TripSpark+Contract-Fully+Executed.pdf

TECHNOLOGY CONTRACT: Paratransit and/or Fixed-Transit Scheduling and Dispatch

Software

1. PARTIES

The parties to this contract including its attachments, the Software License and Maintenance Agreement and System Supply and Support Agreement, attached hereto as Exhibit B (“Participating Entity Agreement(s)”), (collectively the “Master Contract”) are the state of North Dakota, acting through its Office of Management and Budget (STATE), and Trapeze Software Group, Inc. dba TripSpark Technologies a Delaware corporation) having its principal place of business at 5265 Rockwell Drive NE, Cedar Rapids, Iowa 52402 (CONTRACTOR).

STATE and CONTRACTOR individually referred to as (“Party”) or collectively (“Parties”).

2. COOPERATIVE PURCHASE

The Master Contract is a cooperative purchasing contract established pursuant to North Dakota Century Code (N.D.C.C.) sections 54-44.4-13. This Master 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 by other governmental entities is not mandated or guaranteed; therefore, the estimated volume of this Master Contract is not known.

3. DEFINITIONS

a) Confidential Information – means information that is protected from mandatory public disclosure pursuant to

North Dakota Century Code (N.D.C.C.) ch. 44-04, and may include: any oral, written, graphic or machine-readable information technical or non-technical data, patents, patent applications, copyright, copyright applications, research, product or service plans, developments, inventions, processes, designs, drawings, patterns, compilations, engineering methods, techniques, devices, formulae, software (including source and object code), algorithms, business plans, agreements with third parties, lists of actual or potential services or customers, marketing plans, financial plans or finances and similar information relating to the each Party its affiliates or any of their respective third party suppliers or customers furnished by or on behalf of either party to the other Party regardless of the manner in which it is furnished or obtained by either Party through observation of either Party’s facilities or procedures.

b) Control Environment - is the set of standards, processes, and structures that provide the basis for carrying out internal control across the organization.

c) Data - means any information provided to CONTRACTOR by the PARTICIPATING ENTITY

d) Data Breach - means any access, destruction, loss, theft, use, modification or disclosure of Data by an unauthorized party or that is in violation of applicable state or federal law.

e) Data Classification - means the process of defining data into relevant categories so the information has the appropriate controls in place to protect confidentiality, integrity, and availability based on the type of information.

f) Personally Identifiable Information (PII) - information about an individual maintained by a PARTICIPATING ENTITY, including that 1) can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; or (2) is linked or linkable to an individual, such as medical, educational, financial, and employment information.

g) PARTICIPATING ENTITY – means the eligible entity pursuant to Section 2 of this Master Contract that may participate in this Master Contract by executing a separate executed PARTICIPATING ENTITY Agreement (hereinafter referred to as “PEA”), specific to the CONTRACTOR proprietary owned software products and services needed by PARTICIPATING ENTITY.

h) STATE – means the State of North Dakota Office of Management and Budget with authority to execute this Master Contract.

i) Work Order Request (WOR) - means the description of the specific work specifically sought by a PARTICIPATING ENTITY. In the event CONTRACTOR is awarded the work under a WOR, PARTICIPATING ENTITY and CONTRACTOR shall execute a PEA.

http://www.legis.nd.gov/cencode/t54c44-4.pdf?20130131153805 http://www.legis.nd.gov/cencode/t39c04-2.pdf?20130131161514

4. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by PARTICIPATING ENTITY and pursuant to an executed PEA shall provide a license to use the Paratransit and/or Fixed Transit scheduling and dispatch CONTRACTOR proprietary software as identified therein.

When a PARTICIPATING ENTITY requires services from this Master Contract, PARTICIPATING ENTITY will enter into a PEA describing the required services.

Each WOR will specify a proposal due date for CONTRACTOR to respond to the PARTICIPATING ENTITY’s request.

