION PLAN (SWCAP) CONTRACT

The parties to this contract (Contract) are the state of North Dakota, acting through its Office of Management and Budget (STATE), and Maximus US Services, Inc, a corporation, having its principal place of business at 1891 Metro Center Drive Reston, Virginia 20190(CONTRACTOR);

1. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, shall provide the following:

The CONTRACTOR must assist the STATE in preparation and negotiation of the SWCAP plan. The STATE expects the CONTRACTOR to use methodology that maximizes the allowable cost recovery from federal and special revenue sources. Once the plan has been completed, the CONTRACTOR will successfully negotiate the plan with the U.S. Department of Health and Human Services (HHS).

The CONTRACTOR is responsible for identifying and complying with all state and federal requirements that apply to the Contract.

The STATE requires the assistance with various components of the SWCAP.

1. Time of Performance: The CONTRACTOR must meet the federal filing deadline.

The Federal deadline, based on actuals from fiscal year 2021, is December 31, 2021, an extension until March 31, 2022 will be requested. The STATE will prepare the request for an extension. The services performed by the CONTRACTOR shall be undertaken and completed in such sequence to meet the timeline and fulfill the Contract.

2. Federal Requirement: The CONTRACTOR must provide a complete SWCAP that meets Federal standards and requirements. The CONTRACTOR must prepare the SWCAP in accordance with the provisions of Title 2 of the CFR, Part 200 guidelines and Publication ASMBC-10.

3. Cost Reconciliation: Compile the required Section II direct-billed services cost reconciliation. To include the reconciliation of fund balances and expenditures to the Title 2 of the CFR, part 200 guidelines, for each fund and service.

4. Coordination: In accomplishing the project, the CONTRACTOR shall ensure that the work involved is properly coordinated with related work being carried on by the STATE.

5. Communication: The CONTRACTOR shall receive requests for additional information and requests for analysis from the HHS or any other Federal agency and communicate those requests to the STATE.

6. Information and Reports: The CONTRACTOR shall furnish periodic reports concerning the status of the project, statements, certificates, approvals, copies of proposed plans, claims, and other information relative to the project as may be requested by the STATE.

7. Records and Inspections: The CONTRACTOR shall maintain full and accurate records with respect to all matters covered under the contract. The STATE shall have free access upon prior notice to such records, and the right to examine and audit the same and to make transcripts from, and to inspect all data, documents, proceedings, and activities. Supporting documentation for data used in the SWCAP must be maintained on file for a minimum of five (5) years following the completion of the project or until the STATE has approved the destruction of the records, whichever is earlier.

8. Personnel: The CONTRACTOR will secure at its own expense all personnel required in performing the services under this contract. Such personnel shall not be employees of or have any contractual relationship with the STATE. All of the services required hereunder will be performed by the CONTRACTOR or under its supervision, and all personnel engaged in the work shall be fully qualified to perform such services.

9. Audit: At no additional cost to the STATE, the CONTRACTOR will provide assistance to the STATE should a State or Federal audit be undertaken of the SWCAP prepared by the CONTRACTOR. Some examples of typical audit services are compiling audit requests, negotiating potential paybacks, and other as required for the audit.

10. CONTRACTOR Responsibility: The CONTRACTOR will be responsible for all aspects of the plan, including obtaining raw cost and statistical data, identifying allowable costs, preparing, and submitting the plan, and negotiating the final plan with the federal government. The CONTRACTOR may be required to prepare alternative allocation tables using different allocation bases to demonstrate maximum feasible recovery options.

11. Handling of Information: Any information provided to the CONTRACTOR by the STATE and any reports, information, data, and other documents given to or prepared or assembled by the CONTRACTOR under this contract shall not be made available to any individuals or organization without the prior approval of the Office of Management and Budget, State of North Dakota.

12. Annual Meeting: The STATE must engage the CONTRACTOR on an annual basis to meet with Section II agencies in person.

13. Quality Assurance: In the event HHS fails to approve the cost allocation plan prepared under the “Scope of Work” in this section, as submitted or revised by the CONTRACTOR, or the CONTRACTOR otherwise fails to satisfactorily perform under the contract, the State shall be entitled to reimbursement of fees paid to the CONTRACTOR and other remedies in accordance with the provisions of the contract.

14. State Responsibilities: The STATE shall retain full responsibility for preparation of any financial statements, direct billed services billing methodologies and/or rates, and any potential Federal cost disallowances arising from the accumulation of excessive fund balance and the billing of unallowable costs under the provisions of Title 2 of the CFR, Part 200 guidelines and Publication

ASMBC-10.

