Clearwater+Contract_DB+Signed+02.07.22.pdf

State Contract# 038 Professional Management Services

The parties to this contract (Contract) are the state of North Dakota, acting through its Office of Management & Budget, State Procurement Office and other North Dakota governmental entities that execute a participating addendum to this contract (State), and Clearwater Communications having its principal place of business at 1605 E. Capitol Ave, Bismarck, ND 58501 (Contractor);

1. SCOPE OF WORK

Contractor, in exchange for the compensation paid by State under this Contract, shall provide the services specifically listed in an executed participating addendum and the following services:

a. General Support

1. Designate a telephone number, fax number, e-mail address and post office box

2. Receive emails, fax and telephone communication and respond in a timely manner

3. Update and maintain website (some associations may require creation of new content)

4. Receive and process mail

5. Maintain records according to state of North Dakota records retention schedules

6. Receive and process complaints

7. Administrative Support, including working with association members as requested

b. Organizational Management

1. Assist in strategic planning

2. Ensure compliance with state and federal statutes, rules, regulations and requirements

3. Conduct daily business on behalf of association

c. Association Meetings

1. Coordinate association meeting times and agendas

2. Arrange for meeting room, if needed

3. Assist in development and approval of meeting agendas

4. Prepare and distribute materials for meetings

5. Comply with North Dakota state laws related to open meeting requirements

6. Post agenda to website

7. Finalize and distribute minutes after meetings

8. Post approved minutes to the website

d. Financial Management

1. Assist in development of the annual budget

2. Maintain and manage finances and financial records

3. Develop and implement internal controls for funds

4. Provide accounting services

5. Process receipt and distribution of funds

6. Prepare financial statements

7. Provide financial reports to the State Auditor’s Office

8. Process member compensation reimbursements

9. Coordinate audit required by North Dakota Century Code

e. Legislative & Policy

1. Assist with promulgating Administrative Rules through an administrative rulemaking process

2. Update and/or implement an association office policy manual based on processes

3. Assist with developing and tracking legislation impacting the association

f. License & Renewals

1. Maintain database of licensure information

2. Process initial applications and completed applications

3. Assist with continuing educations (CE) program approval processes

4. Process license renewals and CE reviews

5. Receive and complete licensure verifications

6. Coordinate inspections if required (to be performed by another party)

2. COOPERATIVE PURCHASING

This contract is a cooperative purchasing contract established pursuant to North Dakota Century Code (NDCC) sections 54-44.4-13. However, it is only made available to North Dakota State agencies, institutions under the jurisdiction of the State Board of Higher Education, state boards and commissions, and other state entities to purchase services by executing a participating addendum (Participating Entity).

Each Participating Entity wishing to utilize Contractor’s service under the terms and pricing established in this contract will follow a participating addendum process.

3. COMPENSATION

a. Contractual Amount The Contractual amount to be paid for each executed Participating Addendum shall constitute the entire compensation due Contractor for the service and all of Contractor’s obligations regardless of the difficulty, materials or equipment required. The contractual amount includes fees, licenses, overhead, profit and all other direct and indirect costs incurred or to be incurred, by contract, except as noted in this section of the contract. A valid amendment processed in accordance with this contract may modify the contractual amount.

Hourly Rates in the initial term of the contract may not exceed the rates originally proposed by Contractor for that year. If the STATE renews the contract for additional terms, Contractor’s hourly rates will be adjusted by applying the Consumer Price Index (CPI). The rates shall be http://www.legis.nd.gov/cencode/t54c44-4.pdf?20130131153805 adjusted in accordance with the CPI for All Urban Consumers for the U.S. All Items (1982- 84=100). Contractor’s rates for year 1 shall be used as the base for adjusting the rates for additional years.

The cost of each Participating Addendum is firm for the state contract period and is not subject to escalation for any reason, unless this contract is amended, or a valid participating addendum amendment is processed in accordance with this contract.

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

c. Payment 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.

State shall make payment under this Contract within forty five (45) calendar days after receipt of a correct 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 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.

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 due and payable to Contractor under this Contract.

d. Travel Contractor acknowledges travel costs are covered by the Contractual Amount and shall not invoice State for travel costs.

Participating Entity may reimburse Contractor for expenses related to travel at amounts as agreed upon in the Participating Addendum.

Payment for any travel expenses that exceed the travel budget as agreed upon by the parties must be approved by Participating Addendum.

e. Prepayment State will not make any advance payments before performance by Contractor under this Contract.

f. 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 certificates of exemption upon request by the Contractor.

g. Taxpayer ID Contractor’s federal employer ID number is: 20-8228345.

h. Purchasing Card State may make a 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.

4. TERM OF CONTRACT

This Contract begins on April 1, 2022, or its effective date, and ends on March 30, 2023.

