Professional Services, DNR.pdf

DNR Sept. 2025

STATE OF COLORADO PROFESSIONAL SERVICES CONTRACT

COVER PAGE

State Agency Department of Natural Resources Division Name, (“Division Acronym”) Division Address

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

Consultant’s Address

Contract Number Insert CMS Number Insert CORE Number

Contract Performance Beginning Date The Effective Date OR The later of the Effective Date or Month Day, Year Initial Contract Expiration Date Month Day, Year

Contract Maximum Amount Initial Term

State Fiscal Year 20xx: $0.00 Extension Terms

State Fiscal Year 20xx: $0.00 State Fiscal Year 20xx: $0.00 State Fiscal Year 20xx: $0.00 State Fiscal Year 20xx: $0.00

Total for All State Fiscal Years: $0.00

Contract Authority Insert Brief Description of the Authority to enter into the Contract Use this section to include a Federal Assistance Listing # for Federal Funding, if applicable.

Contract Purpose Briefly describe the Contract's purpose Contract was a discretionary selection under 24-30-1403(2)(a), OR The consultant was selected under 24-30-1403(2)(a), Request for Qualifications Number RFQ1 PXAA 202X*XXXX.

OR The Consultant was selected under 24-30-1407.

Exhibits and Order of Precedence The following Exhibits and attachments are included with this Contract:

1. Exhibit A – Statement of Work and Project Budget

2. Exhibit B – Wage Rate Schedule

3. Exhibit C – Sample Option Letter

4. Exhibit D – PII Certification

5. Exhibit E – Federal Provisions

6. Exhibit F – Global Warming Potential Limits

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 E, Federal Provisions

2. Colorado Special Provisions in §18 of the main body of this Contract.

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

4. Exhibit F – Global Warming Potential Limits

5. Exhibit A, Statement of Work and Project Budget.

6. Exhibit B – Wage Rate Schedule

7. Exhibit D, PII Certification.

8. Exhibit C, Sample Option Letter.

Principal Representatives For the State:

Name Department Name Address Line 1 Address Line 2 City, State ZIP Email

For Consultant:

Name Company Name Address Line 1 Address Line 2 City, State ZIP Email

SIGNATURE PAGE

THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT

Each person signing this Contract represents and warrants that he or she is duly authorized to execute this Contract and to bind the Party authorizing his or her signature.

CONSULTANT

INSERT: Legal Name of Consultant

Signature: _____________________________

Printed Name: _________________________

Title: ________________________________

Date: __________________________

STATE OF COLORADO

Jared S. Polis, Governor

Colorado Department of Natural Resources Dan Gibbs, Executive Director

Division Name

Title: ________________________________

Date: _________________________

STATE CONTROLLER

Robert Jaros, CPA, MBA, JD

Title: ________________________________

Effective Date: _________________________

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

CONTRACT PROVISIONS

1. PARTIES

This Contract is entered into by and between Consultant named on the Cover Page for this Contract (the “Consultant”), and the STATE OF COLORADO acting by and through the State agency named on the Cover Page for this Contract (the “State”). Consultant 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 Consultant 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.

C. Extension Terms - State’s Option

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 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 Consultant 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 years from its Effective Date 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 Consultant as provided in §14, may unilaterally extend such Initial Term or Extension Term for a period not to exceed two 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 of Contract by Consultant, which shall be governed by §12.A.i.

i. Method and Content

The State shall notify Consultant 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, Consultant 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 Consultant 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 60% completed, as determined by the State, the State may reimburse Consultant for a portion of actual out-of-pocket expenses, not otherwise reimbursed under this Contract, incurred by Consultant which are directly attributable to the uncompleted portion of Consultant’s obligations, provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to Consultant hereunder.

3. DEFINITIONS

The following terms shall be construed and interpreted as follows:

A. “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 Consultant, or the appointment of a receiver or similar officer for Consultant or any of its property, which is not vacated or fully stayed within 30 days after the institution of such proceeding, shall also constitute a breach. If Consultant is debarred or suspended under §24-109-105, C.R.S. at any time during the term of this Contract, then such debarment or suspension shall constitute a breach.

