Attachment 3-Contract.docx

ATTACHMENT 3

CONTRACT: Optional: #211 WIRING & FIBER PLACEMENT SERVICES

Instructions to Offerors: Offeror should review SECTION SIX – CONTRACT INFORMATION for information related to STATE’s contracting requirements.

The copy of the Contract to be included in the proposal must be complete as follows:

A. State “Agree” or “Propose Alternate Language” for each section.

B. If proposing alternate language, include the proposed language through edits in the body of the section by using track changes. Offerors may provide comments related to any proposed alternate language.

C. Give consideration if you want the Offeror to provide a draft of the Exhibit A Scope of Work as part of their proposal. Adjust as needed. Exhibit A Scope of Work and Exhibit B Compensation Details do not need to be completed as part of your proposal response. These exhibits will be completed during contract negotiations.

D. If applicable, Exhibit C Software as a Service (SaaS) Service Level Agreement (SLA) must be complete and submitted along with the proposal as part of the Technology Contract Attachment.

PARTIES

The parties to this contract (Contract) are state of North Dakota, acting through its Information Technology Department and its Office of Management and Budget’s State Procurement Office (STATE), and Name of Business a [type of business] (e.g. Delaware corporation or privately held company) having its principal place of business at principal business address (CONTRACTOR).

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

COOPERATIVE PURCHASE

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

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

SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract shall provide wiring and fiber placement services to the STATE according to this Contract including any Statements of Work (SOW) and attachments and in the documents listed in the Merger and Modification, Conflict in Documents Section.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

COMPENSATION

Contractual Amount STATE shall pay Contractual Amount according to the Compensation Details as Exhibit B.

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

Retainage All deliverable payments are subject to ten (10)% retainage. STATE shall pay CONTRACTOR retained amounts due upon Final Acceptance, minus any amount(s), including withholdings or setoffs, due to STATE under this Contract.

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

CONTRACTOR shall invoice STATE within seven (7) days for any accepted deliverable, service, or goods.

STATE may only expend public funds for any deliverable, service, or goods accepted within the Fiscal Year for which the funds are appropriated. STATE’s Fiscal Year is July 1 through June 30. An invoice for any deliverable, service, or goods accepted within the Fiscal Year must be dated prior to July 1 and received by STATE no later than July 7 of each Fiscal Year.

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

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

Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation to the Contract. STATE may reduce CONTRACTOR's invoice for amounts included in any invoice or payment previously made which are determined by STATE not to constitute allowable costs, on the basis of audits conducted in accordance with the terms of this Contract. STATE may reduce any payments for amounts equal to prior overpayments to CONTRACTOR.

STATE may deduct the amount owed or that will be owed to STATE by CONTRACTOR from payments that are or will become due and payable to CONTRACTOR under this Contract.

Travel STATE shall reimburse CONTRACTOR for expenses related to travel as outlined below:

Lodging: Reimbursement may not exceed the published GSA rate for the travel location in effect for the dates of travel. CONTRACTOR shall provide copies of receipts for lodging reimbursement. STATE may not reimburse incidental and miscellaneous expenses charged to the room.

Transportation: STATE shall reimburse air travel 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. STATE shall determine reasonable rates for the reimbursement of rented, chartered, or contracted vehicle transportation.

Meals: STATE shall reimburse meals on a per diem basis for each day of travel at the published GSA per diem rate for the travel location in effect for the dates of travel. STATE shall pay per diem for the first and last day of travel at seventy five percent (75%) of the GSA per diem rate. CONTRACTOR’s requests for per-diem payments must specify 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 travel expenses that exceed the travel budget as agreed by the Parties must be approved by STATE’s project manager.

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

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 a certificate of exemption upon request by CONTRACTOR.

Taxpayer ID CONTRACTOR’s federal employer ID number (FEIN) is: [Insert FEIN].

Payment Methods STATE may make payment using a government credit card. CONTRACTOR shall accept a government credit card without passing the processing fees for the government credit card back to STATE.

STATE may make payment using an ACH transfer, wire transfer, or by issuing a check to CONTRACTOR.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above equipment, materials, and workspace – resources provided by parties For periods during which the Parties mutually agree that CONTRACTOR’s assigned staff is on site:

On site means statewide.

