A6 - PSA.docx

PURCHASE OF SERVICE AGREEMENT

NORTH DAKOTA DEPARTMENT OF ENVIRONMENTAL QUALITY (NDDEQ)

(03-2025)

Contract Number

Start Date 8/24/2026 End Date 10/31/2026

The Parties to this contract are the NDDEQ and the Contractor. This contract is not effective and expenditures related to this contract should not be incurred until both Parties have signed the contract. If attachments are referenced, they must be returned with the signed contract. If attachments were not provided, contact the Program Director identified below.

Title of Project/Program Underground Storage Tank (UST) Removal and Phase II Environmental Assessment at the former F/K/A Sperling Service Lehr, ND NDDEQ Project Code

5551 EQ3835-51

Contractor Name

Program Director Robin Beyer

Address

Address 4201 Normandy St.

City/State/ZIP Code

City/State/ZIP Code Bismarck, ND 58503-1324

Contact Name

Contact Name Frederick Ilunga

Telephone Number

Telephone Number

(701) 328-5176

Email Address

Email Address filunga@nd.gov

Scope of Service Contractor will remove and dispose of two (2) underground tanks/piping systems and complete a Phase II Environmental Site Assessment at the former F/K/A Sperling Service site located on the corner of Mcintosh Street and First Ave South in Lehr, ND (the site). For the purposes of this contract, the NDDEQ is estimating that there are at least two (2) tanks/underground piping systems at the site. In the event there are no tanks or only 1 tank found at the site, the cost to complete Mandatory Requirement 3 will be reduced and agreed upon between the NDDEQ and the Contractor. If there are no tanks found at the site, the confirmation sampling outlined in the Scope of Work Mandatory Requirements 2 and 5 will not be required, and the NDDEQ will not be charged for the work.

Contractor will meet all Scope of Work and Mandatory Requirements provided in the Invitation for Bid (IFB) number SRC000359 which includes the following activities:

1. Meet with the NDDEQ as needed or requested to discuss the project.

2. Prepare and submit a Sampling and Analysis Plan (SAP) as outlined in Mandatory Requirement 1. The SAP must be approved by the NDDEQ before conducting any work at the site.

3. Prepare a workplan as outlined in Mandatory Requirement 2. The workplan must be approved by the NDDEQ before conducting any work at the site.

4. Remove and dispose of two (2) underground tank/piping systems as outlined in Mandatory Requirement 3. Given the unknown information about the site’s underground storage tanks, Contractor and the North Dakota Brownfields Response Program (NDBSRP) staff will assess the state of the underground storage tanks to determine if removal is feasible or if leaving the tanks in place is a better option. The NDBSRP staff will make the final determination. If the underground storage tank(s) cannot safely be removed, the soil confirmation samples and groundwater sampling below the UST may not be needed.

5. Complete a groundwater survey identifying the direction and approximate rate of groundwater flow at the site as outlined in Mandatory Requirement 4.

6. Collect and submit a minimum of four (4) soil samples from soil borings and four (4) groundwater samples from temporary monitoring wells for laboratory analysis as outlined in Mandatory Requirement 5.

7. Collect and submit six (6) confirmation soil samples from UST/piping removal and one (1) groundwater sample for laboratory analysis as outlined in Mandatory Requirement 5 as determined by the NDBSRP staff.

8. Prepare a report documenting the activities related to the removal and disposal of underground tanks/piping systems and findings of the investigation in compliance with industry standards for a Phase II Environmental Site Assessment as outlined in Mandatory Requirement 6.

9. Prepare a risk analysis for Tier 1 as outlined in Mandatory Requirement 7.

Contractor is responsible for determining the nature and extent of contamination at the site and assessing any risks to human and environmental health. The information gathered during the project will be used to inform remediation and management decisions for the site as part of the North Dakota Brownfields State Response Program. This project is subject to the Brownfields Quality Assurance Project Plan (QAPP)-Attachment 5 of IFB number SRC000359.

Contractor’s failure to complete the Scope of Service may result in a reduction in final contract payment.

Reporting Requirements Contractor will complete all reporting requirements outlined in the Scope of Service. Contractor will only invoice the NDDEQ once all the Scope of Work requirements are completed. Contractor may only invoice the NDDEQ for the Scope of Work activities that were completed. The final invoice must be received by October 31, 2026. Requests for reimbursement/invoices will be processed upon the NDDEQ’s approval of reports and invoices.

Special Conditions Deviation from the approved SAP and workplan without prior written approval from the NDDEQ is considered a material breach by Contractor entitling the NDDEQ in its sole discretion to terminate in accordance with the Termination for Cause section of this contract.

