ND+Vet+Home+-+contract-amendment+#4+signed.pdf

CONTRACT AMENDMENT

CONTRACT NAME AND NUMBER: Veterans Home Nurse Call Devices and Upgrade - #087

AMENDMENT NUMBER: 4

This amendment is made to Veterans Home Nurse Call Devices and Upgrade - #087 (Contract) between the State of North Dakota, acting through its North Dakota Veterans Home (STATE), and Beacon Communications, LLC (CONTRACTOR).

The parties agree to the following terms and conditions and expressly agree that if any of the following terms and conditions conflict with any of the terms and conditions of the Contract, then, notwithstanding any term in the Contract, the following terms and conditions govern and control the rights and obligations of the parties.

The parties agree to amend the Contract as follows:

Termination Contract Section 6, Termination. This section is hereby deleted in its entirety and replaced with the following:

6. TERMINATION

a. Termination for Convenience or by Mutual Agreement

This Contract may be terminated by STATE upon thirty (30) days’ written notice to CONTRACTOR. This Contract may be terminated by mutual consent of both Parties executed in writing.

b. Early Termination in the Public Interest STATE is entering 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.

1. 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 or continued at levels sufficient to allow for purchase of the services or goods in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the services or good 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 or goods required by this Contract within the time specified or any extension agreed to in writing 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.

Force Majeure Contract Section 10, Force Majeure. This section is hereby deleted in its entirety and replaced with the

10. FORCE MAJEURE

Neither Party shall be held responsible for delay or default caused by fire, riot, terrorism, pandemic (excluding COVID-19), acts of God, or war if the event was not foreseeable through the exercise of reasonable diligence by the affected Party, the event is beyond the Party’s reasonable control, and the affected Party gives notice to the other Party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default. If CONTRACTOR is the affected Party and does not resume performance within fifteen (15) days or another period agreed between the Parties, then STATE may seek all available remedies, up to and including termination of this Contract pursuant to its Termination Section, and STATE shall be entitled to a pro-rata refund of any amounts paid for which the full value has not been realized, including amounts paid toward software subscriptions, maintenance, or licenses.

Indemnification Contract Section 14, Indemnification. This section is hereby deleted in its entirety and replaced with the

17. INDEMNIFICAION

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 Contract.

Intellectual Property Infringement Indemnification Contract Section 15, Intellectual Property Infringement Indemnification. This section is hereby deleted in its entirety and replaced with the following:

15. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION

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

CONTRACTOR’S obligation shall not extend to a claim based on any alleged infringement arising from any: (a) additions, changes, or modifications to the services by or on behalf of STATE; (b) incorporation of the services or any component thereof into any other product or process; or (c) use of the services other than as permitted by this Contract.

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.

Insurance Pursuant to 2021 House Bill 1057, the statutory caps on State liability (N.D.C.C. § 32-12.2-02) increase each year starting July 1, 2022 through July 1, 2026. Therefore, the insurance requires for this contract are being amended.

Contract Section 17, Insurance. Insurance requirements are hereby amended as follows, listed by subsection:

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

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

3) Subsection d: Employer’s liability or “stop gap” insurance of not less than $2,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

Compliance with Public Records Law Contract Section 31, Compliance with Public Records Law. This section is hereby deleted in its entirety and replaced with the following:

31. 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.

Assignments and Subcontracts Contract Section 33, Assignments and Subcontracts. This section is hereby deleted in its entirety and replaced with the following:

33. ASSIGNMENTS 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 under this Contract 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 in accordance with the Termination for Cause section of this Contract.

CONTRACTOR may enter subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments.

CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of STATE.

Nondiscrimination – Compliance with Laws Contract Section 41, Assignments and Subcontracts. This section is hereby deleted in its entirety and replaced with the following:

15. NONDSICRIMINATION – 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 all licenses and permits required by law during the Term of this Contract.

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

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

Data Security The contract is hereby amended to include the following Data Security section as Section 45:

45. DATA SECURITY

a. Remote access to Data from outside the United States, including remote access to

Data by authorized support staff in identified support centers, is prohibited.

b. CONTRACTOR shall transmit, process, and store STATE Data within the continental

United States.

c. CONTRACTOR shall notify STATE at least 90 days prior to any relocation of STATE’s

Data to a different hosting facility. STATE reserves the right to terminate the Contract without penalty if STATE does not approve of the new hosting facility.

