Attachment B Sample Contract.pdf

Attachment B

THIS IS A SAMPLE TEMPLATE FOR PROFESSIONAL SERVICES

CHECK FOR ALTERNATIVE AND FILL-IN PROVISIONS INDICATED BY __ or [].

Date last revised: 7-1-24

A G R E E M E N T

THIS AGREEMENT is made between the CITY AND COUNTY OF DENVER, a municipal corporation of the State of Colorado (the “City”) and _______________, a

_________________, [with its principal place of business located at/ doing business at]

_________________________ (the “Contractor”), collectively “the parties”.

The parties agree as follows:

1. COORDINATION AND LIAISON: The Contractor shall fully coordinate all services under the Agreement with the Manager of Finance (“Manager”) or______, as the

Manager’s Designee.

2. SERVICES TO BE PERFORMED:

a. As the Manager directs, the Contractor shall diligently undertake, perform, and complete all of the services and produce all the deliverables, as more fully set forth on Exhibit A, the Scope of Work, to the City’s satisfaction.

b. The Contractor is ready, willing, and able to provide the services required by this

Agreement.

c. The Contractor shall faithfully perform the services in accordance with the standards of care, skill, training, diligence, and judgment provided by highly competent individuals performing services of a similar nature to those described in the Agreement and in accordance with the terms of the Agreement.

3. TERM: The Agreement will commence on the date of the City’s signature (the

“Effective Date”) of this Agreement and will expire on ____________________ (the “Term”).

[Subject to the Manager’s prior written authorization, the Contractor shall complete any work in progress as of the expiration date unless earlier terminated by the Manager.]

a. [OR Initial Term. The Agreement will commence on January 1, 202_ and will expire on December 31, 20_202__ (the “Initial Term.”)

b. Renewal Terms. The City shall automatically renew the Initial Term for up to four

(4) additional one-year terms by appropriation of sufficient amounts for the subsequent year by

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City Council. The first Renewal Term shall be from January 1, 202__ to December 31, 202_; the second Renewal Term shall be from January 1, 202_ to December 31, 202_; the third Renewal

Term shall be from January 1, 202_ to December 31, 202_ and the fourth Renewal Term shall be from January 1, 202_ to December 31, 202_ (each an “Annual Renewal.”)

c. The Contractor shall complete the___ and any work in progress by the end of each

Annual Term as of the expiration date unless the work is earlier terminated by the Manager.]

4. COMPENSATION AND PAYMENT:

a. Fee: The City shall pay and the Contractor shall accept as the sole compensation for services rendered and costs incurred under the Agreement ______Dollars $_________.

Amounts billed may not exceed the rates [budget] set forth in Exhibit [B] [and may not exceed the maximum annual amounts as shown on Exhibit B].

b. Reimbursable Expenses: [There are no reimbursable expenses allowed under the

Agreement.] All of the Contractor’s expenses are contained in the rates [budget] in Exhibit B.

c. Invoicing: Contractor shall provide the City with a monthly [milestone] invoice in a format and with a level of detail acceptable to the City including all supporting documentation required by the City. The City’s Prompt Payment Ordinance, §§ 20-107 to 20-118, D.R.M.C., applies to invoicing and payment under this Agreement.

d. Maximum Contract Amount:

i. Notwithstanding any other provision of the Agreement, the City’s maximum payment obligation [if all Renewal Terms are effectuated] will not exceed __________________ Dollars ($_______) (the “Maximum

Contract Amount”). The City is not obligated to execute an Agreement or any amendments for any further services, including any services performed by Contractor beyond that specifically described in Exhibit A. Any services performed beyond those in Exhibit A are performed at Contractor’s risk and without authorization under the Agreement.

ii. The City’s payment obligation, whether direct or contingent, extends only to funds appropriated annually by the Denver City Council, paid into the

Treasury of the City, and encumbered for the purpose of the Agreement.

The City does not by the Agreement irrevocably pledge present cash

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5. STATUS OF CONTRACTOR: The Contractor is an independent contractor retained to perform professional or technical services for limited periods of time. Neither the Contractor nor any of its employees are employees or officers of the City under Chapter 18 of the Denver

Revised Municipal Code, or for any purpose whatsoever. [Without limiting the foregoing, the parties specifically acknowledge that: the Contractor is not entitled to unemployment insurance benefits (unless unemployment compensation coverage is provided by the

Contractor or some other entity besides the City); the Contractor is not entitled to workers’ compensation benefits from the City; and the Contractor is obligated to pay federal and state income taxes on any monies earned pursuant to this Agreement].

