Exhibit B - Personal Services Contract Template.pdf

DRAFT

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STATE OF COLORADO CONTRACT

COVER PAGE

State Agency

Colorado Department of Corrections

Contractor

Insert Contractor's Full Legal Name, including "Inc.", "LLC", etc...

Contract Performance Beginning Date

The later of the Effective Date or Month Day, Year

Contract Number Insert CMS number or Other Contract

Number

Initial Contract Expiration Date

Month Day, Year

Contract Maximum Amount

Initial Term

Except as provided in §2.D, the total duration of this Contract, including the exercise of any options to extend, shall not exceed Insert Contract Maximum Amount of Years as required by the solicitation years from the Performance

Beginning Date.

State Fiscal Year 20xx $0.00

Extension Terms

State Fiscal Year 20xx $0.00

State Fiscal Year 20xx $0.00 CORE Encumbrance Number

State Fiscal Year 20xx $0.00

State Fiscal Year 20xx $0.00 Solicitation Number: Insert Solicitation #, or "N/A"

(for procedural historical reference, not incorporation) Total for all State Fiscal Years $0.00

Contract Purpose

Briefly describe the Contract's purpose in no more than one sentence.

Options

The state shall have the following options indicated by the checked boxes, as further described in §2.C and §5.B.v:

Option to Extend Term, per §2.C. Option to Increase or Decrease Maximum Amount per §5.B.v.

Protected Information

Contractor shall maintain the confidentiality of the following types of information if indicated by a checked box, as specified in the referenced Contract section:

Tax Information, §8.A.i PCI, §8.A.ii CJI, §8.A.iii PHI, §8.A.iv

Insurance - Contractor shall maintain the following insurance if indicated by a checked box, as further described in §10:

Worker’s Compensation General Liability Automobile Liability Professional Liability

Protected Information Crime

SUBROGATION WAIVER REQUIRED FOR ALL INSURANCE COVERAGES

CDOC NAMED AS ADDITIONAL INSURED ON COMMERCIAL GENERAL LIABILITY REQUIRED

Rights in Work Product

Contractor shall convey the following rights in the Work Product is indicated by a check box, as further described in §15

Tax Information, §8.A.i PCI, §8.A.ii

Contract Authority

Insert Brief Description of the Authority to enter into the Contract, C.R.S. sections 17-1-103, 105 are always handy...

Send All Invoices to:

Doc_accountspayable@state.co.us

Principal Representatives

For the State: For Contractor:

Name, Title Name, Title

1250 Academy Park Loop Address

Colorado Springs,CO 80910 City,State Zip

Email@state.co.us Email

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Exhibits and Order of Precedence

The following Exhibits and attachments are included with this Contract:

1. Exhibit A – Statement of Work

2. Exhibit B – Sample Option Letter

3. Exhibit C – PII Certification

4. Exhibit D – HIPAA BAA

In the event of a conflict or inconsistency between this Contract and any Exhibit or attachment, such conflict or inconsistency shall be resolved by reference to the documents in the following order of priority:

1. Exhibit D – HIPAA BAA

2. Colorado Special Provisions in §17 of the main body of this Contract.

3. The provisions of the other sections of the main body of this Contract.

4. Exhibit A – Statement of Work

5. Exhibit C – PII Certification

6. Exhibit B – Sample Option Letter

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STATE OF COLORADO CONTRACT

SIGNATURE PAGE

THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT

Each person signing the Contract represents and warrants that the signer is duly authorized to execute this Contract and to bind the Party authorizing such signature.

CONTRACTOR

Insert Contractor's Full Legal Name, including "Inc.", "LLC", etc...

By: Name & Title of Person Signing for Contractor

Date: _________________________

STATE OF COLORADO

Jared S. Polis, Governor

Department of Corrections

Andre Stancil, Executive Director

By: Ashley Clark, Director Finance and Admin

By: Mitchell Karstens, Deputy Director of Finance and

Admin

2nd State or Contractor Signature if Needed

By: Name & Title of Person Signing for Signatory

LEGAL REVIEW

Philip J. Weiser, Attorney General

By: Assistant Attorney General

In accordance with C.R.S. §24-30-202, this Contract is not valid until signed and dated below by the State Controller or an authorized delegate.

