Legal Services Agreement # C-UGC-PA-4312

New Mexico State University Agreement for Services

This Agreement is entered into between Regents of New Mexico State University (NMSU) and
the law firm or attorney referenced below (Contractor), and is effective as of the date of the final
signature as indicated immediately below the respective party’s signatures at the end of this
document.

For the purpose of this Agreement, the following Defined Terms shall be in effect:

Contractor Rodey Dickason Sloan Akin Robb PA

Jenica Jacobi
Contractor Contact Person +1 505-768-7303
jjacobi@rodey.com

Rodey Dickason Sloan Akin Robb PA

P.O. Box 1888
Contractor Mailing Address Albuquerque, New Mexico 87103-1888

Roy Collins III, General Counsel (or successor)

NMSU Contact Person gencounsel@nmsu.edu
(575) 646-2446

NMSU General Counsel

NMSU Mailing Address
Awarded Field(s) of Law
NMSU RFP
Agreement Documents
P.O. Box 30001, MSC 3UGC
Las Cruces, NM 88003-8001
General Legal and Litigation
Regulatory
Labor Law
Employment and Civil Rights
Real Estate
Higher Education
Public Law
Request for Proposal-2022-RFP-367
• Legal Services Agreement # C-UGC-PA-4312 (this
document)
• Professional Services Contract Terms and Conditions
(attached to NMSU RFP as Exhibit C)
• NMSU Outside Counsel Guidelines (attached to NMSU
RFP as Exhibit B)
• Contractor’s Proposal response to NMSU RFP

NMSU Legal Services Agreement - 2022 Page 1 of 5

 Exceptions to NMSU Terms
NONE
and Conditions

1. SERVICES TO BE PROVIDED: The Contractor will provide legal service(s) as described in

Scope of Services RFP # 2022-RFP-367, subject to the terms and conditions of the Agreement
Documents. Work under this Agreement will be related to one of the Awarded Field(s) of Law for
which Contractor was awarded (as indicated in the defined terms above), and will be performed
on an “as requested” basis with individually negotiated assignments. Each assignment will be
provided in writing and will have a specifically agreed upon scope and schedule of the services,
and will include a fee estimate or agreed upon maximum fees, if required by NMSU. Contractors
understand that there is no guarantee of an assignment under this Agreement until such time as a
written assignment request has been issued from the NMSU General Counsel. NMSU does not
guarantee any minimum number of assignments will be awarded to Contractor in conjunction with
this Agreement. Contractor is under no obligation to accept any specific assignment request.

2. AGREEMENT DOCUMENTS: This Agreement is comprised of this signed Legal Services

Agreement and all of the terms contained in the Agreement Documents as defined above, the terms
of which are incorporated into this Agreement by reference. In the event of conflicting terms within
the Agreement Documents listed above, the terms of the Agreement Document holding the higher
position in that listing will control the interpretation of the parties' respective rights and obligations.

3. TERM: The term of this Agreement is four (4) years and is subject to early termination as
provided in the “Termination” section of this agreement.

4. INVOICES AND PAYMENT: NMSU will pay the Contractor for services rendered
satisfactorily, in accordance with the fee statements and schedules set forth in the Contractor’s
proposal, subject to any specific restrictions or limitations agreed upon in writing relating to any
specific assignment. The invoice submitted for each assignment must note the matter name and
must be delivered to the NMSU General Counsel at the address indicated above. Invoices
submitted by Contractor for hourly services must include detailed records/reports documenting the
time spent on each task in such detail as is customary in the practice of law, the identity of the
individual(s) performing the tasks, the agreed upon rate for the services, and must meet all other
requirements set forth in the NMSU Outside Counsel Guidelines.

5. TAXES: NMSU is exempt from paying taxes on the acquisition of tangible personal property.
Should any equipment provided or services rendered fall within a taxation category requiring New
Mexico Gross Receipts Tax, as defined by the State of New Mexico Taxation and Revenue
Department, the Contractor will be responsible for paying those taxes. Charges for any taxes must
be a separate line on all invoices.

6. PROCUREMENT UNDER EXISTING CONTRACTS: In accordance with NMSA 13-1-129,

Contractor is hereby notified that other governmental entities within the State of New Mexico, or
as otherwise allowed by their respective governing directives, may contract for services with the

NMSU Legal Services Agreement - 2022 Page 2 of 5

awarded Contractor. Contractual engagements accomplished under this provision will be solely
between the awarded Contractor and the contracting entity, without obligating the Regents of New
Mexico State University in any way.

7. NON-APPROPRIATION: NMSU's obligation to make payment under the terms of this

Agreement is contingent upon its appropriation of sufficient funds to make those payments. If
NMSU, in its sole discretion, does not appropriate funds for the continuation of this procurement,
this procurement will terminate upon written notice of that effect to the Contractor. NMSU’s
determination that sufficient funds have not been appropriated is firm, binding and not subject to
review.