6. TERMINATION:

a. The City has the right to terminate the Agreement with cause upon written notice effective immediately, and without cause upon twenty (20) days prior written notice to the

Contractor. However, nothing gives the Contractor the right to perform services under the

Agreement beyond the time when its services become unsatisfactory to the Manager.

b. Notwithstanding the preceding paragraph, the City may terminate the Agreement if the Contractor or any of its officers or employees are convicted, plead nolo contendere, enter into a formal agreement in which they admit guilt, enter a plea of guilty or otherwise admit culpability to criminal offenses of bribery, kick backs, collusive bidding, bid-rigging, antitrust, fraud, undue influence, theft, racketeering, extortion or any offense of a similar nature in connection with

Contractor’s business. Termination for the reasons stated in this paragraph is effective upon receipt of notice.

c. Upon termination of the Agreement, with or without cause, the Contractor shall have no claim against the City by reason of, or arising out of, incidental or relating to termination, except for compensation for work duly requested and satisfactorily performed as described in the

Agreement.

d. If the Agreement is terminated, the City is entitled to and will take possession of all materials, equipment, tools and facilities it owns that are in the Contractor’s possession, S:\Bid Information\Bids One Time\29703 Consumer Spend Credit Card Data Feed\BidNet\Attachment B Sample Contract.pdf.docx custody, or control by whatever method the City deems expedient. The Contractor shall deliver all documents in any form that were prepared under the Agreement and all other items, materials and documents that have been paid for by the City to the City. These documents and materials are the property of the City. The Contractor shall mark all copies of work product that are incomplete at the time of termination “DRAFT-INCOMPLETE”.

7. EXAMINATION OF RECORDS AND AUDIT: Any authorized agent of the City, including the City Auditor or Auditor’s representative, has the right to access, and the right to examine, copy and retain copies, at City’s election in paper or electronic form, any pertinent books, documents, papers and records related to Contractor’s performance pursuant to this Agreement, provision of any goods or services to the City, and any other transactions related to this Agreement.

Contractor shall cooperate with City representatives and City representatives shall be granted access to the foregoing documents and information during reasonable business hours and until the latter of three (3) years after the final payment under the Agreement or expiration of the applicable statute of limitations. When conducting an audit of this Agreement, the City Auditor shall be subject to government auditing standards issued by the United States Government Accountability

Office by the Comptroller General of the United States, including with respect to disclosure of information acquired during the course of an audit. No examination of records and audits pursuant to this paragraph shall require Contractor to make disclosures in violation of state or federal privacy laws. Contractor shall at all times comply with D.R.M.C. 20-276.

8. COLORADO GOVERNMENTAL IMMUNITY ACT: In relation to the

Agreement, the City is relying upon and has not waived the monetary limitations and all other rights, immunities and protection provided by the Colorado Governmental Act, C.R.S. § 24-10-

101, et seq.

9. WHEN RIGHTS AND REMEDIES NOT WAIVED: In no event will any payment or other action by the City constitute or be construed to be a waiver by the City of any breach of covenant or default that may then exist on the part of the Contractor. No payment, other action, or inaction by the City when any breach or default exists will impair or prejudice any right or remedy available to it with respect to any breach or default. No assent, expressed or implied, to any breach of any term of the Agreement constitutes a waiver of any other breach.

10. INSURANCE:

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a. General Conditions: Contractor agrees to secure, at or before the time of execution of this Agreement, the following insurance covering all operations, goods or services provided pursuant to this Agreement. Contractor shall keep the required insurance coverage in force at all times during the term of the Agreement, including any extension thereof, during any warranty period and for three (3) years after termination of the Agreement. The required insurance shall be underwritten by an insurer licensed or authorized to do business in Colorado and rated by

A.M. Best Company as “A-VIII" or better. Each policy shall require notification to the City in the event any of the required policies be canceled or non-renewed before the expiration date thereof.

Such written notice shall be sent to the parties identified in the Notices section of this Agreement.

Such notice shall reference the City contract number listed on the signature page of this Agreement.

Said notice shall be sent thirty (30) days prior to such cancellation or non-renewal unless due to non-payment of premiums for which notice shall be sent ten (10) days prior. If such written notice is unavailable from the insurer, Contractor shall provide written notice of cancellation, non-renewal and any reduction in coverage to the parties identified in the Notices section by certified mail, return receipt requested within three (3) business days of such notice by its insurer(s) and referencing the City’s contract number. Contractor shall be responsible for the payment of any deductible or self-insured retention. The insurance coverages specified in this Agreement are the minimum requirements, and these requirements do not lessen or limit the liability of the

Contractor. The Contractor shall maintain, at its own expense, any additional kinds or amounts of insurance that it may deem necessary to cover its obligations and liabilities under this Agreement.

b. Proof of Insurance: Contractor may not commence services or work relating to this Agreement prior to placement of coverages required under this Agreement. Contractor certifies that the certificate of insurance attached as Exhibit __, preferably an ACORD form, complies with all insurance requirements of this Agreement. The City requests that the City’s contract number be referenced on the certificate of insurance. The City’s acceptance of a certificate of insurance or other proof of insurance that does not comply with all insurance requirements set forth in this Agreement shall not act as a waiver of Contractor’s breach of this

Agreement or of any of the City’s rights or remedies under this Agreement. The City’s Risk

Management Office may require additional proof of insurance, including but not limited to policies and endorsements.

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c. Additional Insureds: For commercial general liability, excess/umbrella liability

(if required), and auto liability, Contractor’s and subcontractor’s insurer shall include the City and

County of Denver, its elected and appointed officials, employees and volunteers as additional insured.

d. Waiver of Subrogation: For all coverages required under this Agreement, [with the exception of Professional Liability], Contractor’s insurer shall waive subrogation rights against the City.

e. Subcontractors and Sub-consultants: Contractor shall confirm and document that all subcontractors and subconsultants (including independent contractors, suppliers or other entities providing goods or services required by this Agreement) procure and maintain coverage as approved by the Contractor and appropriate to their respective primary business risks considering the nature and scope of services provided.

f. Workers’ Compensation/Employer’s Liability Insurance: Contractor shall maintain the coverage as required by statute for each work location and shall maintain Employer’s

Liability insurance with limits of $100,000 per occurrence for each bodily injury claim, $100,000 per occurrence for each bodily injury caused by disease claim, and $500,000 aggregate for all bodily injuries caused by disease claims. [OR The parties recognize and agree that the Contractor is engaged in an independent occupation and profession and is free from control and direction in the performance of the services contracted for herein consistent with that mandated by C.R.S. §8-

40-202(2)(a). It is understood and agreed by the parties that the City does not (1) require the

Contractor to work exclusively for the City, provided that the Contractor may have elected to work exclusively for the City for the period of time specified in the term of this Agreement; (2) establish a quality standard for the Contractor, provided that the parties agree that while the City may provide plans regarding its expectancy of the work to be performed by the Contractor, the City will not oversee the actual work of the Contractor or instruct the Contractor as to how the work will be performed; (3) pay a salary or hourly wage to the Contractor instead of the fixed contract rate stated herein; (4) terminate the work of the Contractor for cause during the term of this

Agreement unless the Contractor violates the terms of the Agreement or fails to produce a work product or result that meets the specific terms provided in the Agreement; (5) provide any training for the Contractor other than minimal orientation to the site or other parameters of the Contractor

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Contractor is an individual and sole proprietor; and (9) combine the regular operation of the City in any way with the professional or business operations of the Contractor instead of maintaining office operations separately and distinctly.

These provisions are separately stated in Exhibit G, “Separate Declaration Regarding

Independent Status”, constituting the writing mandated by C.R.S. 8-40-202(2)(b), which must be signed and notarized by the Contractor and the Manager. The Mayor hereby delegates to the

Manager the authority to execute on behalf of the City Exhibit G, “Separate Declaration Regarding

Independent Status.” OR Contractor hereby makes the material warranties listed below in subparagraphs (i) – (iii) on which the City relies in conditionally waiving the workers’ compensation/employer’s liability insurance. This rejection of coverage must remain effective throughout the Term of the Agreement. Should the rejection of coverage no longer be in effect, Contractor shall immediately notify the City. Further, upon the effective date of the rejection, Contractor shall provide the City with proof of workers’ compensation/employer’s liability insurance. Before commencing services under the Agreement, Contractor shall provide the City with documentation that rejection was effected in accordance with § 8-41-202(1), C.R.S. Based on the following warranties and upon receipt of documentation of rejection in accordance with the law, the City conditionally waives the requirement that Contractor obtain workers’ compensation/employer’s liability insurance .

(i) It does not have any employees and will not employ any persons to perform services under the Agreement;

(ii) Its sole officer is _______ and should any other persons become an officer, such persons may not perform services under the Agreement; and

(iii) In the capacity as the corporate officer, ________ effected rejection of coverages in accordance with § 8-41-202, C.R.S.

Subject to the conditional waiver above, Contractor shall maintain the coverage as required by statute for each work location and shall maintain Employer’s Liability insurance with

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Contractor warrants that none of the Contractor’s officers or employees who may be eligible under any statute or law to reject Workers’ Compensation Insurance shall effect a rejection thereof during the Term of the Agreement, and that any rejections previously effected, have been revoked as of the date Contractor executes the Agreement.]

g. Commercial General Liability: Contractor shall maintain a Commercial General

Liability insurance policy with minimum limits of $1,000,000 for each bodily injury and property damage occurrence, $2,000,000 products and completed operations aggregate (if applicable), and

$2,000,000 policy aggregate.

h. Automobile Liability: Contractor shall maintain Business Automobile Liability with limits of $1,000,000 combined single limit applicable to all owned, hired and non-owned vehicles used in performing services under this Agreement. [OR Personal Automobile Insurance:

Contractor shall ensure personal automobile insurance is in force with current state minimum limits for all vehicles used in performing services under this Agreement. Contractor represents, as material representations upon which the City is relying, that Contractor does not own any fleet vehicles and that in performing Services under this Agreement, Contractor’s owners, officers, directors, and employees use their personal vehicles. Contractor shall ensure that any person operating a motor vehicle in performing Services under the Agreement shall keep in full force

Personal Auto Liability coverage with minimum required limits. OR Personal Automobile

Insurance: Contractor represents, as material representations upon which the City is relying, that

Contractor does not own any motor vehicles and that in performing Services under the Agreement, Contractor owners, officers and employees use public transportation or their personal vehicles.

Contractor shall ensure that any person operating a motor vehicle in performing Services under the Agreement shall keep in full force Personal Auto Liability coverage with minimum required limits.]

[i. Excess/Umbrella Liability: Contractor shall maintain excess liability limits of

$___________. Coverage must be written on a “follow form” or broader basis. Any combination of primary and excess coverage may be used to achieve required limits.

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j. Technology Errors & Omissions including Cyber Liability: Contractor shall maintain Technology Errors and Omissions insurance including cyber liability, network security, privacy liability and product failure coverage with minimum limits of $1,000,000 per occurrence and $1,000,000 policy aggregate. The policy shall be kept in force, or a Tail policy placed, for three (3) years.

k. Professional Liability (Errors & Omissions): Contractor shall maintain minimum limits of $1,000,000 per claim and $1,000,000 policy aggregate limit. The policy shall be kept in force, or a Tail policy placed, for three (3) years for all contracts [except construction contracts for which the policy or Tail shall be kept in place for eight (8) years].]

11. DEFENSE AND INDEMNIFICATION

a. Contractor hereby agrees to defend, indemnify, reimburse and hold harmless City, its appointed and elected officials, agents and employees for, from and against all liabilities, claims, judgments, suits or demands for damages to persons or property arising out of, resulting from, or relating to the work performed under this Agreement (“Claims”), unless such Claims have been specifically determined by the trier of fact to be the sole negligence or willful misconduct of the City. This indemnity shall be interpreted in the broadest possible manner to indemnify City for any acts or omissions of Contractor or its subcontractors either passive or active, irrespective of fault, including City’s concurrent negligence whether active or passive, except for the sole negligence or willful misconduct of City.

b. Contractor will further indemnify, defend and hold the City harmless from and against any claims, losses, damages, liabilities or expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from any third party claim that the Work, when used by

City the in accordance with this Agreement, infringes, misappropriates or violates any United

States patent issued as of the date hereof, copyright, trademark, trade secret or other intellectual or proprietary right of any third party. If an injunction or order is obtained against the City’s use of the Works by reason of a claim of the type described above, or if in Contractor’s opinion, the Work is likely to become the subject of such a claim, Contractor shall take all necessary action to correct any such infringement or misappropriation to give the City the right to continue using the Work.

c. Contractor’s duty to defend and indemnify City shall arise at the time written notice of the Claim is first provided to City regardless of whether Claimant has filed suit on the Claim.

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Contractor’s duty to defend and indemnify City shall arise even if City is the only party sued by claimant and/or claimant alleges that City’s negligence or willful misconduct was the sole cause of claimant’s damages.

d. Contractor will defend any and all Claims which may be brought or threatened against City and will pay on behalf of City any expenses incurred by reason of such Claims including, but not limited to, court costs and attorney fees incurred in defending and investigating such Claims or seeking to enforce this indemnity obligation. Such payments on behalf of City shall be in addition to any other legal remedies available to City and shall not be considered City’s exclusive remedy.

e. Insurance coverage requirements specified in this Agreement shall in no way lessen or limit the liability of the Contractor under the terms of this indemnification obligation. The

Contractor shall obtain, at its own expense, any additional insurance that it deems necessary for the City’s protection.

f. This defense and indemnification obligation shall survive the expiration or termination of this Agreement.

