ASU23012-IFB Lobbyist.pdf

Invitation for Bids

Solicitation/Bid No.: ASU23012-IFB

Lobbyist Services

VENDOR RESPONSE FORM

Bids Due: July 7, 2023 Time: 12:00 P.M., MT

Contact: Renee Vigil, Director of Purchasing Email: reneevigil@adams.edu

Submit sealed bids through Rocky Mountain E-Purchasing Group (https://www.bidnetdirect.com) properly marked with Solicitation/Bid No., Due Date and Time, subject to the conditions herein stipulated in accordance with scope of work/specifications set forth and/or attached hereto on or before the deadline specified.

Submit all bids and the requested vendor information below on this VENDOR RESPONSE FORM along with completed W-9. Additional information may be submitted on separate pages.

ASU is not liable for any cost incurred by bidders in preparation of this bid or costs associated with presentation, all costs are the responsibility of the bidder.

COMPLETE THE FOLLOWING:

Note: Please return this page with each copy of your submittal.

The undersigned, an authorized agent of his/her company, hereby certifies:

( ) familiarization with all terms, conditions, and specifications herein stated;

( ) individual/entity is qualified to perform work and services or provide goods ( ) individual/entity is or has registered with Rocky Mountain E-Purchasing Group (https://www.bidnetdirect.com) ( ) that the pricing contained in this submittal is valid until (date) ____________ ( ) W-9 completed and included ( ) supplier accepts P.O. Terms & Conditions as stated, no exceptions

Fed Empl ID No.:_________________________________ Date: ___________________________

Company Name: ____________________________________________________________________

Authorized Signature: ___________________________________________________________________

Typed/Printed Name: ______________________________ Title: ______________________________

Address: ______________________________ City/State/Zip: __________________________________

Phone No.: ______________________________ Email: ______________________________

Contact for Clarifications:

Name: ___________________________ Title: __________________________________________

Phone No. :_________________________ Email: _________________________________ https://www.bidnetdirect.com/

1. Project Overview:

Adams State University (ASU) seeks pricing for the purchase of Lobbyist Services to represent ASU in the Colorado State Legislature.

The duration of the initial award of this Invitation for Bid (IFB) will be for a one-year term effective September 15, 2023 with options to renew up to four (4) additional one-year renewal terms, not to exceed five (5) years in total.

Adams State University seeks to select, through this Information for Bid (IFB), an individual/entity to assist in development of an agenda and strategy for the upcoming Legislative Session and to perform the other duties listed in the Scope of Work. It is anticipated that the award resulting from this IFB will begin September 15, 2023.

2. Administrative Information:

a. Sole Contact for this IFB process is:

Renee Vigil, Director of Purchasing - Email: reneevigil@adams.edu

b. Solicitation Schedule:

i. Questions regarding this solicitation should be sent to Renee Vigil, reneevigil@adams.edu, no later than 12:00 p.m., June 28, 2023.

ii. Bid Due Date: Friday, July 7, 2023 at 12:00 pm, MT

iii. Sealed responses must be submitted on https://www.bidnetdirect.com

On or before the deadline date and time specified above. Late responses will not be considered

iv. Finalists to interview with President and selected committee after review of responses, exact date, and time to be determined. (Interviews will be conducted through Zoom or In-Person)

v. Vendor Awarded by July 31, 2023 (Approximately)

vi. Contract Finalized August, 25, 2023 (Approximately)

vii. Contractor Start Date: September 15, 2023

3. Scope of Work

a. Work with the Board of Trustees, President, and Executive Team to develop an agenda and strategy for the Legislative Session. Identify opportunities for ASU to run proactive legislation that will positively impact ASU’s agenda and goals;

b. Represent the University’s position on matters of interest to the University to members of the General Assembly, Governor’s Office, Executive Branch Cabinet members and appropriate state agencies;

mailto:reneevigil@adams.edu

c. Monitor at a minimum the following General Assembly Committees: Capital Development, House and Senate Education Committee, and the Joint Budget Committee;

d. Facilitate arrangements for meetings with the President and various legislative and other policymakers to include representatives necessary to advance the University’s position on matters of interest to the University, including with members of the General Assembly, Assembly staff, Governor’s Office, Executive Branch Cabinet members, and appropriate state agencies;

e. Attend identified stakeholder meetings to represent and advocate for the University’s position on key legislation, including participation in coalitions that may be formed to assist in the passage or defeat of pending legislation;

f. Monitor pending legislation and regulations that may positively or negatively affect the University;

g. Screen all proposed legislation to identify bills of potential interest;

h. Provide summaries of legislation, interim committees, and meetings specific to the University;

i. Provide regular timely updates by written and verbal presentations to the University’s President and to University’s Board of Trustees;

j. Develop, maintain, and grow on going productive relationship and open line of communication with current and new members of the General Assembly and Executive Branch on behalf of the University;

k. Provide a year-end report to the Board of Trustees outlining pertinent legislative events of the year as well as identifying key priorities for the following year;

l. Plan and host the annual Adams State Lobby Day at the Capitol in February of each year;

m. Prepare the President in advance scheduled meetings before Committee and General Assembly hearings and meetings with state lawmakers and policymakers.