STATE CONTROLLER

Robert Jaros, CPA, MBA, JD

By: Bradley Duca, Controller

Effective Date:_____________________

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TABLE OF CONTENTS

STATE OF COLORADO CONTRACT

COVER PAGE

1. PARTIES

2. TERM AND EFFECTIVE DATE

3. DEFINITIONS

4. STATEMENT OF WORK

5. PAYMENTS TO CONTRACTOR

6. REPORTING – NOTIFICATION

7. CONTRACTOR RECORDS

8. CONFIDENTIAL INFORMATION-STATE RECORDS

9. CONFLICTS OF INTEREST

10. INSURANCE

11. BREACH OF CONTRACT

12. REMEDIES

13. DISPUTE RESOLUTION

14. NOTICES AND REPRESENTATIVES

15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION

16. STATEWIDE CONTRACT MANAGEMENT SYSTEM

17. GENERAL PROVISIONS

18. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)

EXHIBIT A, STATEMENT OF WORK

EXHIBIT B, SAMPLE OPTION LETTER

EXHIBIT C, PII CERTIFICATION

EXHIBIT D, HIPPA BUSINESS ASSOCIATE AGREEMENT

1. PARTIES

This Contract is entered into by and between Contractor named on the Signature and Cover Pages for this Contract (the “Contractor”), and the STATE OF COLORADO acting by and through the state agency named on the Signature and Cover Pages for this Contract (the “State,” or “CDOC”).

Contractor and the State agree to the terms and conditions in this Contract.

2. TERM AND EFFECTIVE DATE

A. Effective Date

This Contract shall not be valid or enforceable until the Effective Date. The State shall not be bound by any provision of this Contract before the Effective Date, and shall have no obligation to pay Contractor for any Work performed or expense incurred before the

Effective Date or after the expiration or sooner termination of this Contract.

B. Initial Term

The Parties’ respective performances under this Contract shall commence on the Contract

Performance Beginning Date shown on the Cover Page for this Contract and shall terminate on the Initial Contract Expiration Date shown on the Cover Page for this Contract (the

“Initial Term”) unless sooner terminated or further extended in accordance with the terms of this Contract.

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C. Extension Terms - State’s Option

If this box is checked on the Cover Page, the State, at its discretion, shall have the option to extend the performance under this Contract beyond the Initial Term for a period, or for successive periods, of one (1) year or less at the same rates and under the same terms specified in the Contract (each such period an “Extension Term”). In order to exercise this option, the State shall provide written notice to Contractor in a form substantially equivalent to the Sample Option Letter attached to this Contract. Except as stated in §2.D., the total duration of this Contract, including the exercise of any options to extend, shall not exceed five (5) years from its Effective Date, or the number of years specified on the Cover Page if such number is less than five (5) years, absent prior approval from the Chief Procurement

Officer in accordance with the Colorado Procurement Code.

D. End of Term Extension

If this Contract approaches the end of its Initial Term, or any Extension Term then in place, the State, at its discretion, upon written notice to Contractor as provided in §14, may unilaterally extend such Initial Term or Extension Term for a period not to exceed two (2) months (an “End of Term Extension”), regardless of whether additional Extension Terms are available or not. The provisions of this Contract in effect when such notice is given shall remain in effect during the End of Term Extension. The End of Term Extension shall automatically terminate upon execution of a replacement contract or modification extending the total term of this Contract.

E. Early Termination in the Public Interest

The State is entering into this Contract to serve the public interest of the state of Colorado as determined by its Governor, General Assembly, or Courts. If this Contract ceases to further the public interest of the State, the State, in its discretion, may terminate this Contract in whole or in part. A determination that this Contract should be terminated in the public interest shall not be equivalent to a State right to terminate for convenience. This subsection shall not apply to a termination of this Contract by the State for breach by Contractor, which shall be governed by §12.A.i.

i. Method and Content

The State shall notify Contractor of such termination in accordance with §14. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Contract, and shall include, to the extent practicable, the public interest justification for the termination.

ii. Obligations and Rights

Upon receipt of a termination notice for termination in the public interest, Contractor shall be subject to the rights and obligations set forth in §12.A.i.a.

iii. Payments

If the State terminates this Contract in the public interest, the State shall pay Contractor an amount equal to the percentage of the total reimbursement payable under this Contract that corresponds to the percentage of Work satisfactorily completed and accepted, as determined by the State, less payments previously made. Additionally, if this Contract is less than sixty percent (60%) completed, as determined by the State, the State may reimburse Contractor for a portion of actual out-of-pocket expenses, not otherwise reimbursed under this Contract, incurred by Contractor which are directly

Page 6 of 40 DOC PSKWizard v1.10 attributable to the uncompleted portion of Contractor’s obligations, provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to

Contractor hereunder.

3. DEFINITIONS

The following terms shall be construed and interpreted as follows:

A. AR means DOC Administrative Regulation.

B. Breach of Contract means the failure of a Party to perform any of its obligations in accordance with this Contract, in whole or in part or in a timely or satisfactory manner. The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Contractor, or the appointment of a receiver or similar officer for Contractor or any of its property, which is not vacated or fully stayed within thirty (30) days after the institution of such proceeding, shall also constitute a breach. If Contractor is debarred or suspended under C.R.S. §24-109-105 at any time during the term of this Contract, then such debarment or suspension shall constitute a breach.