B. “Business Day” means any day in which the State is open and conducting business, but shall not include Saturday, Sunday or any day on which the State observes one of the holidays listed in §24-11-101(1), C.R.S.

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

D. “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 §24-72-302, C.R.S.

E. “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.

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

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

H. “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 Consultant’s Work that is intended to be delivered to the State by Consultant.

I. “Effective Date” means 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. If this Contract is for a Major Information Technology Project, as defined in §24-37.5-102(2.6), C.R.S., then 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 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.

J. “End of Term Extension” means the time period defined in §2.D.

K. “Exhibits” means the exhibits and attachments included with this Contract as shown on the Cover Page for this Contract.

L. “Extension Term” means the time period defined in §2.C.

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

N. “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 §§24-37.5-401, et seq., C.R.S. Incidents include, without limitation, (i) successful attempts to gain unauthorized access to a State system or State Records 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.

O. “Initial Term” means the time period defined in §2.B.

P. “Party” means the State or Consultant, and “Parties” means both the State and Consultant.

Q. “PCI” means payment card information including any data related to credit card holders’ names, credit card numbers, or other credit card information as may be protected by state or federal law.

R. “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.

S. “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

§§24-72-501 and 24-73-101, C.R.S. “PII” shall also mean “personal identifying information” as set forth at § 24-74-102, et. seq., C.R.S.

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

U. “State Confidential Information” means any and all 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 Consultant which (i) is subject to disclosure pursuant to CORA; (ii) is already known to Consultant without restrictions at the time of its disclosure to Consultant; (iii) is or subsequently becomes publicly available without breach of any obligation owed by Consultant to the State; (iv) is disclosed to Consultant, 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.

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

W. “State Fiscal Year” means a 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.

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

Y. “Subcontract” means any third party engaged by Consultant to aid in performance of the Work.

Z. “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.

AA. “Work” means the Goods delivered and Services performed pursuant to this Contract.

BB. “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.

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

4. STATEMENT OF WORK

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

B. Buy Clean Colorado Act

The Buy Clean Colorado (BCCO) Act is focused on reducing embodied carbon emissions of state Public Projects by means of Eligible Material selection.

Through design optimization and responsible selection of materials, the reduction of Embodied Carbon emissions from building materials can be accomplished. The BCCO Act requires the Office of the State Architect (OSA) to establish a maximum acceptable Global Warming Potential (GWP) limit for each category of Eligible Materials, which include: asphalt and asphalt mixtures, cement and concrete mixtures, glass, post-tension steel, reinforcing steel, structural steel, and wood structural elements.

Capitalized terms used in this section of the Contract shall be construed and interpreted in accordance with the “Important Definitions” section of the OSA BCCO Act website <https://osa.colorado.gov/energy-environment/buy-clean-colorado-act>.

The Consultant must produce designs that strive to reduce the Embodied Carbon content of the construction project. The Consultant shall specify an Environmental Product Declaration (EPD) for each Eligible Material within the project specifications included in the bid documents. When specifying materials, the Consultant shall prioritize products with EPDs for the design. The Consultant must verify that the specified EPDs contain Global Warming Potential (GWP) values that are less than or equal to the maximum GWP limits established in

Exhibit F. If an assembly containing one or more Eligible Materials must be installed, then a product-specific Type III EPD must be submitted for each Eligible https://osa.colorado.gov/energy-environment/buy-clean-colorado-act

Material component of the assembly. If the Embodied Carbon of each Eligible

Material in the assembly is less than the GWP limit, then it can be reasonably assumed that the Embodied Carbon of the assembly is compliant with the BCCO

Act. For glass GWP, the Consultant shall consider the EPD used for processed glazing products from the glass fabricator. The Consultant shall verify that glass fabricators utilize flat glass that meets OSA’s limit. For concrete strengths between the stated values, use linear interpolation to determine embodied carbon limits, rounded to the nearest whole number. Example: For a 3300psi ReadyMix Concrete mix: (301-255)/(4000-3000) =0.046 → (0.046*(3300-3000)) + 255 = 268.8 → 269 is the Maximum GWP/m3 for a 3300psi mix.

