Contract+Template+-+PERS+and+RIO.docx

OFFEROR INSTRUCTIONS

Offeror shall review the STATE’s Contract.

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

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

An offeror may state any objections or propose changes or additions to the STATE’s Contract. Describe the changes to the Contract being proposed or provide a red-line of the STATE’s Contract. Offerors are not to submit their own contract or standard terms and conditions with their proposals. Offeror should address the specific language in the attached contract and submit any proposed changes.

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

CONTRACT

PARTIES

The parties to this contract (Contract) are the State of North Dakota, acting through its Public Employees Retirement System (“PERS”), the State of North Dakota, acting through its Retirement and Investment Office (“RIO”), and State of North Dakota, acting through its Office of the State Auditor (“STATE”) and CONTRACTOR , having its principal place of business at XXX(CONTRACTOR).

SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by PERS and RIO under this Contract, shall provide the following:

To fulfill the scope of work for both PERS and RIO for fiscal years 2025, 2026, and 2027 as described in RFP #117-25-04 issued on March 19, 2025.

Final Report Date to RIO and STATE: November 15th of each fiscal year.

Final Report Date to PERS and STATE: November 22nd of each fiscal year.

COMPENSATION-payments Contractual Amount PERS shall pay for the accepted services provided by CONTRACTOR under this Contract an amount not to exceed XXX (PERS Contractual Amount).

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

The total Contractual Amount of XXX, for both PERS and RIO, 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.

Payment

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

2) PERS and RIO shall make payment under this Contract within forty-five (45) calendar days after receipt of a correct invoice.

3) Payment of an invoice by PERS and RIO will not prejudice their right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to a reduction for amounts included in any invoice or payment made which are determined by PERS or RIO, on the basis of audits conducted in accordance with the terms of this Contract, not to constitute allowable costs. At PERS’ or RIO’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 PERS or RIO by CONTRACTOR, PERS and RIO reserves the right to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

Travel CONTRACTOR acknowledges travel costs are covered by the Contractual Amount and shall not invoice PERS or RIO for travel costs.

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

Payment of Taxes by STATE PERS and RIO are not responsible for and will not pay local, state, or federal taxes. PERS and RIO sales tax exemption number is E-2001. PERS and RIO will furnish certificates of exemption upon request by the CONTRACTOR.

Taxpayer ID CONTRACTOR’S federal employer ID number is:XXXX.

TERM OF CONTRACT

This Contract term (Term or Initial Term) begins when signed by all parties and continues until performance of the scope of work is fulfilled.

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

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.

TERMINATION

a. Termination for Convenience or by Mutual Agreement This Contract may be terminated by STATE, PERS, or RIO upon thirty (30) days’ written notice to CONTRACTOR. This Contract may be terminated by mutual consent of all Parties executed in writing.

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

c. Termination for Lack of Funding or Authority STATE, PERS, or RIO by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

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

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

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

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

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

1) If CONTRACTOR fails to provide services or goods required by this Contract within the time specified or any extension agreed to in writing by STATE, or

2) If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

The rights and remedies of STATE, PERS, and RIO provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

FORCE MAJEURE

Neither Party shall be held responsible for delay or default caused by fire, riot, terrorism, pandemic (excluding COVID-19), acts of God, or war if the event was not foreseeable through the exercise of reasonable diligence by the affected Party, the event is beyond the Party’s reasonable control, and the affected Party gives notice to the other Party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default. If CONTRACTOR is the affected Party and does not resume performance within fifteen (15) days or another period agreed between the Parties, then STATE and/or PERS and/or RIO may seek all available remedies, up to and including termination of this Contract pursuant to its Termination Section, and STATE and/or PERS and/or RIO shall be entitled to a pro-rata refund of any amounts paid for which the full value has not been realized, including amounts paid toward software subscriptions, maintenance, or licenses.

INDEMNification Each party 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 Contract.

INSURANCE

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

1) Commercial general liability, including premises or operations, contractual, and products or completed operations coverages, with minimum liability limits of $2,000,000 per occurrence.