C. Business Day means any day other than Saturday, Sunday, or a Legal Holiday as listed in

C.R.S. §24-11-101(1).

D. Chief Procurement Officer means the individual to whom the Executive Director has delegated his or her authority pursuant to C.R.S. §24-102-202(6) to procure or supervise the procurement of all supplies and services needed by the State.

E. 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 C.R.S. §24-72-302.

F. Contract means this agreement, including all attached Exhibits, all documents incorporated by reference, all referenced statutes, rules and cited authorities, and any future modifications thereto.

G. Contract Funds means the funds that have been appropriated, designated, encumbered, or otherwise made available for payment by the State under this Contract.

H. CORA means the Colorado Open Records Act, C.R.S. §§24-72-200.1, et. seq.

I. Data Sharing Agreement means a formal contract that details what data is being shared and the appropriate use for the data.

J. Deliverable means the outcome to be achieved or output to be provided, in the form of a tangible object or software that is produced as a result of contractor’s Work that is intended to be delivered to the State by Contractor.

K. Effective Date “Effective Date” means either:

i. The date on which this Contract is approved and signed by the Colorado State Controller or designee, as shown on the Signature Page for this Contract, or.

ii. If this Contract is for a Major Information Technology Project, as defined in C.R.S. §24-

37.5-102(2.6), the Effective Date of this Contract shall be the later of the date on which this Contract is approved and signed by the State’s Chief Information Officer or

Page 7 of 40 DOC PSKWizard v1.10 authorized delegate, or the date on which this Contract is approved and signed by the

State Controller or authorized delegate, as shown on the Signature Page for this Contract.

L. End of Term Extension means the time period defined in §2.D.

M. Exhibits means the exhibits and attachments included with this Contract as shown on the

Cover Page for this Contract.

N. Extension Term means the time period defined in §2.C.

O. Goods means any movable material acquired, produced, or delivered by Contractor as set forth in this Contract and shall include any movable material acquired, produced, or delivered by Contractor in connection with the Services.

P. 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, which are included as part of the

Work, as described in C.R.S. §§24-37.5-401, et. seq. Incidents include, without limitation,

(i) successful attempts to gain unauthorized access to a State system or State Information regardless of where such information is located; (ii) unwanted disruption or denial of service; (iii) the unauthorized use of a State system for the processing or storage of data; or

(iv) changes to State system hardware, firmware, or software characteristics without the

State’s knowledge, instruction, or consent.

Q. Initial Term means the time period defined in §2.B.

R. Inmate means a member of the DOC inmate population (including YOS).

S. Party means the State or Contractor, and “Parties” means both the State and Contractor.

T. 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.

U. PHI means any protected health information, including, without limitation any information whether oral or recorded in any form or medium: (i) 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

(ii) 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. PHI includes, but is not limited to, any information defined as Individually Identifiable Health Information by the federal Health Insurance Portability and Accountability Act.

V. 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; and any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information. PII includes, but is not limited to, all information defined as personally identifiable information in C.R.S. §§24-72-501 and 24-73-101. “PII” shall also mean “personal identifying information” as set forth at §24-74-102, et. Seq., C.R.S.

W. Principal Representative means that person identified on the Cover Page for this Contract.

X. Review means examining Contractor’s work to ensure that it is adequate, accurate, and correct and in accordance with criteria established in this Contract, and Exhibit A.

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Y. Services means the services to be performed by Contractor as set forth in this Contract, and shall include any services to be rendered by Contractor in connection with the Goods.

Z. State Confidential Information means any State Records not subject to disclosure under

CORA. State Confidential Information shall include, but is not limited to, PII, PHI, PCI, Tax

Information, CJI, and State personnel records not subject to disclosure under CORA. State

Confidential Information shall not include information or data concerning individuals that is not deemed confidential but nevertheless belongs to the State, which has been communicated, furnished, or disclosed by the State to Contractor which (i) is subject to disclosure pursuant to CORA; (ii) is already known to Contractor without restrictions at the time of its disclosure to Contractor; (iii) is or subsequently becomes publicly available without breach of any obligation owed by Contractor to the State; (iv) is disclosed to

Contractor, without confidentiality obligations, by a third party who has the right to disclose such information; or (v) was independently developed without reliance on any State

Confidential Information.

AA. State Fiscal Rules means those fiscal rules promulgated by the Colorado State Controller pursuant to C.R.S. §24-30-202(13)(a).

BB. State Fiscal Year means a twelve (12) month period beginning on July 1 of each calendar year and ending on June 30 of the following calendar year. If a single calendar year follows the term, then it means the State Fiscal Year ending in that calendar year.