The Consultant shall produce an EPD Submittal & Sign-Off sheet using the template published by OSA as Form EE-5.2. The Consultant shall produce designs with Eligible Materials that are obtainable and can be installed. If the Consultants determines that an Eligible Material with a compliant EPD is unobtainable, the Consultant shall notify the State and, with the State’s approval, may produce a design with an alternative product with a compliant EPD or a design that does not require the Eligible Material. If necessary, the Consultant may request a Design-Phase Waiver Form in the template provided by OSA as Form EE-5.30 and in consideration of the EPD Exemption Justifications published by OSA as Form EE-5.1. All of the OSA forms referenced in this section are available at <https://osa.colorado.gov/energy-environment/buy-clean-colorado-act>.

5. PAYMENTS TO CONSULTANT

A. Maximum Amount

Payments to Consultant are limited to the unpaid, obligated balance of the Contract Funds. The State shall not pay Consultant 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 the Consultant in the amounts and in accordance with the schedule and other conditions set forth in Exhibit A. Payments shall be made on a time and materials basis at the rates and costs set forth in Exhibit B. The Consultant shall successfully complete the contracted services in accordance with contract requirements within the not-to-exceed price specified herein.

b. Consultant 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 45 days following the State’s receipt of that invoice, so long as the amount invoiced correctly represents Work completed by Consultant 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 Consultant 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 45 days of the State’s acceptance of the invoice shall bear interest on the unpaid balance beginning on the 45th day at the rate of 1% per month, as required by §24-30-202(24)(a), C.R.S., until paid in full; provided, however, that interest shall not accrue on unpaid amounts that the State disputes in writing. Consultant shall invoice the State separately for accrued interest on delinquent amounts, and the invoice shall reference the delinquent payment, the number of day’s interest to be paid and the interest rate.

iii. Payment Disputes

If Consultant disputes any calculation, determination or amount of any payment, Consultant shall notify the State in writing of its dispute within 30 days following the earlier to occur of Consultant’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 Consultant 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.

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 Consultant 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 Consultant 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.

Funding under this Contract may be provided via a funding source that, at the time of Effective Date, is not currently valid through the maximum potential term of this Contract. All payments beyond the currently valid funding end date are contingent upon the State receiving additional anticipated and budgeted appropriated or nonappropriated funding. Should the State not receive such appropriated or non-appropriated funding and it also be unable to substitute valid replacement funding, which is not anticipated, the State will notify the Consultant that it has not received additional and necessary appropriated or nonappropriated funding. If Consultant is unsure if funding has been received for any period, Consultant should verify the availability of funding with the State prior to performing any Work for that period as the State shall not be liable for, and shall not make any payment to Consultant for, any Work performed during a period for which it has not received sufficient appropriated or nonappropriated funding, regardless of whether Consultant has performed Work during that period.

C. Consultant Certification and Adjustments for Errors

In accordance with §24 30 1404 (1), C.R.S. as amended, the Consultant has executed a schedule, which is attached hereto and made a part hereof by reference as Exhibit B, Wage Rates, in having a duly authorized representative of Consultant sign this Contract, Consultant hereby certifies that:

The wage rates and other factual unit costs supporting the compensation to be paid by the State for these professional services are accurate, complete and current; and, The Consultant understands the original Contract price and that any additions shall be adjusted to exclude any significant sums by which the State determines the contract price had been increased due to inaccurate, incomplete, or non-current wage rates and other factual unit costs; and, All such Contract adjustments shall be made within one year following the end of this Contract.