4. Minimum Mandatory Qualifications Following are the minimum mandatory qualifications vendors must meet in order to be considered for award. Please confirm that you meet, and provide a brief description of how you meet, each of the following:

a. At least four years of experience, during the past seven years, working in areas related to legislative affairs or working with the Colorado State General Assembly

b. Demonstrated excellent oral and written communication skills

c. Considerable experience in the following issue areas: Higher Educations and related matters

d. Interest in advancing the University and Colorado Higher Education

e. Present no real or potential conflict of interest to the University via other contracted clients

5. Pricing Information The proposal as submitted by the vendor must outline the annual costs of services, inclusive of travel, materials, productions cost, etc., to be billed by ASU in twelve (12) equal installments for the first year at the end of each full month (advance payments are not allowed).

6. Initial Term/Renewal The initial term of any resulting agreement from this documented quote is for a term of one year commencing on September 15, 2023. The University at its sole discretion, may renew the agreement for a period of four one-year terms, not to exceed a total contract term of five years. Financial obligations of buyer payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available.

7. Submittal Requirements:

Your bid must contain the following information, in the order and format provided below

a. Cover Letter. Provide key contact information, including phone number(s) and email address.

b. Minimum Mandatory Qualification. Provide a brief description of how you meet the Minimum

Mandatory Qualifications listed above in Section 4.

c. Response to Scope of Work Criteria. Please provide a narrative responding to each of the criteria outlined in Scope of Work, in the same order, and how you will accomplish each.

d. Pricing. Offers should be in the form of annual costs of services, inclusive of travel, materials, productions cost, etc., to be billed by ASU in twelve (12) equal installments for all services needed to accomplish the scope of worked detailed, including related expenses.

e. Vendor Signature Form. Please return the completed vendor form (Page 1) and W-9

Submit responses electronically on https://www.bidnetdirect.com bids properly marked with Solicitation/Bid No., Due Date and Time, subject to the conditions herein stipulated in accordance with specifications set forth and/or attached hereto prior to 12:00 P.M., July 7, 2023. Electronic responses cannot and will not be viewed until bid closing time.

8. Bid Evaluation and Award:

The University reserves the right to use a phased approach to select awarded contractor, if in the best interest of the University by using one, two, or all three phases listed, however not necessarily in this order:

Phase One: Evaluation of written responses Phase Two: Screening interview may or may not be conducted with Board of Trustees Legislative Affairs Committee exact date and time to be determined, if deemed necessary Phase Three: Finalists to interview with the President and selected Committee, exact date and time to be determined.

Award will be based on the response deemed to be the most advantageous to the ASU at the University’s sole discretion using the criteria listed above in the IFB (for example):

A. Cost B. Meeting minimum qualifications C. Experience with Institutions of Higher Education D. Experience with Effectively Lobbying the State of Colorado Legislature E. Conformity of Services to Bid Specifications

If more than one responsive, responsible bidder sufficiently meets or exceeds the bid requirements, the

University reserves the right to compare the relative value of these bids and award the bid which is most advantageous to the University, price/cost being the primary consideration. The selection ultimately is a business judgment that will reflect an integrated assessment of the relative merits of the bids.

Adams State University reserves the right to reject any or all bids, to waive informalities or irregularities, and to contract in the best interest of the University. Adams State University will issue a purchase order or State of Colorado contract to awarded vendor with the attached Terms and Conditions, at minimum, taking precedence over any individual’s/firm’s agreement, no exceptions.

9. Vendor Qualification:

Bid Information and Distribution System (BIDS) and Registration - This solicitation is published using the Rocky Mountain E-Purchasing System https://www.bidnetdirect.com. Offerors must be registered on Rocky Mountain E-Purchasing System in order to download solicitation documents and information (including any amendments or modifications).

