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State of New Mexico
New Mexico Corrections Department
Contract No. 00-770-00-03532
THIS Infonnation Technology Agreement ("Agreement") is made by and between the State of
New Mexico, Corrections Department, hereinafter referred to as the ''Procuring Agency" or
''NMCD'', and Securus Technologies Inc. hereinafter referred to as the "Contractor" and
collectively referred to as the ''Parties''.
WHEREAS, pursuant to the Procurement Code, NMSA 1978 13-1-28 et. seq; and Procurement
Code Regulations, NMAC 1.4.1 et.seq; the Contractor has held itself out as expert in
implementing the Scope of Work as contained herein and the Procuring Agency has selected the
Contractor as the offeror most advantageous to the State of New Mexico; and
WHEREAS,_all terms and conditions of the Request For Proposals, and the Contractor's
response to such document(s) including any best and final offers, are incorporated herein by
NOW, THEREFORE, IT IS MUTUALLY AGREED BETWEEN THE PARTIES:
ARTICLE 1 - DEFINITIONS
A. "Acceptance" shall mean the approval, after Quality Assurance, of all Deliverables by an
executive level representative ("Executive Level Representative") ofthe Procuring Agency.
B. "Change Request" shall mean the document utilized to request changes or revisions in the
Scope of Work.
C. "ChiefInfonnation Officer ("CIO")" shall mean the CIO of the New Mexico Corrections
Department for the State of New Mexico or designated representative.
D. "Deliverable" shall mean any verifiable outcome, result, service or product that must be
delivered, developed, perfonned or produced by the Contractor as defined by the Scope of
E. ''DolT'' shall mean the Department ofInformation Technology.
F. ''DFA" shall mean the Department of Finance and Administration; ''DFNCRB" shall mean
the Department of Finance and Administration, Contracts Review Bureau.
G. ''Escrow'' shall mean a legal document (such as the software source code) delivered by the
contractor into the hands of a third party, to beheld by that party until the perfonnance of a
condition is accepted; in the event contractor fails to perform, the grantee agency receives the
legal document, in this case, source code.
H. ''Enhancement'' means any modification or addition that, when made or added to the
program, materially changes its or their utility, efficiency, functional capability, or
application, but does not constitute solely an Error Correction. After conferring with
Procuring Agency, an Enhancement may be identified as minor or major.
"Executive Level Re.presentative" shall mean the individual empowered with the authority to
represent and make decisions on behalf of the Procuring Agency's executives.
J. "Know How" shall mean all technical information, data and knowledge including, but not
limited to, all documents, computer storage devices, drawings, flow charts, plans, proposals,
records, notes, memoranda, manuals and other tangible items containing, relating or causing
the enablement of any Intellectual Property developed under this Agreement.
K. ''NMCD'' Shall mean the New Mexico Corrections Department
L. "Intellectual Property" shall mean any and all proprietary information developed pursuant to
the terms of this Agreement.
M. ''Inde.pendent Verification and Validation (''IV&V")" shall mean the process of evaluating a
project and the project's product to determine compliance with specified requirements and
the process of determining whether the products of a given development phase fulfill the
requirements established during the previous stage, both ofwhich are performed by an entity
independent of the Procuring Agency.
N. ''Payment Invoice" shall mean a detailed, certified and written request for payment of
services rendered from the Contractor to the Procuring Agency. Payment Invoice(s) must
contain the fixed price Deliverable cost and identify the Deliverable for which the invoice is
O. "Performance Bond" shall mean a surety bond which guarantees that the contractor will fully
perform the contract and guarantees against breach of contract.
P. ''Project'' shall mean a temporary process undertaken to solve a well-defined goal or
objective with clearly defined start and end times, a set of clearly defined tasks, and a budget.
The project terminates once the project scope is achieved and project approval is given by the
Executive Level Representative and verified by the agency CIO.
Q. ''Project Manager" shall mean a qualified person from the Procuring Agency responsible for
all aspects of the Project or the administration ofthis Agreement. Under the terms of this
Agreement, the Project Manager shall be NMCD STIU Administrator, Dwayne Santistevan
or designated representative.
R. "Quality Assurance" shall mean a planned and systematic pattern of all actions necessary to
provide adequate confidence that a Deliverable conforms to established requirements,
customer needs, and user expectations.
S. "State Purchasing Agent (SPA)" - shall mean the State Purchasing Agent for the State of
New Mexico or designated representative.