8. TERMINATION FOR CONVENIENCE: The Contractor may terminate or withdraw from this
Agreement with respect to any future (not yet accepted) assignments upon delivery of written
notice to NMSU General Counsel. With respect to accepted assignments, Contractor may
terminate for convenience only upon completion of accepted assignments. NMSU may terminate
for convenience as provided in the Professional Services Contract Terms and Conditions. With
respect to accepted assignments, Contractor may terminate for convenience only upon completion
of accepted assignments, or if New Mexico Rule of Professional Conduct l 6-l l 6(A) requires
termination.

9. TERMINATION FOR CAUSE: Contractor may terminate this Agreement if NMSU materially
breaches any provision of its terms and, after receiving notice of the noncompliance, NMSU fails
to cure the noncompliance within (10) ten days. NMSU may terminate this Agreement based upon
Contractor's persistent failure to perform the work in accordance with the Agreement Documents,
or any other material breach of the Agreement which is not cured within (10) ten days after written
notification. In the event of termination for cause, the parties will retain all rights and remedies
afforded by law for such breach, however, Contractor will not be entitled to recovery for lost or
anticipated revenue or profits for future work under this Agreement.

10. INSURANCE: Contractor must at all times keep in force professional liability insurance with
limits of no less than one million dollars per occurrence.

11. SEVERABILITY: If any provision of this Agreement is found invalid or unenforceable, the
remainder of the Agreement will be enforced to the maximum extent permissible and the legality
and enforceability of the other provisions of the resultant agreement will not be affected.

12. NON-DISCLOSURE AND INDEMNIFICATION: Contractor represents and warrants that

it is familiar with the federal and state privacy laws regulating information relating to students and
employees and others who do business with NMSU, including but not limited to those specific
laws referenced in the NMSU Professional Services Contract Terms and Conditions. Contractor
agrees to comply with all such laws and will not release or transfer any legally protected
information except as legally permitted. Contractor agrees to indemnify and hold harmless NMSU
from any damages, claims, liabilities, and costs, including reasonable attorney fees, in the event
that any unauthorized release of such information occurs as a result of Contractors actions or
failure to act. Provided, however, that no indemnification arising from or related to the Agreement

NMSU Legal Services Agreement - 2022 Page 3 of 5

Documents shall extend the statute of limitations or modify the tort principles that would ordinarily
govern a professional negligence action brought by a client against its attorney.

13. NOTICES. Unless otherwise directed herein, official notices must be directed in writing to
the individuals listed in the defined terms above as the Contractor Contact Person and the NMSU
Contact Person. Either party may change the person authorized to receive official notices by
sending a notice to the other party’s then identified Contact Person.

14. AUTHORITY OF SIGNATORIES: Each of the individuals placing their signatures below
individually warrants that they are a duly authorized agent of the entity for which they are signing.

15. ATTORNEYS FEES AWARD: In the event of any legal action arising out of the terms of
this Agreement, the prevailing party will be entitled to an award of reasonable attorneys’ fees.

16. PRO BONO AND LO-BONO WORK. NMSU is advised by the Rodey Law Firm that pro
bono and lo-bono matters will not be considered for purposes of determining lowest fees charged
to firm clients in Section E of the NMSU Outside Counsel Guidelines.

THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK

NMSU Legal Services Agreement - 2022 Page 4 of 5

IN WITNESS WHEREOF, the duly authorized agents of the parties have placed their
signatures below.

Regents of New Mexico State University Rodey Dickason Sloan Akin Robb PA
Erika Z. Martinez Digitally signed by Erika Z. Martinez
Date: 2022.12.13 16:43:25 -07'00'
Name: Erika Z. Martinez Name: Jenica L. Jacobi
Title: Interim Director, Procurement Services Title: Director
Date: 12/13/22 Date: December 12, 2022

NMSU Legal Services Agreement - 2022 Page 5 of 5

 Attorneys and Rate Schedule

Attorney Category - Experience Field of Law Category Hourly Rate

Mark K. Adams Senior Lawyer – 25+ regulatory $391

years

Mark K. Adams Senior Lawyer – 25+ real estate; higher $362

years education

Glenn Beard Lawyer - less than 25 labor/employment/civil $247

years rights law

David Buchholtz Senior Lawyer – 25+ commercial/business $517

years type transactions and
contracts; public law –
federal and state;
higher education

David W. Bunting Senior Lawyer – 25+ Higher education $362

years

David W. Bunting Senior Lawyer – 25+ commercial/business $315

years litigation; civil litigation;
construction contracts;
construction litigation;
public law – federal and
state

Luis G. Carrasco Jr. Lawyer – Less than 10 commercial/business $292

years type transactions and
contracts; public law –
federal and state;