This Contract will not automatically renew. The NDDEQ reserves the right to extend this Contract for an additional period of time, not to exceed twelve (12) months, beyond the current termination date of this Contract.

This contract is subject to the following terms and conditions and applicable State and Federal Regulations.

1. CONTRACTOR’S UNDERSTANDING OF TERM OF FUNDING

Contractor understands that this contract is a one-time contract and acknowledges that it has received no assurances that this contract may be extended beyond its expiration date.

2. TERMINATION

a. Termination for Convenience or by Mutual Agreement This contract may be terminated by NDDEQ 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 NDDEQ is entering into this contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly and Courts. If this contract ceases to further the public policy of the State of North Dakota, NDDEQ, 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 NDDEQ 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 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.

NDDEQ 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 in writing by NDDEQ; 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 NDDEQ provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this contract.

3. 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 NDDEQ may seek all available remedies, up to and including termination of this contract pursuant to its Termination Section, and NDDEQ 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.

4. INDEMNIFICATION

Contractor agrees to defend, indemnify, and hold harmless the state of North Dakota, its agencies, officers and employees (NDDEQ), from and against claims based on the vicarious liability of the NDDEQ or its agents, but not against claims based on the NDDEQ’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 NDDEQ under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the NDDEQ is necessary. Any attorney appointed to represent the NDDEQ 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 NDDEQ for all costs, expenses and attorneys' fees incurred if the NDDEQ 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.

5. 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 or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $2,000,000 per occurrence.

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.

c. Workers compensation coverage meeting all statutory requirements.

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

a. 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 NDDEQ. The policies shall be in form and terms approved by the NDDEQ.

b. The Contractor shall furnish a certificate of insurance to the undersigned NDDEQ representative prior to commencement of this contract.

c. Failure to provide insurance as required in this contract is a material breach of contract entitling the NDDEQ to terminate this agreement immediately.

d. Contractor shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

6. 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 NDDEQ 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 NDDEQ shall be the sole property of NDDEQ, and Contractor hereby assigns and transfers all its right, title, and interest therein to NDDEQ. Contractor shall execute all necessary documents to enable NDDEQ to protect NDDEQ’s intellectual property rights under this section.

7. WORK PRODUCT

All work product, equipment or materials created for NDDEQ or purchased by NDDEQ under this contract belong to NDDEQ and must be immediately delivered to NDDEQ at NDDEQ'S request upon termination of this contract.

8. CONFIDENTIALITY

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

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

10. 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.

11. ASSIGNMENT AND SUBCONTRACTS

Contractor may not assign or otherwise transfer or delegate any right or duty without NDDEQ’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 NDDEQ is prohibited from conducting business, NDDEQ shall have the right to terminate in accordance with the Termination for Cause section of this contract.

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 NDDEQ.

12. SPOLIATION - PRESERVATION OF EVIDENCE

Contractor shall promptly notify NDDEQ 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 NDDEQ the opportunity to review and inspect such evidence, including the scene of the accident.

13. MERGER, MODIFICATION AND SEVERABILITY

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. No alteration, amendment, or modification of this contract is effective unless it is reduced to writing, signed by the Parties. 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.

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 Amendment #1 to Invitation for Bid (“IFB”) number SRC000359, dated _____;

c. STATE’s Invitation for Bid (“IFB”) number SRC000359, dated _____;

d. CONTRACTOR’s proposal dated _____ in response to IFB number SRC000359.

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.

14. 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.

15. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

By entering into this contract, NDDEQ 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. NDDEQ does not waive any right to a jury trial.

16. ATTORNEY FEES

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

17. NONDISCRIMINATION AND COMPLIANCE WITH LAWS

a. 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.)

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

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

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

d. CONTRACTOR shall have and keep current 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.

18. LIQUIDATED DAMAGES

Because it is difficult to fix the actual damages sustained in the event of Contractor’s non-compliance with the Special Conditions, the NDDEQ and Contractor agree that the liquidated damages as described in this contract are a genuine estimate of the NDDEQ’s foreseeable damage. In the event of Contractor’s or subcontractor’s failure to comply with the Special Conditions of this contract, the NDDEQ may apply liquidated damages to the final contract payment in the amount of $_____ per instance of non-compliance, which is equivalent to 10% of the total contract amount rounded to the nearest $100.

An instance of non-compliance as described above is when Contractor or subcontractor is found to have violated the requirements in the Special Conditions, resulting in the issuance of a Notice of Violation (NOV) or Expedited Settlement Agreement (ESA). Each violation described in the NOV or ESA will be considered one “instance” of contract non-compliance.