T. "State Purchasing Division (SPD)"- shall mean the State Purchasing Division ofthe General
Services Department for the State of New Mexico.
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ARTICLE 2 - SCOPE OF WORK
Scope of Work. The Contractor shall perform the work as outlined in Exhibit A,
attached hereto and incorporated herein by reference. The Contractor shall perform the work
necessary to provide and install an inmate telephone system with prepaid calling features, which
will permit calling to loca~ intrastate, interstate, international numbers and Competitive Local
Exchange Carrier (CLEC) numbers. The Contractor shall not integrate the inmate telephone
system with the automated inmate trust account or commissary systems. The specific work
which the Contractor shall perform at minimum, is described in Exhibit A, attached hereto and
incorporated herein by reference. However, notwithstanding the minimum work requirements of
Exhibit A, it is the responsibility of the Contractor to verify the completeness ofthe
requirements and their suitability to meet the intent of this contract. The Contractor will at all
times provide services in compliance with all deliverables in Exhibit A.
Performance Measures. Contractor shall substantially perform the Performance
Measures set forth in Exhibit A, and shall report at least monthly to the Project Manager on its
performance of said Performance Measures. In the event the Contractor fails to obtain the results
described in Exhibit A, the Procuring Agency may provide written notice to the Contractor of the
defauh and specify a reasonable period oftime in which the Contractor shall advise the
Procuring Agency of specific steps it will take to achieve these results and the proposed
timetable for implementation. Nothing in this Section shall be construed to prevent the
Procuring Agency from exercising its rights pursuant to Article 6.
Schedule. The due dates, as set forth in Exhibit A, shall not be altered or waived by the
Procuring Agency without prior written approva~ through the Change Management process, as
defined in Article 14.
D. License. Contractor hereby grants Procuring Agency a non-exclusive, irrevocable, license to
use, modify, and copy the Securus Technologies software and any and all updates, corrections
and revisions as defined in Article 2 and Exhibit A, for the term of this Agreement.
The right to copy the software is limited to the following purposes: archival, backup and training.
All archival and backup copies ofthe software are subject to the provisions of this Agreement,
and all titles, patent numbers, trademarks, copyright and other restricted rights notices shall be
reproduced on any such copies.
1) Contractor agrees to maintain, at contractor's own expense, a copy ofthe software
source code to be kept by an escrow agent and to list the Procuring Agency as an
authorized recipient of this source code. The source code shall be in magnetic form on
media specified by the Procuring Agency. The escrow agent shall be responsible for
storage and safekeeping of the magnetic media Contractor shall replace the magnetic
media no less frequently than every six (6) months to ensure readability and to preserve
the software at the current revision level. Included with the media shall be all associated
documentation which will allow the Procuring Agency to top load, compile and maintain
the software in the event ofa breach.
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2) If the Contractor ceases to do business or ceases to support tbis Project or Agreement
and it does not make adequate provision for continued support of the licensed software it
provided the Agency; or, if this Agreement is terminated, or if the Contractor breaches
tbis Agreement, the Contractor shall make available to the Procuring Agency: 1) the
latest available licensed software program source code and related documentation meant
for the licensed software provided or developed under this Agreement by the Contractor
and listed as part ofthe purchase system; 2) the source code and compiler/utilities
necessary to maintain the system; and, 3) related documentation for software developed
by third parties to the extent that the Contractor is authorized to disclose such software.
In such circumstances, Procuring Agency shall have an unlimited right to use, modify
and copy the source code and documentation.
ARTICLE 3 - COMPENSATION
Compensation Schedule. Services provided by the Contractor will be paid by the fees
collected by the Contractor from inmates in the New Mexico Corrections System, who place
telephone calls using the telephone system offered by the Contractor, and from parties to whom
such inmates place collect calls.
Payment. Compensation shall be paid to the Contractor solely from the rates charged,
based on schedule of inmate calling rates provided in Exhibit A. There shall be no compensation
paid to the Contractor by the State of New Mexico, or the NMCD, including but not limited to
gross receipts taxes under this agreement.
Taxes. "The Contractor shall not be reimbursed by the Procuring Agency for applicable
New Mexico gross receipts taxes, nor interest or penalties assessed on the Contractor by any
authority". The payment of taxes for any money received under tbis Agreement shall be the
Contractor's sole responsibility and should be reported under the Contractor's Federal and State
tax identification number(s).