10. Insurance Requirements

a. Standard Workers’ Compensation and Employer Liability as required by state statute, including occupational disease, covering all employees on or off the work site, acting within the scope of their employment.

b. Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability (state anticipating HIPAA coverage) with minimum limits as follows:

i. $1,000,000 each occurrence;

ii. $2,000,000 general aggregate;

iii. $2,000,000 products and completed operations aggregate;

iv. $50,000 any one fire; and

v. Per Project General Aggregate Limit. If any aggregate limit is reduced below

$1,000,000 because of claims made or paid, Contractor shall immediately obtain additional insurance to restore the full aggregate limit and furnish to the State a certificate or other document satisfactory to the State showing compliance with this provision.

c. Automobile Liability Insurance covering any auto (including owned, hired and non-owned autos) with a minimum limit as follows: $1,000,000 each accident combined single limit.

d. Professional liability insurance with minimum limits of liability of not less than $1,000,000.

e. Other insurance as may be required by law, or in a specific solicitation. All policies evidencing the insurance coverages required hereunder shall be issued by insurance companies satisfactory to the State.

f. All insurance coverages shall be in amounts and for durations acceptable to Adams

State University. Vendor shall name Adams State University and the State of

Colorado acting by and through the Board of Trustees of Adams State University as an additional insured on all policies except workers' compensation. Coverage shall be primary over any other valid and collectible insurance except for Workers

Compensation. Waiver of Subrogation shall apply to all policies in favor of the

Adams State University and the State of Colorado acting by and through the Board of Trustees of Adams State University. Vendor shall provide certificates of insurance to Adams State University.

g. The certificates of insurance shall provide that there will be no failure of renewal, cancellation nor reduction of coverage without thirty (30) days prior written notice to

Adams State University.

h. Contractor will require all insurance policies in any way related to the contract and secured and maintained by the contractor to include clauses stating that each carrier will waive all rights of recovery, under subrogation or otherwise, against the State of Colorado, its agencies, institutions, organizations, officers, agents, employees and volunteers.

i. Contractor shall provide certificates showing insurance coverage required by this contract to the State within 7 business days of the effective date of the contract, but in no event later than the commencement of the services or delivery of the goods under the contract. No later than 15 days prior to the expiration date of any such coverage, the contractor shall deliver the State certificates of insurance evidencing renewals thereof. At any time during the term of this contract, the State may request in writing, and the contractor shall thereupon within 10 days supply to the State, evidence satisfactory to the State of compliance with the provisions of this section. Certificate/s of adequate insurance coverage and endorsement/s of additional insured coverage

11. CONFIDENTIAL/PROPRIETARY INFORMATION: Any restrictions of the use or inspection of material contained within the response shall be clearly stated in the response itself. Written requests for confidentiality shall be submitted, by the bidder with the response. The bidder must state specifically what elements of the response are to be considered confidential/proprietary. Confidential/proprietary information must be readily identified, marked and separately packaged from the rest of the response.

Co-mingling of confidential/proprietary and other information is NOT acceptable. Neither a response in its entirety, nor price information will be considered confidential/proprietary. Any information that will be included in any resulting contract cannot be considered confidential. The ASU Purchasing Department will make a written determination as to the apparent validity of any request for confidentiality. In the event the Purchasing Department does not concur with the bidder’s request for confidentiality, the written determination will be sent to the bidder Ref. Section 24-72-201 et. seq., C.R.S., as amended, Colorado Open Records Act. The ASU Purchasing Department will make a written determination as to the apparent validity of any request for confidentiality. In the event the Purchasing Department does not concur with the offeror’s request for confidentiality, the written determination will be sent to the offeror.

Ref. Section 24-72-201 et. seq., C.R.S., as amended, Public (open) Records.”

Purchase Order Terms and Conditions

1. Offer/Acceptance. This Purchase Order, together with these terms and conditions (including, if applicable, Addendum 1:

Additional Terms and Conditions for Information Technology, below), and any other attachments, exhibits, specifications, or appendices, whether attached or incorporated by reference (collectively the “PO”) shall represent the entire and exclusive agreement between the State and the Vendor. If this PO refers to Vendor’s bid or proposal, this PO is an ACCEPTANCE of Vendor’s OFFER TO SELL in accordance with the terms and conditions of this PO. If a bid or proposal is not referenced, this PO is an OFFER TO BUY, subject to Vendor’s acceptance, demonstrated by Vendor’s performance or written acceptance of this PO. Any COUNTER-OFFER TO SELL automatically CANCELS this PO, unless a change order accepting the counter-offer is issued in accordance with §4 accepting a counter-offer. The State shall not be responsible or liable for goods or services delivered or performed prior to issuance of this PO.

2. Order of Precedence. In the event of a conflict or inconsistency within this PO, such conflict or inconsistency shall be resolved by giving preference to the documents in the following order of priority: (a) the Purchase Order document; (b) these Terms and Conditions (including, if applicable, Addendum 1: Additional Terms and Conditions for Information Technology below); and (c) any attachments, exhibits, specifications, or appendices, whether attached or incorporated by reference. Any terms and conditions included on Vendor’s forms or invoices not included in this PO are void.