CC. State Records means any State data, information, and records, regardless of physical form, including, but not limited to, information subject to disclosure under CORA.

DD. Subcontractor means third-parties, if any, engaged by Contractor to aid in performance of the Work.

EE. 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. Tax Information includes, but is not limited to all information defined as federal tax information in Internal

Revenue Service Publication 1075.

FF. Term means the time period defined in §2.B.

GG. Work means the performance of the Services described in this Contract.

HH. Work Product means the tangible and intangible results of the Work, whether finished or unfinished, including drafts. Work Product includes, but is not limited to, documents, text, software (including source code), research, reports, proposals, specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys, maps, materials, ideas, concepts, know-how, and any other results of the Work. “Work

Product” does not include any material that was developed prior to the Effective Date that is used, without modification, in the performance of the Work.

II. YOS means the Youthful Offender System within the Colorado Department of Corrections, Division of Adult Parole, Community Corrections, and Youthful Offender System.

Any other term used in this Contract that is defined in an Exhibit shall be construed and interpreted as defined in that Exhibit.

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4. STATEMENT OF WORK

Contractor shall complete the Work as described in this Contract and in accordance with the provisions of the Exhibits. The State shall have no liability to compensate Contractor for the delivery of any goods or the performance of any services that are not specifically set forth in this

Contract.

A. All changes to the Statement of Work will be made in the form of an Amendment to the

Contract and Data Sharing Agreement, which will be signed by all parties.

5. PAYMENTS TO CONTRACTOR

A. Maximum Amount

Payments to Contractor are limited to the unpaid, obligated balance of the Contract Funds.

The State shall not pay Contractor any amount under this Contract that exceeds the Contract

Maximum for that State Fiscal Year shown on the Cover Page for this Contract.

B. Payment Procedures

i. Invoices and Payment

a. The State shall pay Contractor in the amounts and in accordance with the schedule and other conditions set forth in the Exhibits.

b. Contractor shall initiate payment requests by invoice to the State, in a form and manner approved by the State.

c. The State shall pay each invoice within forty-five (45) days following the State’s receipt of that invoice, so long as the amount invoiced correctly represents Work completed by Contractor and previously accepted by the State during the term that the invoice covers. If the State determines that the amount of any invoice is not correct, then Contractor shall make all changes necessary to correct that invoice.

d. The acceptance of an invoice shall not constitute acceptance of any Work performed or deliverables provided under this Contract.

ii. Interest

Amounts not paid by the State within forty-five (45) days of the State’s acceptance of the invoice shall bear interest on the unpaid balance beginning on the forty-fifth (45th) day at the rate of one percent (1%) per month, as required by C.R.S. §24-30-

202(24)(a), until paid in full; provided, however, that interest shall not accrue on unpaid amounts that the State disputes in writing. Contractor shall invoice the State separately for accrued interest on delinquent amounts, and the invoice shall reference the delinquent payment, the number of days’ interest to be paid and the interest rate.

iii. Payment Disputes

If Contractor disputes any calculation, determination or amount of any payment, Contractor shall notify the State in writing of its dispute within thirty (30) days following the earlier to occur of Contractor’s receipt of the payment or notification of the determination or calculation of the payment by the State. The State will review the information presented by Contractor and may make changes to its determination based on this review. The calculation, determination or payment amount that results from the

State’s review shall not be subject to additional dispute under this subsection. No payment subject to a dispute under this subsection shall be due until after the State has concluded its review, and the State shall not pay any interest on any amount during the period it is subject to dispute under this subsection.

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iv. Available Funds-Contingency-Termination

The State is prohibited by law from making commitments beyond the term of the current State Fiscal Year. Payment to Contractor beyond the current State Fiscal Year is contingent on the appropriation and continuing availability of Contract Funds in any subsequent year (as provided in the Colorado Special Provisions). If federal funds or funds from any other non-State funds constitute all or some of the Contract Funds the

State’s obligation to pay Contractor shall be contingent upon such non-State funding continuing to be made available for payment. Payments to be made pursuant to this

Contract shall be made only from Contract Funds, and the State’s liability for such payments shall be limited to the amount remaining of such Contract Funds. If State, federal or other funds are not appropriated, or otherwise become unavailable to fund this Contract, the State may, upon written notice, terminate this Contract, in whole or in part, without incurring further liability. The State shall, however, remain obligated to pay for Services and Goods that are delivered and accepted prior to the effective date of notice of termination, and this termination shall otherwise be treated as if this

Contract were terminated in the public interest as described in §2.E.

v. Option to Increase Maximum Amount

If the Cover Page for this Contract shows the State has the Option to Increase or

Decrease Maximum Amount, then the State, at its discretion, shall have the option to increase or decrease the statewide quantity of Goods and Services based upon the rates established in this Contract, and increase the maximum amount payable accordingly.