Luis G. Carrasco Jr. Lawyer – Less than 10 higher education $236

years

Jeff Croasdell Senior Lawyer – 25+ commercial/business $276

years litigation; civil litigation;
construction contracts;
construction litigation

3956165.1
Catherine T. Senior Lawyer – 25+ real estate $362
Goldberg years

Justin Horwitz Lawyer - less than 25 commercial/business $360

years type transactions and
contracts; public law –
federal and state

Charles R. Hughson Lawyer - less than 25 commercial/business $270

years litigation; civil litigation;
bankruptcy, insolvency
and creditor’s rights

Samantha Hults Lawyer – Less than 25 labor/employment/civil $250

years rights law

Jenica L. Jacobi Lawyer - less than 25 commercial/business $292

years type transactions and
contracts

Jenica L. Jacobi Lawyer - less than 25 real estate; higher $337

years education

Peter Kelton Jr. Lawyer – Less than 10 commercial/business $225

years type transactions and
contracts; public law –
federal and state

Cynthia A. Loehr Lawyer - less than 25 regulatory $270

years

Cynthia A. Loehr Lawyer - less than 25 real estate; higher $337

years education

Sunny J. Nixon Senior Lawyer – 25+ regulatory $234

years

Theresa W. Parrish Senior Lawyer – 25+ labor/employment/civil $228

years rights law

Richard C. Minzner Senior Lawyer – 25+ public law – federal and $350
years state
Debora E. Ramirez Lawyer - less than 25 commercial/business $382
years type transactions and
contracts

Debora E. Ramirez Lawyer - less than 25 real estate $337

years

Paul M. Roybal Jr. Lawyer – less than 10 real estate $236

years

John P. Salazar Senior Lawyer – 25+ real estate; higher $362

years education

Tracy Sprouls Senior Lawyer – 25+ commercial/business $315

years type transactions and
contracts/ regulatory

Melanie B. Lawyer – Less than 25 commercial/business $265

Stambaugh years litigation; civil litigation;
construction contracts;
construction litigation

Krystle A. Thomas Lawyer - less than 25 labor/employment/civil $234

years rights law

Linda Vanzi Senior Lawyer – 25+ labor/employment/civil $342

years rights law

Charles J. Vigil Senior Lawyer – 25+ commercial/business $360

years litigation; civil litigation;
construction contracts;
construction litigation;
labor/employment/civil
rights law; higher
education

Charles J. Vigil Senior Lawyer – 25+ higher education $362

years

Abigail M. Yates Jr. Lawyer – Less than 10 commercial/business $235

years litigation; civil litigation;
construction contracts;
construction litigation
 Paralegal all $105

Fee Schedule– Bond Counsel Services:

1. Revenue Bonds and Refunding Revenue Bonds will be charged the following rates

Amount of Issuance Cost Proposal

$0---$20,000,000 $40,000

$20,000,001---$50,000,000 $40,000 plus $1500 per million over $20,000,001

up to $85,000

$50,000,001---$100,000,000 $85,000 plus $1000 per million over $50,000,001

up to $135,000

Greater than $100,000,000 $135,000 plus $250 per million over $100,000,000

with a cap of $175,000

2. Disclosure Counsel Services: The fee for disclosure services such as assistance with the
preparation of the preliminary official statement and the official statement or the delivery of a 10b-5
opinion shall be 50% of the bond counsel fee outlined above.

3. Hourly Rate for Bond Counsel Services: For bond counsel tasks not related to issuance of a specific
series of bonds or debt, Rodey proposes to bill CNM at the discounted hourly rates presented above.

4. Costs and Taxes. Fees above are subject to New Mexico gross receipts tax. Third-party provider
charges (costs) paid by Rodey on behalf of the client are billed at our cost. These charges include special
tax counsel services, out of town travel, lodging and meal expense, expert charges, process server,
investigator, court reporter charges, transcript costs, filing, witness and/or jury fees, UPS, Federal Express
or like services and charges for providers of storage or meeting spaces. We do not bill for overhead
expenses.

5. All invoicing regarding bond and disclosure counsel services related to the issuance of specific
series of bonds or debt shall be invoiced separately and not subject to any discount applied for hourly
services. It is anticipated that fees for such bond and disclosure counsel services will be paid from bond
proceeds.

6. Our maximum fees set forth above will be increased by 10 (10%) if the closing of the bond issue
is delayed by more than six (6) months from the date of the University’s initial authorization to proceed
on the bond issue.