2) Professional errors and omissions with minimum limits of $1,000,000 per claim and in the aggregate, CONTRACTOR shall continuously maintain such coverage during the contact period and for three years thereafter. In the event of a change or cancellation of coverage, CONTRACTOR shall purchase an extended reporting period to meet the time periods required in this section.

3) Automobile liability, including Owned, Hired, and Non-Owned automobiles, with minimum liability limits of $500,000 per person and $2,000,000 per occurrence.

4) Workers compensation coverage meeting all statutory requirements.

The insurance coverages listed must meet the following additional requirements:

1) This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be place with insurers rate “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.

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

Name: James Carroll Email Address: jpcarroll@nd.gov Email Subject Line: Certificate of Insurance – 117-25-04 PERS and RIO

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.

WORK PRODUCT

All deliverables created for PERS, RIO, and STATE or purchased by PERS or RIO under this Contract belong to STATE, PERS, and RIO and must be immediately delivered to STATE, PERS, and RIO at STATE, PERS’, or RIO’s request upon termination of this Contract. STATE shall have access to CONTRACTOR’s working papers for twenty-four (24) months following the completion of the Contract.

NOTICE

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

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.

CONFIDENTIALITY

CONTRACTOR shall not use or disclose any information it receives from STATE, PERS, or RIO under this Contract that STATE, PERS, or RIO has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract, as authorized in advance by STATE, PERS, or RIO. STATE, PERS, or RIO shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STATE, PERS, or RIO 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. 4404. The duty of STATE,PERS, RIO, and CONTRACTOR to maintain confidentiality of information under this section continues beyond the Term of this Contract.

COMPLIANCE WITH PUBLIC RECORDS LAWS

Under the North Dakota public records law and subject to clauses 13 of this Contract, certain records may be open to the public upon request.

Public records may include: (a) records STATE, PERS, or RIO receives from CONTRACTOR under this Contract, (b) records obtained by any Party under this Contract, and (c) records generated by any Party under this Contract.

CONTRACTOR agrees to contact PERS, RIO, and STATE immediately upon receiving a request for information under the public records law and to comply with PERS, RIO, and STATE’s instructions on how to respond to such request.

INDEPENDENT ENTITY

CONTRACTOR is an independent entity under this Contract and is not a PERS, RIO, or 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.

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 PERS, RIO, or STATE is prohibited from conducting business, PERS, RIO, or STATE shall have the right to terminate in accordance with the Termination for Cause section of this Contract.

CONTRACTOR may enter subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments. CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of PERS, RIO or STATE.

SPOLIATION – PRESERVATION OF EVIDENCE

CONTRACTOR shall promptly notify PERS, RIO, and 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 PERS, RIO and STATE the opportunity to review and inspect such evidence, including the scene of an accident.

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:

The terms of this Contract as may be amended;

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.

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.

ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

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

ATTORNEY FEES

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

NONDISCRIMINATION AND COMPLIANCE WITH LAWS

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

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

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

CONTRACTOR is prohibited from boycotting Israel for the duration of this Contract. (See N.D.C.C § 54-44.4-15.) CONTRACTOR represents that it does not and will not engage in a boycotting Israel during the term of this Contract. If PERS, RIO, or STATE receives evidence that CONTRACTOR boycotts Israel, STATE shall determine whether the company boycotts Israel. The foregoing does not apply to contracts with a total value of less than $100,000 or if CONTRACTOR has fewer than ten (10) full-time employees.

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

STATE AUDIT

Pursuant to N.D.C.C. § 54-10-19, all records, regardless of physical form, and the accounting practices and procedures of CONTRACTOR relevant to this Contract are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or Federal auditors, if required. CONTRACTOR shall maintain these records for at least three (3) years following completion of this Contract and be able to provide them upon reasonable notice. STATE, State Auditor, or Auditor’s designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

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

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.

Acting through its Office of the State Auditor