STATE OF NEW MEXICO PROFESSIONAL SERVICES CONTRACT # 14 350 6005 0006 THIS AGREEMENT is made and entered into by and between the State of New Mexico, Risk Management Division of the Department of General Services, hercinafter referred to as the “Agency,” and BDO USA, LLP, hereinafter referred to as the “Contractor,” and is effective as of the date set forth below upon which it is executed by the Department of Finance and ‘Administration (DFA) Contracts Review Bureau, Recitals: WHEREAS, this Agreement is issued against the state price agreement, established and maintained by the New Mexico State Purchasing Division of the General Services Department, SPD [#40-350-14-05609], and through this language hereby incorporates the terms of the price agreement by reference; and WHEREAS State employees’ salaries are impacted by their enrollment in group benefits, and premium contributions as defined by NMSA § 10-7-4; and WHEREAS certain public employees’ salaries will be impacted by the implementation of the arbitration awards confirmed by the New Mexico Supreme Court in the matter of STATE OF NEW MEXICO, MOVANT V. AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES COUNCIL 18, AFL-CIO, CLC AND COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, CLC, RESPONDENT, D-202-CV-2009-09756 (the “Arbitration Awards”); and WHEREAS the Group Benefits Fund authorized by NMSA § 10-7B- 1 et.seq. is administered by the State of New Mexico’s Risk Management Division; and WHEREAS the Risk Management Division is entering into this contract in order to obtain services by BDO USA, LLP to inform the process of implementing the Arbitration Awards and assist in accurately calculating the individual awards due, IT IS AGREED BETWEEN THE PARTIES: 1. Scope of Work, ‘The Contractor shall perform the following professional services: Provide expert advice, assistance, guidance and counseling in support of the State of New Mexico’s determination of the value of individual employee salary claims pursuant to the terms of the Arbitration Awards. Such services to include professional financial services (consulting, tax advice, development of written agreed upon procedures and quality assurance) in calculating the gross amount of wages due to individual employees, and required withholdings based upon agreed upon procedures and methodology.2. Compensation. A. The Agency shall pay the Contractor in full, payment for services provided pursuant to this agreement. Services shall be provided at the hourly rates reflected in the schedule below: Partaer/Managing Director [$278.08 | Director ‘Subject Matter Expert : Senior Manager $197.48 ‘Manager $161.21 Senior Consultant $141.06 Consultant $116.88 “Analyst $96.73 ‘Compensation shall not exceed One Million Six Hundred Thousand Dollars ($1,600,000), including gross receipts tax. The New Mexico gross receipts tax levied on the amounts payable under this Agreement shall be paid by the Agency to the Contractor. This approved Agreement funding is a maximum and not a guarantee that the work assigned to be performed by Contractor shall equal the amount stated herein, The parties do not intend for the Contractor fo continue to provide services without compensation when the total compensation amount is reached. The Contractor is responsible for notifying the Agency when 75% of the value of the services are reached within the Invoice when this milestone is achieved. An ongoing statement of remaining funding will be provided within status reports and invoicing until the total compensation amount of this Agreement is completed. Im no event will the Contractor be paid for services provided in excess of the total Agreement funding without an amendment to this Agreement which is approved by the parties and the Department of Finance and Administration’s Contracts Review Bureau. B. Payment is subject to availability of finds pursuant to the Appropriations Paragraph set forth below and to any modifications to this Agreement resulting from negotiations between the parties fiom year to year pursuant to Paragraph 1, Scope of Work and approval of such modifications by the DFA. All invoices MUST BE received by the Agency no later than fifteen (15) days after the termination of the Fiscal Year in which the services were delivered Invoices received after such date WILL NOT BE PAID. C. Contractor must submit detailed statements in or accompanying invoices accounting for all services performed and expenses incwred. If the Agency finds that the services are not acceptable, within thirty days after the date of receipt of written notice from the Contractor that payment is requested, it shall provide the Contractor with a letter of exception explaining the defect or objection to the services, and outlining steps the Contractor may take to provide remedial action. Upon certification by the Agency that the services have been received and accepted, payment shall be tendered to the Contractor within thirty days after the date of acceptance. Payment shall be made electronically by ACH transaction. 3. Term. THIS AGREEMENT SHALL NOT BECOME EFFECTIVE UNTIL APPROVED BY THE DFA. This Agreement shall terminate on March 1, 2015 unless extended by amendment inwriting by both parties hereto or terminated pursuant to paragraph 4 (Termination), or paragraph 5 (Appropriations). In accordance with NMSA 1978, § 13-1-150, no contract term for a professional services contract, including extensions and renewals, shall exceed four years, except as set forth in NMSA 1978, § 13-1-150. 