7. In the event of failure to close a transaction, we would require payment based on our
hourly rates (not in excess of the amounts otherwise payable if the transaction were concluded),
with the total amount due prorated based upon the time at which it becomes apparent that the
transaction will not close.
 NEW MEXICO STATE UNIVERSITY
PROFESSIONAL SERVICES CONTRACT
TERMS AND CONDITIONS

The parties agree that the following terms and conditions are applicable to all assignments made
and work performed under the Agreement between the Regents of New Mexico State University
(NMSU) and the Contractor (any party entering an Agreement to provide outside legal service).
In addition to these terms and conditions, any party entering an Agreement to provide outside
legal service is also bound by the NMSU Outside Counsel Guidelines. Any conflict between the
terms and conditions and the NMSU Outside Counsel Guidelines will be resolved in favor of the
terms and conditions.

1. Inconsistencies. Terms proposed by Contractor which are inconsistent with or in addition to

these Terms and Conditions are deemed rejected, unless explicitly agreed to in writing by
NMSU.

2. Payment Terms. Unless otherwise stated in the Agreement, the payment terms for this
Agreement are Net 30 days from the date of acceptance of the services and receipt of the
Contractor’s invoice by NMSU’s University General Counsel at gencounsel@nmsu.edu
(preferred) or MSC 3UGC, P O Box 30001, Las Cruces, NM 88003-8001. Delay in receipt of
or errors within any of the required documents will result in a delay in payment. Any late
payment charge will not exceed ½ of 1% per month. If prompt payment discounts apply to
this Agreement any discount time will not begin until goods or services have been accepted
and a correct invoice received. Acceptance of services will not waive the right to claim
damages for breach of contract. NMSU has the right to offset against any obligation owed to
Contractor any amount that Contractor then owes NMSU. Contractor agrees and consents to
all offsets.

3. Termination for Convenience. NMSU may, upon written notice, terminate this Agreement for
convenience in whole or in part. NMSU will pay Contractor the portion of the agreed upon
fees and costs attributable to service rendered before termination. NMSU will not be liable for
consequential damages, including lost profits.

4. Non-Discrimination. Contractor will operate as an equal opportunity employer and will not
discriminate against any employee or applicant for employment on the basis of age, ancestry,
color, disability, gender identity, genetic information, national origin, race, religion, retaliation,
serious medical condition, sex (including pregnancy), sexual orientation, spousal affiliation, or
protected veteran status, including, without limitation, with respect to employment, upgrading,
demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay
or other forms of compensation, and selection for training including apprenticeship.
Contractor must conform to all state and federal laws, executive orders and rules and
regulations relating thereto.

5. Payroll or Employment Taxes. No federal, state, or local income, payroll or employment taxes
of any kind will be withheld or paid by NMSU with respect to payments to Contractor or on
behalf of Contractor its agents or employees. Contractor will withhold and pay any such taxes

Terms and Conditions (UGCv.11/16/21) EXHIBIT C Page 1 of 7

 on behalf of its employees as required by law. If Contractor is not a corporation, Contractor
further understands that Contractor may be liable for self-employment (social security) tax, to
be paid by Contractor according to law.
6. Workers Compensation. Contractor warrants that it has and will maintain worker’s
compensation insurance for its employees and agents during the term of this Agreement.

7. Inspection and Audit. NMSU reserves the right to audit Contractor’s records associated with
the Agreement at any time during the Term and for a three-year period following the expiration
or termination of the Agreement. Any audit may be conducted by NMSU personnel or a third
party under contract with NMSU during business hours. NMSU will give Contractor 14 days’
notice prior to conducting any audit. Contractor agrees to fully cooperate with the auditors.
Contractor will also make available to NMSU all books and records, relevant to the Agreement,
kept or maintained by any subcontractor or agent of Contractor. Should significant non-
conformance with the terms of the Agreement be discovered in the Audit, the Contractor agrees
to pay the cost of the audit.

8. Advertising. Contractor agrees that it will not use NMSU or any of its names or trademarks in
any of Contractor’s advertising without obtaining prior written consent.

9. Conflict of Interest. The Contractor represents and warrants that it presently has no interest
and, during the term of this Agreement, will not acquire any interest, direct or indirect, which
would conflict in any manner or degree with the performance or services required under the
Agreement. Should any Assignment or Engagement proposed by NMSU under the Agreement
result in a conflict of interest, Contractor will notify NMSU immediately and, if NMSU
declines to waive the conflict, Contractor will decline the engagement or assignment from
NMSU, or if the work has already commenced, will withdraw from the assignment. The
Contractor advises NMSU that it regularly represents clients with interests adverse to the
State of New Mexico or the State's other agencies, arms, departments, subdivisions, or
employees (collectively, the "State"). NMSU, for itself and on behalf of the State, represents
and warrants that the Contractor's performance of services under this Agreement will not
disqualify the Contractor from continuing or hereafter undertaking such representations
adverse to the State, and will not require the Contractor to obtain the consent of NMSU or the
State in order to continue or undertake such representations, unless such representations are
adverse to NMSU during the term of this Agreement, or unless they are adverse to NMSU
and substantially related to the Contractor's prior representation ofNMSU.

10. Governmental Conduct Act Representations. The Contractor further represents and warrants
that it has complied with, and, during the term of the applicable agreement, will continue to
comply with, all applicable provisions of the Governmental Conduct Act, §§ 10-16-1 et seq.
NMSA 1978. All terms defined in the Governmental Conduct Act have the same meaning in
this Section. Without in anyway limiting the generality of the foregoing, the Contractor
specifically represents and warrants that:
a. the Contractor does not employ, has not employed, and will not employ during the term of
the applicable agreement any NMSU employee while such employee was or is employed
by NMSU and participating directly or indirectly in NMSU’s contracting process
[§10-16-4.3 NMSA 1978];
b. the Contractor is not a public officer or employee of the State; the Contractor is not a
member of the family of a public officer or employee of the State; and 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 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
Terms and Conditions (UGCv.11/16/21) EXHIBIT C Page 2 of 7
 required by §10-16-7(A) NMSA 1978 and this Agreement was awarded pursuant to a
competitive process [§10-16-7(A) NMSA 1978];
c. 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 the applicable agreement; and 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
the applicable agreement [§10-16-8(A) NMSA 1978];
d. the Contractor is not a legislator; the Contractor is not a member of a legislator's family;
the Contractor is not a business in which a legislator or a legislator's family has a
substantial interest; or if the Contractor is a legislator, a member of a legislator’s family,
or a business in which a legislator or a legislator's family has a substantial interest,
disclosure has been made as required by §10-16-9(A) NMSA 1978, the applicable
agreement is not a sole source or small purchase contract, and this Agreement was
awarded in accordance with the provisions of the Procurement Code [§10-16-9(A)
NMSA 1978];
e. the Contractor has not directly participated in the preparation of specifications,
qualifications or evaluation criteria for the applicable agreement or any procurement
related to the applicable agreement [§10-16-13 NMSA 1978]; and
f. the Contractor has not contributed, and during the term of the applicable agreement will
not contribute, anything of value to a public officer or employee of NMSU [§10-16-3
NMSA 1978 and §10-16-13.3 NMSA 1978].

Changes in Representations or Status. Contractor’s representations and warranties in this

Section are material representations of fact upon which NMSU relied when the applicable
agreement was entered into by the parties. Contractor must provide immediate written notice
to NMSU if, at any time during the term of the applicable agreement, Contractor learns that
Contractor’s representations and warranties in Paragraphs A and B of this Section were
erroneous on the effective date of the applicable 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 Section were erroneous on the
effective date of the applicable agreement or have become erroneous by reason of new or
changed circumstances, in addition to other remedies available to NMSU, and
notwithstanding anything in the applicable agreement to the contrary, NMSU may
immediately terminate the applicable agreement.

11. Other Applicable Laws. Any provision required to be included in an agreement of this type
by any applicable and valid executive order, federal, state or local law, ordinance, rule or
regulation will be deemed to be incorporated herein.

12. Liability. The Parties will each be solely responsible for the liability arising from personal
injury, including death, or damage to property arising from the acts or failure to act of the
respective party or of its official, agents, and employees pursuant to the Agreement. NMSU
liability will be strictly limited by and this Agreement will give full effect to the intent of the
Tort Claims Act, Section 41-4-1 et seq. NMSA 1978, and any amendments thereto.

Terms and Conditions (UGCv.11/16/21) EXHIBIT C Page 3 of 7

13. Independent Contractor. Each Party will be considered to be an independent party and will
not be construed to be an agent or representative of the other Party, and therefore, has no
liability for the act or omissions of the other Party. In addition, neither Party, nor any of its
employees, agents or subcontractors, will be entitled to compensation, worker’s compensation,
or employee benefits of the other party by virtue of this Agreement.

14. Assignment. No right or interest in this contract will be assigned or delegation of any
obligation made by Contractor without the written permission of the NMSU. Any attempted
assignment or delegation by Contractor will be wholly void and totally ineffective for all
purposes unless made in conformity with this paragraph.

15. Changes. This Agreement can be modified or rescinded only through a writing signed by both
parties.

16. Entire Agreement. The Agreement, together with its attachments and exhibits, incorporates
all the agreements, covenants, and understandings between the parties hereto concerning the
subject matter hereof, and all such covenants, agreements and understandings have been
merged into the written Agreement. No prior agreement or understanding, verbal or otherwise,
of the parties or their agents will be valid or enforceable unless embodied in the signed
Agreement.

17. No Waiver. The waiver of a breach of any term of this Agreement will in no way be construed
as a waiver of any other term or waiver of such breach on any other occasion.