2. COMPENSATION

a. Contractual Amount

STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed $18,500 (Contractual Amount) during the project term.

The Contractual Amount is firm for the duration of the Contract and constitutes the entire compensation due CONTRACTOR for performance of its obligations under this Contract, unless amended, regardless of the difficulty, materials or equipment required, including fees, licenses, overhead, profit and all other direct and indirect costs incurred by CONTRACTOR, except as provided by an amendment to this Contract.

The invoicing schedule will apply as follows:

1) 80% of annual fee – Upon provision to FMD and submittal to the Division of Cost

Allocation of the U.S. Department of Health and Human Services of a final central services cost allocation plan and a final Section II Billed Services Document.

2) 20% of annual fee – Upon receipt, by the STATE, of cost allocation agreement approving the Section I Allocated Costs and Section II Billed Costs.

Pricing Unit Cost Upon provision to FMD and submittal to the Division of Cost Allocation of the U.S. Department of Health and Human Services of a final central services cost allocation plan and a final Section II Billed Services Document.

80% of annual fee $14,800

Upon receipt by the State of cost allocation agreement approving the Section I Allocated Costs and Section II Billed Costs.

20% of annual fee $3,700

Fixed Fee for Plan Contract Term – December 1, 2021 – November 30, Contract Term annual fee

TOTAL

$18,500

Fixed-Fee Pricing - Renewals

UNIT COST

Optional Plan Contract Term – December 1, 2022 – November 30, 2023 $18,500

Optional Plan Contract Term – December 1, 2023 – November 30, 2024 $18,500

Optional Plan Contract Term – December 1, 2024 – November 30, 2025 $18,500

Optional Plan Contract Term – December 1, 2025 – November 30, 2026 $18,500

Optional Plan Contract Term – December 1, 2026 – November 30, 2027 $18,500

TOTAL FOR ALL FIVE (5) OPTION YEARS $92,500

b. 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.

c. Travel STATE shall reimburse CONTRACTOR for expenses related to travel at amounts not to exceed those outlined below:

1) Lodging: Reimbursement shall not exceed the then current, published GSA rate for the travel location. Copies of receipts are required for lodging reimbursement.

STATE shall not reimburse for incidental and miscellaneous expenses charged to the room, including; alcohol, telephone charges, or entertainment (e.g., movies).

2) Transportation. Air travel shall be reimbursed by STATE at the actual cost of air fare for coach class travel only. CONTRACTOR shall make air travel arrangements at least fourteen (14) days in advance whenever possible. Reimbursement for rented, chartered, or contracted vehicle transportation shall be limited to reasonable rates as determined by STATE.

3) Meals: Meals shall be paid on a per diem basis for each day of travel at then current, published GSA per diem rate for the travel location. Per diem for the first and last day of travel shall be paid at seventy five percent (75%) of the GSA per diem rate.

Requests for per diem payments must include the start and end dates of travel, the location where the services are performed, and the allowable per diem amount for each trip on the billing/invoice.

Payment for any travel expenses that exceed the travel budget as agreed upon by the parties must be approved by STATE.

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

e. 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.

f. Taxpayer ID CONTRACTOR’S federal employer ID number is: 26-0307682.

g. 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 term (Term) begins on its effective date and ends on November 30, 2022.

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 18 (eighteen) months, beyond the current termination date of the Contract.

Due to the nature of the SWCAP and HHS’s review timeline, there will be an overlap in contracts during the last term of this contract. The remaining 20% to be paid to the current CONTRACTOR will be held until HHS reviews and approves the submitted SWCAP. An amendment will be issued during the last term to meet this timeline.

c. Renewal Option STATE may renew this Contract upon satisfactory completion of the initial Contract Term. STATE reserves the right to execute up to 5 (five) options to renew this Contract under the same terms and conditions for a period of 12 (twelve) months each, with mutual written agreement between both parties.

4. TERMINATION

a. Termination by Mutual Agreement

This Contract may be terminated by mutual consent of both parties executed in writing with thirty (30) days’ notice.

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:

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.

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.

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:

The CONTRACTOR shall have a minimum of 30 days to cure from the date of receipt any such default prior to the effective date of termination.

If CONTRACTOR fails to provide services required by this Contract within the time specified or any extension agreed to by STATE; or 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. SUSPENSION FOR CONVENIENCE

STATE shall have the right 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 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.

CONTRACTOR shall have the right to submit claims in accordance with the terms of this Contract as a result of stop work orders issued under this section.

6. 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.

7. 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.