4. Terminat ‘A. Grounds. The Agency may terminate this Agreement for convenience or cause. ‘The Contractor may only terminate this Agreement based upon the Ageney’s uncured, material breach of this Agreement. B. Notice: Agency Opportunity to Cure, 1. Except as otherwise provided in Paragraph (4)(B)(3), the Agency shall give Contractor written notice of termination at least thirty (30) days prior to the intended date of termination. 2. Contractor shall give Agency written notice of termination at least thirty (G0) days prior to the intended date of termination, which notice shall (i) identify all the Agency's material breaches of this Agreement upon which the termination is based and (fi) state what the Agency must do to cure such material breaches. Contractor’s notice of termination shall only be effective (i) if the Agency does not cure all material breaches within the thirty (30) day notice period or (ii) in the case of material breaches that cannot be cured within thirty (30) days, the Agency does not, within the thirty (30) day notice period, notify the Contractor of its intent to cure and begin with due diligence to cure the material breach, 3. Notwithstanding the foregoing, this Agreement may be terminated immediately upon written notice to the Contractor (i) if the Contractor becomes unable to perform the services contracted for, as determined by the Agency; (ii) if, during the term of this, Agreement, the Contractor is suspended or debarred by the State Purchasing Agent; or (fii) the Agreement is terminated pursuant to Paragraph 5, “Appropriations”, of this Agreement. C. Liability. Except as otherwise expressly allowed or provided under this Agreement, the Agency’s sole liability upon termination shall be to pay for services performed by Contractor prior to the Contractor’s receipt or issuance of a notice of termination; provided, however, that a notice of termination shall not nullify or otherwise affect either party’s liability for pre-termination defaults under or breaches of this Agreement. The Contractor shall submit an invoice for such work within thirty (30) days of receiving or sending the notice of termination. THIS PROVISION IS NOT EXCLUSIVE AND DOES NOT WAIVE THE PARTIES’ OTHER LEGAL RIGHTS AND REMEDIES CAUSED BY THE OTHER'S DEFAULT/BREACH OF THIS AGRE NT. D. Termination Management. Immediately upon receipt by either the Agency or the Contractor of notice of termination of this Agreement, the Contractor shall: 1) not incur any further obligations for salaries, services or any other expenditure of funds under this Agreement without written approval of the Agency; 2) comply with all directives issued by the Agency in the notice of termination as to the performance of work under this Agreement; and 3) take such action as the Agency shall direct for the protection, preservation, retention or transfer of all State property and records generated under this Agreement including all data and all records related to and required by this Agreement; 4) transfer, deliver, and/or make readily available to the Agency property in which the Agency has a financial interest and any and all data, Know How, inventions, records, or property of the Agency. Any non-expendable personal property or equipment provided to or purchased by the Contractor with contract funds shall become property of the Agency upon termination and shall be submitted fo the agency as soon as practicable.5. Appropriations. ‘The terms of this Agreement are contingent upon sufficient appropriations and authorization being made by the Legislature of New Mexico for the performance of this Agreement. The Agency will not require Contractor to perform services pursuant to this Agreement until sufficient funds to perform all or a portion of the required Services have been appropriated. ‘The Agency shall inform the Contractor when there are sufficient funds appropriated to compensate Contractor for performing all or a portion of the required Services. If sufficient appropriations and authorization are not made by the Legislature, this Agreement shall terminate immediately upon delivery of written notice by the Agency to the Contractor. The Agency's decision as to whether sufficient appropriations are available shall be accepted by the Contractor and shall be final. If the Agency proposes an amendment to the Agreement to unilaterally reduce funding, the Contractor shall have the option fo terminate the Agreement or to agree to the reduced funding, within thirty (30) days of receipt of the proposed amendment, Whereupon all amounts owed to Contractor for work already performed will be paid to Contractor by the Agency. 6. Status of 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 Coatracior and its agents and employees shell 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 of this Agreement. The Contractor acknowledges that all sums received hereunder are reportable by the Contractor for tax purposes, including without limitation, selfemployment and business income tax. 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 authority. 7. 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 vaitien approval of the Agency. 