12. TAXES, CHARGES AND PENALTIES: The City is not liable for the payment of taxes, late charges or penalties of any nature, except for any additional amounts that the City may be required to pay under the City’s prompt payment ordinance D.R.M.C. § 20-107, et seq. The

Contractor shall promptly pay when due, all taxes, bills, debts and obligations it incurs performing the services under the Agreement and shall not allow any lien, mortgage, judgment or execution to be filed against City property.

13. ASSIGNMENT; SUBCONTRACTING: The Contractor shall not voluntarily or involuntarily assign any of its rights or obligations, or subcontract performance obligations, under this Agreement without obtaining the Manager’s prior written consent. Any assignment or subcontracting without such consent will be ineffective and void, and shall be cause for termination of this Agreement by the City. The Manager has sole and absolute discretion whether to consent to any assignment or subcontracting, or to terminate the Agreement because of unauthorized assignment or subcontracting. In the event of any subcontracting or unauthorized assignment: (i) the Contractor shall remain responsible to the City; and (ii) no contractual relationship shall be created between the City and any sub-consultant, subcontractor or assign.

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14. INUREMENT: The rights and obligations of the parties to the Agreement inure to the benefit of and shall be binding upon the parties and their respective successors and assigns, provided assignments are consented to in accordance with the terms of the Agreement.

15. NO THIRD PARTY BENEFICIARY: Enforcement of the terms of the Agreement and all rights of action relating to enforcement are strictly reserved to the parties. Nothing contained in the Agreement gives or allows any claim or right of action to any third person or entity. Any person or entity other than the City or the Contractor receiving services or benefits pursuant to the Agreement is an incidental beneficiary only.

16. NO AUTHORITY TO BIND CITY TO CONTRACTS: The Contractor lacks any authority to bind the City on any contractual matters. Final approval of all contractual matters that purport to obligate the City must be executed by the City in accordance with the City’s Charter and the Denver Revised Municipal Code.

17. SEVERABILITY: Except for the provisions of the Agreement requiring appropriation of funds and limiting the total amount payable by the City, if a court of competent jurisdiction finds any provision of the Agreement or any portion of it to be invalid, illegal, or unenforceable, the validity of the remaining portions or provisions will not be affected, if the intent of the parties can be fulfilled.

18. CONFLICT OF INTEREST:

a. No employee of the City shall have any personal or beneficial interest in the services or property described in the Agreement; and the Contractor shall not hire, or contract for services with, any employee or officer of the City that would be in violation of the City’s Code of

Ethics, D.R.M.C. §2-51, et seq. or the Charter §§ 1.2.8, 1.2.9, and 1.2.12.

b. The Contractor shall not engage in any transaction, activity or conduct that would result in a conflict of interest under the Agreement. The Contractor represents that it has disclosed any and all current or potential conflicts of interest, including transactions, activities or conduct that would affect the judgment, actions or work of the Contractor by placing the Contractor’s own interests, or the interests of any party with whom the Contractor has a contractual arrangement, in conflict with those of the City. The City, in its sole discretion, will determine the existence of a conflict of interest and may terminate the Agreement in the event it determines a conflict exists, after it has given the Contractor written notice describing the conflict.

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19. NOTICES: All notices required by the terms of the Agreement must be hand delivered, sent by overnight courier service, mailed by certified mail, return receipt requested, or mailed via United States mail, postage prepaid, if to Contractor at the address first above written, and if to the City at:

Manager of Finance or Designee

201 West Colfax Avenue, Dept. [1010]

Denver, Colorado 80202

With a copy of any such notice to:

Denver City Attorney’s Office

1437 Bannock St., Room 353

Denver, Colorado 80202

Notices hand delivered or sent by overnight courier are effective upon delivery. Notices sent by certified mail are effective upon receipt. Notices sent by mail are effective upon deposit with the

U.S. Postal Service. The parties may designate substitute addresses where or persons to whom notices are to be mailed or delivered. However, these substitutions will not become effective until actual receipt of written notification.

20. DISPUTES: All disputes between the City and Contractor arising out of or regarding the Agreement will be resolved by administrative hearing pursuant to the procedure established by

D.R.M.C. § 56-106(b)-(f). For the purposes of that administrative procedure, the City official rendering a final determination shall be the Manager as defined in this Agreement.

21. GOVERNING LAW; VENUE: The Agreement will be construed and enforced in accordance with applicable federal law, the laws of the State of Colorado, and the Charter, Revised

Municipal Code, ordinances, regulations and Executive Orders of the City and County of Denver, which are expressly incorporated into the Agreement. Unless otherwise specified, any reference to statutes, laws, regulations, charter or code provisions, ordinances, executive orders, or related memoranda, includes amendments or supplements to same. Venue for any legal action relating to the Agreement will be in the District Court of the State of Colorado, Second Judicial District.