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

CONTRACTOR shall provide equipment and software for on-site CONTRACTOR personnel .

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

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above term of contract This Contract term (Term or Initial Term) begins on March 1, 2027 and ends on February 28, 2029.

No Automatic Renewal This Contract will not automatically renew.

Renewal Option STATE may renew this Contract upon satisfactory completion of the Initial Term. STATE may execute up to four (4) options to renew this Contract under the same terms and conditions for a period of twelve (12)months each (Renewal Term).

The Contract pricing must be agreed upon by both parties and will not increase more than 5% each renewal.

Extension Option STATE may extend this Contract for an additional period, not to exceed twelve (12) months, beyond the current termination date of this Contract.

termination Termination for Convenience or by Agreement STATE may terminate this Contract upon thirty (30) days’ written notice to CONTRACTOR. This Contract may be terminated by consent of both Parties executed in writing.

Early Termination in the Public Interest STATE is entering this Contract to carry out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, and Courts. If this Contract ceases to further the public policy of the State of North Dakota, STATE, by written notice to CONTRACTOR, may terminate this Contract in whole or in part.

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

If federal or state laws or rules are modified or interpreted in a way that the services or goods 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 CONTRACTOR 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 accrued prior to termination.

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

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 If CONTRACTOR fails to perform any provisions of this Contract or fails to pursue the work so 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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above suspension for convenience STATE at any time may 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 will be delayed on a day-for-day basis to the extent STATE has issued a stop work order to CONTRACTOR and the stop work order is causing delays in completing services in accordance with the schedule. CONTRACTOR may submit claims in the form of an itemized invoice in accordance with the Compensation section of this Contract as a result of stop work orders issued under this section.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above force majeure Neither Party will be held responsible for delay or default caused by fire, riot, terrorism, pandemic, acts of God, executive orders issued by the governor or U.S. President, 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 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, STATE may seek all available remedies, up to and including termination of this Contract pursuant to its Termination Section, and STATE is 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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above 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 of or has knowledge. CONTRACTOR acknowledges 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 publishes or discloses the confidential information or proprietary information without authorization, STATE immediately may receive 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 shall provide CONTRACTOR prompt notice of any claim of which STATE is aware and for which indemnification will be sought under this Contract and shall cooperate in all reasonable respects with CONTRACTOR in connection with that claim.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above right of setoff damages Amounts due to STATE by CONTRACTOR, including liquidated or other damages, or claims for damages, may be deducted or set off by STATE from any money payable to CONTRACTOR pursuant to this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above right to withhold amounts otherwise due if contractor is in breach If CONTRACTOR fails to deliver Deliverables or to provide Services which satisfy CONTRACTOR’s obligations under this Contract, STATE may withhold any and all payments due under this Contract. STATE may withhold any and all payments due to CONTRACTOR under this Contract without penalty or work stoppage by CONTRACTOR, until CONTRACTOR’s failure to perform is cured.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above 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 is cumulative and 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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above 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, does not constitute a waiver of those rights on any other occasion. No course of dealing by either party in exercising any of its rights constitutes a waiver of that right. A waiver of any provision of this Contract is not effective unless it is in writing and signed by the party against whom the waiver is sought to be enforced.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above 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 State or its agents, but not against claims based on 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 State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for State is necessary. Any attorney appointed to represent 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 State for all costs, expenses and attorneys' fees incurred if 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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above intellectual property infringement indemnification 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.

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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above representations CONTRACTOR represents 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 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 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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above insurance CONTRACTOR shall provide certificate of insurance and any endorsements to STATE electronically to:

Name: IT Procurement Email Address: itprocuremetn@nd.gov Email Subject Line: Certificate of Insurance - #211 Wiring & Fiber Placement Services 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:

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.

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.

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.

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.

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 (3) years thereafter. In the event of a change or cancellation of coverage, CONTRACTOR shall purchase an extended reporting period to meet the time periods required in this section.

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

Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of CONTRACTOR. The amount of any deductible of self-retention is subject to approval by State.

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 State. The policies shall be in form and terms approved by State.

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

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. 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 Contract or by the contractual indemnity obligations of CONTRACTOR.

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

CONTRACTOR shall furnish a certificate of insurance to the undersigned STATE representative electronically prior to commencement of this Contract. All endorsements shall be provided as soon as practicable.