8 Subcontracting, It is specifically contemplated that the Contractor may subcontract certain services to be performed under this Agreement to REDW LLC, as well as service for data entry personnel and does so with the approval of the Agency. No other subcontracts may be entered into without the express written approval of the Agency. ‘The Contractor must not disclose CONFIDENTIAL INFORMATION to a subcontractor unless and until such subcontractor has agreed in writing to protect the confidentiality of such Confidential Information in the manner required of the Contractor under this Agreement. No subcontract shall relieve the primary Contractor from its obligations and liabilities under this Agreement, nor shall any subcontract obligate direct payment from the Procuring Agency.9. Release, Final payment of the amounts due under this Agreement shall operate as a release of the Agency, its officers and employees, and the State of New Mexico from all liabilities, claims and obligations whatsoever arising from or under this Agreement. 10. Confidentiality, Work performed under the terms of this agreement is being performed in conjunction ‘with and at the request of and direction of legal counsel to protect the State’s interest in the above-referenced litigation and shall be protected pursuant to the attorney-work-product doctrine, All work performed pursuant to this agreement shall be performed while maintaining strict confidentiality. Communications exchanged within the scope of work, source data, analyses performed by the State, and the agreed upon procedures are all CONFIDENTIAL INFORMATION, “CONFIDENTIAL INFORMATION” means any communication or record (whether oral, written, electronically stored or transmitted, or in any other form) that consists of: (1) confidential client information as such term is defined in State or Federal statutes and/or regulations; (2) all non-public State budget, expense, payment and other financial information; 3) all attorney-client privileged work product; (4) all information designated by the Agency or any other State agency as confidential, including all information designated as confidential under federal or state law or regulations; (5) unless publicly disclosed by the Agency or the State of New Mexico, the pricing, payments, and terms and conditions of this Agreement, and (6) State information that is utilized, received, or maintained by the Agency, the Contractor, or other participating State agencies for the purpose of fulfilling a duty or obligation under this ‘Agreement and that has not been publicly disclosed. While reserving the right to make additional designations, the Agency hereby initially designates the following as CONFIDENTIAL INFORMATION: (1) communications exchanged during the seope of work; (2) individual employee data accessed during the scope of work; (3) analyses performed by the State and (4) agreed upon procedures. Ji, Data ‘Any and all data received from the State and stored on the Contractor’s servers or within the Contractor’s custody, in order to execute its obligations under this Agreement, is the property of the State of New Mexico. The Contractor, subcontractor(s), officers, agents and assigns shall not make use of, disclose, sell, copy or reproduce the State’s data in any manner, or provide such data to any entity or person, other than Contractor’s authorized personnel and/or the authorized personnel of its approved agents, Subcontractors of representatives without the express written authorization of the Agency. The State is the owner of all data made available by the State to the Contractor or its agents, Subcontractors or representatives under this Agreement. The Contractor will not use the Siatc’s data for any puzpose other than providing the services, nor will any part of the State’s data be disclosed, sold, assigned, leased or otherwise disposed of to the general public or to specific third parties, or commercially exploited by or on behalf of the Contractor (except as required by applicable law or regulation). No employees of the Contractor, other then those on a strictly need-to-know basis, shall be provided access to the State’s data. Contractor will not possess orassert any lien or other right against the State’s data. The Contractor shall comply at all times with all laws and regulations applicable to data described or referred to in this Agreement. The State recognizes that Contractor does not, at this time, use a third-party cloud service provider. However, in the event Contractor elects to begin using a third party cloud service provider, it will inform the State of its implementing the use of such services, whereupon the following will apply : other than the rights and interests expressly set forth in this Agreement the Agency reserves ail right, title and interest (including all intellectual property and proprietary rights) in and to content. The Agency retains the right to use the cloud services to access and retrieve Agency's content stored on Contractor or third-party cloud service's infrastructure at its sole discretion, Information Technology (IT) Security A. All Contractor personnel will also be expected to comply with the State’s security and acceptable use policies for State IT equipment and resources. Contractor staff will be expected to comply with all Physical Security procedures in