3. Safety Information. All chemicals, equipment, and materials proposed or used in the performance of this PO shall conform to the requirements of the Occupational Safety and Health Act of 1970. Vendor shall furnish all Material Safety Data Sheets (MSDS) for any regulated chemicals, equipment, or hazardous materials at the time of delivery.

4. Changes. Vendor shall furnish goods or services in strict accordance with the specifications and price set forth for each item. This PO shall not be modified, superseded or otherwise altered, except in writing signed by the State and accepted by Vendor. If this PO is for goods only and Vendor has not delivered the goods prior to the expiration of this PO, but Vendor delivers all of the goods to the State only after expiration of this PO, then the State, in its sole discretion, may accept the goods under this PO by extending this PO and delivering the modification to Vendor; however, regardless of anything to the contrary, if the State does not extend this PO for any reason then the goods delivered after expiration of this PO shall be deemed rejected, Vendor shall arrange the return of all delivered goods at Vendor’s sole expense, and the State shall have no liability for any such goods.

5. Delivery. Unless otherwise specified in this PO, delivery shall be FOB destination, freight prepaid and allowed. The State is relying on the promised delivery date and any installation or service performance set forth in this PO as material and basic to the State’s acceptance. If Vendor fails to deliver or perform as and when promised, the State, in its sole discretion, may cancel its order, or any part thereof, without prejudice to its other rights, return all or part of any shipment so made, and charge Vendor with any loss or expense sustained as a result of such failure to deliver or perform as promised. Time is of the essence.

6. Rights to Materials. [Not Applicable to POs issued either in whole or in part for Information Technology, as defined in CRS § 24-37.5-102(2); which shall be governed by Addendum 1 §B.] Unless specifically stated otherwise in this PO, all materials, including without limitation supplies, equipment, documents, content, information, or other material of any type, whether tangible or intangible (collectively “Materials”), furnished by the State to Vendor or delivered by Vendor to the State in performance of its obligations under this PO shall be the exclusive property of the State. Vendor shall return or deliver all Materials to the State upon completion or termination of this PO.

7. Reporting. If Vendor is served with a pleading or other document in connection with an action before a court or other administrative decision making body, and such pleading or document relates to this PO or may affect Vendor’s ability to perform its obligations under this PO, Vendor shall, within 10 days after being served, notify the State of such action and deliver copies of such pleading or document to the State. Vendor shall disclose, in a timely manner, in writing to the State all violations of federal or state criminal law involving fraud, bribery, or gratuity violations potentially affecting this PO. The State may impose any remedies available, which may include, without limitation, suspension or debarment.

8. Conflicts of Interest. Vendor acknowledges that with respect to this PO, even the appearance of a conflict of interest is harmful to the State’s interests. Absent the State’s prior written approval, Vendor shall refrain from any practices, activities, or relationships that reasonably may appear to be in conflict with the full performance of Vendor’s obligations to the State hereunder. If a conflict or appearance of a conflict of interest exists, or if Vendor is uncertain as to such, Vendor shall submit to the State a disclosure statement setting forth the relevant details for the State’s consideration. Failure to promptly submit a disclosure statement or to follow the State’s direction with respect to the actual or apparent conflict constitutes a breach of this

PO. Vendor acknowledges that all State employees are subject to the ethical principles described in §24-18-105, C.R.S. Vendor further acknowledges that State employees may be subject to the requirements of §24-18-105, C.R.S. with regard to this PO.

9. Warranties. All provisions and remedies of the Colorado Uniform Commercial Code, CRS, Title 4 (“UCC”), relating to implied or express warranties for goods are incorporated herein, in addition to any warranties contained in this PO.

10. Inspection and Acceptance. The State’s final acceptance of goods or services is contingent upon completion of all applicable inspection procedures. All goods delivered shall be newly manufactured and the current model, unless otherwise specified. The State shall have the right to inspect goods or services provided under this PO at all reasonable times and places.

The State shall be the sole judge in determining “equals” with regard to conformance with the specifications outlined in this PO for quality, price, and performance. If any of the goods or services do not conform to this PO, the State, at its sole discretion, may require Vendor to either (a) replace the goods specified by the State or (b) perform the services again, without additional payment from the State. When defects in the quality or quantity of goods or services cannot be corrected by replacement or re-performance, the State may (c) require Vendor to take necessary action to ensure that future performance conforms to this PO and (d) equitably reduce the payment due Vendor to reflect the reduced value of the goods or services performed. These remedies do not limit the remedies otherwise available in this PO, at law, or in equity.