CONTRACTOR must respond to PARTICIPATING ENTITY that issued the WOR, either affirming or denying CONTRACTOR’s ability to provide the services and the cost priced at or below the rates proposed in the Offeror’s Best and Final Offer Cost Proposal BAFO, attached as Exhibit C to this (hereinafter referred to as “BAFO”) attached as Exhibit C to this Master Contract. During this response period, if necessary, CONTRACTOR may seek clarifications of the work involved.

5. COMPENSATION-PAYMENTS

a. Contractual Amount

PARTICIPATING ENTITY shall pay for the Contractor software licenses, third party hardware, and services provided by CONTRACTOR as agreed upon in the executed PEA (“Contractual Amount”). The Contractual Amount shall be set in accordance with BAFO pricing, and the payment schedule in the executed PEA.

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

b. Retainage All deliverable payments shall be subject to minimum 10% retainage. Retained amounts due to CONTRACTOR shall be paid upon PARTICIPATING ENTITY acceptance pursuant to the PEA.

c. Invoicing The final cost set forth on each invoice shall be equivalent to the cost for each deliverable and the CONTRACTOR’s proprietary software product or service as specified in the executed PEA.

d. Payment Payment made in accordance with this Compensation section shall constitute payment in full for the CONTRACTOR proprietary software product and services performed pursuant to the executed PEA, and CONTRACTOR shall not receive any additional compensation hereunder.

Subject to the payment and acceptance provisions in the executed PEA, PARTICIPATING ENTITY shall make payment under pursuant to the executed PEA.

Payment of an invoice by PARTICIPATING ENTITY will not prejudice PARTICIPATING ENTITY’s right to object to or question that or any other invoice or matter in relation thereto.

e. Travel CONTRACTOR acknowledges travel expenses are covered by the Contractual Amount and shall not invoice PARTICIPATING ENTITY for travel expenses unless otherwise agreed to in writing in the executed PEA.

f. Prepayment PARTICIPATING ENTITY will not make any advance payments for CONTRACTOR software licenses, third party hardware, and services provided by CONTRACTOR under an executed PEA. Prepayment does not include payment for licenses or Contractor software maintenance support.

g. Payment of Taxes by PARTICIPATING ENTITY PARTICIPATING ENTITY is not responsible for and will not pay local, state, or federal taxes. Sales tax exemption number is E-2001. PARTICIPATING ENTITY will furnish certificates of exemption upon request by CONTRACTOR.

h. Taxpayer ID CONTRACTOR’s federal employer ID number is: 98-0358175

i. Purchasing Card PARTICIPATING ENTITY may make payment using check or ETF (ACH or wire).

6. EQUIPMENT, MATERIALS, AND WORKSPACE – RESOURCES PROVIDED BY PARTIES

For periods during which the Parties mutually agree that CONTRACTOR’s assigned staff is on site:

a. On site means any location in North Dakota.

b. PARTICIPATING ENTITY agrees to provide an adequate working space, when required.

c. Equipment and software for on-site CONTRACTOR personnel is to be provided by CONTRACTOR.

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

7. TERM OF CONTRACT

This Master Contract term (Term or Initial Term) begins on Effective Date, and ends on July 31, 2025

a. No Automatic Renewal

Neither this Master Contract nor any executed PEA will automatically renew.

b. Renewal Option

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

c. Extension Option STATE reserves the right to extend this Master Contract for an additional period, not to exceed twelve

(12) months, beyond the current termination date of this Master Contract.

d. Renegotiation Option Because it is unknown how long the ongoing maintenance and support, pursuant to the executed PEA, are required by the PARTICIPATING ENTITY, the STATE and CONTRACTOR may renegotiate this Master Contract. After completion of the Initial Term, Renewal Term, and extensions, STATE and CONTRACTOR may renegotiate this Master Contract as mutually agreed upon by the Parties and executed in writing.