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

CONTRACTOR shall provide at least thirty-day (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 electronically ten (10) days prior to coverage expiration. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above Works for hire 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 CONTRACTOR 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 exclusively for STATE are the sole property of STATE, and CONTRACTOR assigns and transfers all its right, title, and interest in the software and related materials to STATE. CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE’s intellectual property rights under this section.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above work product All work product, equipment or materials created exclusively 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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above personnel STATE shall designate a Project Manager to serve as the primary project manager for this Contract. If, during the course of this Contract, it becomes necessary for STATE to change the person assigned as STATE’s Project Manager, STATE shall notify CONTRACTOR in writing, pursuant to the Notice section of this Contract.

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

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

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

Prior to reassignment of personnel, shall obtain written approval from STATE for all personnel to be assigned to this project.

Shall ensure the personnel assigned have the knowledge necessary to complete requirements as defined in this Contract.

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

Shall not replace, reassign or substitute any assigned individuals or personnel qualifications without the prior written approval of STATE and shall make any approved replacement, reassignment, or substitution at no additional cost to STATE.

Shall make any substitution under this paragraph that results in equal or higher skills, knowledge, and abilities than those personnel originally proposed. STATE shall not unreasonably withhold approval of a substitution, but STATE’s approval of a substitution may not be construed as acceptance of the substitution’s performance potential.

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

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

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

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 (CIO) of 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.

In lieu of requiring individual background checks for each assigned resource, CONTRACTOR may provide an annual attestation letter confirming that all personnel assigned to perform work under this Contract have successfully completed criminal history background checks consistent with industry standards, such as an FBI or equivalent national criminal background check.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above project management Reporting ONTRACTOR personnel shall provide their weekly time utilization for each individual in writing to STATE’s Project Manager, or STATE’s project staff as STATE’s Project Manager may assign.

CONTRACTOR’s Project Manager shall deliver to STATE’s Project Manager, weekly report of CONTRACTOR’s progress on the project and meeting the objective/deliverables as stated in the SOW. Each report must contain a description of the current status of the project, the tasks on which time was spent, the estimated progress to be made in the next reporting period, and the proposed solutions to any problems encountered and their effect, if any, on the project budget/schedule.

Project Variance Reporting – CONTRACTOR shall provide data to allow STATE’s Project Manager to calculate cost and schedule variance in accordance with N.D.C.C. § 54-59-23 as determined by STATE. If STATE’s analysis shows a negative cost or schedule variance exceeding twenty percent (20%), CONTRACTOR shall provide a subsequent report identifying proposed corrective measures to address the issues.

Integrated Change Control Process CONTRACTOR and STATE shall utilize an integrated change control process to manage changes during the life of a project.

A change request must be in writing to document the potential change. The write-up for the proposed change must be submitted to CONTRACTOR and STATE’s Project Managers who will in turn provide it to relevant Parties for assessment.

All change requests must be logged and tracked. STATE’s Project Manager shall record the request in the project repository and shall update the repository throughout the change process.

The change will be reviewed and, if acceptable to STATE, CONTRACTOR shall submit to STATE an estimate of the impact to cost, schedule, scope, and quality.

CONTRACTOR shall continue performing the services in accordance with the original Contract unless otherwise agreed by STATE’s Project Manager. Work may not commence on any new activities related to the change request until all Parties agree in writing.

CONTRACTOR’s Project Manager and STATE’s Project Manager shall adapt the Project Plan to incorporate approved changes.

The Parties shall incorporate each change request duly authorized in writing into the Contract to be considered part of the Contract.

During the course of this Contract, if CONTRACTOR determines or could reasonably determine any STATE actions or directions constitute a requirement to perform additional work, CONTRACTOR shall notify STATE within thirty (30) calendar days in the form of a change request utilizing the process above that STATE has requested CONTRACTOR to perform additional work. CONTRACTOR waives the right to request additional time and reimbursable costs if CONTRACTOR fails to notify STATE within thirty (30) calendar days of determining or reasonably being able to determine that STATE actions or directions constitute a requirement to perform additional work under this Contract.

Deliverable Acceptance Upon completion of a deliverable, CONTRACTOR shall furnish STATE with the deliverable and associated documentation, the expected performance, and agreed upon Acceptance Criteria.