In order to exercise this option, the State shall provide written notice to Contractor in a form substantially equivalent to “Option Letter”. Delivery of Goods and performance of Services shall continue at the same rates and terms as described in this Contract.

The State may include and incorporate a revised budget with the Option Letter, as long as the revised budget does not unilaterally change rates or terms specified in the

Contract.

6. REPORTING – NOTIFICATION

A. Quarterly Reports.

In addition to any reports required pursuant to §16 or pursuant to any other Exhibit, for any contract having a term longer than three (3) months, Contractor shall submit, on a quarterly basis, a written report specifying progress made for each specified performance measure and standard in this Contract. Such progress report shall be in accordance with the procedures developed and prescribed by the State. Progress reports shall be submitted to the State at the times specified in the Exhibits, or if no time is specified in this Contract, not later than five

(5) Business Days following the end of each calendar quarter.

B. Litigation Reporting

If Contractor 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 Contract or may affect Contractor’s ability to perform its obligations under this Contract, Contractor shall, within ten (10) days after being served, notify the State of such action and deliver copies of such pleading or document to the State’s Principal

Representative identified on the Cover Page for this Contract.

C. Performance Outside the State of Colorado or the United States, C.R.S. §24-102-206.

To the extent not previously disclosed in accordance with C.R.S. §24-102-206, Contractor shall provide written notice to the State, in accordance with §144 and in a form designated

Page 11 of 40 DOC PSKWizard v1.10 by the State, within twenty (20) days following the earlier to occur of Contractor’s decision to perform Services outside of the state of Colorado or the United States, or its execution of an agreement with a Subcontractor to perform, Services outside the state of Colorado or the

United States. Such notice shall specify the type of Services to be performed outside the state of Colorado or the United States and the reason why it is necessary or advantageous to perform such Services at such location or locations, and such notice shall be a public record.

Knowing failure by Contractor to provide notice to the State under this section shall constitute a breach of this Contract. This section shall not apply if the Contract Funds include any federal funds.

7. CONTRACTOR RECORDS

A. Maintenance

Contractor shall maintain a file of all documents, records, communications, notes and other materials relating to the Work (the “Contractor Records”). Contractor Records shall include all documents, records, communications, notes and other materials maintained by Contractor that relate to any Work performed by Subcontractors, and Contractor shall maintain all records related to the Work performed by Subcontractors required to ensure proper performance of that Work. Contractor shall maintain Contractor Records until the last to occur of:

i. the date three (3) years after the date this Contract expires or is terminated,

ii. final payment under this Contract is made,

iii. the resolution of any pending Contract matters, or

iv. if an audit is occurring, or Contractor has received notice that an audit is pending, the date such audit is completed and its findings have been resolved (the “Record

Retention Period”).

B. Inspection

Contractor shall permit the State to audit, inspect, examine, excerpt, copy and transcribe

Contractor Records during the Record Retention Period. Contractor shall make Contractor

Records available during normal business hours at Contractor’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than two (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.

C. Monitoring

The State, in its discretion, may monitor Contractor’s performance of its obligations under this Contract using procedures as determined by the State. The State shall monitor

Contractor’s performance in a manner that does not unduly interfere with Contractor’s performance of the Work.

D. Final Audit Report

Contractor shall promptly submit to the State a copy of any final audit report of an audit performed on Contractor’s records that relates to or affects this Contract or the Work, whether the audit is conducted by Contractor or a third party.

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8. CONFIDENTIAL INFORMATION-STATE RECORDS

A. Confidentiality

Contractor shall keep confidential, and cause all Subcontractors to keep confidential, all

State Records, unless those State Records are publicly available. Contractor 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

Contract, permitted by law or approved in Writing by the State. Contractor shall provide for the security of all State Confidential Information in accordance with all policies promulgated by the Colorado Office of Information Security and all applicable laws, rules, policies, publications, and guidelines. If Contractor or any of its Subcontractors will or may receive the following types of data, Contractor or its Subcontractors shall provide for the security of such data according to the following, if the boxes are checked on the Cover Page:

i. the most recently promulgated IRS Publication 1075 for all Tax Information and in accordance with the Safeguarding Requirements for Federal Tax Information attached to this Contract as an Exhibit, if applicable,

ii. the most recently updated PCI Data Security Standard from the PCI Security Standards

Council for all PCI,

iii. the most recently issued version of the U.S. Department of Justice, Federal Bureau of

Investigation, Criminal Justice Information Services Security Policy for all CJI, and

iv. the federal Health Insurance Portability and Accountability Act for all PHI and the

HIPAA Business Associate Agreement attached to this Contract, if applicable.

Contractor shall immediately forward any request or demand for State Records to the State’s

Principal Representative.

