Attachment+2+Sample+Contract.pdf

ATTACHMENT 2

SAMPLE CONTRACT

OFFEROR INSTRUCTIONS

Offeror shall review the STATE’s Contract.

The proposal must include indicate whether or not the offeror accepts the terms and conditions in the STATE’s Contract.

An Offeror may state that they accept the STATE’s Contract as written.

An Offeror may state any objections or propose changes or additions to the STATE’s Contract.

Describe the changes to the Contract being proposed or provide a red-line of the STATE’s Contract.

Offerors are not to submit their own contract or standard terms and conditions with their proposals.

Offeror should address the specific language in the attached contract and submit any proposed changes.

North Dakota procurement statutes, rules, and policies allow some negotiation of the terms and conditions. No changes to the terms and conditions will be permitted without prior written approval from the STATE.

CONTRACT FOR MISSOURI RIVER INTAKE LOCATION INVESTIGATION SERVICES

1. PARTIES

The parties to this contract (Contract) are the State of North Dakota, acting through its Department of Water Resources (STATE), and ____________having its principal place of business at

________________ (CONTRACTOR).

2. BACKGROUND

The STATE is seeking to identify optimal locations for industrial water intakes with a capacity of at least 15,000 acre-feet per year throughout the Missouri River corridor from the Montana border to Washburn, ND. The identified locations will be used to expand existing industry or to attract new industrial opportunities to the state. The identified locations may have secondary purposes of providing for irrigation or municipal uses.

Current water supplies for North Dakota industry come from both surface and ground water sources.

Many of these water sources are nearing full appropriation or will be in the near future. Additionally, many potential water sources in North Dakota don’t meet water quality standards for industrial needs.

The Missouri River, the longest river in the United States, enters North Dakota from its western boundary and leaves through its southern boundary. The Missouri River has a drainage basin covering approximately one sixth of the United States’ land mass. River runoff originates from melting mountain and plains snowpack and rainfall over the river basin. Average Missouri River flow past Bismarck, North Dakota, is around 23,000 cubic feet per second, or around 16.5 million acre-feet (MAF) per year. As of 2023, the STATE has approved 3.7 MAF of Missouri River water for consumptive use. Water quality of the Missouri River is generally suitable for industrial, municipal, and irrigation uses. Consequently, the water quantity and quality of the Missouri River make it North Dakota’s best option for expansion of industry reliant on water.

Significant modification of the Missouri River in the form of impoundments and channelization have been approved by Congress through acts including the Rivers and Harbors Act of 1935 and the Flood Control Act of 1944. Six mainstem dams were constructed along the river, including Garrison Dam which creates Lake Sakakawea in North Dakota. The reservoir is managed by the United States Army Corps of Engineers (USACE) and therefore requires approval by the federal government to get physical access to the water. In past years some North Dakota water supply projects have received federal approval to access the water, only to be challenged in court by other states in the river basin and Canada, which resulted in stalling the projects for years. Additionally, Fort Berthold Indian Reservation is located along the central portion of Lake Sakakawea, adding another layer of regulatory complexity in that area. Given the federal permitting situation, the site-dependent potential need to deal with tribal processes, and the knowledge that water appropriations requires obtaining permission from the STATE, an understanding of the necessary permitting for possible water intake locations will be an important aspect of this project.

There are many surface water intakes along the Missouri River corridor in North Dakota. These intakes supply water for communities, industry, and irrigation. The river also feeds aquifers which underly it.

These aquifers provide another potential water source for industrial and community needs. Bank Filtration System (BFS) water intakes are commonly used to extract the water from these river-fed aquifers. BFS intakes can provide a number of benefits over surface water intakes including natural filtration of sediment and pollutants as well as reducing variations in raw water quality. The City of Bismarck, North Dakota’s state capital, finished construction of a municipal water intake in 2014 using BFS. Additionally, in 2015 CH2MHill conducted a hydrogeologic investigation and conceptual BFS design for the STATE to categorize the feasibility of subsurface water intakes along the Washburn to Bismarck reach of the Missouri River to divert a large volume of water for the Red River Valley Water Supply Project and other potential uses. Review of the work done for that study could help the CONTRACTOR with determining potential subsurface water intake locations along the Missouri River corridor from the Montana border to Washburn, ND.

3. PROJECT LOCATION

The Missouri River corridor in North Dakota from the Montana border to Washburn, ND.

4. SCOPE OF WORK

The Scope of Work will be negotiated between the STATE and the CONTRACTOR but is expected to include the following main tasks:

• Task 1 – Existing Information Review and Ranking Criteria Identification

• Task 2 – Spatial Analysis

• Task 3 – Draft Report

• Task 4 – Final Report

TASK 1 – Existing Information Review and Ranking Criteria Identification The CONTRACTOR will determine the site conditions that are necessary for the optimal placement of industrial water intake structures (surface or BFS) throughout the Missouri River corridor from the Montana border to Washburn, ND. An optimal location for intake construction and delivery of water will be determined based on a number of conditions that could include, but are not limited to:

• Water availability: water level fluctuations, hydrogeologic properties, future upgrade limitations.