After receipt of items in this Deliverable Acceptance Section, STATE has five (5) working days or a different period of time as agreed by the Parties in the Project Schedule, in which to accept or reject each item in writing. STATE shall accept by signature. If STATE rejects the Deliverable, STATE shall specify its grounds for rejection in writing and CONTRACTOR shall use its best efforts to revise any issues for the deliverables to be acceptable to STATE within the following five (5) business days. If STATE rejects it a second time, STATE may repeat the procedure as described in the acceptance statement above, escalate the issue to the Agency Head, or terminate this Contract upon written notice to CONTRACTOR.

Final Acceptance Final Acceptance occurs based on the following criteria:

The successful completion of all deliverables as stated in the SOW in accordance with the deliverable acceptance process AND The final delivered product fully implemented in STATE’s live production environment AND STATE has sixty (60) calendar days thereafter in which to accept or reject it in writing. If STATE rejects it, STATE shall specify in writing its grounds for rejection and CONTRACTOR shall use its best efforts to make the product conform to the requirements of this Contract as soon as possible and at no additional cost to STATE. CONTRACTOR shall continue to use its best efforts to make the product conform to the requirements of this Contract until STATE accepts the product or terminates this Contract upon written notice to CONTRACTOR.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above product conformity STATE has twelve (12) months following Final Acceptance of the product delivered by CONTRACTOR pursuant to this Contract to verify the product conform to the requirements of this Contract and perform according to CONTRACTOR system design specifications. If STATE identifies an error, deficiency, or defect, STATE shall notify CONTRACTOR citing any specific deficiency (deficiency being defined as CONTRACTOR having performed incorrectly with the information provided by STATE, not CONTRACTOR having to modify a previous action due to additional and/or corrected information from STATE). CONTRACTOR, at no additional charge to STATE, shall provide a correction or provide a mutually acceptable plan for correction within thirty (30) calendar days following the receipt of STATE’s notice to CONTRACTOR. If CONTRACTOR’s correction is inadequate to correct the deficiency, or defect, or the error recurs, STATE may act to correct the problem. CONTRACTOR shall reimburse STATE for any costs incurred to correct the problem or STATE may consider this to be cause for breach of contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above warranty CONTRACTOR warrants that the Software deployed and furnished to STATE under this Contract will conform in all material respects as accepted by STATE at the time of Final Acceptance. The warranty shall apply for a period of (#) months.

If there is a breach of warranty CONTRACTOR shall repair or replace the software or IT solution at no cost to STATE.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above 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, or by email complete on the date sent:

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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above confidentiality CONTRACTOR may 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 that STATE has authorized in advance. STATE may 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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

COMPLIANCE WITH PUBLIC RECORDS LAWS

Under the North Dakota public records law certain records may be open to the public upon request.

Public records may include:

records STATE receives from CONTRACTOR under this Contract, records obtained by either Party under this Contract, and records generated by either Party under this Contract.

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

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above 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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above 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 under this contract if there is a change of control or sale of all or substantially all of CONTRACTOR’s assets related to this Contract, whether by merger, reorganization, operation of law, or otherwise. If Assignee is a business or entity with whom STATE is prohibited from conducting business, STATE may terminate this Contract 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 may not contract or incur obligations on behalf of STATE.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above spoilation – notice of potential claims CONTRACTOR shall notify STATE promptly of all potential claims that arise or result from this Contract. CONTRACTOR also shall 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 the accident.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above 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 to the contrary in this Contract, if there is any inconsistency or conflict among the documents making up this Contract, the documents control in this order of precedence:

The terms of this Contract, including its Exhibits, as may be amended;

STATE’s Solicitation Amendment(s) to Request for Proposal (RFP) number 112-2707;

STATE’s Request for Proposal (RFP) number 112-2707 dated [X];

CONTRACTOR’s proposal dated [X] in response to RFP number 112-2707 Unless negotiated between the Parties and incorporated into this Contract by reference, all automated end-user agreements (e.g., click through, shrink-wrap, or browse-wrap) are specifically excluded and null and void. Clicking shall not represent acknowledgement or agreement to any terms or conditions contained in those agreements.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above 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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above 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 the illegal or unenforceable term.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above 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 the state District Court located in Burleigh County, North Dakota and waives any claim of lack of jurisdiction or forum non conveniens.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above alternative dispute resolution – jury trial 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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above attorney fees and costs If a lawsuit is initiated by STATE to obtain performance due under this contract, and STATE is the prevailing Party, CONTRACTOR shall pay STATE’s reasonable attorney fees and costs in connection with the lawsuit, unless prohibited by N.D.C.C. § 28‑26‑04.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above AMERICANS WITH DISABILITIES ACT (ada) – NONdiscrimination – compliance with laws CONTRACTOR shall 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.)