Contractor and any and all subcontractors shall pay all Federal, state and local taxes applicable to
its operation and any persons employed by the Contractor. Contractor shall require all
subcontractors to hold the Procuring Agency harmless from any responsibility for taxes,
damages and interest, if applicable, contributions required under Federal and/or state and local
laws and regulations and any other costs, including transaction privilege taxes, unemployment
compensation insurance, Social Security and Worker's Compensation.
Retainage. Not Applicable.
Performance Bond. Not Applicable.
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ARTICLE 4 - ACCEPTANCE
Submission. Upon completion of agreed upon Deliverables as set forth in Article 2 and
Exhibit A, Contractor shall submit a description of the deliverable to the Project Manager fur
Acceptance. In accordance with Section 13-1-158 NMSA 1978, the Executive Level
Representative shall determine if the Deliverable provided meets specifications. No acceptance
shall be made for any Deliverable until the individual Deliverable has been Accepted, in writing,
by the Executive Level Representative. In order to Accept the Deliverable, the Executive Level
Representative, in conjunction with the Project Manager, will assess the Quality Assurance level
of the Deliverable and determine, at a minimum, that the Deliverable:
1.) Complies with the Deliverable requirements as defined in Article 2 and Exhibit A;
2.) Complies with the terms and conditions of the Request for Proposals;
3.) Meets the performance measures for the Deliverable(s) and this Agreement;
4.) Meets or exceeds the generally accepted industry standards and procedures for the
5.) Complies with all the requirements of this Agreement.
If the Deliverable is deemed Acceptable under Quality Assurance by the Executive Level
Representative or designee, the Executive Level Representative will notify the Contractor of
Acceptance, in writing, within fifteen (15) business days from the date the Executive Level
Representative receives the Deliverable(s).
Rejection. Unless the Executive Level Representative gives notice ofrejection within the
fifteen (15) day business day Acceptance period, the Deliverable will be deemed to have been
accepted. lithe Deliverable is deemed unacceptable under Quality Assurance, fifteen (15) days
from the date the Executive Level Representative receives the Deliverable(s), the Executive
Level Representative will send a consolidated set of comments indicating issues, unacceptable
items, and/or requested revisions accompanying the rejection. Upon rejection and receipt of
comments, the Contractor will have ten (10) business days to resubmit the Deliverable to the
Executive Level Representative with all appropriate corrections or modifications made and/or
addressed. The Executive Level Representative will again determine whether the Deliverable(s)
is Acceptable under Quality Assurance and provide a written determination within fifteen (15)
business days of receipt of the revised or amended Deliverable. Ifthe Deliverable is once again
deemed unacceptable under Quality A~surance and thus rejected, the Contractor will be required
to provide a remediation plan that shall include a timeline for corrective action acceptable to the
Executive Level Representative. The Contractor shall also be subject to all damages and
remedies attnbutable to the late delivery of the Deliverable under the terms of this Agreement
and available at law or equity. In the event that a Deliverable must be resubmitted more than
twice for Acceptance, the Contractor shall be deemed as in breach of this Agreement. The
Procuring Agency may seek any and all damages and remedies available under the terms of this
Agreement and available at law or equity. Additionally, the Procuring Agency may terminate
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ARTICLE 5 - TERM
TillS AGREEMENT SHALL NEITHER BE EFFECTIVE NOR BINDING UNTIL
APPROVED BY THE NMCD, DolT, AND NEW MEXICO THE STATE PURCHASING
AGENT. This Agreement shall terminate four (4) years from the day after the contract is fully
executed, unless terminated pursuant to Article 6. The Procuring Agency reserves the option to
renew the initial contract on an annual basis, or any part thereof: for up to four (4) additional one
year tenns, or any portion thereof In no case will this contract, including renewals thereof:
exceed a total of eight (8) years in duration. No contract tenn, including extensions and renewals,
shall exceed four years ifthe Agreement is less than $25,000 or exceed eight years if the
Agreement exceeds $25,000 as set forth in Section 13-1-150 NMSA 1978. -
ARTICLE 6 - TERMINATION
This Agreement may be terminated as follows:
General. By the either Party upon written notice to be delivered to the other party not
less than one hundred twenty (120) business days prior to the intended date oftermination.
Appropriations. By the Procuring Agency, ifrequired by changes in State or federal law,
or because of court order, or because of insufficient appropriations made available by the United
States Congress and/or the New Mexico State Legislature for the performance of this Agreement.