D. Rate Adjustment - State’s Option

The State, at its discretion, shall have the option to modify the Contractor’s billing rates established in Exhibit B. In order to exercise this option, the State shall provide written notice to Contractor in a form substantially equivalent to Exhibit C that will include a modified Exhibit B showing the new rates and the dates those rates will be effective. Any option the State exercises under this section may thereby modify the Contract’s Maximum Amount. Any adjustments to the rates in accordance with this section shall be made as follows:

Rate adjustments may be made and will be based on the percent change in the Consumer Price Index (CPI) for All Urban Consumers (Chained CPI) during the most recent 12-month period. The Bureau of Labor Statistics generates CPI. If the All Urban Consumers (Chained CPI) database is discontinued, the State may use an equivalent database at its discretion. To ensure fairness at the time of adjustment, the average percentage will be calculated from the most recent 12-month period for which data is available at a time reasonably in advance of the renewal date. When calculating these rate adjustments, rounding shall be handled as follows: any price increase shall be rounded up to nearest whole dollar if the first decimal place number is 5 or greater; if the first decimal place number is 4 or less the price rate will be rounded down.

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 months, Consultant 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 not later than five Business Days following the end of each calendar quarter or at such time as otherwise specified by the State.

B. Litigation Reporting

If Consultant 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 Consultant’s ability to perform its obligations under this Contract, Consultant shall, within 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, §24-102-206, C.R.S.

To the extent not previously disclosed in accordance with §24-102-206, C.R.S., Consultant shall provide written notice to the State, in accordance with §14 and in a form designated by the State, within 20 days following the earlier to occur of Consultant’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 Consultant to provide notice to the State under this section shall constitute a Breach of Contract. This section shall not apply if the Contract Funds include any federal funds.

7. CONSULTANT RECORDS

A. Maintenance

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

Consultant shall permit the State, the federal government, and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and transcribe Consultant Records during the Record Retention Period.

Consultant shall make Consultant Records available during normal business hours at Consultant’s office or place of business, or at other mutually agreed upon times or locations, upon no fewer than two 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, the federal government, and any other duly authorized agent of a governmental agency, in its discretion, may monitor Consultant’s performance of its obligations under this Contract using procedures as determined by the State.

The State shall monitor Consultant’s performance in a manner that does not unduly interfere with Consultant’s performance of the Work.

D. Final Audit Report

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

8. CONFIDENTIAL INFORMATION-STATE RECORDS

A. Confidentiality

Consultant shall keep confidential, and cause all Subcontractors to keep confidential, all State Records, unless those State Records are publicly available.

Consultant 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. Consultant 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 Consultant or any of its Subs will or may receive the following types of data, Consultant or its Subcontractors shall provide for the security of such data according to the following: (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. Consultant shall immediately forward any request or demand for State Records to the State’s Principal Representative.

B. Other Entity Access and Nondisclosure Agreements

Consultant may provide State Records to its agents, employees, assigns and SubConsultants 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. Consultant 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. Consultant 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

Consultant shall use, hold, and maintain State Confidential Information in compliance with any and all applicable laws and regulations only in facilities located within the United States, and shall maintain a secure environment that ensures confidentiality of all State Confidential Information. Consultant shall provide the State with access, subject to Consultant’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, Consultant shall return State Records provided to Consultant or destroy such State Records and certify to the State that it has done so, as directed by the State. If Consultant is prevented by law or regulation from returning or destroying State Confidential Information, Consultant warrants it will guarantee the confidentiality of, and cease to use, such State Confidential Information.

D. Incident Notice and Remediation

If Consultant becomes aware of any Incident, Consultant 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 Consultant can establish that Consultant and its SubConsultants are not the cause or source of the Incident, Consultant shall be responsible for the cost of notifying each person who may have been impacted by the Incident. After an Incident, Consultant 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 adjust or direct modifications to this plan in its sole discretion, and Consultant shall make all modifications as directed by the State. If Consultant cannot produce its analysis and plan within the allotted time, the State, in its discretion, may perform such analysis and produce a remediation plan, and Consultant shall reimburse the State for the actual costs thereof. The State may, in its sole discretion and at Consultant’s sole expense, require Consultant to engage the services of an independent, qualified, State-approved third party to conduct a security audit.

Consultant shall provide the State with the results of such audit and evidence of Consultant’s planned remediation in response to any negative findings.