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.

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.

CONTRACTOR shall have and keep current and in good standing 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 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 is a material breach by CONTRACTOR and STATE may terminate this Contract in accordance with the Termination for Cause section of this Contract.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above STATE Audit 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 State Auditor, the Auditor’s designee, or Federal auditors, if required. CONTRACTOR shall maintain 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.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above F.O.b. point and freight All commodities purchased through this Contract shall be Free on Board (“F.O.B.”) final destination, freight prepaid. Unless specifically stated otherwise, all prices offered must include the delivery costs to any location within the state of North Dakota. Title shall pass to STATE at destination, and CONTRACTOR shall be responsible for any freight claims.

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above

COUNTERPARTS

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

Offeror Response:

Agree or Provide Alternate Language/Comments via Redline Above effectiveness of contract This Contract is not effective until fully executed by both Parties. If a start date is not specified in the Term of Contract, the most recent date of the signatures of the Parties is the Effective Date.

STATE OF NORTH DAKOTA

Acting through its Office of Management and Budget’s State Procurement Office

BY:

Printed Name:

Title:

Date:

EXHIBIT A – Statement of Work (SOW) The parties to this Statement of Work (SOW) are the state of North Dakota, Information Technology Department (STATE), and Contractor Name (CONTRACTOR).

To the extent that there is any inconsistency between this SOW and the Wiring & Fiber Placement Services Contract beginning on March 1, 2027, the Contract shall control.

1. deliverable 1: project kickoff meeting Description CONTRACTOR shall coordinate with STATE to schedule a Kickoff Meeting virtually via STATE’s Microsoft Teams site, or in City Name, ND, with the core project and planning team. CONTRACTOR’s Project Manager shall lead the meeting. The Kickoff Meeting must facilitate the introduction of CONTRACTOR and STATE core project team members, and level-set understanding and awareness of project objectives, scope, governance, schedule, and project risks and issues.

Expectations of CONTRACTOR CONTRACTOR shall provide content to STATE for a detailed agenda in advance of the meeting.

CONTRACTOR and STATE shall facilitate the meeting, and discuss and further define, at a minimum, the following:

Effective project communication Project vision, background, purpose, and objectives Project governance structure, and project roles and responsibilities Approach to creating the Project Plan Initial risk assessment CONTRACTOR project team members shall participate in the Kickoff Meeting.

Expectations of STATE STATE shall finalize agenda and send agenda to invitees.

STATE shall coordinate the logistics and co-facilitate the Kickoff Meeting.

STATE’s Project Sponsor and project team members shall participate in the Kickoff Meeting.

Acceptance Criteria For the acceptance of this deliverable to occur, the Kickoff Meeting results in:

Facilitation of Kickoff Meeting using a clearly defined agenda An introduction of critical CONTRACTOR and STATE resources assigned to the project Review of STATE’s Project Charter to include project governance structure, roles and responsibilities, project purpose, objectives, and scope Discussion of communications approach and structure Discussion of known project risks and issues Completion Date CONTRACTOR shall start work with STATE within five (5) business days after the signing of this Contract to schedule the Kickoff Meeting.

deliverable 2: Project plan Description CONTRACTOR and STATE, led by STATE’s Project Manager, will develop a baseline Project Plan. The Project Plan will include the project schedule.

Expectations of CONTRACTOR CONTRACTOR shall participate, contribute, and collaborate with STATE to provide requested content for the Project Plan. Typically, STATE may ask CONTRACTOR to contribute to the following sections:

Management plans to control cost, schedule, scope, and quality Governance structure for the project Roles and responsibilities of the project team Communication management Quality management Risk, issue, and action item management Implementation and transition plan Remove if this is a separate deliverable CONTRACTOR shall provide CONTRACTOR tasks and participate and collaborate with STATE on a detailed project schedule created in Microsoft Project.