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

BREACH

If CONTRACTOR fails to deliver Deliverables or to provide Services that satisfy CONTRACTOR’s obligations under this Contract, STATE shall have the right to withhold any and all disputed payments due under this Contract until a resolution of such dispute is reached between the parties. STATE may withhold any and all such disputed payments due under this Contract to CONTRACTOR without penalty or work stoppage by CONTRACTOR, until such failure to perform is cured or a resolution of such dispute is reached between the parties.

9. COPYRIGHT FOR CONTRACTOR’S PROPRIETARY SOFTWARE

To the extent that the Services provided by CONTRACTOR are generated by CONTRACTOR’s proprietary software, nothing contained herein is intended nor shall it be construed to require CONTRACTOR to provide such software to STATE. STATE agrees that it has no claims of ownership, including copyright, patents, or other intellectual property rights to CONTRACTOR’s software. Nothing in this Contract shall be construed to grant STATE any rights to CONTRACTOR’s materials created prior to the execution of this Contract. All of the deliverables under this Contract are specifically set out herein.

10. LITIGATION REIMBURSEMENT

If CONTRACTOR is requested by STATE to produce CONTRACTOR deliverables, documents, records, working papers, or personnel for testimony or interviews with respect to this Contract or any services provided hereunder for any unrelated third party matter, litigation or otherwise, in which the STATE does not assert any indemnity obligation or breach of Contract on behalf of CONTRACTOR, then STATE and CONTRACTOR shall execute a change order or new services contract for the sole purpose of setting forth any payment and the terms associated with CONTRACTOR’s response and related to the reasonable fees of CONTRACTOR in responding. The foregoing does not: (1) diminish or negate CONTRACTOR’s obligation to negotiate and defend all cost allocation plans and STATE mandated cost claims as specifically provided for under this Contract; or (2) apply in the event CONTRACTOR is compelled by subpoena from a third party to provide CONTRACTOR deliverables, documents, records, working papers, or personnel for testimony or interviews.

11. DATA ACCURACY

CONTRACTOR shall provide guidance to the STATE in determining the data required.

STATE represents that all financial and statistical information provided to CONTRACTOR by STATE, its employees and/or agents is accurate and complete to the best of STATE’s knowledge. STATE further acknowledges and agrees that CONTRACTOR shall be entitled to rely upon the accuracy and completeness of the data to perform the services. STATE shall provide all such data in a timely manner sufficient to allow CONTRACTOR to provide the services. CONTRACTOR shall have no liability to STATE whatsoever if STATE provides incomplete or inaccurate data or provides data in an untimely manner.

12. CONTRACTOR’S LIABILITY IF AUDITED

CONTRACTOR shall, upon notice of audit, make work papers and other records available to the auditors. CONTRACTOR’s sole responsibility under an audit shall be to provide reasonable assistance to STATE through the audit and to make those changes to the work product required as a result of the audit. CONTRACTOR shall not be liable for any audit disallowances or any missed or lost revenue associated with, or related to, the Services, regardless of cause.

13. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

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

14. 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.

15. 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.

16. 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. This obligation to defend, indemnify, and hold harmless does not extend to professional liability claims arising from professional errors and omissions. 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.

17. INSURANCE

CONTRACTOR shall secure and keep in force during the term of this Contract 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 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 operations, contractual liability, 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 $1,000,000 per occurrence combined single limit.

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.

Professional errors and omissions with minimum limits of $1,000,000 per occurrence and in the aggregate, CONTRACTOR shall continuously maintain such coverage during the Contact period and for three years thereafter. In the event of a change or cancellation of the policy and insurance company, 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 excess 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 Certificates of Insurance and required endorsements shall be reasonably 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.

1) The state of North Dakota and its agencies, officers, and employees (State) shall be endorsed on the commercial general liability policy, 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. If the Contractor carries higher limits than are required herein, the higher limits shall be available to pay covered claims related to this contract subject to all of the insurance policy’s terms and conditions, warranties and exclusions and depending upon the circumstances surrounding the claim. A “Waiver of Subrogation” waiving any right to recovery the insurance company may have against the State;

2) The CONTRACTOR shall furnish a certificate of insurance to the undersigned State representative prior to commencement of this agreement. All required endorsements shall be provided attached to the Certificate of Insurance.

3) Failure to provide insurance as required in this Contract is a material breach of Contract entitling the STATE to terminate this agreement.

Contractor’s insurers shall, according to each insurance policy’s provision, provide at least 30 days prior written notice of cancellation or non-renewal to the State as the certificate older on file with insurers. CONTRACTOR shall provide on an ongoing basis, current certificates of insurance during the term of the contract. A renewal certificate will be provided within 10 days prior to coverage expiration.