18. Force Majeure. No Party will be liable or be deemed in breach of this Agreement for any
failure or delay or performance, which results, directly or indirectly, from acts of God, civil or
military authority, public disturbance, accidents, fires, or any other cause beyond the
reasonable control of either party.

19. No Third-Party Beneficiary. This Agreement is for the benefit of the Parties only. No rights
or benefits are conferred to any third-party by or through this Agreement.

20. Notices. Any notice required to be given pursuant to this Agreement, except for contracts for
construction and related services, must be given in writing and must be sent on the same date
by both USPS mail and by email addressed as follows:

NMSU Name: New Mexico State University

Attention: NMSU General Counsel
Address: MSC 3UGC
PO Box 30001
Las Cruces, NM 88003-8001

Email: gencounsel@nmsu.edu

Contractor: Contact information as provided in the NMSU Vendor Questionnaire.

Terms and Conditions (UGCv.11/16/21) EXHIBIT C Page 4 of 7

 Notice will be deemed effective three business days after dispatched by mail, properly
addressed, with postage prepaid. An effective notice must also include delivery by properly
addressed email. NMSU and Affiliate may change their respective contact information upon
prior written notice.

21. Governing Law. The laws of the State of New Mexico will govern this Agreement, without
giving effect to its choice of law provisions. Venue will be proper only in a New Mexico court
of competent jurisdiction in accordance with Section 38-3-1 (G) NMSA 1978. By execution
of this Agreement, Contractor acknowledges and agrees to the jurisdiction of the courts of the
State of New Mexico over any and all lawsuits arising under the Agreement or in any way
connected with or related or incidental to the dealings of the parties in respect of the Agreement
or any of the transactions related hereto.

22. Waiver of Right to Jury Trial. EACH OF THE PARTIES WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION, OR CAUSE OF ACTION (A) ARISING UNDER THE AGREEMENT
OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTIES IN RESPECT OF THE AGREEMENT OR ANY OF THE
TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY, OR
OTHERWISE. EACH OF THE PARTIES HEREBY AGREES AND CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION WILL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES MAY FILE A COPY
OF THE AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
EACH PART AGREES THAT IT HAD AN OPPORTUNITY TO CONSULT WITH LEGAL
COUNSEL PRIOR TO SIGNING THIS WAIVER OF JURY TRIAL, HAS CAREFULLY
READY AND FULLY UNDERSTANDS THE EFFECTS OF THIS WAIVER OF JURY
TRIAL, AND VOLUNATRILY AGREED TO WAIVE ITS RIGHT TO A JURY TRIAL.

23. Captions. The captions contained herein are used solely for convenience and will not be
deemed to define or limit the provisions of this Agreement.

24. Ownership of Documents. All documents which are prepared by the Contractor under this
Agreement are the sole property of NMSU (NMSU Property). NMSU Property may not be
reproduced nor distributed without the express written consent of the NMSU. Within two
weeks of a request by NMSU, Contractor agrees to deliver all NMSU Property to NMSU.
Contractor will be responsible for the protection and/or return of any original documents in its
possession. This provision will survive expiration and termination of this Agreement.

25. Student Records - FERPA Protected Information. If, in the performance of this Agreement,
information pertaining to students is accessed, transferred, stored, or processed by Contractor,
Contractor agrees to protect student information in accordance with the Family Educational
Rights and Privacy Act (FERPA). Contractor must immediately notify NMSU University
General Counsel of any security breach concerning student records, and must consult with the
University General Counsel regarding any request for disclosure of records containing
information about students, including discovery requests in litigation. Under FERPA, advance

Terms and Conditions (UGCv.11/16/21) EXHIBIT C Page 5 of 7

 notice to the student may be required even when disclosure of records is compelled by a
subpoena, other judicial or administrative order

26. Confidential Customer Information - Gramm-Leach-Bliley Act. The Gramm-Leach-Bliley

Act broadly defines “financial institution” as any institution engaging in the financial
activities enumerated under the Bank Holding Company Act of 1956, including “making,
acquiring, brokering, or servicing loans” and “collection agency services”. Because higher
education institutions participate in financial activities, such as processing student financial
aid and student loans, FTC regulations consider them financial institutions for purposes of
the Gramm-Leach-Bliley Act. In order to maintain compliance with the Gramm-Leach-
Bliley Act and other federal privacy laws, the parties agree that:

a) Contractor Defined. Contractor means any person or entity that receives, maintains,
processes, or otherwise is permitted access to Customer Information through its direct
provision of services to a financial institution.
b) Customer Information Defined. Customer Information means any record containing
nonpublic information as defined in 16 CFR 313.3(n), about a customer of Financial
Institution, whether in paper, electronic or other form that NMSU has obtained from a
customer in the process of offering a financial product or service including offering student
aid and loans to students as defined in 12 CFR 225.28.
c) Confidential Information. Any and all Customer Information provided by NMSU to the
Contractor or which the Contractor acquires through its own efforts in rendering or
providing any goods or services under this Agreement, will be considered confidential and
held in strict confidence and will only be released to the Contractor’s own personnel,
agents, sub-contractors and sub-consultants only to the extent necessary to provide or
perform the goods and/or services required by this Agreement. Such information will not
be released by the Contractor to any other person or organization without prior written
consent and approval of NMSU.
d) Protection of Customer Information. Pursuant to the Gramm-Leach-Bliley Act and the
regulations set forth at 16 CFR Part 314, NMSU requires its contractors to implement and
maintain appropriate safeguards for the protection of Customer Information. Accordingly,
Contractor will implement and maintain a comprehensive information security program
that contains administrative, technical and physical safeguards that reasonably and
appropriately protect the confidentiality, integrity, and availability of confidential
Customer Information that it creates, receives, maintains, or transmits on behalf of NMSU.
In addition, Contractor will require and ensure that any of its agents, sub- contractors, or
sub-consultants to which it provides confidential Customer Information of NMSU
implement appropriate security measures to protect Customer Information of NMSU.
e) Nondisclosure of Customer Information. Contractor will not use or disclose covered data
and information received from or created on behalf of NMSU except as permitted or
required by this Agreement, as required by law, or as otherwise authorized in writing by
NMSU. Upon becoming aware of a security breach in which NMSU Customer
Information is used or disclosed in a manner not authorized or covered by this Agreement,
including any reasonable belief that an unauthorized individual has accessed a database
containing covered data and information, or in violation of any applicable state or federal
laws, Contractor will report to NMSU any security incident immediately upon being aware

Terms and Conditions (UGCv.11/16/21) EXHIBIT C Page 6 of 7

 of such a breach and take such corrective steps/action to remedy the breach as requested
by NMSU and required by law.
f) Termination of Agreement. Upon termination, cancellation, expiration or other conclusion
of this Agreement, Contractor will return to NMSU covered Customer Information and
data unless NMSU requests in writing that such Customer Information and data be
destroyed. Contractor must complete such return or destruction not less than 30 days after
the conclusion of this Agreement. Within such 30 day period, Contractor must certify in
writing to NMSU that such return or destruction has been completed. To the extent return
or destruction is not feasible; this Agreement will remain in full force and effect.

27. Health Information Privacy - Health Insurance Portability and Accountability Act (HIPAA).
If, in the performance of this Agreement, private health information is accessed, transferred,
stored, or processed by Contractor, Contractor agrees to protect that information consistent
with the requirements of the Health Insurance Portability and Accountability Act of 1996
(HIPAA). In addition, each party will comply with confidentiality, medical records and/or
other applicable laws and regulations with regard to any and all personal information directly
or indirectly accessed or used by that party and its personnel, including without limitation
HIPAA.
28. Disposition of Customer Information and Data: Upon termination, cancellation, expiration or
other conclusion of this Agreement, Contractor will return to NMSU any confidential
information and data unless NMSU requests in writing that such confidential information and
data be destroyed. Contractor must complete such return or destruction not less than 30 days
after the conclusion of this Agreement. Within such 30 day period, Contractor must certify in
writing to NMSU that such return or destruction has been completed. To the extent return or
destruction is not feasible; this Agreement will remain in full force and effect.

END OF DOCUMENT

Terms and Conditions (UGCv.11/16/21) EXHIBIT C Page 7 of 7

 NMSU Outside Counsel Guidelines

New Mexico State University (NMSU), through its University General Counsel (UGC) has developed the
following guidelines to outline its expectations with regard to its relationship with all outside attorneys
and firms (Outside Counsel).

A. Engagement

Outside Counsel will not undertake work on any legal matter without express authority from NMSU’s
general counsel. An award of a contract in response to a proposal from Outside Counsel does not
constitute authority to perform legal work for NMSU. UGC will have authority and responsibility to
define the scope of services to be provided and the terms of engagement for each legal matter assigned
to Outside Counsel. Outside Counsel will not be compensated for any work performed, or expenses
incurred outside the agreed upon scope of services. Any proposed assignment may be contingent upon
Outside Counsel providing an acceptable case/matter budget for the matter.

B. Management of Legal Services:

An in-house attorney in UGC, typically the General Counsel, will be designated as the contact person for
each legal matter assigned to Outside Counsel. Similarly, Outside Counsel is required to designate a
single attorney in its firm as the primary contact for each legal matter. Outside counsel is required to
keep the UGC designated attorney informed of all developments and significant events regarding the
assigned legal matter(s). Updates may come in a variety of forms: by delivery of documents or
pleadings, by telephone, or by email. In complex matters with a high dollar value, UGC may occasionally
require a formal status report and may on rare occasion ask Outside Counsel to provide an in person
briefing for the NMSU senior executive team and/or Regents. The Outside Counsel designated attorney
for a matter is expected to personally handle all critical and substantive activities and will be
accountable for the overall management of the assignment, the law firm team, and the costs of the
engagement. Outside Counsel may not subcontract any NMSU legal matter without the written
approved of UGC.