11. Taxes. The State is exempt from federal excise taxes and from State and local sales and use taxes. The State shall not be liable for the payment of any excise, sales, or use taxes imposed on Vendor. A tax exemption certificate will be made available upon Vendor’s request.

12. Payment. The State shall not pay Vendor any amount for performance under this PO in excess of the Document Total set forth on the Purchase Order document. The State shall pay Vendor for all amounts due within 45 days after the State’s receipt of goods or services and acceptance of a correct invoice of amount due. Amounts not paid by the State within 45 days of the State’s acceptance of the invoice shall bear interest on the unpaid balance beginning on the 45th day at the rate set forth in CRS §24-30-202(24) until paid in full. Interest shall not accrue if a good faith dispute exists as to the State’s obligation to pay all or a portion of the amount due. Vendor shall invoice the State separately for interest on delinquent amounts due, referencing the delinquent payment, number of day’s interest to be paid, and applicable interest rate. The State may benefit from any early payment discount offered by Vendor by making payment within the timeframes required by Vendor to be eligible for such discount. If Vendor offers an early payment discount, then the discount shall be shown on Vendor’s invoices to the State, and if the State makes payment on the invoice within the time frame for the discount, Vendor shall either (a) accept the payment amount less the appropriate discount or (b) refund the discount back to the State. Except as specifically agreed in this PO, Vendor shall be solely responsible for all costs, expenses, and other charges it incurs in connection with its performance under this PO.

13. Assignment. Vendor’s rights and obligations under this PO shall not be transferred or assigned without the prior, written consent of the State and execution of a new PO. Any attempt at assignment or transfer without such consent and new PO shall be void. Any new PO approved by the State shall be subject to the same terms and conditions as those set forth in this PO.

14. Subcontracts. Unless otherwise specified in this PO, Vendor shall not enter into any subcontract in connection with its obligations under this PO without the prior, written approval of the State. Vendor shall submit to the State a copy of each such subcontract upon request by the State. All subcontracts entered into by Vendor in connection with this PO shall comply with all applicable federal and state laws and regulations, shall provide that they are governed by the laws of the State of Colorado, and shall be subject to all provisions of this PO.

15. Severability. The invalidity or unenforceability of any provision of this PO shall not affect the validity or enforceability of any other provision of this PO, which shall remain in full force and effect, provided, that the parties can continue to perform their obligations in accordance with the intent of this PO.

16. Survival of Certain PO Terms. Any provision of this PO that imposes an obligation on a party after termination or expiration of this PO shall survive the termination or expiration of this PO and shall be enforceable by the other party.

17. Third Party Beneficiaries. Except for the parties’ respective successors and assigns, this PO does not and is not intended to confer any rights or remedies upon any person or entity other than the parties. Enforcement of this PO and all rights and obligations hereunder is reserved solely to the parties. Any services or benefits which third parties receive as a result of this PO are incidental to this PO, and do not create any rights for such third parties.

18. Waiver. A party’s failure or delay in exercising any right, power, or privilege under this PO, whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single or partial exercise of any right, power, or privilege preclude any other or further exercise of such right, power, or privilege.

19. Indemnification. [Not Applicable to Inter-governmental POs] Vendor shall indemnify, save, and hold harmless the State, its employees, agents and assignees (the “Indemnified Parties”), against any and all costs, expenses, claims, damages, liabilities, court awards and other amounts (including attorneys’ fees and related costs) incurred by any of the Indemnified Parties in relation to any act or omission by Vendor, or its employees, agents, subcontractors, or assignees in connection with this PO. This shall include, without limitation, any and all costs, expenses, claims, damages, liabilities, court awards and other amounts incurred by the Indemnified Parties in relation to any claim that any work infringes a patent, copyright, trademark, trade secret, or any other intellectual property right or any claim for loss or improper disclosure of any confidential information or personally identifiable information.

20. Notice. All notices given under this PO shall be in writing, and shall be delivered to the contacts for each party listed on the Purchase Order document. Either party may change its contact or contact information by notice submitted in writing to the other party without a formal modification to this PO.

21. Insurance. Except as otherwise specifically stated in this PO, Vendor shall obtain and maintain insurance as specified in this section at all times during the term of this PO: (a) workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Vendor employees acting within the course and scope of their employment; (b) Commercial general liability insurance written on an Insurance Services Office occurrence form, covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: $1,000,000 each occurrence; $1,000,000 general aggregate; $1,000,000 products and completed operations aggregate; and $50,000 any one fire; and (c) Automobile liability insurance covering any auto (including owned, hired and non-owned autos) with a minimum limit of $1,000,000 each accident combined single limit. If Vendor will or may have access to any protected information, then Vendor shall also obtain and maintain insurance covering loss and disclosure of protected information and claims based on alleged violations of privacy right through improper use and disclosure of protected information with limits of $1,000,000 each occurrence and $1,000,000 general aggregate at all times during the term of this PO. Additional insurance may be required as provided elsewhere in this PO. All insurance policies required by this PO shall be issued by insurance companies with an AM Best rating of A-VIII or better. This insurance requirement shall not apply if this PO is solely for goods, as determined by the State, unless specifically stated otherwise in this PO or any attachment or exhibit to this PO. If Vendor is a public agency within the meaning of the Colorado Governmental

Immunity Act, then this section shall not apply and Vendor shall instead comply with the Colorado Governmental Immunity Act.

22. Termination Prior to Vendor Acceptance. If Vendor has not begun performance under this PO, the State may cancel this PO by providing written notice to the Vendor.

23. Termination for Cause. (a) If Vendor refuses or fails to timely and properly perform any of its obligations under this PO with such diligence as will ensure its completion within the time specified in this PO, the State may notify Vendor in writing of non-performance and, if not corrected by Vendor within the time specified in the notice, terminate Vendor’s right to proceed with this PO or such part thereof as to which there has been delay or a failure. Vendor shall continue performance of this PO to the extent not terminated. (b) Vendor shall be liable for excess costs incurred by the State in procuring similar goods or services and the State may withhold such amounts as the State deems necessary. (c) If after rejection, revocation, or other termination of Vendor’s right to proceed under the UCC or this clause, the State determines for any reason that Vendor was not in default or the delay was excusable, the rights and obligations of the State and Vendor shall be the same as if the notice of termination had been issued pursuant to termination under §24.

24. Termination in Public Interest. The State is entering into this PO for the purpose of carrying out the public interest of the State, as determined by its Governor, General Assembly, or Courts. If this PO ceases to further the public interest of the State as determined by its Governor, General Assembly, or Courts, the State, in its sole discretion, may terminate this PO in whole or in part and such termination shall not be deemed to be a breach of the State’s obligations hereunder. This section shall not apply to a termination for cause, which shall be governed by §23. A determination that this PO should be terminated in the public interest shall not be equivalent to a State right to terminate for convenience. The State shall give written notice of termination to Vendor specifying the part of this PO terminated and when termination becomes effective. Upon receipt of notice of termination, Vendor shall not incur further obligations except as necessary to mitigate costs of performance. For services or specially manufactured goods, the State shall pay (a) reasonable settlement expenses, (b) this PO price or rate for supplies and services delivered and accepted, (c) reasonable costs of performance on unaccepted supplies and services, and (d) a reasonable profit for the unaccepted work. For existing goods, the State shall pay (e) reasonable settlement expenses, (f) the PO price for goods delivered and accepted, (g) reasonable costs incurred in preparation for delivery of the undelivered goods, and (h) a reasonable profit for the preparatory work. The State’s termination liability under this section shall not exceed the total PO price. As a condition for payment under this section, Vendor shall submit a termination proposal and reasonable supporting documentation, and cost and pricing data as requested by the State.

25. Funds Availability. Financial obligations of the State payable after the State’s current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. If this PO is funded in whole or in part with federal funds, this PO is subject to and contingent upon the continuing availability of federal funds for the purposes hereof. The

State represents that it has set aside sufficient funds to make payment for goods delivered in a single installment, in accordance with the terms of this PO.

26. Governmental Immunity. Liability for claims for injuries to persons or property arising from the negligence of the State, its departments, boards, commissions committees, bureaus, offices, employees and officials shall be controlled and limited by the provisions of the Colorado Governmental Immunity Act, CRS §24-10-101, et seq., the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and 28 U.S.C. 1346(b), and the State’s risk management statutes, CRS §§24-30-1501, et seq. No term or condition of this PO shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, contained in these statutes.

27. Independent Contractor. Vendor shall perform its duties under this PO as an independent contractor and not as an employee. Neither Vendor nor any agent or employee of Vendor shall be deemed to be an agent or employee of the State.

Vendor shall not have authorization, express or implied, to bind the State to any agreement, liability or understanding, except as expressly set forth herein. Vendor and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Vendor or any of its agents or employees. Vendor shall pay when due all applicable employment taxes, income taxes and local head taxes incurred pursuant to this PO. Vendor shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents.

28. Compliance with Law. Vendor shall comply with all applicable federal and state laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices.

29. Choice of Law, Jurisdiction and Venue. [Not Applicable to Inter-governmental POs] Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this PO. The UCC shall govern this PO in the case of goods unless otherwise agreed in this PO. Any provision included or incorporated herein by reference, which conflicts with said laws, rules, and regulations shall be null and void. All suits or actions related to this PO shall be filed and proceedings held in the State of Colorado and exclusive venue shall be in the City and County of Denver. Any provision incorporated herein by reference which purports to negate this or any other provision in this PO in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Vendor shall exhaust administrative remedies in CRS §24-109-106, prior to commencing any judicial action against the State.

30. Prohibited Terms. Nothing in this PO shall be construed as a waiver of any provision of CRS §24-106-109. Any term included in this PO that requires the State to indemnify or hold Vendor harmless; requires the State to agree to binding arbitration; limits Vendor’s liability for damages resulting from death, bodily injury, or damage to tangible property; or that conflicts with that statute in any way shall be void ab initio.

31. Vendor Offset and Erroneous Payments. [Not Applicable to Inter-governmental POs or to POs issued solely for goods] The State Controller may withhold payment under the State’s Vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39-21-101, et seq.; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action. The State may also recover, at the State’s discretion, payments made to Vendor in error for any reason, including, but not limited to, overpayments or improper payments, and unexpended or excess funds received by Vendor by deduction from subsequent payments under this PO, deduction from any payment due under any other contracts, grants or agreements between the State and Vendor, or by any other appropriate method for collecting debts owed to the State.

ADDENDUM 1:

Additional Terms & Conditions for Information Technology

IF ANY PART OF THE SUBJECT MATTER OF THIS PO IS INFORMATION TECHNOLOGY, AS DEFINED IN

CRS § 24-37.5-102 (2), THE FOLLOWING PROVISIONS ALSO APPLY TO THIS PO.

A. Definitions. The following terms shall be construed and interpreted as follows: (a) “Business Day” means any day in which the State is open and conducting business, but shall not include Saturday, Sunday or any day on which the State observes one of the holidays listed in CRS §24-11-101(1); (b) “CJI” means criminal justice information collected by criminal justice agencies needed for the performance of their authorized functions, including, without limitation, all information defined as criminal justice information by the U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Security Policy, as amended, and all Criminal Justice Records as defined under CRS §24-72-302; (c) “HIPAA” means the federal Health Information Portability and Accountability Act; (d) “Incident” means any accidental or deliberate event that results in or constitutes an imminent threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of any communications or information resources of the State, pursuant to CRS §§24-37.5-401 et seq.; (e) “PCI” means payment card information including any data related to credit card holders’ names, credit card numbers, or the other credit card information as may be protected by state or federal law; (f) “PHI” means any protected health information, including, without limitation any information whether oral or recorded in any form or medium that relates to the past, present or future physical or mental condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual; and that identifies the individual or with respect to which there is a reasonable basis to believe the information can be used to identify the individual including, without limitation, any information defined as Individually Identifiable Health Information by HIPAA; (g) “PII” means personally identifiable information including, without limitation, any information maintained by the State about an individual that 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, including, without limitation, all information defined as personally identifiable information in CRS §24-72-501. “PII” shall also mean “personal identifying information” as set forth at § 24-74-102, et. seq., C.R.S. ; (h) “State Confidential Information” means any and all State Records not subject to disclosure under the Colorado Open Records Act, CRS §§24-72-200.1, et seq. (“CORA”), and includes, without limitation, PII, PHI, PCI, Tax Information, CJI, and State personnel records not subject to disclosure under CORA; (i) “State Records” means any and all State data, information, and records, regardless of physical form; (j) “Tax Information” means federal and State of Colorado tax information including, without limitation, federal and State tax returns, return information, and such other tax-related information as may be protected by federal and State law and regulation, including, without limitation all information defined as federal tax information in Internal Revenue Service Publication 1075; and (k) “Work Product” means the tangible and intangible results of the delivery of goods and performance of services, whether finished or unfinished, including drafts.

B. Intellectual Property. Except to the extent specifically provided elsewhere in this PO, any State information, including without limitation pre-existing State software, research, reports, studies, data, photographs, negatives or other documents, drawings, models, materials; or Work Product prepared by Vendor in the performance of its obligations under this PO shall be the exclusive property of the State (collectively, “State Materials”). Vendor shall deliver all State Materials to the State upon completion or termination of this PO. The State’s exclusive rights in any Work Product prepared by Vendor shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare derivative works. Vendor shall not use, willingly allow, cause or permit any State Materials to be used for any purpose other than the performance of Vendor’s obligations hereunder without the prior written consent of the State. The State shall maintain complete and accurate records relating to (a) its use of all Vendor and third party software licenses and rights to use any Vendor or third party software granted under this PO and its attachments to which the State is a party and (b) all amounts payable to Vendor pursuant to this PO and its attachments and the State’s obligations under this PO or to any amounts payable to Vendor in relation to this PO, which records shall contain sufficient information to permit Vendor to confirm the State’s compliance with the use restrictions and payment obligations under this PO or to any third-party use restrictions to which the State is a party. Vendor retains the exclusive rights, title and ownership to any and all pre-existing materials owned by or licensed to Vendor including, but not limited to all pre-existing software, licensed products, associated source code, machine code, text images, audio, video, and third-party materials, delivered by Vendor under this PO, whether incorporated in a deliverable or necessary to use a deliverable (collectively, “Vendor Property”).