The Procuring Agency's decision as to whether sufficient appropriations are available shall be
accepted by the Contractor and shall be final. If the Procuring Agency terminates this
Agreement pursuant to this subsection, the Procuring Agency shall provide the Contractor
written notice of such termination at least thirty (90) business days prior to the effective date of
Regulatory Authority. By the Procuring Agency, if during the tenn of this agreement or
any renewal or extension hereof: the Contractor is determined not to have all required regulatory
authority and approvals to provide the services under this agreement.
Obligations and Waiver. By termination pursuant to this Article, neither party may
nullify obligations already incurred for performance or failure to perform prior to the date of
termination. THIS ARTICLE IS NOT EXCLUSIVE AND DOES NOT CONSTITUTE A
WAIVER OF ANY OTHER LEGAL RIGHTS AND REMEDIES AFFORDED THE
PROCURING AGENCY AND THE STATE OF NEW MEXICO CAUSED BY THE
CONTRACTOR'S DEFAULT OR BREACH OF THIS AGREEMENT.
ARTICLE 7 - TERMINATION MANAGEMENT
Contractor, In the event this Agreement is terminated for any reason, or upon expiration,
and in addition to all other rights to property set forth in this Agreement, the Contractor shall:
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Securus Techno 10gies
1.) Transfer, deliver, and/or make readily available to the Procuring Agency property in
which the Procuring Agency has a financial interest and any and all data, Know How,
Intellectual Property, inventions or property ofthe Procuring Agency;
2.) Incur no further financial obligations for materials, services, or facilities under the
Agreement without prior written approval of the Procuring Agency;
3.) Terminate all purchase orders or procurements and any subcontractors and cease all
work, except as the Procuring Agency may direct, for orderly completion and
4.) Take such action as the Procuring Agency may direct, for the protection and
preservation of all property and all records related to and required by this Agreement;
5.) Agree that the Procuring Agency is not liable for any costs arising out oftermination
and that the Procuring Agency is liable only for costs of DeliverabIes Accepted prior
to the termination 0 f the Agreement;
6.) Cooperate fully in the closeout or transition of any activities to permit continuity in
the administration of Procuring Agency programs;
7.) In the event that this Agreement is terminated due to the Contractor's course of
performance, negligence or willful misconduct and that course of perfonnance,
negligence, or willful misconduct results in reductions in the Procuring Agency's
receipt of program funds from any governmental agency, the Contractor shall remit to
the Procuring Agency the full amount of the reduction;
8.) Should this Agreement terminate due to the Contractor's default, the Contractor shall
reimburse the Procuring Agency for all costs arising from hiring new
contractor/subcontractors at potentially higher rates and for other costs incurred;
9.) In the event this Agreement is terminated for any reason, or upon its expiration, the
Contractor shall assist and cooperate with the Procuring Agency in the orderly and
timely transfer of files, computer software, documentation, system turnover plan,
Know How, Intellectual Property and other materials, whether provided by the
Procuring Agency or created by the Contractor under this Agreement, to the
Procuring Agency, including but not limited to, user manuals with complete
documentation, functional technical descriptions of each program and data flow
diagrams. At the request of the Project Manager, the Contractor shall provide to the
Procuring Agency a copy of the most recent versions of all files, software, Know
How, Intellectual Prop~ and documentation, whether provided by the Procuring
Agency or created by the Contractor under this Agreement.
Procuring Agency. In the event this Agreement is terminated for any reason, or upon
expiration, and in addition to all other rights to property set forth in this Agreement, the
Procuring Agency shall 1) Retain ownership of all work products up to and including all
equipment, infrastructure, and documentation created pursuant to this Agreement; and 2) Pay the
Contractor aU amounts due for services Accepted prior to the effective date of such termination
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ARTICLE 8 -INDEMNIFICATION
General. The Contractor shall defend, indemnify and hold harmless the Procuring
Agency, the State of New Mexico and its employees from all actions, proceedings, claims,
demands, costs, damages, attorneys' fees and all other liabilities and expenses of any kind from
any source which may arise out of the performance of this Agreement, caused by the negligent
act or failure to act of the Contractor, its officers, employees, servants, subcontractors or agents,
or if caused by the actions of any client of the Contractor resulting in injury or damage to persons
or property during the time when the Contractor or any officer, agent, employee, servant or
subcontractor thereofhas or is performing services pursuant to this Agreement. In the '?Vent that
any action, suit or proceeding related to the services performed by the Contractor or any officer,
agent, employee, servant or subcontractor under this Agreement is brought against the
Contractor, the Contractor shall, as soon as practicable, but no later than two (2) days after it
receives notice thereof: notify, by certified mail, the legal counsel of the Procuring Agency, the
Risk Management Division of the New Mexico General Services Department, and the DolT.
