07-27-2017
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07-27-2017
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<br />Page 21 of 27 <br />of the audit report, which may supplement or modify any tentative findings verbally <br />communicated to Consultant at the completion of an audit. <br /> <br />B. Within one hundred eighty (180) days after the date of the Notice of Audit Results, <br />Consultant will respond, in writing, to the Diversion Authority indicating (a) whether it <br />concurs with the audit report, (b) clearly explaining the nature and basis for any <br />disagreement as to a disallowed item of expense, and (c) providing a written <br />explanation as to any questioned or no opinion expressed item of expense <br />(“Response”). The Response will be clearly stated and will provide any supporting <br />documentation necessary to resolve any disagreement or questioned or no opinion <br />expressed item of expense. Where the documentation is voluminous, Consultant may <br />supply appropriate excerpts and make alternate arrangements to conveniently and <br />reasonably make that documentation available for review by the Diversion Authority. <br />The Response will refer to and apply the language of this Agreement. Consultant <br />agrees that failure to submit a Response within the one hundred eighty (180) day <br />period constitutes agreement with any disallowance of an item or expense and <br />authorizes the Diversion Authority to finally disallow any items of questioned or no <br />opinion expressed cost. <br /> <br />C. The Diversion Authority will make its decision with regard to any Notice of Audit <br />Results and Response within one hundred twenty (120) days after the date of the <br />Response. If it is determined by a court of competent jurisdiction or by mutual <br />agreement that an overpayment has been made to Consultant, Consultant will repay the <br />amount to the Diversion Authority or reach an agreement with the Diversion Authority <br />on a repayment schedule within thirty (30) days after the date of an invoice from the <br />Diversion Authority. If Consultant fails to repay the overpayment or reach an <br />agreement with the Diversion Authority on a repayment schedule within the thirty (30) <br />day period, Consultant agrees that the Diversion Authority will deduct all or a portion <br />of the overpayment from any funds then or thereafter payable by the Diversion <br />Authority to Consultant for this project. Interest will be assessed on any partial <br />payments or repayment schedules based on the unpaid balance at the end of each <br />month until the balance is paid in full. The assessment of interest will begin thirty (30) <br />days from the date of the invoice. The rate of interest will be the interest rate on <br />judgments in North Dakota as calculated by the state court administrator pursuant to <br />N.D.C.C. § 28-20-34. The rate of interest will be reviewed annually by the Diversion <br />Authority and adjusted as necessary. Consultant expressly consents to this withholding <br />or offsetting of funds under those circumstances, reserving the right to file a lawsuit to <br />contest the Diversion Authority’s decision. <br /> <br />46. OWNERSHIP. Ownership of work product and inventions created by Consultant shall be as <br />follows: <br /> <br />A. Pre-Existing Consultant Materials. The Diversion Authority acknowledges and agrees <br />that in the performance of the services, Consultant will utilize its proprietary data, <br />concepts, methods, techniques, processes, protocols, ideas, inventions, know-how, trade <br />secrets, algorithm, software, works of authorship, software and hardware architecture, <br />databases, tools, other background technologies and standards of judgment that <br />developed or licensed from third parties prior to the effective date of this Agreement (the DRAFT
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