Vendor Property shall be licensed to the State as set forth in a State-approved license agreement: (c) entered into as exhibits or attachments to this PO, (d) obtained by the State from the applicable third-party Vendor, or (e) in the case of open source software, the license terms set forth in the applicable open source license agreement. Notwithstanding anything to the contrary herein, the State shall not be subject to any provision incorporated in any exhibit or attachment attached hereto, any provision incorporated in any terms and conditions appearing on any website, any provision incorporated into any click through or online agreements, or any provision incorporated into any other document or agreement between the parties that (i) requires the State to indemnify Vendor or any other party, (ii) is in violation of State laws, regulations, rules, fiscal rules, policies, or other State requirements as deemed solely by the State, or (iii) is contrary to this PO.

C. License or Use Audit Rights. If this PO includes any license or other right to use Vendor’s intellectual property, Vendor shall have the right, at any time during and throughout the term of this PO, but not more than once during any State fiscal year, to request via written notice in accordance with the notice provisions of this PO that the State audit its use of Vendor’s intellectual property and certify as to its compliance with any applicable license or use restrictions and limitations contained in this PO (an “Audit Request”). The Audit Request shall specify the time period to be covered by the audit, which shall not inc lude any time periods covered by a previous audit. The State shall complete the audit and provide certification of its compliance to Vendor (“Audit Certification”) within 120 days following the State’s receipt of the Audit Request. If upon receipt of the State’s Audit Certification, the parties reasonably determine that: (a) the State’s use of licenses, use of software, use of programs, or any other use of intellectual property during the audit period exceeded the use restrictions and limitations contained in this PO (“Overuse”) and (b) the State would have been or is then required to purchase additional rights to use Vendor’s intellectual property (“Additional Rights”), Vendor shall provide written notice to the State in accordance with the notice provisions of this PO identifying any Overuse or required Additional Rights and request that the State bring its use into compliance with such use restrictions and limitations. Notwithstanding anything to the contrary in this PO, or incorporated as a part of Vendor’s or any subcontractor’s website, click-through or online agreements, third-party agreements, or any other documents or agreements between the parties, the State shall not be liable for the costs associated with any Overuse or Additional Rights, during the audit period regardless of whether the State may have been notified in advance of such costs.

D. Vendor Records. Vendor shall maintain a file of all documents, records, communications, notes, and other materials relating to the work (the “Vendor Records”). Vendor Records shall include all documents, records, communications, notes and other materials maintained by Vendor that relate to any work performed by Subcontractors, and Vendor shall maintain all records related to the work performed by Subcontractors required to ensure proper performance of that work. Unless a longer period is required in this PO or any attachment or exhibit to this PO, Vendor shall maintain Vendor Records until the last to occur of: (a) the date 3 years after the date this Purchase Order expires or is terminated, (b) final payment under this Purchase Order is made, (c) the resolution of any pending Purchase Order matters, or (d) if an audit is occurring, or Vendor has received notice that an audit is pending, the date such audit is completed and its findings have been resolved (the “Record Retention Period”).

Vendor shall permit the State, the federal government, and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy, and transcribe Vendor Records during the Record Retention Period. Vendor shall make Vendor Records available during normal business hours at Vendor’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than 2 Business Days’ notice from the State, unless the State determines that a shorter period of notice, or no notice, is necessary to protect the interests of the State. The State, in its discretion, may monitor Vendor’s performance of its obligations under this Purchase Order using procedures as determined by the State. The State shall monitor Vendor’s performance in a manner that does not unduly interfere with Vendor’s performance of the work. Vendor shall promptly submit to the State a copy of any final audit report of an audit performed on Vendor’s records that relates to or affects this

Purchase Order or the work, whether the audit is conducted by Vendor or a third party.

E. Information Confidentiality. Vendor shall keep confidential, and cause all subcontractors to keep confidential, all State Records, unless those State Records are publicly available. Vendor shall not, without prior written approval of the State, use, publish, copy, disclose to any third party, or permit the use by any third party of any State Records, except as otherwise stated in this…