The indemnification obligation under this Agreement shall not be limited by the existence
of any insurance policy or by any limitation on the amount or type of damages, compensation or
benefits payable by or for Contractor or any subcontractor, and shall survive the termination of
this Agreement. Money due or to become due to the Contractor under this Agreement may be
retained by the Procuring Agency, as necessary, to satisfy any outstanding claim that the
Procuring Agency may have against the Contractor
ARTICLE 9 - INTELLECTUAL PROPERTY
Ownership. Contractor hereby acknowledges and grants to the Procuring Agency during the
Term of this Agreement, and any renewal hereof: a nonexclusive, royalty free license to use and
copy the Intellectual Property and Know How created or conceived pursuant to, or as a result of:
performance of this Agreement, including but not limited to the software license set out in
Article 11 C.
Contractor Background Technology shall mean all procedures, designs, drawings, models, trade
secrets, know-how, source codes, software and other documentation, information and technology
proprietary to the Contractor, which Contractor (i) has acquired or acquires from third parties,
(ii) creates outside of its performance of its services under this Agreement, or (iii) relates to skills
and knowledge ofa general nature acquired by the Contractor in the course of performance of
services under this Agreement. Contractor retains all rights, including, but not limited to,
Intellectual Property Rights in any and all of the Contractor Background Technology provided to
the Agency under this Agreement. For purposes of clarification, the definition of "Know How"
and "Intellectual Property" are in reference to Agency's rights and ownership thereto.
ARTICLE 10 - INTELLECTUAL PROPERTY INDEMNIFICATION
Intellectual Property Indemnification. The Contractor shall defend, at its own expense,
the Procuring Agency, the State of New Mexico and/or any other State of New Mexico body
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against any claim that any product or service provided under this Agreement infringes any
patent, copyright or trademark, and shall pay all costs, damages and attorneys fees that may be
awarded as a result of such claim In addition, if any third party obtains a judgment against the
Procuring Agency based upon Contractor's trade secret infringement relating to any product or
services provided under this Agreement, the Contractor agrees to reimburse the Procuring
Agency for all costs, attorneys' fees and the amount of the judgment. To qualify for such
defense and/or payment, the Procuring Agency shall:
1.) Give the Contractor written notice, within forty-eight (48) hours, of its notification of
2.) Work with the Contractor to control the defense and settlement of the claim, as
allowed under the law; and
3.) Cooperate with the Contractor, in a reasonable manner, to facilitate the defense or
settlement of the claim
Procuring Agency Rights. If any product or service becomes, or in the Contractor's
opinion is likely to become, the subject of a claim of infringement, the Contractor shal~ at its
1.) Provide the Procuring Agency the right to continue using the product or service and
fully indemnify the Procuring Agency against all claims that may arise out ofthe
Procuring Agency's use of the product or service;
2.) Replace or modify the product or service so that it becomes non-infringing; or
3.) Accept the return of the product or service and refund an amount equal to the value of
the returned product or service, less the unpaid portion 0 f the purchase price and any
other amounts, which are due to the Contractor. The Contractor's obligation will be
void as to any product or service modified by the Procuring Agency to the extent such
modification is the cause 0 f the claim
ARTICLE 11 - WARRANTIES
General. The Contractor hereby expressly warrants the Deliverables as being correct and
compliant with the terms ofthis Agreement, Contractor's official published specification and
technical specifications of this Agreement and all generally accepted industry standards. This
warranty encompasses correction ofdefective Deliverables and revision of the same, as
necessary, including deficiencies found during testing, implementation, or post-implementation
Software. The Contractor warrants that any software or other products delivered under
this Agreement shall comply with the terms of this Agreement, Contractor's official published
specification(s) and technical specifications of this Agreement and all generally accepted
industry standards. The Contractor further warrants that the software provided under this
Agreement will meet the applicable specifications fur the duration ofthis agreement, after
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Acceptance and implementation by the NMCD. If the software fails to meet the applicable
specifications during the warranty period, the Contractor will correct the deficiencies, at no
additional cost to the Procuring Agency, so that the software meets the applicable specifications.