If, during the Initial Term, any renewal, or extension STATE determines a realignment of the Term is needed (e.g. to align with STATE’s fiscal biennium), the Parties may mutually agree, in writing, to a new Term with a termination date not to exceed the total available length of Master Contract including its Initial Term, Renewal Term(s), and extensions.

8. TERMINATION

a. Termination For Convenience

This Master Contract may be terminated, in whole or in part, by providing the other Party with ninety (90) days prior written notice.

b. Termination for Lack of Funding or Authority STATE, by written notice to CONTRACTOR, may terminate the whole or any part of this Master Contract by providing sixty (60) days prior written notice, under any of the following conditions:

1) If funding from federal, state, or other sources is not obtained or continued at levels sufficient to allow for purchase of the services or goods in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the services or good are no longer allowable or appropriate for purchase under a PEA, or are no longer eligible for the funding proposed for payments authorized by this Master Contract or a PEA.

3) If any license, permit, or certificate required by law or rule, or by the terms of this Master Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Master Contract under this subsection is without prejudice to any obligations or liabilities of either Party already accrued prior to termination.

c. Termination for Cause.

STATE may terminate this Master Contract, effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice, subject to the following:

If CONTRACTOR fails to cure a material breach of any of the terms of the Master Contract within thirty (30) calendar days from CONTRACTOR’s receipt of notice of breach, or any further extension agreed to in writing by STATE; or

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 Master Contract.

9. Limitation of Liability

The maximum aggregate liability of CONTRACTOR (including its parent entities, subsidiaries, affiliates, and each of their respective directors, officers, shareholders, employees, and assigns) to the STATE, or any other person or entity, for all losses, fees, expenses, costs, damages, obligations, penalties, fines, liabilities, or claims, including beach of confidentiality (to the extent permitted by law) shall not exceed twice the fees paid by the PARTICIPATING ENTITY under the executed PEA in the preceding year of a claim for the Software, hardware, or the service from which the claim resulted. In no event shall CONTRACTOR be liable to anyone for any indirect, punitive, special, exemplary, incidental, or consequential damages (including loss of data, revenue profits, use or other economic advantage) arising out of or in any way connected to a violation by CONTRACTOR of its obligations in this Master Contract, even if CONTRACTOR has been previously advised of the possibility of such damages. The foregoing limitations do not apply to loss that cannot be limited under N.D.C.C § 32-12.2-15(4): not apply to claims arising out of death or personal injury caused by TripSpark’s negligence or fraudulent misrepresentation.

10. FORCE MAJEURE

No Party, shall be held responsible for delay or default caused by fire, riot, terrorism, pandemic, 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 using their reasonable discretion, then STATE may seek all available remedies, up to and including termination of this Master Contract pursuant to its Termination Section.

11. INJUNCTIVE RELIEF

Any Party shall immediately report to the other Parties any and all unauthorized disclosures or uses of another Party’s Confidential Information of which a Party or its staff is aware or has knowledge. The Parties acknowledge that any unauthorized publication or disclosure of another Party’s confidential information or proprietary information to others may cause immediate and irreparable harm to the other Party. If any Party should publish or disclose such confidential information or proprietary information without authorization from another Party, the other Party shall immediately be entitled to seek injunctive relief or any other remedies to which it is entitled under law or equity without requiring a cure period.

12. RIGHT TO REMEDIES AND CUMULATION OF RIGHTS

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

13. NON-WAIVER

Either Party’s failure to exercise any of its rights under this Master Contract, its delay in enforcing any right, or its waiver of its rights on any occasion, shall not constitute a waiver of such rights on any other occasion. No course of dealing by either Party in exercising any of its rights shall constitute a waiver thereof. No waiver of any provision of this Master Contract shall be effective unless it is in writing and signed by the Party against whom the waiver is sought to be enforced.

14. INSURANCE

CONTRACTOR shall secure and keep in force during the term of this Master 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 policy shall provide coverage for all states of operation that apply to the performance of this Master 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

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

a. Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the CONTRACTOR.

b. This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or 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.