18. LIMITATION OF LIABILITY

EXCEPT FOR LOSS OR DAMAGE THAT CANNOT BE LIMITED UNDER N.D.C.C. § 32-

12.2-15, CONTRACTOR’S TOTAL LIABILITY TO STATE FOR DAMAGES, ARISING OUT

OF, OR IN ANY WAY RELATED TO, THIS CONTRACT SHALL NOT EXCEED TWICE THE

TOTAL VALUE OF THIS CONTRACT.

19. 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.

20. PERSONNEL

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

b. 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.

c. No replacement, reassignment or substitution of any assigned individuals and personnel qualifications shall be made without the prior written approval of STATE and that such replacement, reassignment, or substitution shall be made at no additional cost to

STATE.

d. Any substitution made pursuant to this paragraph must be of equal or higher skills, knowledge, and abilities than those personnel originally proposed, and that STATE’s approval of a substitution is not construed as an acceptance of the substitution’s performance potential. STATE agrees that an approval of a substitution will not be unreasonably withheld.

e. Upon request by STATE, CONTRACTOR shall replace any CONTRACTOR personnel that STATE determines, in its sole discretion, to be unable to perform the responsibilities of this Contract acceptably, e.g., inappropriate, or unprofessional personal conduct, professional inabilities, etc.

f. STATE's working hours are Monday through Friday from 8:00 AM until 5:00 PM (CST or CDT) with one hour for lunch. STATE Project Manager may approve alternate work schedules.

g. According to STATE policy, STATE personnel are only obligated to work a forty-hour workweek, Monday through Friday, and are allowed reasonable vacation, sick and educational absences.

h. CONTRACTOR’s personnel are not expected to work on State holidays or other mandatory leave days.

CONTRACTOR agrees that STATE may require any personnel CONTRACTOR assigns to perform work under this Contract, including employees, contracted staff, subcontractors, or other individuals, to submit to a criminal history record check in accordance with N.D.C.C. § 12-60-24, through the authority granted to the chief information officer of the STATE pursuant to N.D.C.C. § 54-59-20. STATE shall have the right to reject any individual CONTRACTOR assigns to perform work under this Contract if, in STATE’s sole discretion, it determines that the results of the criminal history record check make the individual unacceptable. CONTRACTOR agrees to be responsible for all costs associated with criminal history record checks carried out pursuant to this paragraph.

21. 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 in electronic format upon termination of this Contract at no charge from

CONTRACTOR.

22. NOTICE

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

STATE CONTRACTOR

OMB, Fiscal Division Maximus US Services, Inc.

4th Floor Capitol Tower Contracts Department

600 E. Boulevard Avenue 808 Moorefield, Suite 205

Bismarck, ND 58505 Richmond, VA 23236

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.

23. 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 http://www.legis.nd.gov/cencode/t54c59.pdf http://www.legis.nd.gov/cencode/t12c60.pdf http://www.legis.nd.gov/cencode/t44.html

STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the Term of this Contract.

24. COMPLIANCE WITH PUBLIC RECORDS LAWS

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

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

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

25. 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.

26. ASSIGNMENT AND SUBCONTRACTS

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

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.

27. 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 such evidence, including the scene of an accident.

28. 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;

b. STATE’s Solicitation Amendments to Request for Proposal (“RFP”) number 110.7-21-

002 dated January 25, 2021;

c. STATE’s Request for Proposal (“RFP”) number 110.7-21-002, dated January 25, 2021;

d. CONTRACTOR’s BAFO responses in response to RFP number 110.7-21-002 dated

January 25, 2021;

e. CONTRACTOR’s proposal dated February 23, 2021, in response to RFP number 110.7-

21-002.

f. 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.

29. UNANTICIPATED AMENDMENTS

If additional work is required within the scope of this Contract due to a legitimate unforeseen circumstance, STATE shall provide CONTRACTOR a written description of the additional work and request CONTRACTOR to submit a proposal for accomplishing the scope of work.

CONTRACTOR will not commence additional work until all parties agree in writing.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. EFFECTIVENESS OF CONTRACT

This Contract is not effective until fully executed by both parties. If no start date is specified in the Term of Contract, the most recent date of the signatures of the parties shall be deemed the Effective Date.

CONTRACTOR STATE OF NORTH DAKOTA

Maximus US Services, Inc. Acting through its North Dakota

Office of Management and Budget

BY: BY:

Printed Name: Printed Name: Jeff Larshus Title: Title: Director of State Financial

Services Date: Date:

Jaida Williams

Paralegal 4/30/2021 5/3/2021