ARTICLE 12 - CONTRACTOR PERSONNEL
Key PersonneL Contractor's key personnel shall not be diverted from this Agreement
without the prior written approval of the Procuring Agency. Key personnel are those individuals
considered by the Procuring Agency to be mandatory to the work to be performed under this
Agreement. Contractor agrees that all personnel providing services under this agreement,
including all persons to be identified subsequently, have undergone thorough criminal record
history review.s, and Contractor affirmatively represents that none has a criminal record (not
including petty misdemeanors). Key personnel shall be:
Steven Cadwell, Account Manager
John Jacoby, Service Manager
Personnel Changes. Replacement of any personnel shall be made with personnel of equal
ability, experience, and qualification and shall be approved by the Procuring Agency. For all
personnel, the Procuring Agency reserves the right to require submission oftheir resumes and
certification of the above criminal background check prior to approval. If the number of
Contractor's personnel assigned to the Project is reduced for any reason, Contractor shall, within
ten (10) business days of the reduction, replace with the same or greater number of personnel
with equal ability, experience, and qualifications, subject to Procuring Agency approval. The
Procuring Agency, in its sole discretion, may approve additional time beyond the ten (10)
business days for replacement of personnel. The Contractor shall include status reports of its
efforts and progress in finding replacements and the effect of the absence of the personnel on the
progress of the project. The Contractor shall also make interim arrangements to assure that the
project progress is not affected by the loss of personnel. The Procuring Agency reserves the
right to require a change in Contractor'·s personnel if the assigned personnel are not, in the sole
opinion ofthe Procuring Agency, meeting the Procuring Agency's expectations.
ARTICLE 13 - STATUS OF CONTRACTOR
Independent Contractor. The Contractor and its agents and employees are independent
contractors performing professional services for the Agency and are not employees of the State
of New Mexico. The Contractor and its agents and employees shall not accrue leave, retirement,
insurance, bonding, use of state vehicles, or any other benefits afforded to employees of the State
of New Mexico as a result ofthis Agreement. The Contractor acknowledges that all sums
received hereunder are personally reportable by it for income tax purposes as self-employment or
business income and are reportable for self-employment tax.
Subject of Proceedings. Contractor warrants that neither the Contractor nor any officer,
stockholder, director or employee of the Contractor, is presently subject to any litigation or
administrative proceeding before any court or administrative body which would have an adverse
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effect on the Contractor's ability to perform under this Agreement; nor, to the best knowledge of
the Contractor, is any such litigation or proceeding presently threatened against it or any of its
officers, stockholders, directors or employees. If any such proceeding is initiated or threatened
during the term of this Agreement, the Contractor shall immediately disclose such fact to the
ARTICLE 14 - CHANGE MANAGEMENT
Changes. Contractor may only make changes or revisions within the Scope of Work as
defined by Article 2 and Exhibit A after receipt ofwritten approval by the Executive Level
Representative. Such change may only be made to Tasks or Sub-Task as defined in the Exhibit
A. Under no circumstance shall such change affect the:
1) Deliverable requirements;
2) Compensation due under the terms ofthis Agreement; or
3) Due Date of any Deliverable, as outlined in Exhibit A.
Change Request Process. In the event that circumstances warrant a change to accomplish
the Scope of Work as descnbed above, a Change Request shall be submitted that meets the
following criteria: 1) The Project Manager shall draft a written Change Request for Executive
Level Representative review and approval to include: the name of the person requesting the
change, a summary ofthe required change, the start date for the change, the reason and necessity
for change, the urgency level for the change, the elements to be altered, the impact ofthe change,
the staffing plan associated with the change, the impact on the schedule for implementing the
change, the cost impact, the risk assessment and a recommended approach to the change, and 2)
The Executive Level Representative shall provide a written decision on the Change Request to
the Contractor within a maximum 0 f ten (10) working (lays of receipt 0 f the Change Request.
All decisions made by the Executive Level Representative are final. Change requests, once
approved, become a part of the contract and become binding as a part of the original contract.
ARTICLE 15 - INDEPENDENT VERIFICATION AND VALIDATION
ARTICLE 16 - DEFAULTIBREACH
In case of default and/or breach by the Contractor, for any reason whatsoever, the Procuring
Agency and the State of New Mexico may procure the goods or services from another source and
hold the Contractor responsible for any resulting excess costs and/or damages, including but not
limited to, direct damages, indirect damages, consequential damages, special damages and the
Agency and the State of New Mexico may also seek all other remedies under the terms of this
Agreement and under law or equity.