• Distance to infrastructure including rail, power, roads, and gas.

• Distance to nearby towns and industrial facilities.

• Federal and state permitting requirements for intake construction and water appropriation.

o Permits that may need to be obtained from the Department of Water Resources include sovereign land, water appropriation, and construction permits.

• Ease and cost of water delivery based on topography.

• Expressed interest in nearby locations by industry.

• Water quality: turbidity, aquatic nuisance species, etc.

• Likelihood of future intake sedimentation.

• Impacts to areas of natural/cultural/historical significance: high biological diversity, tribal sites, etc.

• Distance from pollution sources.

• Impacts to recreation.

• Other conditions as determined by the CONTRACTOR.

The CONTRACTOR will document the conditions that are used to determine a site’s suitability for placement and operation of a water intake. The Contractor will then develop ranking criteria and the relative weight of each condition compared to the others. The CONTRACTOR will research and compile the necessary information to determine the ranking of the conditions throughout the area of interest. The Contractor will document all reasoning and assumptions behind the ranking criteria and weights, including citations of resources used. The information sources expected to be used are primarily federal and state government reports and data.

TASK 2 – Spatial Analysis

The CONTRACTOR will use a Geographic Information System (GIS) to define condition extents along the Missouri River corridor from the Montana border to Washburn, ND. The product will be attributed with scores based on the Task 1 conditions and weights. Higher scores will indicate optimal locations for constructing either surface water intakes or BFS delivering large volumes of water for industrial use.

Additionally, a layer will identify a minimum of five potential locations each for the surface and subsurface intakes (10 sites total).

TASK 3 – Draft Report

The CONTRACTOR will draft a report detailing project methods, results, discussion, and sources of information for STATE review and comment. In addition to the map developed in Task 2, the report will include a map and list of, at minimum, the five top ranked industrial water intake locations for both surface and subsurface options in the area of interest (10 sites total). If all of the top sites identified are on one side of the river, the CONTRACTOR will also identify the best site from the other side of the river in their map and list. Criteria and parameters for selection of the intake locations will be clearly defined.

Discussion will include identifying potential drawbacks of the selected locations and recommendations for next steps that may include field work or additional investigations. CONTRACTOR will present the findings included in the Draft Report to the STATE.

TASK 4 – Final Report

The CONTRACTOR will complete a final report documenting project methods, results, discussion, and sources of information. Discussion will also include recommendations for next steps needed for further evaluation of identified sites that may include field work or additional investigations. The final report will address any comments from the STATE on the draft report provided in Task 3.

5. COMPENSATION-PAYMENTS

a. Contractual Amount STATE shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed __________ (Contractual Amount).

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.

b. Payment

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

2) STATE shall make payment under this Contract a lump sum amount of ________, to be paid in one payment, within forty-five (45) calendar days after receipt of a correct invoice.

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

4) For any amounts that are or will become due and payable to STATE by CONTRACTOR, STATE reserves the right to deduct the amount owed from payments that are or will become STATE is not responsible for and will not pay local, state, or federal taxes. STATE sales tax exemption number is E 2001. STATE will furnish certificates of exemption upon request by the

CONTRACTOR.

c. Taxpayer ID

CONTRACTOR’S federal employer ID number is: __________.

d. Purchasing Card STATE may make payment using a government credit card. CONTRACTOR will accept a government credit card without passing the processing fees for the government credit card back to STATE.

6. TERM OF CONTRACT

This Contract term (Term or Initial Term) begins on ___________________, and ends on

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

b. Extension Option

STATE reserves the right to extend this Contract for an additional period, not to exceed six (6) months, beyond the current termination date of this Contract.

7. TIME IS OF THE ESSENCE

CONTRACTOR hereby acknowledges that time is of the essence for performance under this Contract unless otherwise agreed to in writing by the Parties.

8. TERMINATION

a. Termination by Mutual Agreement

This Contract may be terminated by mutual consent of both Parties executed in writing.

b. Early Termination in the Public Interest

STATE is entering this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly, Agencies and Courts. If this Contract ceases to further the public policy of the State of North Dakota, STATE, in its sole discretion, by written notice to CONTRACTOR, may terminate this Contract in whole or in part.

c. Termination for Lack of Funding or Authority

STATE by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

1) If funding from federal, state, or other sources is not obtained 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 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.

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.

9. 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.