22. NO DISCRIMINATION IN EMPLOYMENT: In connection with the performance of work under the Agreement, the Contractor may not refuse to hire, discharge, promote, demote, or discriminate in matters of compensation against any person otherwise qualified, solely because

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23. COMPLIANCE WITH ALL LAWS:

a. Contractor shall perform or cause to be performed all services in full compliance with all applicable laws, rules, regulations and codes of the United States, the State of Colorado;

and with the Charter, ordinances, rules, regulations and Executive Orders of the City and County of Denver.

b. Where the source of the funds, directly or indirectly for this Agreement is the

Federal Government, the Contractor shall be responsible for determining which of the following terms are applicable to its products and/or services and agrees to the applicable provisions:

i. Equal Employment Opportunity Compliance: Contractor agrees to comply with Executive Order 11246 of September 24, 1965, entitled

“Equal Employment Opportunity,” as amended by Executive Order

11375 of October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR Part 60);

ii. Davis-Bacon Act Compliance: Contractor agrees to comply with the

Davis-Bacon Act (40 U.S.C. 3148 to 3148) as supplemented by

Department of Labor regulations (29 CFR part 5);

iii. Anti-Kickback Act Compliance: Contractor agrees to comply with the

Copeland “Anti-Kickback” Act (18 U.S.C. 874) as supplemented in

Department of Labor regulations (29 CFR Part 3);

iv. Contract Work Hours and Safety Standards: Contractor agrees to comply with Sections 102 and 107 of the Contract Work Hours and Safety

Standards Act (40 U.S.C. 327-333), as supplemented by Department of

Labor regulations (29 CFR part 5);

v. Rights to Inventions Made Under a Contract or Agreement: Contractor agrees to comply with 37 CFR part 401, "Rights to Inventions Made by

Nonprofit Organizations and Small Business Firms Under Government

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Grants, Contracts and Cooperative Agreements," and any implementing regulations issued by the awarding agency;

vi. Clean Air and Water Requirements: Contractor agrees to comply with all applicable standards, orders, or requirements issued under the Clean

Air Act (42 U.S.C. 7401 et. seq.), and the Clean Water Act (33 U.S.C.

1251 et. seq.). Contractor agrees to report each violation of these requirements to the City and understands and agrees that the City will, in turn, report each violation as required to the appropriate EPA regional office;

vii. Energy Conservation Requirements: The Contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. (42 U.S.C.

6201);

viii. No Suspension or Debarment: Contractor certifies that neither it nor its

Principals or any of its subcontractors is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this Agreement by any Federal department or agency; and

ix. Byrd Anti-Lobbying: If the Maximum Contract Amount exceeds

$100,000, the Contractor must complete and submit to the City a required certification form provided by the City certifying that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress in connection with obtaining any Federal contract grant of any other award covered by 31

U.S.C. 1352. Contractor must also disclose any lobbying with non-

Federal funds that takes place in connection with obtaining any Federal award.

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24. COMPLIANCE WITH DENVER WAGE LAWS: To the extent applicable to the

Contractor’s provision of Services hereunder, the Contractor shall comply with, and agrees to be bound by, all rules, regulations, requirements, conditions, and City determinations regarding the

City’s Minimum Wage and Civil Wage Theft Ordinances, Sections 58-1 through 58-26 D.R.M.C., including, but not limited to, the requirement that every covered worker shall be paid all earned wages under applicable state, federal, and city law in accordance with the foregoing D.R.M.C.

Sections. By executing this Agreement, the Contractor expressly acknowledges that the Contractor is aware of the requirements of the City’s Minimum Wage and Civil Wage Theft Ordinances and that any failure by the Contractor, or any other individual or entity acting subject to this Agreement, to strictly comply with the foregoing D.R.M.C. Sections shall result in the penalties and other remedies authorized therein.

25. [SAFEGUARDING PERSONAL INFORMATION: “PII” means personally identifiable information including, without limitation, any information maintained by the City 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. PII includes, but is not limited to, all information defined as personally identifiable information in §§

24-73-101, C.R.S. “PII” shall also mean “personal information” as set forth at § 24-73-103(1)(g), C.R.S. If the Contractor or any of its subcontractors will or may receive PII under this Agreement, the Contractor shall provide for the security of such PII, in a manner and form acceptable to the

City, including, without limitation, City non-disclosure requirements, use of appropriate technology, security practices, computer access security, data access security, data storage encryption, data transmission encryption, security inspections, and audits. When applicable, the

Contractor shall be a “Third-Party Service Provider” as defined in §24-73-103(1)(i), C.R.S., and shall maintain security procedures and practices consistent with §§24-73-101, et seq., C.R.S. In addition, as set forth in § 28-251, D.R.M.C., the Contractor, including, but not limited to, the

Contractor’s employees, agents, and subcontractors, shall not collect or disseminate individually identifiable information about the national origin, immigration, or citizenship status of any person, over and above the extent to which the City is required to collect or disseminate such information in accordance with any federal, state, or local law.