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

b. Renewal Option State may renew this Contract upon satisfactory completion of the initial Contract term. State reserves the right to execute up to four (4) options to renew this Contract under the same terms and conditions for a period of twelve (12) months each.

c. Extension Option State reserves the right to extend the Contract for an additional period of time, not to exceed six

(6) months, beyond the current termination date of the Contract.

Contractors shall be responsible for fulfilling all participating addendums executed within the contract term. The contract will be extended until all unfinished participating addendums are completed; however, no new participating addendums may be executed during the extension period.

5. 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.

6. 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 into this Contract for the purpose of carrying out the public policy of the State of North Dakota, as determined by its Governor, Legislative Assembly and Courts. If this Contract ceases to further the public policy of the State of North Dakota, 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 and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term.

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

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

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

d. Termination for Cause.

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 required by this Contract within the time specified or any extension agreed to 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.

7. FORCE MAJEURE

Neither party shall be held responsible for delay or default caused by fire, riot, terrorism, acts of God or war if 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.

8. INDEMNITY

The State and Contractor each agrees to assume its own liability for any and all claims of any nature including all costs, expenses and attorneys’ fees which may in any manner result from or arise out of this agreement.

9. INSURANCE

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

a. Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $250,000 per person and $1,000,000 per occurrence

b. Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $250,000 per person and $1,000,000 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 $1,000,000 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 the State. The policies shall be in form and terms approved by the State.

c. The Contractor shall furnish a certificate of insurance to the undersigned State representative prior to commencement of this agreement.

d. Failure to provide insurance as required in this agreement is a material breach of Contract entitling State to terminate this agreement immediately.

e. Contractor shall provide at least 30 day notice of any cancellation or material change to the policies or endorsements.

10. 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). Any 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.

11. 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.

12. NOTICE

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

STATE CONTRACTOR

Chad Keech Dana Bohn Procurement Manager President, Clearwater Communications 600 E Boulevard Dept 012 PO Box 2599 Bismarck, ND 58505-0310 Bismarck, ND 58502

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.

13. 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.

14. COMPLIANCE WITH PUBLIC RECORDS LAWS

Contractor understands that, in accordance with this Contract’s Confidentiality clause (section 13), State must disclose to the public upon request any records it receives from Contractor. Contractor further understands that any records obtained or generated by Contractor under this Contract, except for records that are confidential under this Contract, may, under certain circumstances, be open to the public upon request under the North Dakota public records law. Contractor agrees to contact State promptly upon receiving a request for information under the public records law and to comply with State’s instructions on how to respond to the request.

15. 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.

16. ASSIGNMENT AND SUBCONTRACTS

Contractor may not assign or otherwise transfer or delegate any right or duty without State’s express written consent. However, Contractor may enter into subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments. Contractor is solely responsible for the performance of any subcontractor with whom Contractor contracts. Contractor does not have authority to contract for or incur obligations on behalf of State.

17. 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 the evidence, including the scene of an accident.

18. 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 Amendments (if issued) to Request for Proposal (“RFP”) number 110.7-21-

065 dated December 6, 2021;

c. State’s Request for Proposal (“RFP”) number 110.7-21-065, dated November 22, 2021;

d. Contractor’s proposal dated 12/20/2021 in response to RFP number 110.7-21-065.

e. Executed Participating Addendums as may be amended;

f. 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.

19. SEVERABILITY

If any term of this Contract is declared by a court having jurisdiction to be illegal or unenforceable, 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 the Contract did not contain that term.

20. CYBER LIABILITY AND SECURITY INSURANCE

In the event CONTRACTOR will host data, or provide for the hosting of data through a third-party entity, CONTRACTOR shall secure and maintain Cyber Liability and Security Insurance or equivalent insurance product(s), with minimum liability limits of not less than $5,000,000 and first party limits of not less than $1,000,000, that will provide, without cost to the CONTRACTOR or STATE, an immediate response in the event of a data breach, including meeting all notification obligations of CONTRACTOR and STATE and in the event the data breach involves personal information as defined by N.D.C.C. § 51-30-1(4), the insurance policy shall also make available free credit monitoring for any affected individual for a minimum period of one year. CONTRACTOR shall defend, indemnify, save and hold harmless, the STATE, its officers, agents and employees from liability of any nature or kind, including costs and expenses, on account of a data breach arising from CONTRACTOR hosting, transmission, or control of data, any and all suits, claims, or damages of any character whatsoever, resulting from injuries or damages sustained by any person or persons or property by virtue of performance of this contract.

21. TECHNOLOGY STANDARDS

CONTRACTOR shall comply with applicable STATE enterprise architecture technology standards.