B. Other Entity Access and Nondisclosure Agreements

Contractor may provide State Records to its agents, employees, assigns and Subcontractors as necessary to perform the Work, but shall restrict access to State Confidential Information to those agents, employees, assigns and Subcontractors who require access to perform their obligations under this Contract. Contractor shall ensure all such agents, employees, assigns, and Subcontractors sign agreements containing nondisclosure provisions at least as protective as those in this Contract, and that the nondisclosure provisions are in force at all times the agent, employee, assign or Subcontractor has access to any State Confidential

Information. Contractor shall provide copies of those signed nondisclosure provisions to the

State upon execution of the nondisclosure provisions if requested by the State.

C. Use, Security, and Retention

Contractor shall use, hold and maintain State Confidential Information in compliance with any and all applicable laws and regulations in facilities located within the United States, and shall maintain a secure environment that ensures confidentiality of all State Confidential

Information wherever located. Contractor shall provide the State with access, subject to

Contractor’s reasonable security requirements, for purposes of inspecting and monitoring access and use of State Confidential Information and evaluating security control effectiveness. Upon the expiration or termination of this Contract, Contractor shall return

State Records provided to Contractor or destroy such State Records and certify to the State that it has done so, as directed by the State. If Contractor is prevented by law or regulation

Page 13 of 40 DOC PSKWizard v1.10 from returning or destroying State Confidential Information, Contractor warrants it will guarantee the confidentiality of, and cease to use, such State Confidential Information.

D. Incident Notice and Remediation

If Contractor becomes aware of any Incident, it shall notify the State immediately and cooperate with the State regarding recovery, remediation, and the necessity to involve law enforcement, as determined by the State. Unless Contractor can establish that none of

Contractor or any of its agents, employees, assigns or Subcontractors are the cause or source of the Incident, Contractor shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Contractor shall take steps to reduce the risk of incurring a similar type of Incident in the future as directed by the State, which may include, but is not limited to, developing and implementing a remediation plan that is approved by the State at no additional cost to the State. The State may, in its sole discretion and at Contractor’s sole expense, require Contractor to engage the services of an independent, qualified, State-approved third party to conduct a security audit. Contractor shall provide the State with the results of such audit and evidence of Contractor’s planned remediation in response to any negative findings.

E. Data Protection and Handling

Contractor shall ensure that all State Records and Work Product in the possession of

Contractor or any Subcontractors are protected and handled in accordance with the requirements of this Contract, including the requirements of any Exhibits hereto, at all times.

F. Safeguarding PII

If contractor or any of its subcontractors will or may receive PII under this contract, contractor shall provide for the security of such PII, in a manner and form acceptable to the state, including, without limitation, state 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. 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 § 24-74-102, et. Seq., C.R.S., contractor, including, but not limited to, contractor’s employees, agents and subcontractors, agrees not to share any PII with any third parties for the purpose of investigating for, participating in, cooperating with, or assisting with federal immigration enforcement. If contractor is given direct access to any state databases containing PII, contractor shall execute, on behalf of itself and its employees, the certification attached hereto as Exhibit __ on an annual basis contractor’s duty and obligation to certify as set forth in Exhibit __ shall continue as long as contractor has direct access to any state databases containing PII. If contractor uses any subcontractors to perform services requiring direct access to state databases containing PII, the contractor shall require such subcontractors to execute and deliver the certification to the state on an annual basis, so long as the subcontractor has access to state databases containing PII.

9. CONFLICTS OF INTEREST

A. Actual Conflicts of Interest

Contractor shall not engage in any business or activities, or maintain any relationships that conflict in any way with the full performance of the obligations of Contractor under this

Contract. Such a conflict of interest would arise when a Contractor or Subcontractor’s employee, officer, or agent were to offer or provide any tangible personal benefit to an

Page 14 of 40 DOC PSKWizard v1.10 employee of the State, or any member of his or her immediate family or his or her partner, related to the award of, entry into or management or oversight of this Contract.

B. Apparent Conflicts of Interest

Contractor acknowledges that, with respect to this Contract, even the appearance of a conflict of interest shall be harmful to the State’s interests. Absent the State’s prior written approval, Contractor shall refrain from any practices, activities, or relationships that reasonably appear to be in conflict with the full performance of Contractor’s obligations under this Contract.

C. Disclosure to the State

If a conflict or the appearance of a conflict arises, or if Contractor is uncertain whether a conflict or the appearance of a conflict has arisen, Contractor 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 in regard to the actual or apparent conflict constitutes a breach of this Contract.

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

10. INSURANCE

Contractor shall obtain and maintain, and ensure that each Subcontractor shall obtain and maintain, insurance as specified in this section at all times during the term of this Contract. All insurance policies required by this Contract shall be issued by insurance companies as approved by the State.