26. DATA MANAGEMENT, SECURITY, AND PROTECTION

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a. [City Information: Contractor acknowledges and accepts that, in performance of all work under the terms of this Agreement, Contractor may have access to

Proprietary Data or confidential information that may be owned or controlled by the City, and that the disclosure of such Proprietary Data or information may be damaging to the

City or third parties. Contractor agrees that all Proprietary Data or confidential information provided or otherwise disclosed by the City to Contractor shall be held in confidence and used only in the performance of its obligations under this Agreement. Contractor shall exercise the same standard of care to protect such Proprietary Data and information as a reasonably prudent Contractor would to protect its own proprietary or confidential data.

“Proprietary Data” shall mean any materials or information which may be designated or marked “Proprietary” or “Confidential”, and shall include protected and sensitive data as set forth in §§ 24-73-101and 6-1-716(1)(g)(I)(A), C.R.S., as amended that are not otherwise in the public domain (except as a result of a breach of confidentiality), or which would not be documents subject to disclosure pursuant to the Colorado Open Records Act or City ordinance, and provided or made available to Contractor by the City. Such

Proprietary Data may be in hardcopy, printed, digital or electronic format. The Contractor shall request written approval from the City prior to any Services using, transmitting, and maintaining City Data outside of the United States. Written approval for the transmission of Data outside of the United States must be signed by both the City’s Chief Information

Officer and by the Auditor. The City may approve or deny such request within the City’s sole discretion.

For the purposes of this Agreement the following definitions shall apply:

(1) “City Data” means all information, data, and records, regardless of form, created by or in any way originating with the City and all information that is the output of any computer processing or other electronic manipulation including all records relating to the City’s use of the Work. City Data also includes Confidential Information and

Protected Information, as defined in this Agreement.

(2) “Confidential Information” is described in subparagraph c below and additionally means all information or data, regardless of form, not

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201, et seq., C.R.S. (“CORA”), and is marked or identified at the time of disclosure as being confidential, proprietary, or its equivalent.

(3) “D(d)ata” means information, regardless of form, that can be read, transmitted, or processed.

(4) “Protected Information” means data, regardless of form, that has been designated as sensitive, private, proprietary, protected, or confidential by law, policy, or the City. Protected Information includes, but is not limited to, employment records, protected health information, student and education records, criminal justice information, personal financial records, research data, trade secrets, classified government information, other regulated data, and personally identifiable information as defined by §§ 24-73-101(4)(b) and 6-1-716(1)(g)(I)(A), C.R.S., as amended.

Protected Information shall not include public records that by law must be made available to the public under CORA. To the extent there is any uncertainty as to whether data constitutes Protected Information, the data in question shall be treated as Protected Information until a determination is made by the City or an appropriate legal authority.

b. Use of Proprietary Data or Confidential Information:

(i) Except as expressly provided by the terms of this Agreement, Contractor agrees that it shall not disseminate, transmit, license, sublicense, assign, lease, release, publish, post on the internet, transfer, sell, permit access to, distribute, allow interactive rights to, or otherwise make available the Proprietary Data or Confidential

Information or any part thereof to any other person, party or entity in any form of media for any purpose other than performing its obligations under this Agreement. Contractor further acknowledges that by providing this Proprietary Data or Confidential Information, the City is not granting to Contractor any right or license to use such data except as provided in this Agreement. Contractor further agrees not to disclose or distribute to any other party, in whole or in part, the Proprietary Data or confidential information without written authorization from the Manager.

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(ii) Contractor agrees, with respect to the Proprietary Data and

Confidential Information, that: (1) Contractor shall not copy, recreate, reverse engineer or decompile such data, in whole or in part, unless authorized in writing by the Manager; (2)

Contractor shall retain no copies, recreations, compilations, or decompilations, in whole or in part, of such data; and (3) Contractor shall, upon the expiration or earlier termination of the Agreement, destroy (and, in writing, certify destruction) or return all such data or work products incorporating such data or information to the City.