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

d. The state of North Dakota and its agencies, officers, and employees (State) shall be endorsed on the commercial general liability policy, including any excess policies (to the extent applicable), as additional insured. The State shall have all the benefits, rights, and coverages of an additional insured under these policies that shall not be limited to the minimum limits of insurance required by this Master Contract or by the contractual indemnity obligations of the CONTRACTOR.

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

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

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

h. CONTRACTOR shall provide at least thirty (30) days’ 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 Master Contract. A renewal certificate will be provided 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.

15. TECHNOLOGY STANDARDS

CONTRACTOR shall comply with applicable STATE enterprise architecture technology standards. These standards can be found on STATE’s website at https://www.ndit.nd.gov/standards. If CONTRACTOR is unable to comply with any applicable standard, CONTRACTOR shall request a waiver from that requirement by submitting a Request for Exemption from Information Technology Standards or Statutory Policies (SFN 51687) form in coordination with STATE’s procurement officer for the STATE’s review and approval or disapproval.

16. SOFTWARE LICENSE

As provided to a Participating Entity pursuant to the PEA.

17. SOFTWARE MAINTENANCE

CONTRACTOR shall provide, and PARTICIPATING ENTITY may subscribe to, Maintenance Services, including software/hardware updates and technical support services pursuant to an executed PEA.

CONTRACTOR and PARTICIPATING ENTITY shall negotiate the terms and price of such Maintenance Services. CONTRACTOR warrants that it will continue to offer Maintenance Services for the product(s) for a minimum of five (5) years from the date of Contractor software acceptance as defined in the executed PEA.

https://www.ndit.nd.gov/standards

18. NOTICE

All notices or other communications required under this Master 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

Name Sowmya Karumanchi Name: Mary Pavela

Title IT Procurement Officer Title: Contracts Manager

Address 600 E Boulevard Ave Address: 1980 Matheson Blvd E, Unit D

City, State, Zip Bismarck ND 58505 City, State, Zip: Mississauga, ON L4W 5N3

Email skarumanchi@nd.gov Phone: 905.629.5456

Notice provided under this provision does not meet the notice requirements for monetary claims against STATE found at N.D.C.C § 32-12.2-04.

19. CONFIDENTIALITY

Each Party shall not use or disclose any Confidential Information of the other Party it receives from the other Party under this Master Contract that each Party has previously identified or will identify in writing during the term of this Master Contract as its Confidential Information or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Master Contract, or as authorized in advance by each Party in writing. Each Party shall not disclose any Confidential Information it receives from the other Party that the disclosing Party has previously identified or will identify, during the term of this Master Contract, in writing, as its Confidential Information and 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 each Party to maintain confidentiality of the other Party’s Confidential Information under this section continues beyond termination of this Master Contract to the extent mandated by law.

20. COMPLIANCE WITH PUBLIC RECORDS LAWS

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

Public records may include: (a) records STATE receives from CONTRACTOR under this Master Contract (b) records obtained by either Party under this Master Contract. Any public records that contain CONTRACTOR’s Confidential Information shall be precluded from disclosure pursuant to exclusion under North Dakota public records law.

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

21. INDEPENDENT ENTITY

CONTRACTOR is an independent entity under this Master 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 Master Contract, except to the extent specified in this Master Contract.

22. 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 Master Contract in the event of a change of control or sale of all or substantially all of its assets related to this Master 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 for convenience in accordance with the Termination for Cause section of this Master Contract.

http://www.legis.nd.gov/cencode/t32c12-2.pdf http://www.legis.nd.gov/cencode/t44c04.pdf

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.

23. SPOLIATION – NOTICE OF POTENTIAL CLAIMS

CONTRACTOR shall promptly notify STATE of all potential claims that arise or result from this Master 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.

24. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Master 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 Master Contract. Neither this Master Contract may 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 Master Contract, the documents must control in this order of precedence:

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

b. CONTRACTOR’s proposal Paratransit and/or Fixed Transit Scheduling and Dispatch Software, in response to RFP number 110.7-22-069, dated March 22, 2023 (“CONTRACTOR PROPOSAL”) and BAFO. Exhibit C to this Master Contract.

c. STATE’s Solicitation Amendment #1 to Request for Proposal (“RFP”) number 110.7-22-069 dated

d. STATE’s Request for Proposal (“RFP”) number 110.7-22-069, dated January 31 2023;

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 and conditions contained in those agreements.

25. UNANTICIPATED AMENDMENTS

If additional changes is required within the scope of this Master Contract due to a legitimate unforeseen circumstance, STATE shall provide CONTRACTOR a written description of the changes and request CONTRACTOR to submit a proposal for accomplishing the changes. CONTRACTOR will not commence additional work until all parties agree in writing to any changes.

26. SEVERABILITY

If any term of this Master 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 Master Contract did not contain that term.

27. APPLICABLE LAW AND VENUE

This Master Contract is governed by and construed in accordance with the laws of the State of North Dakota.

Any action to enforce this Master 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.

28. NONDISCRIMINATION - 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. ch. 34-01, specifically N.D.C.C. ch.

34-06.1 Equal Pay for Men and Women.) Notwithstanding the foregoing, CONTRACTOR makes no representation that CONTRACTOR or its subcontractor’s software, or hardware, or related documentation contains, features and functionality are STATE or PARTICIPATING ENTITY compliant or meets any specific requirements pursuant to any federal and state laws, rules and policies.

If applicable, 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 in the performance of its obligations pursuant to a PEA, during the Term of this Master Contract all licenses and permits required by law.

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

29. 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 Master Contract, including all executed PEAs, 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 Master 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. CONTRACTOR is a subsidiary of Volaris Group, which is a subsidiary of Constellation Software Inc. Constellation Software Inc. is a publicly listed company on the Toronto Stock Exchange. Notwithstanding anything to the contrary under this Master Contract, securities laws prohibit the release of any non-public financial information outside of those disclosed in the Constellation quarterly and annual filings, thus CONTRACTOR may be precluded from directly releasing any non-public financial information to individual customers.

30. RIGHT TO INSPECT PLACE OF BUSINESS

At reasonable times and subject to CONTRACTOR’s prior written approval, STATE may be provided access to inspect those areas of CONTRACTOR’S place of business that relate to the performance of this Master Contract. If STATE makes an inspection, CONTRACTOR must provide reasonable assistance as it determines as reasonable in its sole discretion.

31. COUNTERPARTS

This Master 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 Master Contract.

32. EFFECTIVENESS OF CONTRACT

This Master 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 the Effective Date.

CONTRACTOR STATE OF NORTH DAKOTA

Trapeze Software Group, Inc. Acting through its Office of Management and Budget

BY: BY:

Printed Name: Robert DeSanti Printed Name: Sowmya Karumanchi

Title: General Manager Title: IT Procurement Officer

Date: Date:

11/30/2023 12/08/2023

EXHIBIT A – Federal Transit Administration Clauses and Certifications

Professional Services over $250,000

For purposes of this Exhibit A, the term Agency shall carry the same meaning as Participating Entity.

CONTRACTOR compliance to any Federal Transit Administration clauses shall apply to the extent of CONTRACTOR’s obligations pursuant to the Master Contract and the performance of services under the executed PEA; and (ii) any software licensed or hardware provided under the executed PEA is commercial “off the shelf” and any federal, provincial laws or regulations shall:

(i) be in effect only to the extent that such clauses are applicable to the subject matter hereof.

(ii) not transfer ownership of any intellectual property to the STATE or PARTICIPATING ENTITY.

(iii) not include bonding requirements in the Master Contract and executed PEA;

(iv) not include any liquidated damages in the Master Contract and executed PEA; and

(v) not exceed the limitation of liability and indemnification obligations as mutually agreed upon by the Parties in the Master Contract and in the executed PEA.