10. INDEMNIFICATION

CONTRACTOR agrees to defend, indemnify, and hold harmless the state of North Dakota, its agencies, officers and employees (State), from and against claims based on the vicarious liability of the State or its agents, but not against claims based on the State’s contributory negligence, comparative and/or contributory negligence or fault, sole negligence, or intentional misconduct. This obligation to defend, indemnify, and hold harmless does not extend to professional liability claims arising from professional errors and omissions. The legal defense provided by CONTRACTOR to the State under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the State is necessary. Any attorney appointed to represent the State must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under N.D.C.C. § 54-12-08. CONTRACTOR also agrees to reimburse the State for all costs, expenses, and attorneys’ fees incurred if the State prevails in an action against CONTRACTOR in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after termination of this agreement.

11. INSURANCE

CONTRACTOR shall secure and keep in force during the term of this agreement and CONTRACTOR shall require all subcontractors, prior to commencement of an agreement between CONTRACTOR and the subcontractor, to secure and keep in force during the term of this agreement, from insurance companies, government self-insurance pools or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

a. Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $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 policy must provide coverage for all states of operation that apply to the performance of this contract.

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

e. Professional errors and omissions with minimum limits of $2,000,000 per claim and in the aggregate. CONTRACTOR must continuously maintain such coverage during the contract period and for three years thereafter. In the event of a change or cancellation of coverage, CONTRACTOR shall purchase an extended reporting period to meet the time periods required in this section.

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

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

g. This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-” rating must be approved by the State. The policies must be in form and terms approved by the State.

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

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

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

k. The CONTRACTOR shall furnish a certificate of insurance to State before commencement of this agreement. All endorsements shall be provided as soon as practicable.

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

m. CONTRACTOR shall provide at least 30 days’ notice of any cancellation or material change to the policies or endorsements. CONTRACTOR shall provide on an ongoing basis, certificates of insurance during the term of the contract. A renewal certificate will be provided 10 days prior to coverage expiration. An updated, current certificate of insurance shall be provided in the event of any change in policy.

12. WORKS FOR HIRE

CONTRACTOR acknowledges that all work(s) under this Contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby assigns to

STATE all rights and interests CONTRACTOR may have in the work(s) it prepares under this Contract, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Contract for STATE shall be the sole property of STATE, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to STATE.

CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE’s intellectual property rights under this section.

13. WORK PRODUCT

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

14. NOTICE

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

STATE CONTRACTOR

Sindhuja S.Pillai-Grinolds Name

Water Development Division Director Title

1200 Memorial Highway Address

Bismarck, ND 58504 City, State, Zip spillai@nd.gov Email

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.

15. CONFIDENTIALITY

CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by STATE. STATE shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STATE determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. CH.

44-04. The duty of STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the Term of this Contract.

16. 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.

17. 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.

18. ASSIGNMENT AND SUBCONTRACTS

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

19. SPOLIATION – PRESERVATION OF EVIDENCE

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

20. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Contract, including the following documents, constitutes the entire agreement between the Parties.

There are no understandings, agreements, or representations, oral or written, not specified within this Contract. This Contract may not be modified, supplemented or amended, in any manner, except by written agreement signed by both Parties.

Notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this Contract, the documents must control in this order of precedence:

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

b. STATE’s Solicitation Amendment #1 to Request for Proposal (“RFP”) number __________ dated ________;

c. STATE’s Request for Proposal (“RFP”) number __________, dated ________;

d. CONTRACTOR’s proposal dated ____________ in response to RFP number

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.

21. SEVERABILITY

If any term of this Contract is declared to be illegal or unenforceable by a court having competent jurisdiction, the validity of the remaining terms is unaffected and, if possible, the rights and obligations of the Parties are to be construed and enforced as if this Contract did not contain that term.

22. 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.

23. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

By entering this Contract, STATE does not agree to binding arbitration, mediation, or any other form of mandatory Alternative Dispute Resolution. The Parties may enforce the rights and remedies in judicial proceedings. STATE does not waive any right to a jury trial.

24. ATTORNEY FEES

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

25. NONDISCRIMINATION AND COMPLIANCE WITH LAWS

CONTRACTOR agrees to comply with all applicable federal and state laws, rules, and policies, including those relating to nondiscrimination, accessibility and civil rights. (See N.D.C.C. Title 34 – Labor and Employment, specifically N.D.C.C. ch. 34-06.1 Equal Pay for Men and Women.)

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

CONTRACTOR shall have and keep current all licenses and permits required by law during the Term of this Contract all licenses and permits required by law.

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 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.

26. 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.

27. 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.

28. EFFECTIVENESS OF CONTRACT

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

CONTRACTOR STATE OF NORTH DAKOTA

Acting through its Department of Water

Resources BY: <Signature> BY: <Signature> <Printed Name> Andrea Travicek, Ph.D.

<Title> Director Date: Date: