HomeMy WebLinkAboutresolution.council.114-24RESOLUTION # 114
(Series of 2024)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND MOTOROLA INC., AND AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a contract
between the City of Aspen and Motorola, Inc., a true and accurate copy of which is
attached hereto as Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Contract for
the purchase of radios between the City of Aspen and Motorola Inc., a copy of
which is annexed hereto and incorporated herein and does hereby authorize the
City Manager to execute said agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 3 rd day of December 2024.
Torre, Mayor
I, Nicole Henning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council
of the City of Aspen, Colorado, at a meeting held December 3, 2024.
Nicole Henning, Clay Clerk
Docusign Envelope ID: 79DB81 EO-71 F7-4D2E-8F84-089FA30249EO
CITY OF ASPEN STANDARD FORM OF AGREEMENT
I
SUPPLY PROCUREMENT
City of Aspen Project No.: 2024-385
AGREEMENT made as of 1 lth day of September, in the year 2024.
BETWEEN the City:
Contract Amount:
The City of Aspen
c/o Sara Ott
427 Rio Grande Place
Aspen, Colorado 81611
Phone: (970) 920-5055
And the Vendor:
Motorola
c/o Amber Geiwitz
13108 Collections Center Drive
Chicago, IL 60693
720-338-7624
amber. geiwitzgmotorolasolutions.com
Summary Description of Items to be Purchased:
2025 Radio Upgrade Order for Aspen Police Department
Exhibits appended and made a part of this Agreement:
Total: $301,867.82
If this Agreement requires the City to pay
an amount of money in excess of
$100,000.00 it shall not be deemed valid
untiI it has been approved by the City
Council of the City of Aspen.
City Council Approval:
Date: 12/3/2024
Resolution No.: 2024-114
Exhibit A: List of supplies, equipment, or materials to be purchased.
Exhibit B: Participating Addendum to NASPO ValuePoint with Motorola Solutions, Inc.
Master Agreement No. 00318 and State of Colorado Contract # 173765
The City and Vendor agree as set forth below.
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Docusign Envelope ID: 79DB81 EO-71 F7-4D2E-8F84-089FA30249E0
1. Purchase. Vendor agrees to sell and City agrees to purchase the items on Exhibit A
appended hereto and by this reference incorporated herein as if fully set forth here for the sum
set forth hereinabove.
2. Delivery. (FOB Pitkin County Communications Attn: Nelson/Goelz 351 Southside
Drive Basalt, CO 81621)
[Delivery Address]
3. Contract Documents. This Agreement shall be subject to the terms of conditions of
the PARTICPATING ADDENDUM to NASPO ValuePoint Master Agreement No. 00318
between Motorola Solutions, Inc. and The State of Colorado #173765 "Contract Documents" and
said Contract Document are hereby made a part of this Agreement as if fully set out at length
herein.
4. Warranties. 7 years of coverage on the radios (HW repair, SW and technical
support).
5. Successors and Assigns. This Agreement and all of the covenants hereof shall inure
to the benefit of and be binding upon the City and the Vendor respectively and their agents,
representatives, employee, successors, assigns and legal representatives. The purchase agreement
shall accrue to the benefit of and be binding upon the parties hereto. Motorola Solutions may
assign this agreement to a successor entity into which Motorola Solutions shall have been
merged or consolidated or to which Motorola Solutions shall have sold or transferred all or
substantially all its assets, and Motorola Solutions may assign this agreement in whole or in part,
in connection with any merger, consolidation, asset purchase, split-up, spin-off, divestiture, asset
sale or similar transaction involving the Motorola Solutions line or lines of business involved in
the performance of this agreement. This agreement shall not be otherwise assigned by Motorola
Solutions or by customer without the prior written consent of the other party, which consent shall
not be unreasonably withheld. This paragraph does not cover the transfer or assignment of
customer's interest as licensee of software. Any provisions related to the transfer or assignment
of customer's interest as licensee of software shall be contained in the software license.
6. Third Parties. This Agreement does not and shall not be deemed or construed to
confer upon or grant to any third party or parties, except to parties to whom Vendor or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Vendor
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
7. Waivers. No waiver of default by either party of any of the terms, covenants or
conditions hereof to be performed, kept and observed by the other party shall be construed, or
operate as, a waiver of any subsequent default of any of the terms, covenants or conditions herein
contained, to be performed, kept and observed by the other party.
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Docusign Envelope ID: 79DB81 EO-71 F7-4D2E-8F84-089FA30249EO
8. Agreement Made in Colorado. The parties agree that this Agreement was made in
accordance with the laws of the State of Colorado and shall be so construed. Venue is agreed to
be exclusively in the courts of Pitkin County, Colorado.
9. Attorney s Fees. In the event that legal action is necessary to enforce any %J the
provisions of this Agreement, the prevailing party shall be entitled to its costs and reasonable
attorney's fees.
10. Waiver of Presumption. This Agreement was negotiated and reviewed through the
mutual efforts of the parties hereto and the parties agree that no construction shall be made or
presumption shall arise for or against either party based on any alleged unequal status of the
parties in the negotiation, review or drafting of the Agreement.
1 1. Certification Re ag riling Debarment, Suspension, Ineli ig bility, and Voluntary
Exclusion. Vendor certifies, by acceptance of this Agreement, that neither it nor its principals is
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from participation in any transaction with a Federal or State department or agency. It
further certifies that prior to submitting its Bid that it did include this clause without modification
in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event
that Vendor or any lower tier participant was unable to certify to the statement, an explanation
was attached to the Bid and was determined by the City to be satisfactory to the City.
12. Warranties A;?ainst Contin;;ent Fees, Gratuities, Kickbacks and Conflicts of Interest.
(A) Vendor warrants that no person or selling agency has been employed or retained to solicit
or secure this Contract upon an agreement or understanding for a commission,
percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide
established commercial or selling agencies maintained by the Vendor for the purpose of
securing business.
(B) Vendor agrees not to give any employee of the City a gratuity or any offer of
employment in connection with any decision, approval, disapproval, recommendation,
preparation of any part of a program requirement or a purchase request, influencing the
content of any specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or application, request for
ruling, determination, claim or controversy, or other particular matter, pertaining to this
Agreement, or to any solicitation or proposal therefore.
(C) Vendor represents that no official, officer, employee or representative of the City during
the term of this Agreement has or one (1) year thereafter shall have any interest, direct or
indirect, in this Agreement or the proceeds thereof, except those that may have been
disclosed at the time City Council approved the execution of this Agreement.
(D) In addition to other remedies it may have for breach of the prohibitions against contingent
fees, gratuities, kickbacks and conflict of interest, the City shall have the right to:
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Docusign Envelope ID: 79DB81 EO-71 F7-4D2E-8F84-089FA30249E0
l . Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a vendor, contractor or
subcontractor under City contracts,
3. Deduct from the contract price or consideration, or otherwise recover, the value of
anything transferred or received by the Vendors and
4. Recover such value from the offending parties.
13. Termination for Default or for Convenience of City. The sale contemplated by this
Agreement may be canceled by the City prior to acceptance by the City whenever for any reason
and in its sole discretion the City shall determine that such cancellation is in its best interests and
convenience. If the City has accepted delivery of any products or services performed through the
date of termination, the Customer is obligated to pay for the products or services.
14. Fund Availability. Financial obligations of the City payable after the current fiscal
year are contingent upon funds for that purpose being appropriated, budgeted and otherwise
made available. If this Agreement contemplates the City using state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement. Customer may terminate any Purchase Order if
funds sufficient to pay its obligations under the Agreement are not appropriated by the applicable
state legislature, federal government or other appropriate government entity or received from an
intended third -party funding source. If the City has accepted delivery of any products or services
performed through the date of determination, the Customer is obligated to pay for the products or
services.
15. City Council Approval. If this Agreement requires the City to pay an amount of
money in excess of $100,000.00 it shall not be deemed valid until it has been approved by the
City Council of the City of Aspen.
16. Non -Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin, ancestry, handicap,
the employment of persons to perform under this Agreement.
or religion shall be made in
Vendor agrees to meet all of the requirements of City's municipal code, section 13 -98, pertaining
to nondiscrimination in employment. Vendor further agrees to comply with the letter and the
spirit of the Colorado Antidiscrimination Act of 1957, as amended and other applicable state and
federal laws respecting discrimination and unfair employment practices.
Any business that enters into a contract for goods or services with the City of Aspen or any of its
boards, agencies, or departments shall:
(a) Implement an employment nondiscrimination policy prohibiting discrimination in
hiring, discharging, promoting or demoting, matters of compensation, or any other
employment -related decision or benefit on account of actual or perceived race,
color, religion, national origin, gender, physical or mental disability, age, military
status, sexual orientation, gender identity, gender expression, or marital or
familial status.
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Docusign Envelope ID: 79DB81 EO-71 F7-4D2E-8F84-089FA30249EO
(b) Not discriminate in the performance of the contract on account of actual or
perceived race, color, religion, national origin, gender, physical or mental
disability, age, military status, sexual orientation, gender identity, gender
expression, or marital or familial status.
(c) Incorporate the foregoing provisions in all subcontracts hereunder.
17. Integration and Modification. This written Agreement along with ail Contract
Documents shall constitute the contract between the parties and supersedes or incorporates any
prior written and oral agreements of the parties. In addition, vendor understands that no City
official or employee, other than the Mayor and City Council acting as a body at a council
meeting, has authority to enter into an Agreement or to modify the terms of the Agreement on
behalf of the City. Any such Agreement or modification to this Agreement must be in writing
and be executed by the parties hereto.
18. Authorized Representative. The undersigned representative of Vendor, as an
inducement to the City to execute this Agreement, represents that he/she is an authorized
representative of Vendor for the purposes of executing this Agreement and that he/she has full
and complete authority to enter into this Agreement for the terms and conditions specified
herein.
19. Electronic Signatures and Electronic Records This Agreement and any
it hereto may be executed in several counterparts, each of which shall be deemed an
original, and all of which together shall constitute one agreement binding on the Parties,
notwithstanding the possible event that all Parties may not have signed the same counterpart.
Furthermore, each Party consents to the use of electronic signatures by either Party. The Scope
of Work, and any other documents requiring a signature hereunder, may be signed electronically
in the manner agreed to by the Parties. The Parties agree not to deny the legal effect or
enforceability of the Agreement solely because it is in electronic form or because an electronic
record was used in its formation. The Parties agree not to object to the admissibility of the
Agreement in the form of an electronic record, or a paper copy of an electronic documents, or a
paper copy of a document bearing an electronic signature, on the ground that it is an electronic
record or electronic signature or that it is not in its original form or is not an original.
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Docusign Envelope ID: 79DB81 EO-71 F7-4D2E-8F84-089FA30249E0
IN WITNESS WHEREOF, The City and the Vendor, respectively have caused this Agreement
to be duly executed the day and year first herein, of which, to all intents and purposes, shall be
considered as the original.
FOR THE CITY OF ASPEN:
ned by:
� r r
12/9/2024 � 8:19:19 AM PST
Date
Approved as to form:
by:
,�aw►t,5 V.
City Attorneys Office
SUPPLIER:
Signed by:
QwI�Ct,V'UWt�j
Amber Geiwitz
By:
Area Sales Manager
Title
10/25/2024 ( 9:46:04 AM MDT
Date
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Docusign Envelope ID: 79DB81 EO-71 F7-4D2E-8F84-089FA30249EO
EXHIBIT A: LIST OF SUPPLIES, EQUIPMENT, OR MATERIALS TO BE
PURCHASED
PURCHASE ORDER
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C001TACT:
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151 aauttside Drive
Basalt, 00 8182 t
A PX45008, E5 head., Remc+a hfcunR; A:ES, A,>DP, Muftlwy, Tone SignaPrng
APX4f(KlG $3,98LC9
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14PXN59
$4482353
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$S 1202'D
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$1.E42.95
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$54M 1
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Supply Procurement Page 7
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CMS # 173765
Contract Number: Page 1 of 30 Version 062020
PARTICIPATING ADDENDUM
to NASPO ValuePoint
Public Safety Communications Products, Services, and Solutions
Administered by the State of Washington
with Motorola Solutions, Inc.
Master Agreement No. 00318
And
The State of Colorado
Contract # 173765
1. PARTIES AND SCOPE
This Participating Addendum, including all of its attached exhibits and other documents
incorporated by reference (the “Participating Addendum”), is entered into by and between
Motorola Solutions, Inc. (the “Contractor”), and the State of Colorado (the “State”). This
Participating Addendum covers participation in the Public Safety Communications Products,
Services, and Solutions Master Agreement led by the State of Washington (the “Master
Agreement”), for use by State agencies and other entities located in Colorado which are authorized
by law to utilize State contracts with the prior approval of the State Purchasing Director. The
specific Goods and Services provided under the Master Agreement are listed in Exhibit C
Products and Price List of this agreement.
2. PARTICIPATION
Agencies, political subdivisions and other entities (including cooperatives) authorized by the
State’s statutes to use State contracts may make purchases under this Participating Addendum as
of its Effective Date. Issues of interpretation and eligibility for participation are solely within the
authority of the Chief Procurement Officer.
3. STATE MODIFICATIONS TO MASTER AGREEMENT AND APPLICABILITY
To the extent not modified by this Participating Addendum and all its exhibits, the Master
Agreement and all its terms and conditions shall apply to this Participating Addendum. If any term
of this Participating Addendum conflicts with the Master Agreement, then this Participating
Addendum shall control for all transactions between the State and the Contractor under this
Participating Addendum. All terms defined in the Master Agreement shall have the meaning given
to them in the Master Agreement, except for those terms specifically defined differently in this
PARTICIPATING ADDENDUM.
4. RESERVED
5. PRIMARY CONTACTS AND PERSONNEL RESPONSIBILITIES
The primary contacts for this Participating Addendum are the individuals named in this section.
Either Party may change its primary contacts or primary contacts contact information by notice
submitted to the other party in writing no later than 5 days following the date on which the change
DocuSign Envelope ID: FE4B8A0B-8A65-43B8-A067-38CA0666DDF8Docusign Envelope ID: ED4B4D2B-B029-483F-A543-B4E5100A6B53Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
CMS # 173765
Contract Number: Page 2 of 30 Version 062020
occurs, without a formal amendment to this Participating Addendum. The Contractor’s primary
contact shall be ultimately responsible for ensuring that all Goods are delivered and all Services
are completed in accordance with this Participating Addendum.
Primary Contact for the State: Primary Contact for the Contractor:
Greg Draughon Lane Feingold
Colorado State Purchasing & Contracts Office Motorola Solutions, Inc.
1525 Sherman Street, 3rd Floor 7237 Church Ranch Blvd, #406
Denver, CO 80203 Westminster, CO 80021
303-866-4552 720-338-7624
Gregory.Draughon@state.co.us Lane.Feingoild@motorolasolutions.com
Each individual identified in this §5 of the Participating Addendum shall be the primary contact of
the designating Party. All notices required or permitted to be given under this Participating
Addendum shall be in writing and shall be delivered (A) by hand with receipt required, (B) by
certified or registered mail to such Party’s primary contact at the address set forth above or (C) as
an email with read receipt requested to the primary contact at the email address, if any, set forth
above. If a Party delivers a notice to another through email and the email is undeliverable then,
unless the Party has been provided with an alternate email contact, the Party delivering the notice
shall deliver the notice by hand with receipt required or by certified or registered mail to such
Party’s primary contact at the address set forth above. Unless otherwise provided in this
Participating Addendum, notices shall be effective upon delivery of the written notice.
In addition to the primary contact in this section, the Contractor shall also provide an individual
who is ultimately responsible for the creation and submission of the quarterly volume report
described in Exhibit A of this Participating Addendum. This individual, as named in this section,
shall ensure that all required quarterly volume reports are accurate and delivered by the appropriate
due date for that quarterly volume report. The Contractor may change this individual or their
contact information by notice submitted to the other party in writing no later than 5 days following
the date on which the change occurs, without a formal amendment to this Participating Addendum.
Individual Responsible for Quarterly Volume Report Creation and Submission:
Lane Feingold
Motorola Solutions, Inc.
7237 Church Ranch Blvd, #406
Westminster, CO 80021
720-338-7624
Lane.Feingoild@motorolasolutions.com
6. SUBCONTRACTORS
The Contractor may only use Subcontractors, as defined in Exhibit A. §4, under this Participating
Addendum if the State has provided written approval for the Contractor to use that Subcontractor.
All such approved Subcontractors authorized in the State of Colorado, as shown on the dedicated
Contractor website, are approved to provide sales and service support to the State and any
Purchasing Entity in the State. The Contractor’s Subcontractor’s participation shall be in
accordance with the terms and conditions set forth in the Master Agreement and this Participating
Addendum, as appropriate.
DocuSign Envelope ID: FE4B8A0B-8A65-43B8-A067-38CA0666DDF8Docusign Envelope ID: ED4B4D2B-B029-483F-A543-B4E5100A6B53Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
CMS # 173765
Contract Number: Page 3 of 30 Version 062020
7. ORDERS
Any Order placed by a Purchasing Entity in the State of Colorado for a Good or Service available
under this Participating Addendum shall be deemed to be a sale (and governed by the prices and
other terms and conditions) under the Master Agreement and this Participating Addendum unless
the parties to the Order agree in writing that another contract or agreement applies to such Order
or the terms of that Order control to the extent that they conflict with the terms of the Master
Agreement or this Participating Addendum.
8. ORDER OF PRECEDENCE AND ATTACHED EXHIBITS
All of the exhibits listed in this section are attached to this Participating Addendum and are
incorporated herein by reference. In the event of a conflict or inconsistency between this
Participating Addendum and any exhibits or attachment such conflict or inconsistency shall be
resolved by reference to the documents in the following order of priority:
A. Colorado Special Provisions in §20 of Exhibit A, State Specific Terms
B. Exhibit E, Safeguarding Requirements for Federal Tax Information, as applicable
C. Exhibit D, HIPPA Business Associate Agreement, as applicable
D. Exhibit F, Information Technology Provisions
E. The provisions of this Participating Addendum
F. All other sections of Exhibit A, State Specific Terms
G. Exhibit B Statement of Work
H. Exhibit C Products and Price List
Notwithstanding anything to the contrary herein, the State and Purchasing Entities shall not be
subject to any provision incorporated in any terms and conditions appearing on Contractor’s or
Subcontractor’s website, any provision incorporated into any click-through or online agreements,
or any provisions incorporated into any other document or agreement between the Parties that (i)
requires the State to indemnify or hold harmless Contractor or any other party, (ii) is in violation
of State law as, regulations, rules, fiscal rules, policies, or other State requirements as deemed
solely by the State or (iii) is contrary to any of the provisions incorporated into Exhibit A, §19 or
the main body of this Participating Addendum.
DocuSign Envelope ID: FE4B8A0B-8A65-43B8-A067-38CA0666DDF8Docusign Envelope ID: ED4B4D2B-B029-483F-A543-B4E5100A6B53Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
CMS # 173765
Contract Number: Page 4 of 30 Version 062020
THE PARTIES HERETO HAVE EXECUTED THIS AMENDMENT
CONTRACTOR
Motorola Soultions, Inc.
By: Jack Molloy
Title:
By:______________________________________________
*Signature
Date: _________________________
STATE OF COLORADO
Jared S. Polis, Governor
Department of Personnel & Administration
State Purchasing and Contracts Office
Tobin Follenweider, Deputy Executive Director
By:______________________________________________
Sherri Maxwell, Chief Procurement Officer, or
John Chapman, State Purchasing Manager
Date: _________________________
STATE OF COLORADO
Governor’s Office of Information Technology
In accordance with §24-30-202, C.R.S., if this Contract is for a Major Information Technology Project, this Contract is not
valid until signed and dated below by the Chief Information Officer or an authorized delegate.
STATE CHIEF INFORMATION OFFICER
Anthony Neal-Graves, Chief Information Officer and Executive Director
Signed: ___________________________________________
Printed Name: _____________________________________
Title: _____________________________________________
Date: _________________________
ALL CONTRACTS REQUIRE APPROVAL BY THE STATE CONTROLLER
§24-30-202 C.R.S. requires the State Controller to approve all State Contracts. This Participating Addendum is not valid until signed
and dated below by the State Controller or an authorized delegate.
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
By:___________________________________________
Name: __________________________________________
Date:_____________________
ALL CONTRACTS REQUIRE APPROVAL BY THE STATE CONTROLLER
§24-30-202, C.R.S. requires the State Controller to approve all State Contracts. This Participating Addendum is not valid until signed and
dated below by the State Controller or an authorized delegate.
DocuSign Envelope ID: FE4B8A0B-8A65-43B8-A067-38CA0666DDF8
6/29/2022
6/29/2022
6/29/2022
6/29/2022
Docusign Envelope ID: ED4B4D2B-B029-483F-A543-B4E5100A6B53Docusign Envelope ID: 3F42AE74-948B-4304-BDA6-6BCDD4EAE220Docusign Envelope ID: 340DB41F-174C-4201-9B83-2810027E12BE
CMS # 173765
Contract Number: Page 5 of 30 Version 062020
PARTICIPATING ADDENDUM
EXHIBIT A
STATE SPECIFIC TERMS
1. PARTIES AND SCOPE ............................................................................................................ 1
2. PARTICIPATION ..................................................................................................................... 1
3. STATE MODIFICATIONS TO MASTER AGREEMENT AND APPLICABILITY ............. 1
4. RESERVED…………………………………………………………………………………...1
5. PRIMARY CONTACTS AND PERSONNEL RESPONSIBILITIES ..................................... 1
6. SUBCONTRACTORS .............................................................................................................. 2
7. ORDERS .................................................................................................................................... 3
8. ORDER OF PRECEDENCE AND ATTACHED EXHIBITS ................................................. 3
9. AUTHORITY ............................................................................................................................ 5
10. PURPOSE .................................................................................................................................. 5
11. TERM ........................................................................................................................................ 6
12. DEFINITIONS .......................................................................................................................... 7
13. STATEMENT OF WORK ...................................................................................................... 10
14. PAYMENTS TO CONTRACTOR ......................................................................................... 11
15. PAYMENTS TO STATE ........................................................................................................ 13
16. REPORTING – NOTIFICATION ........................................................................................... 13
17. CONTRACTOR RECORDS ................................................................................................... 15
18. CONFIDENTIAL INFORMATION-STATE RECORDS ...................................................... 15
19. CONFLICTS OF INTEREST .................................................................................................. 17
20. INSURANCE .......................................................................................................................... 17
21. BREACH OF CONTRACT .................................................................................................... 20
22. REMEDIES ............................................................................................................................. 20
23. DISPUTE RESOLUTION ....................................................................................................... 22
24. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION ........................................ 23
25. OBLIGATIONS AND RIGHTS IN THE EVENT OF TERMINATION OF ORDER OR
CONTRACT ............................................................................................................................ 23
26. STATEWIDE CONTRACT MANAGEMENT SYSTEM ..................................................... 24
27. GENERAL PROVISIONS ...................................................................................................... 24
28. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) ....................... 27
EXHIBIT B STATEMENT OF WORK .................................................................................... 1
EXHIBIT C PRODUCTS AND PRICE LIST .......................................................................... 1
EXHIBIT D HIPAA BUSINESS ASSOCIATE AGREEMENT .............................................. 1
EXHIBIT E SAFEGUARDING REQUIREMENTS FOR FEDERAL TAX INFO………….1
EXHIBIT F INFORMATION AND TECHNOLOGY SPECIAL PROVISIONS……………1
1. AUTHORITY
Authority to enter into this Participating Addendum exists in the Colorado Procurement Code, §24-
102-202, C.R.S. and 1 CCR 101-9 R-24-102-202-01., and its associated rules.
2. PURPOSE
The Parties are entering into this Participating Addendum for the Contractor to provide Public
Safety Communications Products, Services, and Solutions to Purchasing Entities. The Contractor
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was selected as a result of State Price Agreement.
3. TERM
A. Initial Term - Work Commencement
The Parties’ respective performances under this Participating Addendum shall commence on
the Effective Date and shall be co-terminus with NASPO ValuePoint Master Agreement
00318. Unless this Participating Addendum is terminated earlier, as described herein, or the
State cancels its participation as described in the Master Agreement (the “Term”), the term
of the Participating Addendum shall follow the Master Agreement initial term and will be
automatically extended beyond the initial term if the Master Agreement term is extended (See
Section 3.B.).
B. Extension of Term
If the term of NASPO ValuePoint Master Agreement is extended for any reason, the Term of
this Participating Addendum shall be automatically modified to account for that extension,
so long as such extension complies with the Colorado Procurement Code.
C. End of Term Extension
If this Participating Addendum approaches the end of its Initial Term, or any Extension Term
then in place, the State, at its discretion, upon written notice to Contractor’s primary contact
listed in §5 of the Participating Addendum and in accordance with §5 of this Participating
Addendum, may unilaterally extend such Initial Term or Extension Term for a period not to
exceed 2 months (an “End of Term Extension”), regardless of whether additional Extension
Terms are available or not. The provisions of this Participating Addendum 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 Participating Addendum.
D. Order Term
Orders may only be placed prior to the expiration or earlier termination of this Participating
Addendum, but may have a delivery date or performance period that extends no longer than
120 calendar days following that expiration or earlier termination date. Regardless of
whether this Participating Addendum has expired or has been terminated, the Contractor shall
comply with all Orders that extend past the expiration or termination, as described in this
section, and all requirements of this Participating Addendum necessary to complete
outstanding Orders shall survive the expiration or termination of this Participating Addendum
until all Orders are complete.
E. Early Termination in the Public Interest
The State is entering into this Participating Addendum to serve the public interest of the State
of Colorado as determined by its Governor, General Assembly, or Courts. 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
Participating Addendum by the State for breach by Contractor, which shall be governed by
§14.A.i.
i. Method and Content
The State shall notify Contractor of such termination in accordance with §5 of this
Participating Addendum. The notice shall specify the effective date of the termination
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and whether it affects all or a portion of this Participating Addendum, and shall include,
to the extent practicable, the public interest justification for the termination.
ii. Obligations and Rights
Upon receipt of notice for termination in the public interest, Contractor shall be subject
to the rights and obligations set forth in §Error! Reference source not found..
iii. Payments
If the State terminates this Participating Addendum in the public interest, the
Purchasing Entities shall pay Contractor according to their orders with the Contractor
for Goods provided and Services rendered. The sum of any and all payments shall not
exceed the maximum amount payable to Contractor under each order.
4. DEFINITIONS
The following terms shall be construed and interpreted as follows:
A. “Administration Fee” means the fee that is due to the State for the administration of this
Participating Addendum, as described in §7. A. of this Exhibit A.
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 §24-109-105, C.R.S. at any time during the term of this Contract, then such
debarment or suspension shall constitute a breach.
C. “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.
D. “Ceiling Price” means the maximum price a Contractor or a Subcontractor may charge for
a Good or Service under this Participating Addendum.
E. “Chief Procurement Officer” means the individual to whom the Executive Director of the
Department of Personnel & Administration 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.
F. “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.
G. “Confidential Information” means any and all information that is normally considered
confidential in nature, and includes, but is not limited to, all State Records not subject to
disclosure under the Colorado Open Records Act, §§24-72-200.1, et seq., C.R.S. (“CORA”).
H. “Contract” means this Participating Addendum, including all attached Exhibits, all
documents incorporated by reference, all referenced statutes, rules and cited authorities, and
any future modifications thereto.
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I. “Contract Funds” means the funds that have been appropriated, designated, encumbered, or
otherwise made available for payment by a Purchasing Entity for Orders placed under this
Participating Addendum.
J. “CORA” means the Colorado Open Records Act, §§24-72-200.1, et. seq., C.R.S.
K. “Effective Date” means the date Contract is signed by the State Controller or their designee.
L. “End of Term Extension” means the time period defined in §3. C. of this Exhibit A.
M. “Environmentally Preferable Products” means products that have a lesser or reduced
adverse effect on human health and the environment when compared with competing
products that serve the same purpose, as defined in §24-103-904, C.R.S.
N. “Effective Date” means the date on which this Participating Addendum is approved and
signed by the Colorado State Controller or designee, as shown on the Signature Page for this
Participating Addendum. 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.
O. “Exhibits” means the following exhibits attached to this Contract:
i. Exhibit A, State Specific Terms.
ii. Exhibit B, Statement of Work.
iii. Exhibit C, Products and Price List
iv. Exhibit D, HIPAA Business Associate Agreement
v. Exhibit E, Safeguarding Federal Tax Information
vi. Exhibit F, Information Technology Provisions
P. “Extension Term” means the time period defined in §3. B.
Q. “Goods” means any movable material acquired, produced, or delivered by Contractor as set
forth in this Participating Addendum and shall include any movable material acquired,
produced, or delivered by Contractor in connection with the Services.
R. “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 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.
S. “Initial Term” means the time period defined in §3.A of this Exhibit A.
T. “Order” means any delivery order, purchase order, contract, agreement or other binding
document used by a Purchasing Entity to order the Goods and Services described in this
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Participating Addendum from the Contractor, and shall include any modification to such a
document.
U. “Party” means the State or Contractor, and “Parties” means both the State and Contractor.
V. “Purchasing Entity” means any entity or organization that has been authorized by the State
to place Orders with the Contractor, and may include, without limitation, agencies of the
State, government supported institution of higher education within the State, political
subdivisions of the State, authorized non-profit organizations and other authorized entities.
W. “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.
X. “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.
Y. “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.
Z. “Services” means the services to be performed by Contractor as set forth in this Participating
Addendum, and shall include any services to be rendered by Contractor in connection with
the Goods.
AA. “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, PCI, 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.
With respect to Motorola, “Confidential Information” means any and all non-public
information provided by one Party (“Discloser”) to the other (“Recipient”) that is disclosed
under this Agreement in oral, written, graphic, machine recognizable, or sample form, being
clearly designated, labeled or marked as confidential or its equivalent or that a reasonable
businessperson would consider non-public and confidential by its nature. Confidential
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Information will also include Products and Services, and Documentation, as well as any other
information relating to the Products and Services.
BB. “State Fiscal Rules” means that fiscal rules promulgated by the Colorado State Controller
pursuant to §24-30-202(13) (a), C.R.S.
CC. “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.
DD. “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.
EE. “Subcontractor” means third-parties, if any, engaged by Contractor pursuant to §18.B. to
aid in performance of the Work. The term “Subcontractor” includes, without limitation, any
dealers, distributors, partners or resellers engaged by the Contractor to perform the Work.
FF. “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.
GG. “Work” means the Goods delivered and Services performed pursuant to 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. Work Product also does not
include the software, tools, data, and other materials, including designs, utilities, models,
methodologies, systems, and specifications, which Contractor has developed or licensed
from third parties (including any corrections, bug fixes, enhancements, updates,
modifications, adaptations, translations, de-compilations, disassembly’s, or derivative works
of the foregoing, which Contractor gives the State access to.
Any other term used in this Participating Addendum that is defined in an Exhibit shall be construed
and interpreted as defined in that Exhibit.
5. STATEMENT OF WORK
Contractor shall complete the Work as described in this Participating Addendum and in accordance
with the provisions of Exhibits A, B, C and D, and with any Purchasing Entity’s Order. Contractor
personnel shall work cooperatively with State and Purchasing Entity staff to ensure the completion
of the Work.
A. Ordering and Order Fulfillment
i. Ordering
a. Contractor shall provide a complete and accurate Internal Revenue Service form
W9 to the State prior to accepting an Order from any Purchasing Entity. Upon a
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request by a Purchasing Entity, Contractor shall provide a complete and accurate
Internal Revenue Service form W9 to that Purchasing Entity.
b. Each Purchasing Entity may complete an Order in accordance with its own rules
and policies, as available to Contractor, using the appropriate documentation for
that organization to issue an Order.
c. Contractor shall communicate directly with each Purchasing Entity related to that
Purchasing Entity’s Orders.
d. Contractor shall ensure that all Orders it accepts have the proper information
contained in them for Contractor to be able to comply with all reporting
requirements of this Exhibit A.
e. If Contractor provides for Ordering through an internet-based portal or electronic
catalog, Contractor shall maintain all of Contractor’s necessary hardware,
software, backup-capacity and network connections required to operate that
internet-based portal or electronic catalog.
f. Contractor’s internet-based portal and electronic catalogs shall clearly designate
that they are part of this Participating Addendum and shall have a link to the
State’s designated web location, as determined by the State. Contractor shall
ensure that all Environmentally Preferable Products are clearly listed on internet-
based portal and electronic catalogs.
g. If Contractor provides an internet-based portal or electronic catalog, Contractor
shall also provide paper catalogs or catalogs on other digital media upon request
by a Purchasing Entity.
h. If Contractor’s catalog will be either hosted on or accessed through the State’s
eCommerce system, when available, then Contractor shall comply with all
policies, procedures and directions from the State in relation to hosting its catalog
on or making its catalog accessible through that system. Contractor shall ensure
that all information made available through the State’s eCommerce system is
accurate and complies with this Participating Addendum.
6. PAYMENTS TO CONTRACTOR
A. Payments Under Orders
i. Contractor shall allow the State and Purchasing Entities to use a procurement card or
other credit card to make payments under any Order, in addition to any other payment
procedure available to the State or Purchasing Entity.
ii. The State shall not pay any amount to Contractor under this Participating Addendum
unless the State issues an Order, at which time it shall pay Contractor in accordance
with that Order. The State shall not be responsible for payment under any Order that is
issued by a Purchasing Entity that is not the State, and the Contractor shall seek no
payment or other compensation from the State for any Work performed under any Order
issued by a Purchasing Entity that is not the State.
B. Payment Procedures
i. Invoices
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Contractor shall invoice each Purchasing Entity in accordance with that Purchasing
Entity’s Order. Contractor shall not invoice the State under any Order unless the State
issued that Order. Contractor shall allow 45 days for the State and Purchasing Entities
to pay an invoice following the receipt of the invoice, unless the State or a Purchasing
Entity specifically agrees to a shorter time in an Order. State law and regulations
provide that State payments made within 45 days are not considered delinquent, and
unless otherwise agreed, State Purchasing Entities will pay interest on any unpaid
balance beginning on the 45th day at the rate of 1% per month until paid in full;
provided, however, that interest shall not accrue on unpaid amounts that are the subject
of a good faith dispute regarding the obligation to pay all or a portion of the liability.
Contractor shall invoice State Ordering Entities separately for accrued interest on
delinquent amounts due. The billing shall reference the delinquent payment, the number
of day’s interest to be paid, and the applicable interest rate. (§ 24-30-202(24), C.R.S.,
as amended.)
ii. Payment Disputes
Unless different procedures are specified in an Order, if Contractor disputes any
calculation, determination or amount of any payment, Contractor shall notify the
Purchasing Entity issuing the Order in writing of its dispute within 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 that Purchasing Entity. The Purchasing
Entity 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 Purchasing Entity’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 Purchasing Entity has concluded its review, and
the Purchasing Entity shall not pay any interest on any amount during the period it is
subject to dispute under this subsection.
iii. Available Funds-Contingency-Termination of Order
Purchasing Entities, except for authorized non-profit entities, are prohibited by law
from making commitments beyond the term of the current Purchasing Entity’s Fiscal
Year. Payment to Contractor beyond the current Purchasing Entity’s Fiscal Year is
contingent on the appropriation and continuing availability of Contract Funds in any
subsequent year (See Colorado Special Provision). If federal funds, non-State funds or
funds from any other source constitute all or some of the Contract Funds, the Purchasing
Entity’s obligation to pay Contractor shall be contingent upon such funding continuing
to be made available for payment. Orders under this Participating Addendum shall be
made only from Contract Funds, and the Purchasing Entity’s liability for such payments
shall be limited to the amount remaining of such Contract Funds. If State, federal or
other Purchasing Entity funds are not appropriated, or otherwise become unavailable to
fund an Order under this Participating Addendum, the Purchasing Entity may, upon
written notice, terminate the Order, in whole or in part, without incurring further
liability. The Purchasing Entity shall, however, remain obligated to pay for Services
and Goods that are delivered and accepted prior to the effective date of notice of
termination of Order. A State Purchasing Entity Order termination shall otherwise be
treated as if the Order was terminated in the public interest as described in §3. E. of this
Exhibit A.
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The Purchasing Entity may effect such termination by giving Contractor a written
notice of termination, to the Contractor’s primary contact in accordance with §5 of the
Participating Addendum, and by paying to Contractor any amounts which are due and
have not been paid through the last day of the Fiscal Year for which appropriated funds
are available. The Purchasing Entity shall endeavor to give notice of such termination
not less than 30 days prior to the day of non-availability of funds, and shall notify
Contractor of any anticipated termination.
iv. Discount and Delinquency Period
Any applicable cash discount period or delinquency period for the amounts shown on
an invoice shall begin on the date the Purchasing Entity’s approves of the invoice, or
from the date of receipt of acceptable Goods or Services at the specified destination by
an authorized Purchasing Entity representative, whichever is later.
7. PAYMENTS TO STATE
Administrative Fees
A. Each State Fiscal Year quarter, Contractor shall, using a form as directed by the State,
calculate an Administrative Fee equal to 1% of the total sales made under Orders during that
State Fiscal Year quarter. Contractor shall pay the State the Administrative Fee for each State
Fiscal Year quarter within 45 days following the end of that State Fiscal Year quarter.
B. Contractor shall remit all administrative fees to the State’s primary contact identified in §5
of the Participating Addendum and with the payee as “State of Colorado”.
8. REPORTING – NOTIFICATION
A. Volume Reporting
The State will use a centralized method of tracking volume. Contractor shall provide a
quarterly volume report to the State’s primary contact identified in §5 of this Participating
Addendum within 30 calendar days following the end of the State Fiscal Year quarter that
the report covers. The quarterly volume report shall be submitted in a form as directed by
the State, which may be modified by the State from time to time. The quarterly volume report
shall contain, at a minimum, all of the following:
i. A summary volume report that includes, but is not limited to, all of the following for
the quarter that the report covers:
a. The total spent by each type of Purchasing Entity under this Participating
Addendum.
b. The total of the list price of all items purchased by each type of Purchasing Entity
under this Participating Addendum.
c. The total estimated price savings for each type of Purchasing Entity under this
Participating Addendum, calculated as the total list price of all items purchased
by each type of Purchasing Entity minus the total spent for that type of Purchasing
Entity.
d. The total paid through the use of a procurement card or credit card for each
Purchasing Entity under this Participating Addendum.
e. The total sales of environmentally preferable products, as defined in the State’s
Environmentally Preferable Purchasing Policy, for each Purchasing Entity under
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this Participating Addendum.
f. The amount of the total administrative fee due to the State.
g. Any additional summary information as requested by the State.
ii. A detail report that includes, but is not limited to, all of the following for each sale that
occurred during the quarter that the report covers:
a. The name of the Purchasing Entity who the sale was made to.
b. The date of the sale.
c. A listing of each item purchased in the sale, the quantity of the item, the unit price
for the item, the extended price for the item calculated by multiplying the unit
price by the quantity, the list price per unit for the item, the extended list price for
the item calculated by multiplying the quantity by the list price, and the savings
on the item calculated by subtracting the extended cost from the extended list
price.
d. Any other detail information as requested by the State.
B. Additional Operational Reporting
Upon request by the State, the Contractor shall provide operational reporting that includes all
detailed and summary transaction, historical or payment information related to the State or
any of the Participating Entities as requested by the State. The Contractor shall provide all
such additional reports within 10 Business Days following the State’s request for that
information, unless the State agrees to a longer period of time in writing.
C. Environmentally Preferable Product Reporting
Upon request by the State, the Contractor shall provide detailed reporting on environmentally
preferable products, as defined in the State’s Environmentally Preferable Purchasing Policy,
that are purchased or made available under this Participating Addendum. The scope and
detail of such reports shall be agreed upon by the State and the Contractor. The Contractor
shall provide all such additional reports within 10 Business Days following the State’s request
for that information, unless the State agrees to a longer period of time in writing.
D. 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 Participating Addendum or may affect Contractor’s ability to perform its obligations
under this Participating Addendum, Contractor 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 primary
contact identified in §5 of the Participating Addendum .
E. 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., Contractor
shall provide written notice to the State’s primary contact in accordance with §5 of the
Participating Addendum and in a form designated by the State, within 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
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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 Participating Addendum. This
section shall not apply if the Participating Addendum Funds include any federal funds.
9. 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”) performed by the Contractor and
any Subcontractors, that are required to ensure proper performance of that Work. Contractor
shall maintain Contractor Records until the last to occur of: (i) the date 3 years after the date
this Participating Addendum expires or is terminated, (ii) final payment under this
Participating Addendum 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 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 may monitor Contractor’s performance of its obligations under this Participating
Addendum. The State shall evaluate 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 Participating Addendum or
the Work, whether the audit is conducted by Contractor or a third party.
E. Periodic Business Reviews
i. The State may schedule periodic business reviews to review Contractor’s performance
under this Participating Addendum.
ii. Contractor shall ensure personnel assigned to the Participating Addendum are available
for these meetings with the State as scheduled by the State and Contractor.
iii. Contractor’s primary contact designated in §5 of this the Participating Addendum shall
be available for all regularly scheduled meetings between Contractor and the State,
unless the State has granted prior, written approval otherwise.
10. 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
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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 Participating
Addendum, 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: (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 primary contact as identified in §5 of the Participating Addendum.
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 Participating Addendum. Contractor shall ensure all such agents,
employees, assigns, and Subcontractors sign agreements containing nondisclosure provisions
at least as protective as those in this Participating Addendum, 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.
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 Participating Addendum, 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 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 as soon as possible, 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 neither
Contractor nor any of Contractor’s 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
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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 redacted version of results of such audit and evidence of
Contractor’s planned remediation in response to any negative findings, redacting
Contractor’s confidential restricted information, to the extent there is any such confidential,
restricted information included in the audit results.
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.
11. 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
Participating Addendum. 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 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
Participating Addendum.
B. Apparent Conflicts of Interest
Contractor acknowledges that, with respect to this Participating Addendum, 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 Participating Addendum.
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 Participating Addendum.
12. INSURANCE
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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 Participating Addendum
and until all orders for goods or Services or both have been delivered and accepted, regardless of
whether this Participating Addendum has expired or has been terminated. All insurance policies
required by this Participating Addendum 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 Contractor or Subcontractor employees acting within the course and
scope of their employment. Insurance must stay in place and in effect even if the contract
terms expires, until all product or terms of the contract are completed and satisfied up to 120
days after contract term expires.
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 limits as follows:
i. $1,000,000 each occurrence;
ii. $2,000,000 general aggregate;
iii. $1,000,000 products and completed operations aggregate; and
iv. $50,000 any 1 fire.
C. Automobile Liability
Automobile liability insurance covering any auto (including owned, hired and non-owned
autos) with a limit of $1,000,000 each accident combined single limit.
D. Professional Liability including Cyber/Network Security and Privacy Liability
Liability insurance covering civil, regulatory, and statutory damages, contractual damages,
data breach management exposure, and any loss of income or extra expense as a result of
actual or alleged breach, violation or infringement of right to privacy, consumer data
protection law, confidentiality or other legal protection for personal information, as well as
State Confidential Information with limits as follows:
i. $3,000,000 each claim; and
ii. $6,000,000 general aggregate.
E. Professional liability insurance shall also include coverage for Protected Information
Liability insurance covering all loss of State Confidential Information, such as PII, PCI, PHI,
Tax Information, and CJI, and claims based on alleged violations of privacy rights through
improper use or disclosure of protected information.
F. Professional Liability Insurance
Professional liability insurance covering any damages caused by an error, omission or any
negligent act.
G. Crime Insurance
Crime insurance including employee dishonesty coverage with limits as follows:
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i. $1,000,000 each claim; and
ii. $1,000,000 general aggregate.
H. Additional Insured
The State shall be included as additional insured on required commercial general liability
policies (leases and construction contracts require additional insured coverage for completed
operations) required of Contractor and Subcontractors.
I. Primacy of Coverage
Coverage required of Contractor and each Subcontractor shall be primary and
noncontributory over any insurance or self-insurance program carried by Contractor 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 Contractor and Contractor shall forward such notice to the State in accordance
with §5 of the Participating Addendum within 7 days of Contractor’s receipt of such notice.
K. Subrogation Waiver
All insurance policies except those secured or maintained by Contractor or its Subcontractors
in relation to this Participating Addendum 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.
L. Public Entities
If Contractor is a "public entity" within the meaning of the Colorado Governmental Immunity
Act, §§24-10-101, et seq., C.R.S. (the “GIA”), Contractor shall maintain, in lieu of the
liability insurance requirements stated above, at all times during the term of this Participating
Addendum 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 maintain at all times during the
terms of this Participating Addendum, 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
Contractor shall provide to the State certificates evidencing Contractor’s insurance coverage
required in this Participating Addendum within 7 Business Days following the Effective
Date. Contractor shall provide to the State certificates evidencing Subcontractor insurance
coverage within 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 within 7 Business Days following
Contractor’s execution of the subcontract. 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 renewal time during the term of this Participating
Addendum, upon request by the State, Contractor shall, within 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 §12.
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13. 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 §14 for that Party. Notwithstanding any provision of this
Participating Addendum to the contrary, the State, in its discretion in order to protect the
public interest of the State (such circumstances including, but not limited to, where the State
Governor issues an executive order or the State Legislature passes a law that could impact
the public interest as it relates to this Participating Addendum) need not provide notice or a
cure period and may immediately terminate this Participating Addendum in whole or in part
or institute any other remedy in this Participating Addendum; or if Contractor 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.
14. REMEDIES
A. State’s Remedies
If Contractor is in breach under any provision of this Participating Addendum and fails to
cure such breach, the State, following the notice and cure period set forth in §13, shall have
all of the remedies listed in this section in addition to all other remedies set forth in this
Participating Addendum 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
Participating Addendum or any part of this Participating Addendum. Contractor shall
continue performance of this Participating Addendum to the extent not terminated, if
any.
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 Participating Addendum had been terminated in the public interest under §3.
E.
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 neither the State nor any Purchasing
Entity shall be liable for costs incurred by Contractor after the suspension of
performance; however, Purchasing Entity is still liable for cost of Goods and
Services provided up until date of suspension.
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b. 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 Participating Addendum is deemed by the State to be contrary to the public
interest or the State’s best interest.
c. Intellectual Property
Contractor shall, indemnify and defend the State against any third-party claim
alleging that a Contractor-developed or manufactured product or Service directly
infringes a United States patent or copyright (“Infringement Claim”), and
Contractor shall pay all damages finally awarded against the State by a court of
competent jurisdiction for an Infringement Claim, and at its option: (i) secure that
right to use such Work for the State, Purchasing Entity and Contractor; (ii) replace
the Work with non infringing Work or modify the Work so that it becomes
noninfringing; or, (iii) remove any infringing Work and grant the State a reo-rated
refund any amounts pre-paid for the infringing product if it is a software product,
or a credit if the product is equipment
Contractor’s duties under this section are conditioned upon (a) the State promptly
notifying Contractor in writing of the Infringement Claim; (b) Contractor having
primary control over the defense of the suit and all negotiations for its settlement
or compromise, and (c) the State cooperating with Contactor and if requested by
Contractor, providing reasonable assistance in the defense of the Infringement
Claim.
This Section provides the State’s sole and exclusive remedy and Contactor’s
entire liability in the event of an Infringement Claim.
B. Contractor’s Remedies
If the State is in breach of any provision of this Participating Addendum and does not cure
such breach, Contractor, following the notice and cure period in §13 and the dispute
resolution process in §15 shall have all remedies available at law and equity. If a Purchasing
Entity is in breach of a provision of an Order, Contractor shall have all remedies available to
it under that Order and available at law and equity.
C. Purchasing Entity’s Remedies
i. If Contractor is in breach under any provision of an Order by a Purchasing Entity, the
Purchasing Entity shall have all of the remedies listed in that Order, all remedies listed
in §14. A. ii above, all remedies listed here in §14.C and all other remedies available
by law or equity. The Purchasing Entity may exercise any or all of the remedies
available to it, in its discretion, concurrently or consecutively.
ii. If a Purchasing Entity gives Contractor notice of breach or terminates an Order because
of Contractor’s breach of that Order, Contractor shall provide notice to the State of that
breach or termination within 30 Business Days following Contractor’s receipt of that
notice of breach or termination.
iii. Payments and Damages
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a. Notwithstanding anything to the contrary, Purchasing Entities shall only pay
Contractor for accepted Work received as of the date of termination. Subject to
the provisions of Section 14 and 15, a Purchasing Entity may withhold any
amount that may be due Contractor as the Purchasing Entity deems necessary until
Contractor corrects its Work or to protect itself against loss including, without
limitation, loss as a result of outstanding liens and costs incurred by the
Purchasing Entity in procuring from third parties replacement Work as cover.
b. Notwithstanding any other remedial action by the State, Contractor shall remain
liable to the State or appropriate Purchasing Entity for any damages sustained by
the State or Purchasing Entity in connection with any breach by Contractor, and
the Purchasing Entity may withhold payment to Contractor for the purpose of
mitigating the Purchasing Entity’s damages.
A Purchasing Entity may deny payment to Contractor 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.
15. DISPUTE RESOLUTION
A. Order Disputes, Termination and Resolution
i. If a dispute related to an Order arises between Contractor and a Purchasing Entity,
Contractor shall meet with the Purchasing Entity to attempt to resolve the issue. If
Contractor is unable to resolve the issue with the Purchasing Entity, then Contractor
may request assistance from the State by submitting a request in writing, which includes
the pertinent information about the dispute and the assistance sought by Contractor, in
accordance with §5 of the Participating Addendum. Nothing in this section shall be
interpreted as limiting the rights or obligations of Contractor, the State or any
Purchasing Entity under this Contract of any Order.
ii. A Purchasing Entity may terminate an Order if it determines that Contractor was in
breach of that Order. Termination of an Order shall not terminate any other Order or
this Participating Addendum. Termination of an Order does not relieve the Purchasing
Entity of obligation for payment of Goods and Services delivered by the Contractor.
iii. If a Purchasing Entity gives Contractor notice of breach or terminates an Order because
of Contractor’s breach of that Order, Contractor shall provide notice to the State of that
breach or termination within 30 Business Days following Contractor’s receipt of that
notice of breach or termination.
B. Initial Resolution
Except as herein specifically provided otherwise, disputes concerning the performance of this
Participating Addendum which cannot be resolved by the designated Participating
Addendum primary contacts, as identified in §5 of the Participating Addendum, or through a
dispute on an Order 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.
C. Resolution of Controversies arising under this Participating Addendum
If the initial resolution described in §15.B. fails to resolve the dispute within thirty (30)
Business Days, Contractor shall submit any alleged breach of this Participating Addendum
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by the State to the Procurement Official of the State Purchasing and Contracts Office as described
in in §24-102-202(3), C.R.S. for resolution in accordance with the provisions of §§24-109-
101.1 through 24-109-505, C.R.S., (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, under the Resolution Statutes before Contractor pursues
any further action as permitted by such statutes. Except as otherwise stated in this Section,
all requirements of the Resolution Statutes shall apply including, without limitation, time
limitations.
16. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION
A. Work Product
Contractor assigns to the Purchasing Entity and its successors and assigns, the entire right,
title, and interest in and to all causes of action, either in law or in equity, for past, present, or
future infringement of intellectual property rights related to the Work Product and all works
based on, derived from, or incorporating the Work Product under an Order. Whether or not
Contractor is under contract with the State at the time, Contractor shall execute applications,
assignments, and other documents, and shall render all other reasonable assistance requested
by the State, to enable the Purchasing Entity to secure patents, copyrights, licenses and other
intellectual property rights related to the Work Product. To the extent that Work Product
would fall under the definition of “works made for hire” under 17 U.S.C.S. §101, the parties
intend the Work Product to be a work made for hire.
B. Exclusive Property of the State
Except to the extent specifically provided elsewhere in this Participating Addendum, any pre-
existing State Records, State software, research, reports, studies, photographs, negatives or
other documents, drawings, models, materials, data and information shall be the exclusive
property of the State (collectively, “State Materials”). Contractor shall not use, willingly
allow, cause or permit Work Product or State Materials to be used for any purpose other than
the performance of Contractor’s obligations in this Participating Addendum without the prior
written consent of the State. Upon termination of this Participating Addendum for any
reason, Contractor shall provide all Work Product and State Materials to the State in a form
and manner as directed by the State.
C. Exclusive Property of Contractor
Contractor retains the exclusive rights, title, and ownership to any and all pre-existing
materials owned or licensed to Contractor including, but not limited to, all pre-existing
software, licensed products, associated source code, machine code, text images, audio and/or
video, and third-party materials, delivered by Contractor under the Contract, whether
incorporated in a Deliverable or necessary to use a Deliverable (collectively, “Contractor
Property”). Contractor Property shall be licensed to the State as set forth in this Contract or a
State approved license agreement: (i) entered into as exhibits to this Contract; (ii) obtained
by the State from the applicable third-party vendor; or (iii) in the case of open source
software, the license terms set forth in the applicable open source license agreement.
17. OBLIGATIONS AND RIGHTS IN THE EVENT OF TERMINATION OF ORDER OR
CONTRACT
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
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terminate outstanding orders and subcontracts with third parties. However, Contractor shall
complete and deliver to Purchasing Entities all Work not cancelled by the termination notice,
and may incur obligations as necessary to do so within this Participating Addendum’s terms.
At the request of the State, Contractor shall assign to the appropriate Purchasing Entity all of
Contractor's rights, title, and interest in and to such terminated orders or subcontracts. Upon
termination, Contractor shall take timely, reasonable and necessary action to protect and
preserve property in the possession of Contractor in which the appropriate Purchasing Entity
has an interest. At the State or Purchasing Entity’s request, Contractor shall return materials
owned by the Purchasing Entity that Contractor possesses at the time of any termination.
Contractor shall deliver all completed Work Product to the appropriate Purchasing Entity at
the State or Purchasing Entity’s request.
18. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to Contractor under this Contract is $100,000 or greater, either
on the Effective Date or at any time thereafter, this section shall apply. Contractor agrees to be
governed by and comply with the provisions of §§24-102-206, 24-106-103, 24-106-106, and 24-
106-107, C.R.S. regarding the monitoring of vendor performance and the reporting of contract
information in the State’s contract management system (“Contract Management System” or
“CMS”). Contractor’s performance shall be subject to evaluation and review in accordance with
the terms and conditions of this Contract, Colorado statutes governing CMS, and State Fiscal Rules
and State Controller policies.
19. GENERAL PROVISIONS
A. Assignment
Contractor’s rights and obligations under this Participating Addendum are personal and may
not be transferred or assigned without the prior, written consent of the State. Any attempt at
assignment or transfer without such consent shall be void. Any assignment or transfer of
Contractor’s rights and obligations approved by the State shall be subject to the provisions of
this Participating Addendum.
B. Subcontracts
The Contractor shall provide the State with a list of all subcontractors providing services
pursuant to this Participating Addendum. All subcontracts entered into by Contractor in
connection with this Participating Addendum shall comply with all applicable federal and
state laws and regulations, shall provide that they are governed by the laws of the State of
Colorado, and shall be subject to all provisions of this Participating Addendum.
C. Binding Effect
Except as otherwise provided in §19.A., all provisions of this Participating Addendum,
including the benefits and burdens, shall extend to and be binding upon the Parties’ respective
successors and assigns.
D. Authority
Each Party represents and warrants to the other that the execution and delivery of this
Participating Addendum and the performance of such Party’s obligations have been duly
authorized.
E. Captions and References
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The captions and headings in this Participating Addendum are for convenience of reference
only, and shall not be used to interpret, define, or limit its provisions. All references in this
Participating Addendum to sections (whether spelled out or using the § symbol), subsections,
exhibits or other attachments, are references to sections, subsections, exhibits or other
attachments contained herein or incorporated as a part hereof, unless otherwise noted.
F. Counterparts
This Participating Addendum may be executed in multiple, identical, original counterparts,
each of which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same agreement.
G. Entire Understanding
This Participating Addendum represents the complete integration of all understandings
between the Parties related to the Work, and all prior representations and understandings
related to the Work, oral or written, are merged into this Participating Addendum. Prior or
contemporaneous additions, deletions, or other changes to this Participating Addendum shall
not have any force or effect whatsoever, unless embodied herein.
H. Digital Signatures
If any signatory signs this agreement using a digital signature in accordance with the
Colorado State Controller Contract, Grant and Purchase Order Policies regarding the use of
digital signatures issued under the State Fiscal Rules, then any agreement or consent to use
digital signatures within the electronic system through which that signatory signed shall be
incorporated into this Contract by reference.
I. Modification
Except as otherwise provided in this Participating Addendum, any modification to this
Participating Addendum shall only be effective if agreed to in a formal amendment to this
Participating Addendum, properly executed and approved in accordance with applicable
Colorado State law and State Fiscal Rules. Modifications permitted under this Participating
Addendum, other than contract amendments, shall conform to the policies issued by the
Colorado State Controller.
J. Statutes, Regulations, Fiscal Rules, and Other Authority.
Any reference in this Participating Addendum to a statute, regulation, State Fiscal Rule, fiscal
policy or other authority shall be interpreted to refer to such authority then current, as may
have been changed or amended since the Effective Date of this Participating Addendum.
K. Severability
The invalidity or unenforceability of any provision of this Participating Addendum shall not
affect the validity or enforceability of any other provision of this Participating Addendum,
which shall remain in full force and effect, provided that the Parties can continue to perform
their obligations under this Participating Addendum in accordance with the intent of this
Participating Addendum.
L. Survival of Certain Contract Terms
Any provision of this Participating Addendum that imposes an obligation on the Contractor
or a Purchasing Entity after termination or expiration of this Participating Addendum shall
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survive the termination or expiration of this Participating Addendum and shall be enforceable
by the other Party.
M. Taxes
The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle
D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84-730123K) and from
State and local government sales and use taxes under §§39-26-704(1), et seq., C.R.S.
(Colorado Sales Tax Exemption Identification Number 98-02565). The State shall not be
liable for the payment of any excise, sales, or use taxes, regardless of whether any political
subdivision of the State imposes such taxes on Contractor. Contractor shall be solely
responsible for any exemptions from the collection of excise, sales or use taxes that
Contractor may wish to have in place in connection with this Participating Addendum.
Contractor shall honor any tax exemption that any Purchasing Entity has, and shall not charge
any Purchasing Entity any excise, sales, or use taxes from which that Purchasing Entity is
exempt.
N. Third Party Beneficiaries
Except for a Purchasing Entity and/or the Parties’ respective successors and assigns described
in §19.A, this Participating Addendum does not and is not intended to confer any rights or
remedies upon any person or entity other than the Parties. Enforcement of this Participating
Addendum and all rights and obligations hereunder are reserved solely to the Parties. Any
services or benefits which third parties receive as a result of this Participating Addendum are
incidental to this Participating Addendum, and do not create any rights for such third parties.
O. Waiver
A Party’s failure or delay in exercising any right, power, or privilege under this Participating
Addendum, whether explicit or by lack of enforcement, shall not operate as a waiver, nor
shall any single or partial exercise of any right, power, or privilege preclude any other or
further exercise of such right, power, or privilege.
P. CORA Disclosure
To the extent not prohibited by federal law, this Participating Addendum and the performance
measures and standards required under §24-106-107, C.R.S., if any, are subject to public
release through the CORA.
Q. Standard and Manner of Performance
Contractor shall perform its obligations under this Participating Addendum in accordance
with the highest standards of care, skill and diligence in Contractor’s industry, trade, or
profession.
R. Licenses, Permits, and Other Authorizations.
Contractor shall secure, prior to the Effective Date, and maintain at all times during the term
of this Participating Addendum, at its sole expense, all licenses, certifications, permits, and
other authorizations required to perform its obligations under this Participating Addendum,
and shall ensure that all employees, agents and Subcontractors secure and maintain at all
times during the term of their employment, agency or subcontract, all license, certifications,
permits and other authorizations required to perform their obligations in relation to this
Participating Addendum.
S. Indemnification
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i. General Indemnification
Contractor shall indemnify, save, and hold harmless the State, its employees, agents
and assignees (the “Indemnified Parties”), against any and all costs, expenses, claims,
damages, liabilities, court awards and other amounts (including attorneys’ fees and
related costs) arising from actual third-party claim, demand, action or proceeding
(“Claim”) incurred by any of the Indemnified Parties in relation to any negligent, gross
negligence or willful misconduct by Contractor, or its employees, agents,
Subcontractors, or assignees in connection with its performance of duties in this
Participating Addendum. Contractor’s duties under this Section are conditioned upon:
(a) the State promptly notifying Contractor in writing of the Claim; (b) Contractor
having sole control of the defense of the suit and all negotiations for its settlement or
compromise; and (c) the State cooperating with Contractor and, if requested by
Contractor, providing reasonable assistance in the defense of the Claim.
ii. Confidential Information Indemnification
Disclosure or use of State Confidential Information by Contractor in violation of §10
may be cause for legal action by third parties against Contractor, the State, or their
respective agents. Contractor shall indemnify, save, and hold harmless the Indemnified
Parties, against any and all claims, damages, liabilities, losses, costs, expenses
(including attorneys’ fees and costs) arising from actual third-party claim, demand,
action or proceeding incurred by the State in relation to any negligent, gross negligence
act or omission or willful misconduct by Contractor, or its employees, agents, assigns,
or Subcontractors in violation of §10.
20. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all contracts except where noted in italics.
A. STATUTORY APPROVAL. §24-30-202(1), C.R.S.
This Contract shall not be valid until it has been approved by the Colorado State Controller
or designee. If this Contract is for a Major Information Technology Project, as defined in
§24-37.5-102(2.6), then this Contract shall not be valid until it has been approved by the
State’s Chief Information Officer or designee.
B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S.
Financial obligations of the State payable after the current State Fiscal Year are contingent
upon funds for that purpose being appropriated, budgeted, and otherwise made available.
C. GOVERNMENTAL IMMUNITY.
Liability for claims for injuries to persons or property arising from the negligence of the State,
its departments, boards, commissions committees, bureaus, offices, employees and officials
shall be controlled and limited by the provisions of the Colorado Governmental Immunity
Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and
28 U.S.C. 1346(b), and the State’s risk management statutes, §§24-30-1501, et seq. C.R.S.
No term or condition of this Contract shall be construed or interpreted as a waiver, express
or implied, of any of the immunities, rights, benefits, protections, or other provisions,
contained in these statutes.
D. INDEPENDENT CONTRACTOR
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Contractor shall perform its duties hereunder as an independent contractor and not as an
employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to
be an agent or employee of the State. Contractor shall not have authorization, express or
implied, to bind the State to any agreement, liability or understanding, except as expressly
set forth herein. Contractor and its employees and agents are not entitled to unemployment
insurance or workers compensation benefits through the State and the State shall not pay for
or otherwise provide such coverage for Contractor or any of its agents or employees.
Contractor shall pay when due all applicable employment taxes, income taxes and local head
taxes incurred pursuant to this Contract. Contractor shall (i) provide and keep in force
workers' compensation and unemployment compensation insurance in the amounts required
by law, (ii) provide proof thereof when requested by the State, and (iii) be solely responsible
for its acts and those of its employees and agents.
E. COMPLIANCE WITH LAW.
Contractor shall comply with all applicable federal and State laws, rules, and regulations in
effect or hereafter established, including, without limitation, laws applicable to
discrimination and unfair employment practices.
F. CHOICE OF LAW, JURISDICTION, AND VENUE.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the
interpretation, execution, and enforcement of this Contract. Any provision included or
incorporated herein by reference which conflicts with said laws, rules, and regulations shall
be null and void. All suits or actions related to this Contract shall be filed and proceedings
held in the State of Colorado and exclusive venue shall be in the City and County of Denver.
G. PROHIBITED TERMS.
Any term included in this Contract that requires the State to indemnify or hold Contractor
harmless; requires the State to agree to binding arbitration; limits Contractor’s liability for
damages resulting from death, bodily injury, or damage to tangible property; or that conflicts
with this provision in any way shall be void ab initio. Nothing in this Contract shall be
construed as a waiver of any provision of §24-106-109 C.R.S. Any term included in this
Contract that limits Contractor’s liability that is not void under this section shall apply only
in excess of any insurance to be maintained under this Contract, and no insurance policy shall
be interpreted as being subject to any limitations of liability of this Contract.
H. SOFTWARE PIRACY PROHIBITION.
State or other public funds payable under this Contract shall not be used for the acquisition,
operation, or maintenance of computer software in violation of federal copyright laws or
applicable licensing restrictions. Contractor hereby certifies and warrants that, during the
term of this Contract and any extensions, Contractor has and shall maintain in place
appropriate systems and controls to prevent such improper use of public funds. If the State
determines that Contractor is in violation of this provision, the State may exercise any remedy
available at law or in equity or under this Contract, including, without limitation, immediate
termination of this Contract and any remedy consistent with federal copyright laws or
applicable licensing restrictions.
I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and
24-50-507, C.R.S.
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The signatories aver that to their knowledge, no employee of the State has any personal or
beneficial interest whatsoever in the service or property described in this Contract. Contractor
has no interest and shall not acquire any interest, direct or indirect, that would conflict in any
manner or degree with the performance of Contractor’s services and Contractor shall not
employ any person having such known interests.
J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-
202.4, C.R.S.
[Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the
State Controller may withhold payment under the State’s vendor offset intercept system for
debts owed to State agencies for: (i) unpaid child support debts or child support arrearages;
(ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et
seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher
Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and
(v) other unpaid debts owing to the State as a result of final agency determination or judicial
action. The State may also recover, at the State’s discretion, payments made to Contractor
in error for any reason, including, but not limited to, overpayments or improper payments,
and unexpended or excess funds received by Contractor by deduction from subsequent
payments under this Contract, deduction from any payment due under any other contracts,
grants or agreements between the State and Contractor, or by any other appropriate method
for collecting debts owed to the State.
K. PUBLIC CONTRACTS FOR SERVICES. §§8-17.5-101, et seq., C.R.S.
[Not applicable to agreements relating to the offer, issuance, or sale of securities,
investment advisory services or fund management services, sponsored projects,
intergovernmental agreements, or information technology services or products and
services] Contractor certifies, warrants, and agrees that it does not knowingly employ or
contract with an illegal alien who will perform work under this Contract and will confirm the
employment eligibility of all employees who are newly hired for employment in the United
States to perform work under this Contract, through participation in the E-Verify Program or
the State verification program established pursuant to §8-17.5-102(5)(c), C.R.S., Contractor
shall not knowingly employ or contract with an illegal alien to perform work under this
Contract or enter into a contract with a Subcontractor that fails to certify to Contractor that
the Subcontractor shall not knowingly employ or contract with an illegal alien to perform
work under this Contract. Contractor (i) shall not use E-Verify Program or the program
procedures of the Colorado Department of Labor and Employment (“Department Program”)
to undertake pre-employment screening of job applicants while this Contract is being
performed, (ii) shall notify the Subcontractor and the contracting State agency or institution
of higher education within 3 days if Contractor has actual knowledge that a Subcontractor is
employing or contracting with an illegal alien for work under this Contract, (iii) shall
terminate the subcontract if a Subcontractor does not stop employing or contracting with the
illegal alien within 3 days of receiving the notice, and (iv) shall comply with reasonable
requests made in the course of an investigation, undertaken pursuant to §8-17.5-102(5),
C.R.S., by the Colorado Department of Labor and Employment. If Contractor participates in
the Department program, Contractor shall deliver to the contracting State agency, Institution
of Higher Education or political subdivision, a written, notarized affirmation, affirming that
Contractor has examined the legal work status of such employee, and shall comply with all
of the other requirements of the Department program. If Contractor fails to comply with any
requirement of this provision or §§8-17.5-101, et seq., C.R.S., the contracting State agency,
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institution of higher education or political subdivision may terminate this Contract for breach
and, if so terminated, Contractor shall be liable for damages.
L. PUBLIC CONTRACTS WITH NATURAL PERSONS. §§24-76.5-101, et seq., C.R.S.
Contractor, if a natural person eighteen (18) years of age or older, hereby swears and affirms
under penalty of perjury that Contractor (i) is a citizen or otherwise lawfully present in the
United States pursuant to federal law, (ii) shall comply with the provisions of §§24-76.5-101,
et seq., C.R.S., and (iii) has produced one form of identification required by §24-76.5-103,
C.R.S. prior to the Effective Date of this Contract.
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Exhibit B Page 1
EXHIBIT B STATEMENT OF WORK
1. GOODS AND/OR SERVICES
For a description of what the Participating Addendum will provide, see Attachment of the Master
Agreement 00318, “Cost sheet”
2. OTHER PROJECT REQUIREMENTS
A. Delivery of Goods and Performance of Services
i. Contractor shall provide all Goods and perform all Services described in each Order.
ii. Unless specifically agreed to otherwise in an Order, Contractor shall deliver all Goods
under an Order in good, working and undamaged condition. All Goods shall be free on
board (“F.O.B.”) destination to the location specified in the Order.
iii. If a good in an Order is out of stock, Contractor may only provide a substitute good if
it has notified the Purchasing Entity for that Order, in writing, that the good is out of
stock and has received the Purchasing Entity’s approval to provide the substitute good.
Purchasing Entities may request additional information comparing the substitute good
with the original good in the Purchasing Entity’s sole discretion.
B. Additional Terms
Any additional terms and conditions on any invoice, statement, Contractor time sheet,
website, electronic license or use agreement or any other form, including, without limitation,
terms regarding indemnification, limitation of liability, cancellation fees, choice of law and
binding arbitration shall be void and unenforceable except to the extent that they are
specifically included in this Participating Addendum or an Order. The signature of any
employee of a Purchasing Entity on any such form shall be effective to establish receipt of
Goods or completion of Services and shall not make any term of that form enforceable.
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Exhibit C Page 1
EXHIBIT C PRODUCTS AND PRICE LIST
1. Contractor has been awarded the following categories:
PUBLIC SAFETY COMMUNICATIONS PRODUCTS, SERVICES, AND SOLUTIONS
2. The products and price list is located on the Contractor’s dedicated State website, hosted and
maintained by the Contractor, and is incorporated into this Participating Addendum by reference.
Changes in product and pricing must be approved by the lead state and shall be effective when
published on the dedicated state website.
.
A. Price Decreases and Ceiling Prices
The prices listed in this Exhibit C are Ceiling Prices, Contractor may offer lower prices to
Purchasing Entities, and Purchasing Entities may negotiate lower prices with Contractor,
without the review or approval of the State. Contractor shall not allow a Subcontractor to
charge an amount greater than the Ceiling Price for any Order.
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EXHIBIT D – HIPAA BUSINESS ASSOCIATE AGREEMENT
This HIPAA Business Associate Agreement (“Agreement”) between the State and Contractor is agreed to in
connection with, and as an exhibit to, the Contract. For purposes of this Agreement, the State is referred to as
“Covered Entity” and the Contractor is referred to as “Business Associate”. Unless the context clearly requires a
distinction between the Contract and this Agreement, all references to “Contract” shall include this Agreement.
1. Purpose
Covered Entity wishes to disclose information to Business Associate, which may include Protected Health
Information ("PHI"). The Parties intend to protect the privacy and security of the disclosed PHI in compliance
with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. No. 104-191 (1996) as
amended by the Health Information Technology for Economic and Clinical Health Act (“HITECH Act”) enacted
under the American Recovery and Reinvestment Act of 2009 (“ARRA”) Pub. L. No. 111–5 (2009), implementing
regulations promulgated by the U.S. Department of Health and Human Services at 45 C.F.R. Parts 160, 162 and
164 (the “HIPAA Rules”) and other applicable laws, as amended. Prior to the disclosure of PHI, Covered Entity
is required to enter into an agreement with Business Associate containing specific requirements as set forth in, but
not limited to, Title 45, Sections 160.103, 164.502(e) and 164.504(e) of the Code of Federal Regulations
(“C.F.R.”) and all other applicable laws and regulations, all as may be amended.
2. Definitions
The following terms used in this Agreement shall have the same meanings as in the HIPAA Rules: Breach, Data
Aggregation, Designated Record Set, Disclosure, Health Care Operations, Individual, Minimum Necessary,
Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Security Incident,
Subcontractor, Unsecured Protected Health Information, and Use.
The following terms used in this Agreement shall have the meanings set forth below:
a. Business Associate. “Business Associate” shall have the same meaning as the term “business
associate” at 45 C.F.R. 160.103, and shall refer to Contractor.
b. Covered Entity. “Covered Entity” shall have the same meaning as the term “covered entity” at 45
C.F.R. 160.103, and shall refer to the State.
c. Information Technology and Information Security. “Information Technology” and “Information
Security” shall have the same meanings as the terms “information technology” and “information
security”, respectively, in §24-37.5-102, C.R.S.
Capitalized terms used herein and not otherwise defined herein or in the HIPAA Rules shall have the meanings
ascribed to them in the Contract.
3. Obligations and Activities of Business Associate
d. Permitted Uses and Disclosures.
i. Business Associate shall use and disclose PHI only to accomplish Business Associate’s
obligations under the Contract.
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ii. To the extent Business Associate carries out one or more of Covered Entity’s obligations
under Subpart E of 45 C.F.R. Part 164, Business Associate shall comply with any and all
requirements of Subpart E that apply to Covered Entity in the performance of such obligation.
iii. Business Associate may disclose PHI to carry out the legal responsibilities of Business
Associate, provided, that the disclosure is Required by Law or Business Associate obtains
reasonable assurances from the person to whom the information is disclosed that:
A. the information will remain confidential and will be used or disclosed only as
Required by Law or for the purpose for which Business Associate originally
disclosed the information to that person, and;
B. the person notifies Business Associate of any Breach involving PHI of which it is
aware.
iv. Business Associate may provide Data Aggregation services relating to the Health Care
Operations of Covered Entity. Business Associate may de-identify any or all PHI created or
received by Business Associate under this Agreement, provided the de-identification
conforms to the requirements of the HIPAA Rules.
e. Minimum Necessary. Business Associate, its Subcontractors and agents, shall access, use, and
disclose only the minimum amount of PHI necessary to accomplish the objectives of the Contract, in
accordance with the Minimum Necessary Requirements of the HIPAA Rules including, but not
limited to, 45 C.F.R. 164.502(b) and 164.514(d).
f. Impermissible Uses and Disclosures.
i. Business Associate shall not disclose the PHI of Covered Entity to another covered entity
without the written authorization of Covered Entity.
ii. Business Associate shall not share, use, disclose or make available any Covered Entity PHI
in any form via any medium with or to any person or entity beyond the boundaries or
jurisdiction of the United States without express written authorization from Covered Entity.
g. Business Associate's Subcontractors.
i. Business Associate shall, in accordance with 45 C.F.R. 164.502(e)(1)(ii) and 164.308(b)(2),
ensure that any Subcontractors who create, receive, maintain, or transmit PHI on behalf of
Business Associate agree in writing to the same restrictions, conditions, and requirements
that apply to Business Associate with respect to safeguarding PHI.
ii. Business Associate shall provide to Covered Entity, on Covered Entity’s request, a list of
Subcontractors who have entered into any such agreement with Business Associate.
iii. Business Associate shall provide to Covered Entity, on Covered Entity’s request, copies of
any such agreements Business Associate has entered into with Subcontractors.
h. Access to System. If Business Associate needs access to a Covered Entity Information Technology
system to comply with its obligations under the Contract or this Agreement, Business Associate shall
request, review, and comply with any and all policies applicable to Covered Entity regarding such
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system including, but not limited to, any policies promulgated by the Office of Information
Technology and available at http://oit.state.co.us/about/policies.
i. Access to PHI. Business Associate shall, within ten days of receiving a written request from Covered
Entity, make available PHI in a Designated Record Set to Covered Entity as necessary to satisfy
Covered Entity’s obligations under 45 C.F.R. 164.524.
j. Amendment of PHI.
i. Business Associate shall within ten days of receiving a written request from Covered Entity
make any amendment to PHI in a Designated Record Set as directed by or agreed to by
Covered Entity pursuant to 45 C.F.R. 164.526, or take other measures as necessary to satisfy
Covered Entity’s obligations under 45 C.F.R. 164.526.
ii. Business Associate shall promptly forward to Covered Entity any request for amendment of
PHI that Business Associate receives directly from an Individual.
k. Accounting Rights. Business Associate shall, within ten days of receiving a written request from
Covered Entity, maintain and make available to Covered Entity the information necessary for Covered
Entity to satisfy its obligations to provide an accounting of Disclosure under 45 C.F.R. 164.528.
l. Restrictions and Confidential Communications.
i. Business Associate shall restrict the Use or Disclosure of an Individual’s PHI within ten days
of notice from Covered Entity of:
(1) a restriction on Use or Disclosure of PHI pursuant to 45 C.F.R. 164.522; or
(2) a request for confidential communication of PHI pursuant to 45 C.F.R. 164.522.
ii. Business Associate shall not respond directly to an Individual’s requests to restrict the Use or
Disclosure of PHI or to send all communication of PHI to an alternate address.
iii. Business Associate shall refer such requests to Covered Entity so that Covered Entity can
coordinate and prepare a timely response to the requesting Individual and provide direction
to Business Associate.
m. Governmental Access to Records. Business Associate shall make its facilities, internal practices,
books, records, and other sources of information, including PHI, available to the Secretary for
purposes of determining compliance with the HIPAA Rules in accordance with 45 C.F.R. 160.310.
n. Audit, Inspection and Enforcement.
i. Business Associate shall obtain and update at least annually a written assessment performed
by an independent third party reasonably acceptable to Covered Entity, which evaluates the
Information Security of the applications, infrastructure, and processes that interact with the
Covered Entity data Business Associate receives, manipulates, stores and distributes. Upon
request by Covered Entity, Business Associate shall provide to Covered Entity the executive
summary of the assessment.
ii. Business Associate, upon the request of Covered Entity, shall fully cooperate with Covered
Entity’s efforts to audit Business Associate’s compliance with applicable HIPAA Rules. If,
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through audit or inspection, Covered Entity determines that Business Associate’s conduct
would result in violation of the HIPAA Rules or is in violation of the Contract or this
Agreement, Business Associate shall promptly remedy any such violation and shall certify
completion of its remedy in writing to Covered Entity.
o. Appropriate Safeguards.
i. Business Associate shall use appropriate safeguards and comply with Subpart C of 45 C.F.R.
Part 164 with respect to electronic PHI to prevent use or disclosure of PHI other than as
provided in this Agreement.
ii. Business Associate shall safeguard the PHI from tampering and unauthorized disclosures.
iii. Business Associate shall maintain the confidentiality of passwords and other data required
for accessing this information.
iv. Business Associate shall extend protection beyond the initial information obtained from
Covered Entity to any databases or collections of PHI containing information derived from
the PHI. The provisions of this section shall be in force unless PHI is de-identified in
conformance to the requirements of the HIPAA Rules.
p. Safeguard During Transmission.
i. Business Associate shall use reasonable and appropriate safeguards including, without
limitation, Information Security measures to ensure that all transmissions of PHI are
authorized and to prevent use or disclosure of PHI other than as provided for by this
Agreement.
ii. Business Associate shall not transmit PHI over the internet or any other insecure or open
communication channel unless the PHI is encrypted or otherwise safeguarded with a FIPS-
compliant encryption algorithm.
q. Reporting of Improper Use or Disclosure and Notification of Breach.
i. Business Associate shall, as soon as reasonably possible, but immediately after discovery of
a Breach, notify Covered Entity of any use or disclosure of PHI not provided for by this
Agreement, including a Breach of Unsecured Protected Health Information as such notice is
required by 45 C.F.R. 164.410 or a breach for which notice is required under §24-73-103,
C.R.S.
ii. Such notice shall include the identification of each Individual whose Unsecured Protected
Health Information has been, or is reasonably believed by Business Associate to have been,
accessed, acquired, or disclosed during such Breach.
iii. Business Associate shall, as soon as reasonably possible, but immediately after discovery of
any Security Incident that does not constitute a Breach, notify Covered Entity of such
incident.
iv. Business Associate shall have the burden of demonstrating that all notifications were made
as required, including evidence demonstrating the necessity of any delay.
r. Business Associate’s Insurance and Notification Costs.
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i. Business Associate shall bear all costs of a Breach response including, without limitation,
notifications, and shall maintain insurance to cover:
(1) loss of PHI data;
(2) Breach notification requirements specified in HIPAA Rules and in §24-73-103,
C.R.S.; and
(3) claims based upon alleged violations of privacy rights through improper use or
disclosure of PHI.
ii. All such policies shall meet or exceed the minimum insurance requirements of the Contract
or otherwise as may be approved by Covered Entity (e.g., occurrence basis, combined single
dollar limits, annual aggregate dollar limits, additional insured status, and notice of
cancellation).
iii. Business Associate shall provide Covered Entity a point of contact who possesses relevant
Information Security knowledge and is accessible 24 hours per day, 7 days per week to assist
with incident handling.
iv. Business Associate, to the extent practicable, shall mitigate any harmful effect known to
Business Associate of a Use or Disclosure of PHI by Business Associate in violation of this
Agreement.
s. Subcontractors and Breaches.
i. Business Associate shall enter into a written agreement with each of its Subcontractors and
agents, who create, receive, maintain, or transmit PHI on behalf of Business Associate. The
agreements shall require such Subcontractors and agents to report to Business Associate any
use or disclosure of PHI not provided for by this Agreement, including Security Incidents and
Breaches of Unsecured Protected Health Information, on the first day such Subcontractor or
agent knows or should have known of the Breach as required by 45 C.F.R. 164.410.
ii. Business Associate shall notify Covered Entity of any such report and shall provide copies of
any such agreements to Covered Entity on request.
t. Data Ownership.
i. Business Associate acknowledges that Business Associate has no ownership rights with
respect to the PHI.
ii. Upon request by Covered Entity, Business Associate immediately shall provide Covered
Entity with any keys to decrypt information that the Business Association has encrypted and
maintains in encrypted form, or shall provide such information in unencrypted usable form.
u. Retention of PHI. Except upon termination of this Agreement as provided in Section 5 below,
Business Associate and its Subcontractors or agents shall retain all PHI throughout the term of this
Agreement, and shall continue to maintain the accounting of disclosures required under Section 1.k
above, for a period of six years.
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4. Obligations of Covered Entity
a. Safeguards During Transmission. Covered Entity shall be responsible for using appropriate
safeguards including encryption of PHI, to maintain and ensure the confidentiality, integrity, and
security of PHI transmitted pursuant to this Agreement, in accordance with the standards and
requirements of the HIPAA Rules.
b. Notice of Changes.
i. Covered Entity maintains a copy of its Notice of Privacy Practices on its website. Covered
Entity shall provide Business Associate with any changes in, or revocation of, permission to
use or disclose PHI, to the extent that it may affect Business Associate’s permitted or required
uses or disclosures.
ii. Covered Entity shall notify Business Associate of any restriction on the use or disclosure of
PHI to which Covered Entity has agreed in accordance with 45 C.F.R. 164.522, to the extent
that it may affect Business Associate’s permitted use or disclosure of PHI.
5. Termination
a. Breach.
i. In addition to any Contract provision regarding remedies for breach, Covered Entity shall
have the right, in the event of a breach by Business Associate of any provision of this
Agreement, to terminate immediately the Contract, or this Agreement, or both.
ii. Subject to any directions from Covered Entity, upon termination of the Contract, this
Agreement, or both, Business Associate shall take timely, reasonable, and necessary action
to protect and preserve property in the possession of Business Associate in which Covered
Entity has an interest.
b. Effect of Termination.
i. Upon termination of this Agreement for any reason, Business Associate, at the option of
Covered Entity, shall return or destroy all PHI that Business Associate, its agents, or its
Subcontractors maintain in any form, and shall not retain any copies of such PHI.
ii. If Covered Entity directs Business Associate to destroy the PHI, Business Associate shall
certify in writing to Covered Entity that such PHI has been destroyed.
iii. If Business Associate believes that returning or destroying the PHI is not feasible, Business
Associate shall promptly provide Covered Entity with notice of the conditions making return
or destruction infeasible. Business Associate shall continue to extend the protections of
Section 3 of this Agreement to such PHI, and shall limit further use of such PHI to those
purposes that make the return or destruction of such PHI infeasible.
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6. Injunctive Relief
Covered Entity and Business Associate agree that irreparable damage would occur in the event Business Associate
or any of its Subcontractors or agents use or disclosure of PHI in violation of this Agreement, the HIPAA Rules
or any applicable law. Covered Entity and Business Associate further agree that money damages would not
provide an adequate remedy for such Breach. Accordingly, Covered Entity and Business Associate agree that
Covered Entity shall be entitled to injunctive relief, specific performance, and other equitable relief to prevent or
restrain any Breach or threatened Breach of and to enforce specifically the terms and provisions of this Agreement.
7. Limitation of Liability
Any provision in the Contract limiting Contractor’s liability shall not apply to Business Associate’s liability under
this Agreement, which shall not be limited.
8. Disclaimer
Covered Entity makes no warranty or representation that compliance by Business Associate with this Agreement
or the HIPAA Rules will be adequate or satisfactory for Business Associate’s own purposes. Business Associate
is solely responsible for all decisions made and actions taken by Business Associate regarding the safeguarding
of PHI.
9. Certification
Covered Entity has a legal obligation under HIPAA Rules to certify as to Business Associate’s Information
Security practices. Covered Entity or its authorized agent or contractor shall have the right to examine Business
Associate’s facilities, systems, procedures, and records, at Covered Entity’s expense, if Covered Entity determines
that examination is necessary to certify that Business Associate’s Information Security safeguards comply with
the HIPAA Rules or this Agreement.
10. Amendment
a. Amendment to Comply with Law. The Parties acknowledge that state and federal laws and regulations
relating to data security and privacy are rapidly evolving and that amendment of this Agreement may
be required to provide procedures to ensure compliance with such developments.
i. In the event of any change to state or federal laws and regulations relating to data security
and privacy affecting this Agreement, the Parties shall take such action as is necessary to
implement the changes to the standards and requirements of HIPAA, the HIPAA Rules
and other applicable rules relating to the confidentiality, integrity, availability and
security of PHI with respect to this Agreement.
ii. Business Associate shall provide to Covered Entity written assurance satisfactory to
Covered Entity that Business Associate shall adequately safeguard all PHI, and obtain
written assurance satisfactory to Covered Entity from Business Associate’s
Subcontractors and agents that they shall adequately safeguard all PHI.
iii. Upon the request of either Party, the other Party promptly shall negotiate in good faith the
terms of an amendment to the Contract embodying written assurances consistent with the
standards and requirements of HIPAA, the HIPAA Rules, or other applicable rules.
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iv. Covered Entity may terminate this Agreement upon 30 days’ prior written notice in the event
that:
(1) Business Associate does not promptly enter into negotiations to amend the Contract
and this Agreement when requested by Covered Entity pursuant to this Section; or
(2) Business Associate does not enter into an amendment to the Contract and this
Agreement, which provides assurances regarding the safeguarding of PHI sufficient,
in Covered Entity’s sole discretion, to satisfy the standards and requirements of the
HIPAA, the HIPAA Rules and applicable law.
b. Amendment of Appendix. The Appendix to this Agreement may be modified or amended by the
mutual written agreement of the Parties, without amendment of this Agreement. Any modified or
amended Appendix agreed to in writing by the Parties shall supersede and replace any prior version
of the Appendix.
11. Assistance in Litigation or Administrative Proceedings
Covered Entity shall provide written notice to Business Associate if litigation or administrative proceeding is
commenced against Covered Entity, its directors, officers, or employees, based on a claimed violation by Business
Associate of HIPAA, the HIPAA Rules or other laws relating to security and privacy or PHI. Upon receipt of such
notice and to the extent requested by Covered Entity, Business Associate shall, and shall cause its employees,
Subcontractors, or agents assisting Business Associate in the performance of its obligations under the Contract to,
assist Covered Entity in the defense of such litigation or proceedings. Business Associate shall, and shall cause
its employees, Subcontractor’s and agents to, provide assistance, to Covered Entity, which may include testifying
as a witness at such proceedings. Business Associate or any of its employees, Subcontractors or agents shall not
be required to provide such assistance if Business Associate is a named adverse party.
12. Interpretation and Order of Precedence
Any ambiguity in this Agreement shall be resolved in favor of a meaning that complies and is consistent with the
HIPAA Rules. In the event of an inconsistency between the Contract and this Agreement, this Agreement shall
control. This Agreement supersedes and replaces any previous, separately executed HIPAA business associate
agreement between the Parties.
13. Survival
Provisions of this Agreement requiring continued performance, compliance, or effect after termination shall
survive termination of this contract or this agreement and shall be enforceable by Covered Entity.
14. APPENDIX D.1. TO HIPAA BUSINESS ASSOCIATE AGREEMENT, attached to this Exhibit
is incorporated and made part hereof.
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APPENDIX D.1 TO HIPAA BUSINESS ASSOCIATE AGREEMENT
This Appendix (“Appendix”) to the HIPAA Business Associate Agreement (“Agreement”) is s an appendix to
the Contract and the Agreement. For the purposes of this Appendix, defined terms shall have the meanings
ascribed to them in the Agreement and the Contract.
Unless the context clearly requires a distinction between the Contract, the Agreement, and this Appendix, all
references to “Contract” or “Agreement” shall include this Appendix.
1. Purpose
This Appendix sets forth additional terms to the Agreement. Any sub-section of this Appendix marked as
“Reserved” shall be construed as setting forth no additional terms.
2. Additional Terms
a. Additional Permitted Uses. In addition to those purposes set forth in the Agreement, Business
Associate may use PHI for the following additional purposes:
i. Reserved.
a. Additional Permitted Disclosures. In addition to those purposes set forth in the Agreement, Business
Associate may disclose PHI for the following additional purposes:
i. Reserved.
c. Approved Subcontractors. Covered Entity agrees that the following Subcontractors or agents of
Business Associate may receive PHI under the Agreement:
i. Reserved.
d. Definition of Receipt of PHI. Business Associate’s receipt of PHI under this Contract shall be deemed
to occur, and Business Associate’s obligations under the Agreement shall commence, as follows:
i. Reserved.
e. Additional Restrictions on Business Associate. Business Associate agrees to comply with the
following additional restrictions on Business Associate’s use and disclosure of PHI under the
Contract:
i. Reserved.
f. Additional Terms. Business Associate agrees to comply with the following additional terms under the
Agreement:
i. Reserved.
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EXHIBIT E
SAFEGUARDING REQUIREMENTS FOR FEDERAL TAX INFORMATION
This Addendum regarding Safeguarding Requirements for Federal Tax Information (“Addendum”)1 is an essential
part of the agreement between the State and Contractor as described in the Contract to which this Addendum is
attached. Unless the context clearly requires a distinction between the Contract and this Addendum, all references
to “Contract” shall include this Addendum.
1. PERFORMANCE
In performance of this Contract, the Contractor agrees to comply with and assume responsibility for compliance
by Contractor’s employees with the following requirements:
A. All work will be done under the supervision of the Contractor or the Contractor’s employees.
B. The Contractor and the Contractor’s employees with access to or who use FTI must meet the background
check requirements defined in IRS Publication 1075 and Colorado Revised Statutes 24-50-1002.
C. Any return or return information made available in any format shall be used only for the purpose of carrying
out the provisions of this Contract. Information contained in such material will be treated as
confidential and will not be divulged or made known in any manner to any person except as may
be necessary in the performance of this Contract. Disclosure to anyone other than an officer or
employee of the Contractor will be prohibited.
D. All returns and return information will be accounted for upon receipt and properly stored before, during,
and after processing. In addition, all related output will be given the same level of protection as
required for the source material.
E. The Contractor certifies that the data processed during the performance of this Contract will be completely
purged from all data storage components of Contractor’s computer facility, and no output will be
retained by the Contractor at the time the work is completed. If immediate purging of all data storage
components is not possible, the Contractor certifies that any FTI remaining in any storage
component will be safeguarded to prevent unauthorized disclosures.
F. Any spoilage or any intermediate hard copy printout that may result during the processing of FTI will be
given to the State or the State’s designee. When this is not possible, the Contractor will be
responsible for the destruction of the spoilage or any intermediate hard copy printouts, and will
provide the State or the State’s designee with a statement containing the date of destruction,
description of material destroyed, and the method used.
G. All computer systems receiving, processing, storing or transmitting FTI must meet the requirements
defined in IRS Publication 1075. To meet functional and assurance requirements, the security
features of the environment must provide for the managerial, operational, and technical controls.
1 The language of this Addendum is derived from IRS Publication 1075, Tax Information Security Guidelines For Federal,
State and Local Agencies, Exhibit 7 – Safeguarding Contract Language, “Contract Language for Technology Services.” This
Addendum is not exhaustive of all requirements contained in Publication 1075. By agreeing to this Addendum, Contractor
agrees to comply with all applicable requirements in Publication 1075 or described on the website of the IRS Safeguards
Program, located at www.irs.gov/privacy-disclosure/safeguards-program.
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All security features must be available and activated to protect against unauthorized use of and
access to FTI.
H. No work involving FTI furnished under this Contract will be subcontracted without prior written approval
of the State, by and through the contracting agency and the Office of Information Technology, and
the IRS.2
I. The Contractor will maintain a list of employees’ authorized access. Such list will be provided to the State
and, upon request, to the IRS reviewing office.
J. The Contractor will not use live FTI in a test environment or utilize a cloud computing model that receives
processes, stores, or transmits FTI without express written authorization from the State.3
K. The Contractor will maintain the confidentiality of all taxpayer information provided by the State or
learned in the course of Contractor’s duties under this Contract in accordance with safeguards set
forth under Colorado Revised Statutes § 39-21-113(4), as amended.
L. The Contractor agrees to comply with the following additional requirements in performance of this
Contract:
None
M. The State will have the right to void the Contract if the Contractor fails to provide the safeguards described
above.
