Contract+Signed+06-09-2021.pdf

CONTRACT

The parties to this contract (Contract) are the state of North Dakota, acting through its Office of Management and Budget (STATE), and Bay West LLC, a Minnesota limited liability company having its principal place of business at 5 Empire Drive, St. Paul, MN 55103 (CONTRACTOR);

1. COOPERATIVE PURCHASING STATE CONTRACT

This Contract is a cooperative purchasing contract established pursuant to North Dakota Century Code (NDCC) section 54-44.4-13. This Contract is made available to STATE entities, institutions under the jurisdiction of the State Board of Higher Education, other government entities (including counties, cities, townships, public primary and secondary educational entities, governmental boards and commissions), nonprofit entities established on behalf of public entities, tribal agencies, transportation providers under N.D.C.C. ch. 39-04.2, and the International Peace Garden. Each entity is an individual customer (PURCHASING ENTITY). Participation in this open-ended contract is not mandated; therefore, the estimated volume of this Contract is not known.

2. SCOPE OF WORK

CONTRACTOR shall provide professional emergency environmental consulting services, including environmental response, assessment, investigation and corrective services on navigable waters impacted from the release of fluids from oil, gas, and waste-water disposal in the state of North Dakota.

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract shall provide services agreed upon in an executed Task Order.

3. COMPENSATION

a. Contractual Amount STATE shall pay for the accepted services provided by CONTRACTOR as agreed upon in the Task Order.

Task Orders will be developed based on the pricing provided by CONTRACTOR in response to RFP 110.7-21-026 Environmental Services Consultant Contract Pool for Navigable Waters.

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 Each PURCHASING ENTITY is an individual customer who is invoiced and CONTRATOR shall direct payment inquiries to the PURCHASING ENTITY. Payment is the sole responsibility of the PURCHASING ENTITY. CONTRACTOR shall provide a properly completed invoice to the PURCHASING ENTITY. All invoices are to be delivered to the address indicated on the Task Order.

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 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 due and payable to CONTRACTOR under this Contract.

c. Travel CONTRACTOR’S travel and mobilization costs to perform the scope of work outlined in a Task Order will be considered part of the Task Order estimated costs and will be billed at the CONTRACTOR’S cost with no markup, in accordance with the fee schedule attached to the CONTRACTOR’S proposal.

CONTRACTOR acknowledges travel costs are covered by the Contractual Amount and shall not invoice STATE for travel costs.

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

e. 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.

f. Taxpayer ID

CONTRACTOR’S federal employer ID number is: 41-1234511

g. 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 term (Term) begins on July 1, 2021, or its effective date, and ends on June 30, 2022.

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 of time, not to exceed 12 months, beyond the current termination date of this Contract.

CONTRACTOR shall be responsible for fulfilling all Task Orders executed within the Contract term. CONTRACTOR must provide STATE with a list of all Task Orders in progress and the scheduled completion dates by the deadline indicated by STATE. The Contract will be extended until all unfinished Task Orders are completed; however, no new Task Orders may be executed during the extension period.

c. 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.

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, 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 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. 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. 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 the termination of this Contract.

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:

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

2) 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.

3) Workers compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of this Contract.

4) 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:

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

2) 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.

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

4) The state of North Dakota and its agencies, officers, and employees (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 Contract or by the contractual indemnity obligations of CONTRACTOR.

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

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

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

8) CONTRACTOR shall provide at least 30 day notice of any cancellation or material change to the policies or endorsements. CONTRACTOR shall provide on an ongoing basis, current certificates of insurance during the term of the Contract. A renewal certificate will be provided 10 days prior to coverage expiration.

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). 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.

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 postmarked when addressed to the parties at the following addresses:

STATE CONTRACTOR

Amy Cannon Pamela McNeilly Procurement Officer II Contracts Manager 600 E Blvd Ave, Dept. 012 5 Empire Drive Bismarck, ND 58501 St Paul, MN 55103

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

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.

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, 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 without cause.

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 such evidence, including the scene of an accident.

18. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Contract, including the following documents, constitutes the entire Contract 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 Request for Proposal (“RFP”) number 110.7-21-026, dated April 1, 2021;

c. Task Orders as filled out by each individual purchasing entity;

d. Change Orders as filled out for any Task Orders issued;

e. CONTRACTOR’s proposal dated April 23, 2021 in response to RFP number 110.7-21-026.

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 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.

20. 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.

21. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

By entering into 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.

22. 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.

23. 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 at all times during the Term of this 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 Contract.

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

25. RECORDKEEPING, AUDITS, AND INSPECTIONS

CONTRACTOR shall maintain books, records, documents, and other evidence pertinent to performance on Abandoned Oil and Gas Well Plugging and Site Reclamation Fund (AWPSRF) funded project work under this Contract and generally accepted accounting principles and practices consistently applied and in effect on the date of execution of this Contract. CONTRACTOR shall also maintain the financial information and data used in the preparation or support of the cost submission required under the AWPSRF program for any negotiated agreement or change order and a copy of the cost summary submitted to the PURCHASING ENTITY. The State of North Dakota or any of their authorized representatives shall have access to all such books, records, documents, and other evidence for the purpose of inspection, auditing, and copying during normal business hours. CONTRACTOR will provide proper facilities for such access and inspection.

This is a formally advertised, competitively awarded, fixed price contract, CONTRACTOR agrees to make the provisions of this Section 25 applicable to all negotiated change orders and Contract amendments affecting the Contract price.

Audits conducted under this Section 25 shall be in accordance with generally accepted auditing standards and with established procedures and guidelines of the reviewing or auditing agency(ies).

CONTRACTOR agrees to disclose all information and reports resulting from access to records under Section 25 to any PURCHASING ENTITY.

Records under Section 25 shall be maintained by CONTRACTOR during performance of AWPSRF Project work under this Contract and for the time period specified by the PURCHASING ENTITY. In addition, those records which relate to any controversy arising under an AWPSRF Program agreement, litigation, the settlement of claims arising out of such performance or to costs, charges or expenses of this Contract to which an audit inspection has been taken shall be maintained by CONTRACTOR for the time period specified in the AWPSRF project agreement.

Access to records is not limited to the required retention periods. The authorized representatives designated in Section 25 shall have access to records at any reasonable time for as long as the records are maintained.

This right of access clause applies to financial records pertaining to all agreements (except formally advertised, competitively awarded, fixed price agreements) and all agreement change orders regardless of the type of agreement. In addition, this right of access applies to all records pertaining to all agreements, agreement change orders, and agreement amendments:

a. To the extent the records pertain directly to agency performance;

b. If there is any indication that fraud, gross abuse or corrupt practices may be involved; or

c. If the agreement is terminated for default or for convenience.

26. 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

Bay West LLC Acting through its Office of Management and

Budget

BY: BY:

Pamela McNeilly Gabriel Hoggarth Contracts Manager Procurement Officer II Date: Date:

briel Hoggarth dget

06/09/2021