Should any Federal Transit Administration clauses change require the scope, schedule, or deliverable to change, then the Parties agree TripSpark shall be allowed an equitable adjustment. Finally, TripSpark makes no representation that TripSpark or its subcontractor’s software, related documentation contains, features and functionality are STATE or PARTICIPATING ENTITY compliant or meets any specific Federal Transit Administration requirements.

ACCESS TO RECORDS AND REPORTS

a. Record Retention. The Contractor will retain, and will require its subcontractors of all tiers to retain, complete and readily accessible records related in whole or in part to the contract, including, but not limited to, data, documents, reports, statistics, leases, subcontracts, arrangements, other third party Contracts of any type, and supporting materials related to those records.

b. Retention Period. The Contractor agrees to comply with the record retention requirements in accordance with 2 C.F.R. § 200.333. The Contractor shall maintain all books, records, accounts and reports required under this Contract for a period of at not less than three (3) years after the date of termination or expiration of this Contract, except in the event of litigation or settlement of claims arising from the performance of this Contract, in which case records shall be maintained until the disposition of all such litigation, appeals, claims or exceptions related thereto.

c. Access to Records. The Contractor agrees to provide sufficient access to FTA and its contractors to inspect and audit records and information related to performance of this contract as reasonably may be required.

d. Access to the Sites of Performance. The Contractor agrees to permit FTA and its contractors access to the sites of performance under this contract as reasonably may be required.

AMERICANS WITH DISABILITIES ACT (ADA)

The contractor agrees to comply with the requirements of 49 U.S.C. § 5301 (d), which states the Federal policy that the elderly and persons with disabilities have the same right as other persons to use mass transportation service and facilities, and that special efforts shall be made in planning and designing those services and facilities to implement that policy. The contractor also agrees to comply with all applicable requirements of section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of handicaps, with the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 et seq., which requires that accessible facilities and services be made available to persons with disabilities, including any subsequent amendments to that Act, and with the Architectural Barriers act of 1968, as amended, 42 U.S.C. §§ 4151 et seq., which requires that buildings and public accommodations be accessible to persons with disabilities, including any subsequent amendments to that Act. In addition, the contractor agrees to comply with any and all applicable requirements issued by the FTA, DOT, DOJ, U.S. GSA, U.S. EEOC, U.S. FCC, any subsequent amendments thereto and any other nondiscrimination statute(s) that may apply to the Project.

BYRD ANTILOBBYING AMENDMENT

Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with nonFederal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the Agency.”

CIVIL RIGHTS LAWS AND REGULATIONS

The following Federal Civil Rights laws and regulations apply to all contracts.

1 Federal Equal Employment Opportunity (EEO) Requirements. These include, but are not limited to:

a) Nondiscrimination in Federal Public Transportation Programs. 49 U.S.C. § 5332, covering projects, programs, and activities financed under 49 U.S.C. Chapter 53, prohibits discrimination on the basis of race, color, religion, national origin, sex (including sexual orientation and gender identity), disability, or age, and prohibits discrimination in employment or business opportunity.

b) Prohibition against Employment Discrimination. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, and Executive Order No. 11246, “Equal Employment Opportunity,” September 24, 1965, as amended, prohibit discrimination in employment on the basis of race, color, religion, sex, or national origin.

2 Nondiscrimination on the Basis of Sex. Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681 et seq. and implementing Federal regulations, “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” 49 C.F.R. part 25 prohibit discrimination on the basis of sex.

3 Nondiscrimination on the Basis of Age. The “Age Discrimination Act of 1975,” as amended, 42 U.S.C. § 6101 et seq., and Department of Health and Human Services implementing regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, prohibit discrimination by participants in federally assisted programs against individuals on the basis of age. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Equal Employment Opportunity Commission (EEOC) implementing regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, also prohibit employment discrimination against individuals age 40 and over on the basis of age.

4 Federal Protections for Individuals with Disabilities. The Americans with Disabilities Act of 1990, as amended (ADA), 42 U.S.C. § 12101 et seq., prohibits discrimination against qualified individuals with disabilities in programs, activities, and services, and imposes specific requirements on public and private entities. Third party contractors must comply with their responsibilities under Titles I, II, III, IV, and V of the ADA in employment, public services, public accommodations, telecommunications, and other provisions, many of which are subject to regulations issued by other Federal agencies.

Civil Rights and Equal Opportunity The Agency is an Equal Opportunity Employer. As such, the Agency agrees to comply with all applicable Federal civil rights laws and implementing regulations. Apart from inconsistent requirements imposed by Federal laws or regulations, the Agency agrees to comply with the requirements of 49 U.S.C.

§ 5323(h) (3) by not using any Federal assistance awarded by FTA to support procurements using exclusionary or discriminatory specifications. Under this Contract, the Contractor shall at all times comply with the following requirements and shall include these requirements in each subcontract entered into as part thereof.

1. Nondiscrimination. In accordance with Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, religion, national origin, sex, disability, or age. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue.

2. Race, Color, Religion, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e et seq., and Federal transit laws at 49 U.S.C. § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 C.F.R. chapter 60, and Executive Order No. 11246, "Equal Employment Opportunity in Federal Employment," September 24, 1965, 42 U.S.C. § 2000e note, as amended by any later Executive Order that amends or supersedes it, referenced in 42 U.S.C. § 2000e note. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, national origin, or sex (including sexual orientation and gender identity). Such action shall include, but not be limited to, the following: employment, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

3. Age. In accordance with the Age Discrimination in Employment Act, 29 U.S.C. §§ 621634, U.S. Equal Employment Opportunity Commission (U.S. EEOC) regulations, “Age Discrimination in Employment Act,” 29 C.F.R. part 1625, the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6101 et seq., U.S.

Health and Human Services regulations, “Nondiscrimination on the Basis of Age in Programs or Activities Receiving Federal Financial Assistance,” 45 C.F.R. part 90, and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any Implementing requirements FTA may issue.

4. Disabilities. In accordance with section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq., the Architectural Barriers Act of 1968, as amended, 42 U.S.C. § 4151 et seq., and Federal transit law at 49 U.S.C. § 5332, the Contractor agrees that it will not discriminate against individuals on the basis of disability. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue.

5. Promoting Free Speech and Religious Liberty. The Contractor shall ensure that Federal funding is expended in full accordance with the U.S. Constitution, Federal Law, and statutory and public policy requirements: including, but not limited to, those protecting free speech, religious liberty, public welfare, the environment, and prohibiting discrimination.

CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT

The Contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 74017671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 12511387). Violations must be reported to FTA and the Regional Office of the Environmental Protection Agency. The following applies for contracts of amounts in excess of $150,000:

Clean Air Act

(1) The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.

(2) The contractor agrees to report each violation to the Agency and understands and agrees that the Agency will, in turn, report each violation as required to assure notification to the Agency, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.

(3) The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FTA.

Federal Water Pollution Control Act

(1) The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq.

(2) The contractor agrees to report each violation to the Agency and understands and agrees that the Agency will, in turn, report each violation as required to assure notification to the Agency, Federal Emergency Management Agency, and the appropriate Environmental Protection Agency Regional Office.

(3) The contractor agrees to include these requirements in each subcontract exceeding $150,000 financed in whole or in part with Federal assistance provided by FTA.”

CONFORMANCE WITH ITS NATIONAL ARCHITECTURE

Intelligent Transportation Systems (ITS) projects shall conform to the National ITS Architecture and standards. Conformance with the National ITS Architecture is interpreted to mean the use of the National ITS Architecture to develop a regional ITS architecture in support of integration and the subsequent adherence of all ITS projects to that regional ITS architecture. Development of the regional ITS architecture should be consistent with the transportation planning process for Statewide and Metropolitan Transportation Planning (49 CFR Part 613 and 621).

CORONAVIRUS RELIEF AND CARES ACT CERTIFICATION

The Coronavirus Response and Relief Supplemental Appropriations Act, 2021 (Pub. L. 116–260, Div. M), requires that, to the maximum extent possible, funds made available under the Act and in title XII of division B of the CARES Act (Pub. L. 116–136) shall be directed to payroll and operations of public transit (including payroll and expenses of private providers of public transportation), unless the recipient certifies that it has not furloughed any employees.

DEBARMENT AND SUSPENSION

a. Applicability: This requirement applies to all FTA grant and cooperative agreement programs for a contract in the amount of at least $25,000

(1) This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000. As such the contractor is required to verify that none of the contractor, its principals (defined at 2 C.F.R. § 180.995), or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified (defined at 2 C.F.R. § 180.935).

(2) C.F.R. pt. 3000, subpart C and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.

(3) The accompanying certification is a material representation of fact relied upon by the subrecipient.

If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R.

pt. 3000, subpart C, in addition to remedies available to the Agency and subrecipient, the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.

The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt.

3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.”

DISADVANTAGED BUSINESS ENTERPRISE (DBE)

To the best of TripSpark’s knowledge, there are currently no DBE certified firms available with the experience, skill level and familiarity with the TripSpark products to enable them to replace TripSpark personnel on the future project.

The contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 C.F.R. part 26 in the award and administration of DOT assisted contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the Agency deems appropriate, which may include, but is not limited to:

(1) Withholding monthly progress payments; (2) Assessing sanctions; (3) Liquidated damages; and/or (4) Disqualifying the contractor from future bidding as nonresponsible. 49 C.F.R. § 26.13(b).

Prime contractors are required to pay subcontractors for satisfactory performance of their contracts no later than 30 days from receipt of each payment the Agency makes to the prime contractor. 49 C.F.R. § 26.29(a).

Finally, for contracts with defined DBE contract goals, each FTA Recipient must include in each prime contract a provision stating that the contractor shall utilize the specific DBEs listed unless the contractor obtains the Agency’s written consent; and that, unless the Agency’s consent is provided, the contractor shall not be entitled to any payment for work or material unless it is performed or supplied by the listed DBE. 49 C.F.R. § 26.53(f) (1).

It is the policy of the Agency and the United States Department of Transportation (“DOT”) that Disadvantaged Business Enterprises (“DBE’s”), as defined herein and in the Federal regulations published at 49 C.F.R. part 26, shall have an equal opportunity to participate in DOT assisted contracts.

DISPUTES, BREACHES, DEFAULTS, AND LITIGATION

(a) FTA Interest. FTA has a vested interest in the settlement of any violation of federal law, regulation, or requirement, or any disagreement involving the Award, the accompanying Underlying Agreement, and any Amendments thereto including, but not limited to, a default, breach, major dispute, or litigation, and FTA reserves the right to concur in any settlement or compromise.

(b) Notification to FTA; Flow Down Requirement. If a current or prospective legal matter that may affect the Federal Government emerges, the Recipient must promptly notify the FTA Chief Counsel and FTA Regional Counsel for the Region in which the Recipient is located. The Recipient must include a similar notification requirement in its Third Party Agreements and must require each Third Party Participant to include an equivalent provision in its subagreements at every tier, for any agreement that is a “covered transaction” according to 2 C.F.R. §§ 180.220 and 1200.220. (1) The types of legal matters that require notification include, but are not limited to, a major dispute, breach, default, litigation, or naming the Federal Government as a party to litigation or a legal disagreement in any forum for any reason. (2) Matters that may affect the Federal Government include, but are not limited to, the Federal Government’s interests in the Award, the accompanying Underlying Agreement, and any Amendments thereto, or the Federal Government’s administration or enforcement of federal laws, regulations, and requirements. (3) Additional Notice to U.S.

DOT Inspector General. The Recipient must promptly notify the U.S.