Use of Artificial Intelligence (AI) and Machine Learning (ML) The contract is hereby amended to include the following Use of Artificial Intelligence (AI) and Machine Learning (ML) section as Section 46:

46. USE OF ARTIFICIAL INTELLIGENCE (AI) AND MACHINE LEARNING (ML)

STATE AND CONTRACTOR agree CONTRACTOR may wish to use Artificial Intelligence (AI) and Machine Learning (ML) (together AI/ML) to complete CONTRACTOR’s obligations under this Contract. CONTRACTOR’s use of AI/ML is subject to prior, written approval by http://www.legis.nd.gov/cencode/t34c01.pdf http://www.legis.nd.gov/cencode/t34c06-1.pdf https://www.ndlegis.gov/cencode/t54c44-4.pdf

STATE. CONTRACTOR shall provide to STATE detailed information, in writing, on the use of AI/ML in CONTRACTOR’s obligations under this Contract. CONTRACTOR agrees to submit new information to STATE for approval any time CONTRACTOR substantially changes its use of AI/ML. STATE reserves the right to terminate the Contract for cause if CONTRACTOR uses AI/ML in a manner that STATE has not had the opportunity to approve or denied approval.

Counterparts The contract is hereby amended to include the following Counterparts section as Section 47:

47. COUNTERPARTS

This Contract may be executed in multiple, identical counterparts, each of which is be deemed an original, and all of which taken together shall constitute one and the same Contract.

Third-Party Risk Management Program The Third-Party Risk Management (TPRM) program helps to classify, evaluate, and monitor all third-party Vendors to provide reasonable assurance that inherent and overall risk associated with each third-party Vendor relationship is understood and aligned to the overall security objectives at NDIT.

TPRM went into effect on July 1, 2023. The contract is hereby amended to include the following TPRM section as Section 48:

46. THIRD-PARTY RISK MANAGEMENT PROGRAM

CONTRACTOR shall undergo the third-party security questionnaire on an annual basis at no cost to the STATE, unless CONTRACTOR has received FedRAMP, StateRAMP, or HiTrust certification. CONTRACTOR shall provide complete questionnaire within twenty-one (21) calendar days of receiving a written request. CONTRACTOR shall undergo the third-party security questionnaire when a breach has occurred.

Scope of Work Contract Section 2, Scope of Work. The scope of work, Exhibit A is hereby amended to add the following deliverable:

4. DELIVERABLE 4: PHONE INTEGRATION

a. Description:

CONTRACTOR shall program existing Spectralink phones into the R5K to make a SIP call for nurse call alerts and tie them into existing PBX for messaging to the facility owned Iphones and send overflow alerts to these phones. A needs assessment will need to be completed for programming of phones to send alerts to the proper extensions.

b. Expectations of CONTRACTOR:

1) CONTRACTOR shall provide necessary equipment, labor and programming needed to complete this deliverable.

2) CONTRACTOR shall complete a needs assessment for programming of phones to send alerts to the proper extensions.

c. Expectations of STATE:

1) STATE shall participate in testing and ensuring existing Spectralink phones have been programmed properly and function properly.

d. Acceptance Criteria:

For the acceptance of this deliverable to occur, the following criteria must be met:

1) All existing Spectralink phones programming has been updated.

2) All existing Spectralink phones have been tested and function properly after programming is updated.

This change is authorized under Section 36 – Unanticipated Amendments.

Renegotiation Contract Section 5, Term of Contract allows the STATE to renegotiate the contract after the completion of the initial term including any extensions and renewals, which have been executed. Therefore, the Contract is amended as follows:

Section 5, Term of Contract. Additional term will be added beginning August 1, 2024 and will end on July 30, 2025 and STATE reserves the right to execute up to four (4) options to renew this CONTRACT annually under the same terms and conditions for a period of 12 months each.

Compensation Contract Section 3, Compensation. The Compensation listed in Exhibit C, Compensation Details listed under subsection 2, Ongoing License & Maintenance is amended to add pricing for Deliverable 4:

Phone integration and the renegotiated term.

# Deliverable Invoice 4 Phone Integration $4,143.73

ONGOING LICENSE & MAINTENANCE

Time Period Dollar

Amount SIP Server Software

Year 1 - August 1, 2024 through July 31, 2025 $5,800.00 Year 2 - August 1, 2025 through July 31, 2026 $5,910.00 Year 3 - August 1, 2026 through July 31, 2027 $5,995.00 Year 4 - August 1, 2027 through July 31, 2028 $6,180.00 Year 5 - August 1, 2028 through July 31, 2029 $6,250.00

Spectralink Wi-Fi Based Phones Year 1 - August 1, 2024 through July 31, 2025 $8,186.00 Year 2 - August 1, 2025 through July 31, 2026 $8,225.00 Year 3 - August 1, 2026 through July 31, 2027 $8,399.00 Year 4 - August 1, 2027 through July 31, 2028 $8,510.00 Year 5 - August 1, 2028 through July 31, 2029 $8,625.00

The Compensation listed in Exhibit C, Compensation Details listed under subsection 3, Optional Items is amended to update pricing for the renegotiated term.

Hourly Rate for Items not covered by maintenance and support - Technician $185.00 Hourly Rate for Items not covered by maintenance and support – Professional Services $195.00