place within the facilities where they are working. B. If the Contractor experiences a security breach covered by this Agreement, the Contractor must (i) promptly cure any deficiencies and (ii) comply with any applicable federal and state laws and regulations pertaining to unauthorized disclosures. Contractor and the State will cooperate to mitigate, to the extent practicable, the effects of any breach, intrusion, or unauthorized use or disclosure. In the event of a security breach incident, whether suspected or actual, Contractor shall notify the Agency within three hours of first knowledge, or such other period of time as is reasonable under the circumstances. In addition Contractor must report to Department of Information Technology(DolT) and the Agency in writing the details and affects of the breach, to the reasonable satisfaction of DolT and the Agency other than as provided for by the Agreement within 10 business days of becomirig aware of the breach or a shorter time period as is reasonable under the circumstances, C. DofT and/ or the Agency may require security audits, including vulnerability assessments, at any point in relation to this Agreement. Contractor agrees to cooperate with any such needs of the Dol or the Agency. 12. Product of Service and Copyright. ‘The data developed by Contractor during the course of its work shall be retumed in the form and format required by Dol. All materials developed or acquired by the Contractor under this Agreement shall become the property of the State of New Mexico and shall be delivered to the Agency no later than the termination date of this Agreement. Nothing developed or produced, in whole or in part, by the Contractor under this Agreement shall be the subject of an application for copyright or other claim of ownership by or on behalf of the Contractor.13. Conflict of Interest; Governmental Conduct Act, ‘A. The Contractor represents and warrants that it presently has no interest and, during the term of this Agreement, 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. B. The Contractor further represents and warrants that it has complied with, and, during the term of this Agreement, will continue to comply with, and that this Agreement complies with all applicable provisions of the Governmental Conduct Act, Chapter 10, Article 16 NMSA 1978. Without in anyway limiting the generality of the foregoing, the Contractor specifically represents and warrants that: 1) in accordance with NMSA 1978, § 10-16-4.3, the Contractor does not employ, has not employed, and will not employ during the term of this Agreement any Agency employee while such employee was or is employed by the Agency and participating directly or indirectly in the Agency’s contracting process; 2) this Agreement complies with NMSA 1978, § 10-16-7(A) because (i) the Contractor is not a public officer or employee of the State; (ji) the Contractor is not a member of the family of a public officer or employee of the State; (ji) the Contractor is not a business in which a public officer or employee or the family of a public officer or employee has a substantial interest; or (iv) if the Contractor is a public officer or employee of the State, a member of the family of a public officer or employee of the State, or a business in which a public officer or employee of the State or the family of a public officer or employee of the State has a substantial interest, public notice was given as required by NMSA 1978, § 10-16-7(A) and this Agreement was awarded pursuant fo a competitive process; 3) in accordance with NMSA 1978, § 10-16-8(A), () the Contractor is not, and has not been represented by, a person who has been a public officer or employee of the State within the preceding year and whose official act directly resulted in this Agreement and (ii) the Contractor is not, and has not been assisted in any way regarding this transaction by, a former public officer or employee of the State whose official act, while in State employment, directly resulted in the Agency's making this Agreement; 4) this Agreement complies with NMSA 1978, § 10-16-9(A)because (i) the Contractor is not a legislator; (fi) the Contractor is not a member of a legislator's family; ii) the Contractor is not a business in which a legislator or a legislator’s family has substantial interest; or (iv) if the Contractor is a legislator, a member of a legislator’s family, or @ business in which @ legislator or a legislator’s family has a substantial interest, disclosure has been made as required by NMSA 1978, § 10-16-7(A), this Agreement is not a sole source or small purchase contract, and this Agreement was awarded in accordance with the provisions of the Procurement Code; 5) in accordance with NMSA 1978, § 10-16-13, the Contractor as not directly participated in the preparation of specifications, qualifications or evaluation criteria for this Agreement or any procurement related to this Agreement; and 6) in accordance with NMSA 1978, § 10-16-3 and § 10-16-13.3, the Contractor has not contributed, and during the term of this Agreement shell not contribute, anything of value to a public officer or employee of the Agency. C. _ Contractor’s representations and warranties in Paragraphs A and B of this Acticle 12 are material representations of fact upon which the Agency relied when this Agreement was