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ARTICLE 17 - EQUITABLE REMEDIES
Contractor acknowledges that its failure to comply with any provision of this Agreement will
cause the Procuring Agency irrevocable harm and that a remedy at law for such a failure would
be an inadequate remedy for the Procuring Agency, and the Contractor consents to the Procuring
Agency's obtaining from a court of competent jurisdiction, specific performance, or injunction,
or any other equitable relief in order to enforce such compliance. Procuring Agency's rights to
obtain equitable relief pursuant to this Agreement shall be in addition to, and not in lieu ot: any
other remedy that Procuring Agency may have under applicable law, including, but not limited
to, monetary damages.
ARTICLE 18 - LIABILITY
Contractor shall be liable for damages arising out of injury to persons and/or damage to real or
tangible personal property before or after Acceptance, delivery, installation and use of the
equipment, either at the Contractor's site or the Procuring Agency's place of business, provided
that the injury or damage was caused by the fault or negligence of the Contractor or defect of the
equipment or installation. Contractor shall not be liable for damages arising out ot: or caused by,
alterations to the equipment (other than alterations performed or caused by Contractor's officers,
employees or agents) made by the Procuring Agency or for losses occasioned by the Procuring
Agency's fault or negligence. Nothing in this Agreement shall limit the Contractor's liability, if
any, to third parties and employees of the Procuring Agency or the State of New Mexico, or any
remedy that may exist under law or equity in the event a defect in the manufacture of the
equipment, or the negligent acts or omissions of the Contractor, its officers, employees, or
agents, is the cause of injury to such person.
ARTICLE 19 - ASSIGNMENT
The Contractor shall not assign or transfer any interest in this Agreement or assign any claims for
money due or to become due under this Agreement without the prior written approval of this
Agreement's approval authorities.
ARTICLE 20 - SUBCONTRACTING
The Contractor shall not subcontract any portion of this Agreement without the prior written
approval of the Procuring Agency. No such subcontracting shall relieve the Contractor from its
obligations and liabilities under this Agreement, nor shall any subcontracting obligate payment
from the Procuring Agency.
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ARTICLE 21 - RELEASE
The Contractor's acceptance of final payment of the amount due under this Agreement shall
operate as a release of the Procuring Agency, its officers and employees, and the State of New
Mexico from all liabilities, claims and obligations whatsoever arising from or under this
Agreement. The Contractor agrees not to purport to bind the State of New Mexico unless the
Contractor has express written authority to do so, and then only within the strict limits of that
ARTICLE 22- CONFIDENTIALITY
Any confidential information provided to the contractor by the agency or, developed by the
Contractor based on information provided by the agency in the performance of this Agreement
shall be kept confidential and shall not be made available to any individual or organization by the
Contractor without the prior written approval of the Procuring Agency. Upon termination of this
Agreement, Contractor shall deliver all confidential material in its possession to the Procuring
Agency within thirty (30) business days of such termination. Contractor acknowledges that
failure to deliver such confidential information to the Procuring Agency will result in direct,
special and incidental damages.
ARTICLE 23 -CONFLICT OF INTEREST
The Contractor warrants that it presently has no interest and shall not acquire any interest, direct
or indirect, which would conflict in any manner or degree with the performance or services
required under the Agreement. The Contractor certifies that the requirements of the
Governmental Conduct Act, Sections 10-16-1 through 10-16-18, NMSA 1978, regarding
contracting with a public officer, state employee or former state employee have been followed.
ARTICLE 24 - RECORDS AND AUDIT
The Contractor shall maintain detailed time and expenditure records that indicate the date, time,
nature and cost of services rendered during this Agreement's term and effect and retain them for
a period of three (3) years from the date of final payment under this Agreement. The records
shall be subject to inspection by the Procuring Agency, CIO, SPA, and DFA. The Procuring
Agency shall have the right to audit billings both before and after payment. Payment for services
under this Agreement shall not foreclose the right of the Procuring Agency to recover excessive
or illegal payments.
ARTICLE 25 - AMENDMENT
This Agreement shall not be altered, changed, or amended except by an instrument in writing
executed by the Parties hereto. No amendment shall be effective or binding unless approved by
all of the approval authorities.
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ARTICLE 26 - NEW MEXICO EMPLOYEES HEALTH COVERAGE
A. If Contractor has, or grows to, six (6) or more employees who work, or who are
expected to work, an average of at least 20 hours per week over a six (6) month period during the
term of the contract, Contractor certifies, by signing this agreement, to have in place, and agree
to maintain for the term of the contract, health insurance for those employees and offer that
health insurance to those employees no later than July 1, 2010 ifthe expected annual value in the
aggregate of any and all contracts between Contractor and the State exceed $250,000 dollars.
B. Contractor agrees to maintain a record of the number of employees who have (a)
accepted health insurance; (b) declined health insurance due to other health insurance coverage
already in place; or (c) declined health insurance for other reasons. These records are subject to
review and audit by a representative of the state.
C. Contractor agrees to advise all employees of the availability of State publicly financed
health care coverage programs by providing each employee with, as a minimum, the following
web site link to additional information: http://insurenewmexico.state.nm.us/.
D. For Indefinite Quantity, Indefinite Delivery contracts (price agreements without
specific limitations on quantity and providing for an indeterminate number of orders to be placed
against it); Contractor agrees these requirements shall apply the first day of the second month
after the contractor reports combined sales (from state and, if applicable, from local public
bodies if from a state price agreement) of$250,000, $500,000 or $1,000,000, depending on the
dollar value threshold in effect at that time.
ARTICLE 27 - EMPLOYEE PAY EQUITY REPORTING
Contractor agrees if it has ten (10) or more New Mexico employees OR eight (8) or more
employees in the same job classification, at any time during the term ofthis contract, to complete
and submit the PE 10-249 form on the annual anniversary of the initial report submittal for
contracts up to one (1) year in duration. If contractor has (250) or more employees contractor
must complete and submit the PE250 form on the annual anniversary of the initial report
submittal for contracts up to one (1) year in duration. For contracts that extend beyond one (1)
calendar year, or are extended beyond one (1) calendar year, contractor also agrees to complete
and submit the PElO-249 or PE250 form, whichever is applicable, within thirty (30) days of the
annual contract anniversary date of the initial submittal date or, if more than 180 days has
elapsed since submittal ofthe last report, at the completion of the contract, whichever comes
first. Should contractor not meet the size requirement for reporting at contract award but
subsequently grows such that they meet or exceed the size requirement for reporting, contractor
agrees to provide the required report within ninety (90 days) ofmeeting or exceeding the size
requirement. That submittal date shall serve as the basis for submittals required thereafter.
Contractor also agrees to levy this requirement on any subcontractor(s) performing more
than 10% of the dollar value of this contract ifsaid subcontractor(s) meets, or grows to meet, the
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stated employee size thresholds during the term of the contract. Contractor further agrees that,
should one or more subcontractor not meet the size requirement for reporting at contract award
but subsequently grows such that they meet or exceed the size requirement for reporting,
contractor will submit the required report, for each such subcontractor, within ninety (90 days) of
that subcontractor meeting or exceeding the size requirement. Subsequent report submittals, on
behalf of each such subcontractor, shall be due on the annual annive~ary of the initial report
submittal. Contractor shall submit the required formes) to the State Purchasing Division of the
General Services Department, and other departments as may be determined, on behalf of the
applicable subcontractor(s) in accordance with the schedule contained in this paragraph.
Contractor acknowledges that this subcontractor requirement applies even though contractor
itself may not meet the size requirement for reporting and be required to report itself.
Notwithstanding the foregoing, if this Contract was procured pursuant to a solicitation,
and if Contractor has already submitted the required report accompanying their response to such
solicitation, the report does not need to be re-submitted with this Agreement.
ARTICLE 28 - MERGER, SCOPE. ORDER OF PRECEDENCE
Severable. The provisions of this Agreement are severable, and if for any reason, a
clause, sentence or paragraph of this Agreement is determined to be invalid by a court or agency
or commission having jurisdiction over the subject matter hereof: such invalidity shall not affect
other provisions of this Agreement, which can be given effect without the invalid provision.
Merger/Scope/Order. This Agreement incorporates any and all agreements, covenants
and understandings between the Parties concerning the subject matter hereof: and all such
agreements, covenants and understanding have been merged into this Agreement. No prior
agreement or understanding, verbal or otherwise, of the Parties or their agents or assignees shall
be valid or enforceable unless embodied in this Agreement.
ARTICLE 29 - NOTICES
All deliveries, notices, requests, demands or other communications provided for or required by
this Agreement shall be in writing and shall be deemed to have been given when sent by
registered or certified mail (return receipt requested), when sent by overnight carrier, or upon
telephone confirmation by Contractor to the sender of receipt of a facsimile communication that
is followed by a mailed hard copy from the sender. Notices shall be addressed as follows:
For the NMCD
Dwayne Santistevan, STIU Administrator
New Mexico Corrections Department
4337 NM 14, Santa Fe, NM 87508
Phone - 505-827-8275 Fax - 505-827-8801
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