2. CRIMINAL/CIVIL SANCTIONS
A. Each officer or employee of any person4 to whom returns or return information is or may be disclosed will
be notified in writing by such person that returns or return information disclosed to such officer or
employee can be used only for a purpose and to the extent authorized herein, and that further
disclosure of any such returns or return information for a purpose or to an extent unauthorized
herein constitutes a felony punishable upon conviction by a fine of as much as $5,000 or
imprisonment for as long as 5 years, or both, together with the costs of prosecution. Such person
shall also notify each such officer and employee that any such unauthorized further disclosure of
returns or return information may also result in an award of civil damages against the officer or
employee in an amount not less than $1,000 with respect to each instance of unauthorized
disclosure. These penalties are prescribed by IRCs 7213 and 7431 and set forth at 26 CFR
301.6103(n)-1.
B. Each officer or employee of any person to whom returns or return information is or may be disclosed shall
be notified in writing by such person that any return or return information made available in any
format shall be used only for the purpose of carrying out the provisions of this Contract. Information
contained in such material shall be treated as confidential and shall not be divulged or made known
in any manner to any person except as may be necessary in the performance of the Contract.
Inspection by or disclosure to anyone without an official need to know constitutes a criminal
2 see IRS Publication 1075, Exhibit 6 – Contractor 45-Day Notification Procedures.
3 see IRS Publication 1075, Section 9 and https://www.irs.gov/privacy-disclosure/use-of-live-fti-in-system-testing .
4 The term “person” is used in this Section 2 as it is used in Title 26 of the United States Code and related regulations. The
term “person” means a person or entity, including “an individual, a trust, estate, partnership, association, company or
corporation.” 26 U.S.C. § 7701(a)(1).
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misdemeanor punishable upon conviction by a fine of as much as $1,000 or imprisonment for as
long as 1 year, or both, together with the costs of prosecution. Such person shall also notify each
such officer and employee that any such unauthorized inspection or disclosure of returns or return
information may also result in an award of civil damages against the officer or employee in an
amount equal to the sum of the greater of $1,000 for each act of unauthorized inspection or
disclosure with respect to which such defendant is found liable or the sum of the actual damages
sustained by the plaintiff as a result of such unauthorized inspection or disclosure plus in the case
of a willful inspection or disclosure which is the result of gross negligence, punitive damages, plus
the costs of the action. These penalties are prescribed by IRC 7213A and 7431 and set forth at 26
CFR 301.6103(n)-1.
C. Additionally, Contractor shall inform its officers and employees of the penalties for improper disclosure
imposed by the Privacy Act of 1974, 5 U.S.C. 552a. Specifically, 5 U.S.C. 552a(i)(1), which is
made applicable to Contractor by 5 U.S.C. 552a(m)(1), provides that any officer or employee of a
Contractor, who by virtue of his/her employment or official position, has possession of or access to
State records which contain individually identifiable information, the disclosure of which is
prohibited by the Privacy Act or regulations established thereunder, and who knowing that
disclosure of the specific material is prohibited, willfully discloses the material in any manner to
any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more
than $5,000.
D. Granting a Contractor access to FTI must be preceded by certifying that each individual understands the
State’s security policy and procedures for safeguarding FTI. Contractors must maintain their
authorization to access FTI through annual recertification. The initial certification and
recertification must be documented and placed in the State’s files for review. As part of the
certification and at least annually afterwards, Contractors must be advised of the provisions of IRCs
7431, 7213, and 7213A (see Exhibit 4, Sanctions for Unauthorized Disclosure, and Exhibit 5, Civil
Damages for Unauthorized Disclosure). The training provided before the initial certification and
annually thereafter must also cover the incident response policy and procedure for reporting
unauthorized disclosures and data breaches.5 For both the initial certification and the annual
certification, the Contractor must sign, either with ink or electronic signature, a confidentiality
statement certifying their understanding of the security requirements.
3. INSPECTION
The IRS and the State, with 24-hour notice, shall have the right to send its inspectors into the offices and plants
of the Contractor to inspect facilities and operations performing any work with FTI under this Contract for
compliance with requirements defined in IRS Publication 1075. The IRS’s right of inspection shall include the
use of manual and/or automated scanning tools to perform compliance and vulnerability assessments of
information technology (IT) assets that access, store, process, or transmit FTI. On the basis of such inspection,
corrective actions may be required in cases where the Contractor is found to be noncompliant with Contract
safeguards.
5 see IRS Publication 1075, Section 10 or www.irs.gov/privacy-disclosure/reporting-improper-inspections-or-disclosures.
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PARTICIPATING ADDENDUM EXHIBIT F, INFORMATION TECHNOLOGY
PROVISIONS
This Exhibit regarding Information Technology Provisions (the “Exhibit”) is an essential part of the
agreement between the State and Contractor as described in the Contract to which this Exhibit is
attached. Unless the context clearly requires a distinction between the Contract and this Exhibit, all
references to “Contract” shall include this Exhibit.
1. PROTECTION OF SYSTEM DATA
A. In addition to the requirements of the main body of this Contract, if Contractor or any
Subcontractor is given access to State Information Technology resources or State Records
by the State or its agents in connection with Contractor’s performance under the Contract,
Contractor shall protect such Information Technology resources and State Records in
accordance with this Exhibit. To the extent applicable to the Subcontractor’s scope of
work performed in furtherance of the contract, all provisions of this Exhibit that refer to
Contractor shall apply equally to any Subcontractor performing work in connection with
the Contract.
B. The terms of this Exhibit shall apply to the extent that Contractor’s obligations under this
Contract include the provision of Information Technology goods or services to the State.
Information Technology is computer-based equipment and related services designed for
the storage, manipulation, and retrieval of data, and includes, without limitation:
i. Any technology, equipment, or related services described in §24-37.5-102(2),
C.R.S.;
ii. The creation, use, processing, disclosure, transmission, or disposal of State
Records, including any data or code, in electronic form; and
iii. Other existing or emerging technology, equipment, or related services that may
require knowledge and expertise in Information Technology.
C. To the extent the State has purchased the services listed in this Section, Contractor shall,
and shall cause its Subcontractors to meet all of the following:
i. Provide physical and logical protection for all hardware, software, applications,
and data that meets or exceeds industry standards and the requirements of this
Contract.
ii. Maintain network, system, and application security, which includes, but is not
limited to, network firewalls, intrusion detection (host and network), annual
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security testing, and improvements or enhancements consistent with evolving
industry standards.
iii. Comply with State and federal rules and regulations related to overall security,
privacy, confidentiality, integrity, availability, and auditing.
iv. Provide that security is not compromised by unauthorized access to workspaces,
computers, networks, software, databases, or other physical or electronic
environments.
v. Promptly report all Incidents, including Incidents that do not result in
unauthorized disclosure or loss of data integrity, to a designated representative
of the State’s Office of Information Security (“OIS”).
vi. Comply with all rules, policies, procedures, and standards issued by the
Governor’s Office of Information Technology (“OIT”), including change
management, project lifecycle methodology and governance, technical
standards, documentation, and other requirements posted at
www.oit.state.co.us/about/policies.
D. Subject to Contractor’s reasonable access security requirements and upon reasonable
prior notice, Contractor shall provide the State with scheduled access for the purpose of
inspecting and monitoring access and use of State Records, maintaining State systems,
and evaluating physical and logical security control effectiveness.
E. Contractor shall perform current background checks in a form reasonably acceptable to
the State on all of its respective employees and agents performing services or having
access to State Records provided under this Contract, including any Subcontractors or the
employees of Subcontractors. A background check performed within 30 days prior to the
date such employee or agent begins performance or obtains access to State Records shall
be deemed to be current.
i. Upon request, Contractor shall provide notice to a designated representative for
the State indicating that background checks have been performed. Such notice
will inform the State of any action taken in response to such background checks,
including any decisions not to take action in response to negative information
revealed by a background check.
ii. If Contractor will have access to Federal Tax Information under the Contract,
Contractor shall agree to the State’s requirements regarding Safeguarding
Requirements for Federal Tax Information and shall comply with the
background check requirements defined in IRS Publication 1075 and §24-50-
1002, C.R.S.
2. DATA HANDLING
A. Contractor may not maintain or forward these State Records to or from any other facility
or location, except for the authorized and approved purposes of backup and disaster
recovery purposes, without the prior written consent of the State. Contractor may not
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maintain State Records in any data center or other storage location outside the United
States for any purpose without the prior express written consent of OIS.
B. Except for as needed for support services, Contractor shall not allow remote access to
State Records from outside the United States, including access by Contractor’s employees
or agents, without the prior express written consent of OIS. Contractor shall communicate
any request regarding non-U.S. access to State Records to the Security and Compliance
Representative for the State. The State shall have sole discretion to grant or deny any such
request.
C. Upon request by the State made any time prior to 60 days following the termination of
this Contract for any reason, whether or not the Contract is expiring or terminating,
Contractor shall make available to the State a complete download file of all State data.
i. This download file shall be made available to the State within 10 Business Days
of the State’s request, shall be encrypted and appropriately authenticated, and
shall contain, without limitation, all State Records, Work Product, and system
schema and transformation definitions, or delimited text files with documents,
detailed schema definitions along with attachments in its native format.
ii. Upon the termination of Contractor’s provision of data processing services,
Contractor shall, as directed by the State, return all State Records provided by
the State to Contractor, and the copies thereof, to the State or destroy all such
State Records and certify to the State that it has done so. If any legal obligation
imposed upon Contractor prevents it from returning or destroying all or part of
the State Records provided by the State to Contractor, Contractor shall
guarantee the confidentiality of all State Records provided by the State to
Contractor and will not actively process such data anymore. Contractor shall not
interrupt or obstruct the State’s ability to access and retrieve State Records
stored by Contractor.
D. The State retains the right to use the established operational services to access and retrieve
State Records stored on Contractor’s infrastructure at its sole discretion and at any time.
Upon request of the State or of the supervisory authority, Contractor shall submit its data
processing facilities for an audit of the measures referred to in this Exhibit in accordance
with the terms of this Contract.
3. COMPLIANCE
A. In addition to the compliance obligations imposed by the main body of the Contract,
Contractor shall comply with:
i. To the extent applicable to the products being sold herein, all information security
and privacy obligations imposed by any federal, state, or local statute or
regulation, or by any specifically incorporated industry standards or guidelines,
as applicable based on the classification of the data relevant to Contractor’s
performance under the Contract. Such obligations may arise from:
a. Health Information Portability and Accountability Act (HIPAA)
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b. IRS Publication 1075
c. Payment Card Industry Data Security Standard (PCI-DSS)
d. FBI Criminal Justice Information Service Security Addendum
e. CMS Minimum Acceptable Risk Standards for Exchanges
f. Electronic Information Exchange Security Requirements and Procedures
For State and Local Agencies Exchanging Electronic Information With
The Social Security Administration
B. Contractor shall implement and maintain all appropriate administrative, physical,
technical, and procedural safeguards necessary and appropriate to ensure compliance with
the standards and guidelines applicable to Contractor’s performance under the Contract.
C. Contractor shall allow the State reasonable access and shall provide the State with
information reasonably required to assess Contractor’s compliance. Such access and
information shall include to the extent available:
i. An annual SOC2 Type II audit including, at a minimum, the Trust Principles of
Security, Confidentiality, and Availability, or an alternative audit recommended
by OIS; or
ii. The performance of security audit and penetration tests, as requested by OIS.
D. To the extent Contractor controls or maintains information systems used in connection
with State Records, Contractor will provide OIS with the results of all security assessment
activities when conducted on such information systems, including any code-level
vulnerability scans, application level risk assessments, and other security assessment
activities as required by this Contract or reasonably requested by OIS. Contractor will
make reasonable efforts to remediate any vulnerabilities or will request a security
exception from the State. The State will work with Contractor and OIS to prepare any
requests for exceptions from the security requirements described in this Contract and its
Exhibits, including mitigating controls and other factors, and OIS will consider such
requests in accordance with their policies and procedures referenced herein.
4. TRANSITION OF SERVICES
Upon request by the State prior to expiration or earlier termination of this Contract or any
Services provided in this Contract, Contractor shall provide reasonable and necessary
assistance to accomplish a complete transition of the Services from Contractor to the State
or any replacement provider designated solely by the State without any interruption of or
adverse impact on the Services. Contractor shall cooperate fully with the State or any
successor provider and shall promptly take all steps required to assist in effecting a
complete transition of the Services designated by the State. All services related to such
transition shall be performed at no additional cost beyond what would be paid for the
Services in this Contract.
5. LICENSE OR USE AUDIT RIGHTS
A. To the extent that Contractor, through this Contract or otherwise as related to the subject
matter of this Contract, has granted to the State any license or otherwise limited
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permission to use any Contractor Property, subject to the Motorola Software License
Agreement, the terms of this section shall apply.
B. Contractor shall have the right, at any time during and throughout the Contract Term, but
not more than once per Fiscal Year, to request via written notice in accordance with the
notice provisions of the Contract that the State audit its use of and certify as to its
compliance with any applicable license or use restrictions and limitations contained in
this Contract (an “Audit Request”). The Audit Request shall specify the time period to be
covered by the audit, which shall not include any time periods covered by a previous
audit. The State shall complete the audit and provide certification of its compliance to
Contractor (“Audit Certification”) within 120 days following the State’s receipt of the
Audit Request.
C. If upon receipt of the State’s Audit Certification, the Parties reasonably determine that:
(i) the State’s use of licenses, use of software, use of programs, or any other use during
the audit period exceeded the use restrictions and limitations contained in this Contract
(“Overuse”) and (ii) the State would have been or is then required to purchase additional
maintenance and/or services (“Maintenance”), Contractor shall provide written notice to
the State in accordance with the notice provisions of the Contract identifying any Overuse
or required Maintenance and request that the State bring its use into compliance with such
use restrictions and limitations.
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