entered into by the parties. Contractor shall provide immediate written notice to the Agency if, atany time during the term of this Agreement, Contractor leams that Contractor’s representations and warranties in Paragraphs A and B of this Article 12 were erroneous on the effective date of this Agreement or have become erroneous by reason of new or changed circumstances, If it is later determined that Contractor's representations and warranties in Paragraphs A and B of this Article 12 were erroneous on the effective date of this Agreement or have become erroneous by reason of new or changed circumstances, in addition to other remedies available to the Agency and notwithstanding anything in the Agreement to the contrary, the Agency may immediately terminate the Agreement. D. __ All terms defined in the Governmental Conduct Act have the same meaning in this Article 12). 14, Amendment, ‘A. This Agreement shall not be altered, changed or amended except by instrument in writing executed by the parties hereto and all other required signatories. B. If the Agency proposes an amendment to the Agreement to unilaterally reduce funding due to budget or other considerations, the Contractor shall, within thirty (30) days of receipt of the proposed Amendment, have the option to terminate the Agreement, pursuant to the termination provisions as set forth in Article 4 herein, or to agree to the reduced fimding. 15. Merger. ‘This Agreement incorporates all the Agreements, covenants and understandings between the parties hereto concerning the subject matter hereof, and all such covenants, Agreements and understdings have been merged into this written Agreement. No prior Agreement or understanding, oral or otherwise, of the parties or their agents shall be valid or enforceable unless embodied in this Agreement. 16. Penalties for violation of law. The Procurement Code, NMSA 1978 §§ 13-1-28 through 13-1-199, imposes civil and criminal penalties for its violation. In addition, the New Mexico criminal statutes impose felony penalties for illegal bribes, gratuities and kickbacks, 17. Equal Opportunity Compliance, The Contractor agrees to abide by all federal and state laws and rules and regulations, and executive orders of the Governor of the State of New Mexico, pertaining to equal employment ‘opportunity. In accordance with all such laws of the State of New Mexico, the Contractor assures that no person in the United States shall, on the grounds of race, religion, color, national origin, ancestry, sex, age, physical or mental handicap, or serious medical condition, spousal affiliation, sexual orientation or gender identity, be excluded from employment with or participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity performed under this Agreement. If Contractor is found not to be in compliance with these requirements during the life of this Agreement, Contractor agrees to take appropriate steps to correct these deficiencies.18. Applicable Law. The laws of the State of New Mexico shall govern this Agreement, without giving effect to its choice of law provisions. Venue shall be proper only in a New Mexico court of competent jurisdiction in accordance with NMSA 1978, § 38-3-1 (G). By execution of this Agreement, Contractor acknowledges and agrees to the jurisdiction of the courts of the Stale of New Mexico over any and all lawsuits arising under or out of any term of this Agreement. 19. Workers Compensation, The Contractor agrees to comply with state laws and rules applicable to workers compensation benefits for its employees. If the Contractor fails to comply with the Workers Compensation Act end applicable rules when required to do so, this Agreement may be terminated by the Ageney. 20. Records and Financial Au The Contractor shall maintain detailed time and expenditure records that indicate the date; time, nature and cost of services rendered during the 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 Agency, the Department of Finance and Administration and the State Auditor. The Agency shall have the right to audit billings both before and afier payment. Payment under this Agreement shall not foreclose the right of the Agency to recover excessive or illegal payments. 21. Indemni ion. ‘The Contractor shall defend, indemnify and hold harmless the Agency and the State of New Mexico fiom all actions, proceedings, claims, demands, costs, damages, attorneys? fees and all other liabilities and expenses of any kind from any source not to exceed $6,400,000, 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 grossly negligent actions of any subcontractor or other agent 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 thereof has or is performing services pursuant to this Agreement. In the event 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) business days after it receives notice thereof, notify the Risk Management Division of the New Mexico General Services Department by the most expedient means possible with follow up notification by certified mail 21. Liability Contractor specifically assumes all liability arising ftom the work of its subcontractors. Contractor shall be liable for damages arising out of injury to persons and/or damage to real or tangible personal property at any time, in any way, if and to the extent that the injury or damage was caused by or due to the gress negligence of the Contractor or a defect of any equipment provided or installed, provided in whole or in part by the Contractor pursuant to the Agreement. Contractor shall not be liable for damages arising out of, or caused by, alterations made by the Procuring Agency to any equipment or its installation or for losses caused by the State’s fault or negligence. Nothing in this Agreement shall limit the Contractor’s liability, if any, to thirdparties and/or employees of the State of New Mexico, or any remedy that may exist under law or equity in the event a defect in the manufacture or installation of the equipment, or the negligent act or omission of the Contractor, its officers, employees, agents, or subcontractors is the cause of injury to such person. 