Liquidated damages are not intended to be a penalty and are solely intended to compensate for damages. Application of liquidated damages does not preclude or prevent the NDDEQ from pursuing administrative enforcement of any violations of statute, rule, permit, or other environmental law, nor does it prevent other state or federal entities from pursuing other administrative activities.

19. STATE AUDIT REQUIREMENTS

Pursuant to N.D.C.C. § 54-10-19, all records, regardless of physical form, and the accounting practices and procedures of Contractor relevant to this contract are subject to examination by the North Dakota Department of Environmental Quality, the North Dakota State Auditor, the Auditor’s designee, or Federal auditors, if required.

20. RETENTION OF RECORDS

Financial records, supporting documents, statistical records, and all other non-Federal entity records pertinent to a Federal award must be retained for a period of three (3) years from the date of submission of the final expenditure report. Contractor must provide the NDDEQ, the federal government, and their duly authorized representatives access to the books, documents, papers, and records of Contractor that are pertinent to the services provided under this contract.

21. CONTINGENT LIABILITY

During the term of this contract, and for three (3) years after this contract expires or is terminated, Contractor agrees to reimburse NDDEQ for any claims submitted by NDDEQ for federal financial participation in the cost of this contract to the extent those claims are disallowed by any federal agency for failure on the part of Contractor to comply with this contract or any federal or state statutory or regulatory provisions which govern the source of funding. The NDDEQ 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 the NDDEQ. Action may be brought by the NDDEQ as allowed by law.

22. LIMITATIONS ON APPROPRIATIONS AND SPENDING AUTHORITY

Continuation of this contract beyond June 30 of any odd numbered year is contingent on continued legislative appropriation of funds for the purposes of this contract. If those appropriations are not forthcoming, NDDEQ will notify Contractor as soon as possible and the contract will terminate on June 30 of that year. NDDEQ will neither be penalized nor incur any liability because of termination of the contract.

23. EVALUATION

NDDEQ shall, throughout the effective dates on the contract, conduct an ongoing evaluation of Contractor’s performance in carrying out the Scope of Service in the contract. Compliance with contract requirements and assurances will also be monitored. Such evaluation may include periodic site visits by NDDEQ representatives to review progress made by Contractor in accomplishing stated goals and objectives.

24. CONTRACTOR ASSURANCES

Contractor understands in connection with performing work under this contract, Contractor OR Subcontractor who receives funds to provide services to NDDEQ are obligated and agree to comply with all local, state, and federal laws, regulations, and executive orders related to the performance of this contract including the following:

a. Fair Labor Standards Act, Equal Pay Act of 1963

b. Titles VI and VII of the Civil Rights Act of 1964

c. Age Discrimination Employment Act of 1967

d. Age Discrimination Act of 1975

e. Drug-free Workplace Act of 1988

f. Americans with Disabilities Act of 1990

g. Executive Order 13513, Federal Leadership on Reducing Text Messaging while Driving

h. Section 504 of the Rehabilitation Act of 1973

i. Hatch Act (5 U.S.C. 1501-1508 and 7324-7328)

j. Trafficking Victims Protection Act of 2000, as amended (22 U.S.C. 7104(g))

k. Build America, Buy America of the Infrastructure Investment and Jobs Act (P.L. 117-58, §§70911-70917)

l. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment (2 CFR 200.216)

25. DEBARMENT/SUSPENSION

Contractor certifies that neither Contractor, Subcontractor, nor their principals, are presently debarred, declared ineligible, or voluntarily excluded from participation in transactions with State or Federal Government by any Department or Agency of the State or Federal Government.

26. SECRETARY OF STATE REGISTRATION

The North Dakota Secretary of State has registration requirements for individuals and businesses transacting business in North Dakota. If it is determined that Contractor has registration requirement with the North Dakota Secretary of State, Contractor will abide by N.D.C.C. § 54-44.4-09.1.

27. COMPREHENSIVE PROCUREMENT GUIDELINE FOR PRODUCTS CONTAINING RECOVERED MATERIALS Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6962, and Executive Order 12873 requires preference be given in procurement programs to the purchase of specific products containing recycled materials pursuant to the Environmental Protection Agency guidelines (40 CFR Part 247 Subpart B).

28. 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. Notice provided under this provision does not meet the notice requirements for monetary claims against the NDDEQ found at North Dakota Century Code § 32‑12.2‑04.

29. CERTIFICATION

Contractor certifies that their organization/agency will ensure all program managers are aware of and will comply with the requirements set forth in this contract and that the individual(s) responsible for authorizing, expending, or accounting for contract funds will be provided access to the contract.

30. EFFECTIVENESS OF CONTRACT

This contract is not effective until fully executed by both Parties.

BY:

BY:

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