A. Workers’ Compensation

If this box is checked on the Cover Page, workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Contractor or Subcontractor employees acting within the course and scope of their employment.

B. General Liability

Commercial general liability insurance covering premises operations, fire damage, independent contractors, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows:

i. $1,000,000 each occurrence;

ii. $1,000,000 general aggregate;

iii. $1,000,000 products and completed operations aggregate; and

iv. $50,000 any one (1) fire.

C. Automobile Liability

If this box is checked on the Cover Page, 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.

D. Protected Information

If this box is checked on the Cover Page, liability insurance covering all loss of State

Confidential Information, such as PII, PHI, PCI, Tax Information, and CJI, and claims based

Page 15 of 40 DOC PSKWizard v1.10 on alleged violations of privacy rights through improper use or disclosure of protected information with minimum limits as follows:

i. $1,000,000 each occurrence; and

ii. $2,000,000 general aggregate.

E. Professional Liability

If this box is checked on the Cover Page, professional liability insurance covering any damages caused by an error, omission or any negligent act with minimum limits as follows:

i. $1,000,000 each occurrence; and

ii. $1,000,000 general aggregate.

F. Crime Insurance

If this box is checked on the Cover Page, crime insurance including employee dishonesty coverage with minimum limits as follows:

i. $1,000,000 each occurrence; and

ii. $1,000,000 general aggregate.

G. Additional Insured

i. The State shall be named as additional insured on all commercial general liability policies required of Contractor and Subcontractors.

H. Primacy of Coverage

Coverage required of Contractor and each Subcontractor shall be primary over any insurance or self-insurance program carried by Contractor or the State.

I. Cancellation

The above insurance policies shall include provisions preventing cancellation or non-renewal, except for cancellation based on non-payment of premiums, without at least thirty

(30) days prior notice to Contractor and Contractor shall forward such notice to the State in accordance with §14Error! Reference source not found. within seven (7) days of

Contractor’s receipt of such notice.

J. Subrogation Waiver

All insurance policies secured or maintained by Contractor or its Subcontractors in relation to this Contract shall include clauses stating that each carrier shall waive all rights of recovery under subrogation or otherwise against Contractor or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers.

K. Public Entities

If Contractor is a "public entity" within the meaning of the Colorado Governmental

Immunity Act, C.R.S. §24-10-101, et seq. (the “GIA”), Contractor shall maintain, in lieu of the liability insurance requirements stated above, at all times during the term of this Contract such liability insurance, by commercial policy or self-insurance, as is necessary to meet its liabilities under the GIA. If a Subcontractor is a public entity within the meaning of the

GIA, Contractor shall ensure that the Subcontractor maintains at all times during the terms of this Contract, in lieu of the liability insurance requirements stated above, such liability insurance, by commercial policy or self-insurance, as is necessary to meet the

Subcontractor’s obligations under the GIA.

Page 16 of 40 DOC PSKWizard v1.10

L. Certificates

Contractor shall provide to the State certificates evidencing Contractor’s insurance coverage required in this Contract within seven (7) Business Days following the Effective Date.

Contractor shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Contract within seven (7) Business Days following the

Effective Date, except that, if Contractor’s subcontract is not in effect as of the Effective

Date, Contractor shall provide to the State certificates showing Subcontractor insurance coverage required under this Contract within seven (7) Business Days following

Contractor’s execution of the subcontract. No later than fifteen (15) days before the expiration date of Contractor’s or any Subcontractor’s coverage, Contractor shall deliver to the State certificates of insurance evidencing renewals of coverage. At any other time during the term of this Contract, upon request by the State, Contractor shall, within seven (7)

Business Days following the request by the State, supply to the State evidence satisfactory to the State of compliance with the provisions of this section.

Certificates shall be delivered to the State, attention CDOC Contracts Unit, by email to doc_contracts@state.co.us, or by US Mail to PO Box 1010, Canon City, CO 81215.

11. BREACH OF CONTRACT

In the event of a Breach of Contract, the aggrieved Party shall give written notice of breach to the other Party. If the notified Party does not cure the Breach of Contract, at its sole expense, within thirty (30) days after the delivery of written notice, the Party may exercise any of the remedies as described in §122 for that Party. Notwithstanding any provision of this Contract to the contrary, the State, in its discretion, need not provide notice or a cure period and may immediately terminate this Contract in whole or in part or institute any other remedy in this Contract in order to protect the public interest of the State; or if Contractor is debarred or suspended under C.R.S.

§24-109-105, the State, in its discretion, need not provide notice or cure period and may terminate this Contract in whole or in part or institute any other remedy in this Contract as of the date that the debarment or suspension takes effect.