(iii) At its reasonable discretion, the City may prohibit the Contractor from the use of certain software programs, databases, and computing systems with known vulnerabilities to collect, use, process, store, or generate data and information received under this Agreement. The Contractor shall fully comply with all requirements and conditions, if any, associated with the use of software programs, databases, and computing systems as reasonably directed by the City. The Contractor shall not use funds paid by the

City for the acquisition, operation, or maintenance of software in violation of any copyright laws or licensing restrictions. The Contractor shall maintain commercially reasonable network security that, at a minimum, includes network firewalls, intrusion detection/prevention, and enhancements or updates consistent with evolving industry standards The Contractor shall use industry-standard and up-to-date security tools, technologies and procedures including, but not limited to, anti-virus and anti-malware protections. The Contractor shall ensure that any underlying or integrated software employed under this Agreement is updated on a regular basis and does not pose a security threat. The Contractor shall provide a software bill of materials (“SBOM”) annually or upon major changes to the solution(s) provided to the City under this Agreement. The

Contractor shall provide a complete SBOM for the supported life of the solution(s). The

Contractor shall monitor for security vulnerabilities in applicable software components and use a risk-based approach to mitigate any vulnerabilities.

c. Safeguarding City Confidential Information. “Confidential Information” includes, but is not limited to, employment records, protected health information, student and education records, criminal justice information, personal financial records, research data, trade secrets, classified government information, other regulated data, and personally

S:\Bid Information\Bids One Time\29703 Consumer Spend Credit Card Data Feed\BidNet\Attachment B Sample Contract.pdf.docx identifiable information. Confidential Information also includes, without limitation, any information maintained by the City about an individual that can be used to distinguish or trace an individual’s identity, including, but not limited to, first and last name, residence or other physical address, banking information, electronic mail address, telephone number, credit card information, an official government-issued driver’s license or identification card number, social security number or tax identification number, date and place of birth, mother’s maiden name, or biometric records. Confidential Information includes, but is not limited to, all information defined as personally identifiable information in §§ 24-73-101, C.R.S. Confidential Information shall also include “personal information” as defined in §

24-73-103(1)(g), C.R.S. To the extent there is any uncertainty as to whether data constitutes Confidential Information, the data in question shall be treated as Confidential

Information until a determination is made by the City or an appropriate legal authority.

The Contractor shall only use, hold, and maintain Confidential Information in facilities located within the United States or located outside of the United States when approval has been provided by the City’s Technology Services agency upon completion of required security reviews. Disclosure of Confidential Information does not include disclosure to a third party under circumstances where the City retains primary responsibility for implementing and maintaining reasonable security procedures and practices appropriate to the nature of the Confidential Information, and the City implements and maintains technical controls reasonably designed to safeguard Confidential Information from unauthorized access, modification, disclosure, or destruction or effectively eliminate the third party's ability to access Confidential Information, notwithstanding the third party's physical possession of Confidential Information. If the Contractor has been contracted to maintain, store, or process personal information on the City’s behalf, the Contractor is a

“Third-Party Service Provider” as defined by § 24-73-103(1)(i), C.R.S. and shall maintain security procedures and practices consistent with §§ 24-73-101, et seq., C.R.S. In addition, as set forth in § 28-251, D.R.M.C., the Contractor, including, but not limited to, the

Contractor’s employees, agents, and Subcontractors, shall not collect or disseminate individually identifiable information about the national origin, immigration, or citizenship

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d. Data Retention, Transfer, Litigation Holds, and Destruction. Using appropriate and reliable storage media, the Contractor shall regularly backup data used in connection with this Agreement and retain such backup copies consistent with the City’s data and record retention policies. All City Data shall be encrypted in transmission, including by web interface, and in storage by an agreed upon National Institute of

Standards and Technology (“NIST”) approved strong encryption method and standard.

The Contractor shall not transfer or maintain data under this Agreement outside of the

United States without the City’s express written permission. Upon termination of this

Agreement, the Contractor shall securely delete or securely transfer all data, including

Protected Information, to the City in an industry standard format as directed by the City;

however, this requirement shall not apply to the extent the Contractor is required by law to retain data, including Protected Information. Upon the City’s request, the Contractor shall confirm, by providing a certificate, the data disposed of, the date disposed of, and the method of disposal. With respect to any data in the Contractor’s exclusive custody, the City may request, at no additional cost to the City, that the Contractor preserve such data outside of record retention policies. The City will promptly coordinate with the

Contractor regarding the preservation and disposition of any data and records relevant to any current or anticipated litigation, and the Contractor shall continue to preserve the records until further notice by the City. Unless otherwise required by law or regulation, when paper or electronic documents are no longer needed, the Contractor shall destroy or arrange for the destruction of such documents within its custody or control that contain

Protected Information by shredding, erasing, or otherwise modifying the Protected

Information in the paper or electronic documents to make it unreadable or indecipherable.

The Contractor and its third-party services providers must develop and maintain a written policy for…