23. Force Majeure Neither party shall be liable in damages or have any right to terminate this Agreement for any delay or Default in performing hereunder if such delay or Default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessery license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected. 24, New Mexico Employees Health Coverage, A. If Contractor has, or grows to, six (6) or more employees who perform work pursuant to the Agreement, or who are expected to perform work pursuant to the Agreement, an average of at least 20 hours per week over a six (6) month period during the term of the Agreement, Contractor certifies, by signing this agreement, to have in place, and agree to maintain for the term of the Agreement, health insurance for those employees and offer that health insurance to those employees if the expected annual value in the aggregate of any and all contracts between Contractor and the State exceed $250,000 dollars. B. With respect to Contractor’s employees who perform work under the Agreement, 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 (©) 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 who perform work pursuant to the Agreement 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/. 25. Employee Pav Equity Reporting, Contractor agrees if it has ten (10) or more New Mexico employees OR eight (8) or more New Mexico employees in the same job classification, at any time during the term of this contract, to complete and submit the PE10-249 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 New Mexico 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 PE10-249 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 of the 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) of meeting 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 then 10% of the dollar value of this contract if said subcontracior(s) meets, or grows fo meet, the 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 et 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 annval anniversary of the initial report submittal. Contractor shall submit the required form(s) 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. 26. Invalid Term or Condition. If any term or condition of this Agreement shall be held invalid or unenforceable, the remainder of this Agreement shall not be affected and shall be valid and enforceable. 27. Enforcement of Agreement. A party's failure fo require strict performance of any provision of this Agreement shall not waive or diminish that party's right thereafter to demand strict compliance with that or any other provision, No waiver by a party of any of its rights under this Agreement shall be effective unless express and in writing, and no effective waiver by a party of any of its rights shall be effective to waive any other rights. Go to Next Page.28. Notices. ‘Any notice required to be given to either party by this Agreement shall be in writing and shall be delivered in person, by courier service or by U.S. mail, either first class or certified, retum receipt requested, postage prepaid, as follows: To the Agency: Anthony J. Forte, Director General Services Department, Risk Management Division PO BOX 6850, Santa Fe, New Mexico 87502-6850 [email protected]. To the Contractor: ROBERT G. JOSEPHS, Esq. BDO, Director Public Sector Practice 7101 Wisconsin Ave, Suite 800 Bethesda, MD 20814-4827 301-654-3567 (Fax) [email protected] 29. Authority. If Contractor is other than a natural person, the individual(s) signing this Agreement on behalf of Contractor represents and warrants that he or she has the power and authority to bind Contractor, and that no further action, resolution, or approvel from Contractor is necessary 10 enter into a binding contract.IN WITNESS WHEREOF, the parties have executed this Agreement as of the date of Date: 25 MAL Zor Darryl Ackley, State of New Mexico, Chief Information Officer _ oe oe ae Ed Burekle, Secretary, General Services Department Date:__3/as/4 Tay Tone fille Counsel — Certifying legal sufficieney B fs EF boot. Date: F/ Of ian Mirabal, GSD, Chief Financial Officer By: Date: 3 |-4 hia Contract) BDO USA, LLP Mark J. Ellenbogen, Office Managing Partner The records of the Taxation and Revenue Department reflect that the Contractor is registered with the Taxation and Revenue Department of the State of New Mexico to pay gross receipts and compensating taxes. ID Number03,081517-00-7 By: Date: TAT S ‘Te&ation and Revenue Department This Agreement has been approved by the DFA Contracts Review Bureau: pac, 2/24/¥ By: DFA Céhifacts Review Bureau