12. REMEDIES

A. State’s Remedies

If Contractor is in breach under any provision of this Contract and fails to cure such breach, the State, following the notice and cure period set forth in §110, shall have all of the remedies listed in this section. in addition to all other remedies set forth in this Contract or at law. The State may exercise any or all of the remedies available to it, in its discretion, concurrently or consecutively.

i. Termination for Breach

In the event of Contractor’s uncured breach, the State may terminate this entire

Contract or any part of this Contract. Contractor shall continue performance of this

Contract to the extent not terminated, if any.

a. Obligations and Rights

To the extent specified in any termination notice, Contractor shall not incur further obligations or render further performance past the effective date of such notice, and shall terminate outstanding orders and subcontracts with third parties.

However, Contractor shall complete and deliver to the State all Work not cancelled by the termination notice, and may incur obligations as necessary to do so within this Contract’s terms. At the request of the State, Contractor shall assign to the State all of Contractor's rights, title, and interest in and to such terminated

Page 17 of 40 DOC PSKWizard v1.10 orders or subcontracts. Upon termination, Contractor shall take timely, reasonable and necessary action to protect and preserve property in the possession of

Contractor but in which the State has an interest. At the State’s request, Contractor shall return materials owned by the State in Contractor’s possession at the time of any termination. Contractor shall deliver all completed Work Product and all Work Product that was in the process of completion to the State at the

State’s request.

b. Payments

Notwithstanding anything to the contrary, the State shall only pay Contractor for accepted Work received as of the date of termination. If, after termination by the

State, the State agrees that Contractor was not in breach or that Contractor's action or inaction was excusable, such termination shall be treated as a termination in the public interest, and the rights and obligations of the Parties shall be as if this

Contract had been terminated in the public interest under §2.E.

c. Damages and Withholding

Notwithstanding any other remedial action by the State, Contractor shall remain liable to the State for any damages sustained by the State in connection with any breach by Contractor, and the State may withhold payment to Contractor for the purpose of mitigating the State’s damages until such time as the exact amount of damages due to the State from Contractor is determined. The State may withhold any amount that may be due Contractor as the State deems necessary to protect the State against loss including, without limitation, loss as a result of outstanding liens and excess costs incurred by the State in procuring from third parties replacement Work as cover.

ii. Remedies Not Involving Termination

The State, in its discretion, may exercise one or more of the following additional remedies:

a. Suspend Performance

Suspend Contractor’s performance with respect to all or any portion of the Work pending corrective action as specified by the State without entitling Contractor to an adjustment in price or cost or an adjustment in the performance schedule.

Contractor shall promptly cease performing Work and incurring costs in accordance with the State’s directive, and the State shall not be liable for costs incurred by Contractor after the suspension of performance.

b. Withhold Payment

Withhold payment to Contractor until Contractor corrects its Work.

c. Deny Payment

Deny payment for Work not performed, or that due to Contractor’s actions or inactions, cannot be performed or if they were performed are reasonably of no value to the state; provided, that any denial of payment shall be equal to the value of the obligations not performed.

d. Removal

Demand immediate removal of any of Contractor’s employees, agents, or

Subcontractors from the Work whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or whose continued relation to this Contract is deemed by the State to be contrary to the public interest or the

State’s best interest.

Page 18 of 40 DOC PSKWizard v1.10

e. Intellectual Property

If any Work infringes, or if the State in its sole discretion determines that any

Work is likely to infringe, a patent, copyright, trademark, trade secret, or other intellectual property right, Contractor shall, as approved by the State (i) secure that right to use such Work for the State and Contractor; (ii) replace the Work with non-infringing Work or modify the Work so that it becomes non-infringing;

or, (iii) remove any infringing Work and refund the amount paid for such Work to the State

B. Contractor’s Remedies

If the State is in breach of any provision of this Contract and does not cure such breach, Contractor, following the notice and cure period in §111 and the dispute resolution process in §133 shall have all remedies available at law and equity.

13. DISPUTE RESOLUTION

A. Initial Resolution

Except as herein specifically provided otherwise, disputes concerning the performance of this Contract which cannot be resolved by the designated Contract representatives shall be referred in writing to a senior departmental management staff member designated by the

State and a senior manager designated by Contractor for resolution.

B. Resolution of Controversies

If the initial resolution described in §13.A. fails to resolve the dispute within ten (10)

Business Days, Contractor shall submit any alleged breach of this Contract by the State to the Procurement Official of the State Agency named on the Cover Page of this Contract as described in C.R.S. §24-102-202(3) for resolution in accordance with the provisions of

C.R.S. §§24-106-109, and 24-109-101.1 through 24-109-505 (the “Resolution Statutes”), except that if Contractor wishes to challenge any decision rendered by the Procurement

Official, Contractor’s challenge shall be an appeal to the executive director of the

Department of Personnel and Administration, or their delegate,…