E. Data Protection and Handling

Consultant shall ensure that all State Records and Work Product in the possession of Consultant 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 Consultant or any of its Subcontractors will or may receive PII under this Contract, Consultant 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. Consultant 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., Consultant, including, but not limited to, Consultant’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 Consultant is given direct access to any State databases containing PII, Consultant shall execute, on behalf of itself and its employees, the certification attached hereto as Exhibit D on an annual basis Consultant’s duty and obligation to certify as set forth in D shall continue as long as Consultant has direct access to any State databases containing PII. If Consultant uses any Subcontractors to perform services requiring direct access to State databases containing PII, the Consultant 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

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

Consultant 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, Consultant shall refrain from any practices, activities or relationships that reasonably appear to be in conflict with the full performance of Consultant’s obligations under this Contract.

C. Disclosure to the State

If a conflict or the appearance of a conflict arises, or if Consultant is uncertain whether a conflict or the appearance of a conflict has arisen, Consultant 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 Contract.

D. Acknowledgement

Consultant acknowledges that all State employees are subject to the ethical principles described in §24-18-105, C.R.S. Consultant 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

Consultant 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

Workers’ compensation insurance as required by state statute, and employers’ liability insurance covering all Consultant 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 Consultants, 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 fire.

C. Automobile Liability

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

Liability insurance covering all civil, regulatory, and statutory damages, contractual damages, data breach management exposure, and all lost income or extra expense as a result of actual or alleged breach, violation or infringement of a right to privacy, consumer data protection law, confidentiality or other legal protection for personal information as well as State Confidential Information with minimum limits as follows:

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

ii. $2,000,000 general aggregate.

E. Professional Liability Insurance

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 claim; and

ii. $1,000,000 general aggregate.

F. Crime Insurance

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. Pollution Liability Insurance

Pollution liability policy with minimum limits of $1,000,000 each occurrence and $2,000,000 Annual Aggregate covering any environmental damage caused by the Consultant or subConsultant during the Work with the State included as an additionally insured party.

H. Additional Insured

The State shall be named as additional insured on all commercial general liability policies (leases and construction contracts require additional insured coverage for completed operations) required of Consultant and Subcontractors.

I. Primacy of Coverage

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

J. 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 30 days prior notice to Consultant and Consultant shall forward such notice to the State in accordance with §14 within seven days of Consultant’s receipt of such notice.

K. Subrogation Waiver

Except with respect to professional liability insurance coverage, all insurance policies secured or maintained by Consultant 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 Consultant or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers.

L. Public Entities

If Consultant is a “public entity” within the meaning of the Colorado Governmental Immunity Act, §§24-10-101, et seq., C.R.S. (the “GIA”), Consultant 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, Consultant 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.

M. Certificates

Consultant shall provide to the State certificates evidencing Consultant’s insurance coverage required in this Contract within seven Business Days following the Effective Date. Consultant shall provide to the State certificates evidencing Subcontractor insurance coverage required under this Contract within seven Business Days following the Effective Date, except that, if Consultant’s subcontract is not in effect as of the Effective Date, Consultant shall provide to the State certificates showing Subcontractor insurance coverage required under this Contract within seven Business Days following Consultant’s execution of the subcontract. No later than 15 days before the expiration date of Consultant’s or any Subcontractor’s coverage, Consultant 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, Consultant shall, within seven 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.

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 30 days after the delivery of written notice, the Party may exercise any of the remedies as described in §12 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 Consultant is debarred or suspended under §24-109-105, C.R.S., 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 Consultant 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 §11, 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 of Contract

In the event of Consultant’s uncured breach, the State may terminate this entire Contract or any part of this Contract. Consultant 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, Consultant 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, Consultant 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, Consultant shall assign to the State all of Consultant’s rights, title, and interest in and to such terminated orders or subcontracts. Upon termination, Consultant shall take timely, reasonable and necessary action to protect and preserve property in the possession of Consultant but in which the State has an interest. At the State’s request, Consultant shall return materials owned by the State in Consultant’s possession at the time of any termination. Consultant 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 Consultant for accepted Work received as of the date of termination.

If, after termination by the State, the State agrees that Consultant was not in breach or that Consultant’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, Consultant shall remain liable to the State for any damages sustained by the State in connection with any breach by Consultant, and the State may withhold payment to Consultant for the purpose of mitigating the…