These standards can be found on STATE’s website at http://www.nd.gov/itd/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.

22. SAAS AND DATA SECURITY:

a) CONTRACTOR shall:

1) Certify the sufficiency of its security standards, tools, technologies and procedures in providing SaaS under this Contract;

2) Compliance with the following:

i. Undergo an annual Statement on Standards for Attestation Engagements (SSAE)

Service Organization Control (SOC) 2 Type II audit or equivalent such as ISO 27001 for the CONTRACTOR’s Control Environment. Audit results and CONTRACTOR’s plan http://www.nd.gov/itd/standards to correct any negative findings shall be provided to the STATE within seven (7) calendar days upon CONTRACTOR’s receipt of such;

ii. Provide STATE with a detailed description of the audited Control Environment. If STATE determines the Control Environment is not satisfactory, the STATE may request CONTRACTOR to correct any deficiencies;

3) Compliance with applicable industry standards, law, regulations and guidelines.

b) CONTRACTOR shall implement and maintain all appropriate administrative, physical, technical and procedural safeguards in accordance with section a) above at all times during the term of this Contract to secure such Data from Data Breach, protect the Data and the SaaS from hacks, introduction of viruses, disabling devices, malware and other forms of malicious or inadvertent acts that can disrupt the STATE’s access to its Data.

c) CONTRACTOR shall allow the STATE reasonable access to SaaS security logs, latency statistics, and other related SaaS security data that affect this Contract and the STATE’s Data, at no cost to the STATE.

d) CONTRACTOR assumes responsibility for the security and confidentiality of the Data under its control.

e) No Data shall be copied, modified, destroyed or deleted by CONTRACTOR other than for normal operation or maintenance of SaaS during the Contract period without prior written notice to and written approval by the STATE.

f) Remote access to Data from outside the continental United States, including remote access to Data by authorized SaaS support staff in identified support centers, is prohibited unless approved in advance by Chief Information Officer of the State.

23. DATA PROCESSING AND LOCATION:

a) CONTRACTOR shall transmit, process, and store STATE Data within the continental United

States.

b) CONTRACTOR shall notify STATE at least 90 days prior to any relocation of STATE’s Data to a different hosting facility. STATE reserves the right to terminate the Contract without penalty if STATE does not approve of the new hosting facility.

24. DATA BREACH:

a) Upon discovery or reasonable belief of any Data Breach, CONTRACTOR shall provide notice, by phone and through electronic mail, to the individuals identified in SAAS NOTICE section of this Exhibit. CONTRACTOR shall provide such notification within the lesser of twelve (12) hours or the timeframe required by applicable laws and regulations after CONTRACTOR reasonably believes there has been such a Data Breach. To the extent known at the time of notification, CONTRACTOR’s notice shall include:

1) The nature of the Data Breach;

2) The Data accessed, used or disclosed;

3) The person(s) who accessed, used, disclosed and/or received Data (if known);

4) What CONTRACTOR has done or will do to quarantine and mitigate the Data Breach;

and

5) What corrective action CONTRACTOR has taken or will take to prevent future Data

Breaches.

b) CONTRACTOR will provide daily updates, or more frequently if required by the STATE, regarding findings and actions performed by CONTRACTOR until the Data Breach has been effectively resolved to the STATE’s satisfaction.

c) CONTRACTOR shall quarantine the Data Breach, ensure secure access to Data, and repair SaaS as needed in accordance with SLA set above in this attachment. Failure to do so may result in the STATE exercising its options for assessing damages or other remedies under this Contract.

d) CONTRACTOR shall conduct an investigation of the Data Breach and shall share the report of the investigation with the STATE. The STATE and/or its authorized agents shall have the right to lead (if required by law) or participate in the investigation. CONTRACTOR shall cooperate fully with the STATE, its agents and law enforcement.

25. 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.

26. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

State does not agree to any form of binding arbitration, mediation, or other forms of mandatory alternative dispute resolution. The parties have the right to enforce their rights and remedies in judicial proceedings.

State does not waive any right to a jury trial.

27. 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.

28. NONDISCRIMINATION AND COMPLIANCE WITH LAWS

Contractor agrees to comply with all laws, rules, and policies, including those relating to nondiscrimination, accessibility and civil rights. 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 at all times during the term of this Contract all licenses and permits required by law.

29. STATE AUDIT

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 all of these records for at least three

(3) years following completion of this Contract and be able to provide them at any reasonable time.

STATE, State Auditor, or Auditor’s designee shall provide reasonable notice to Contractor prior to conducting examination.

30. 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

Clearwater Communications Acting through its State Procurement Office

BY: BY:

Dana Bohn Chad Keech

President Procurement Manager

Date: 2/7/2022 Date: 2/07/2022