C. Litigation:

RMD Covered Litigation. A majority of the litigation claims in which NMSU or its employees are named
as defendants are covered under the Public Liability Fund managed by the State Risk Management
Division (RMD). In those cases, RMD typically selects counsel from their roster of contracted attorneys
based on a variety of factors, and the RMD guidelines take precedent over this document in those cases.
Even so, NMSU expects the assigned attorneys to treat NMSU as the client and to fulfill their
professional obligations accordingly, including keeping NMSU informed of case developments as
described in Part B above. Settlements should be made only with NMSU consent, and due care should
be given for NMSU’s interest in protecting its reputation.

NMSU Outside Counsel Guidelines Exhibit B Page 1 of 4

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NMSU Funded Litigation. NMSU occasionally requires legal counsel to file lawsuits on its behalf or, more
commonly, to defend lawsuits for which there is no RMD coverage. In these cases, UGC will necessarily
take a more active role in managing and directing the course of the litigation. As part of the assignment
of a litigation matter UGC will conference with Outside Counsel to establish the initial strategy for the
litigation. The following topics should typically be addressed at the conference:

1. Information Assessment: Information already developed on the matter and further information
needed for Outside Counsel to develop a litigation strategy and conduct liability and risk
assessments.
2. Members of the Team and Other Resources: Outside Counsel will identify the attorneys and
other professional staff members from its firm to service the litigation matter. The UGC may
request resumes and other information regarding their specific areas of responsibility and
qualifications. UGC will provide a list of internal NMSU contacts who are expected to be
witnesses and those who are custodians of key information key.
3. Role of UGC: Outside Counsel and UGC will define the role of UGC in assisting with the litigation
and serving as a liaison to other NMSU staff. The UGC must be involved in and approve all key
decisions in litigation matters. Outside Counsel will provide UGC with copies of all court
documents and correspondence with opposing counsel on a timely basis. As a general rule, UGC
expects to have the opportunity to review substantive motions and pleadings prepared by
Outside Counsel before filing. UGC may, with adequate advance notice, request a formal
litigation risk analysis to be prepared. In the event of a settlement or adverse outcome, UGC
may require a “root cause analysis” providing Outside Counsel’s recommendations for
preventing similar losses.
4. Budget: UGC and Outside Counsel will develop a budget based on the litigation stages (e.g.,
initial development of case, pleadings, discovery, motions, pre-trial motions, trial preparation,
trial, appeal). For each stage, a “target budget” should be developed. Budget targets are
flexible and will be revised to reflect unanticipated events; however, Outside Counsel must
identify its baseline assumptions and these must be agreed to by UGC in advance. In addition to
legal fees, the budget must include all expected litigation costs including experts, document
management services, other external services, and anticipated travel. Outside Counsel may not
exceed the target budget estimate without written approval from UGC.

D. Staffing

All matters must be staffed with the minimum number of lawyers consistent with high quality legal
services and at the most efficient level (partner, associate, paralegal, clerk, or secretary) consistent with
high quality legal services. Unless approved in advance by UGC, duplicate staffing is not permitted. We
normally pay for only one attorney to accomplish a task. The preparation for and attendance at a
deposition, hearing, trial or meeting by more than one attorney, paralegal, etc. will not be paid unless
prior approval is obtained from UGC. We will not pay for any attorney redoing the work of another
attorney or duplicative entries for reviewing and analyzing documentation and legal research.
Conferencing among attorneys in the office is generally not compensable, unless the conference
necessitated by a significant legal event and is held at the request of UGC. When conferencing is
necessary, only the senior attorney’s time will be compensable unless prior approval is obtained. If for
any reason the firm replaces a team member, the cost associated with the education of a new team
member will be the responsibility of the law firm. Once Outside Counsel identifies the attorneys
assigned to represent NMSU in a specific matter, the attorneys should not be added to or removed from
the assignment without prior notice to and approval from UGC.

NMSU Outside Counsel Guidelines Exhibit B Page 2 of 4

UGC11162021
E. Fees, Costs and Billing

Fee Arrangements. Except where otherwise agreed, attorneys’ fees will be billed on an hourly basis
using tenths of an hour increments. NMSU is receptive to alternative fee arrangements, including
consultations retainers, fixed pricing by matter and task, incentive pricing, etc. Outside Counsel is
welcome to propose alternative fee arrangement on a matter by matter basis. Billing statements should
not reflect increases to rates the UGC has negotiated with your firm, unless the UGC has pre-approved
the rate changes. For approved travel on NMSU legal matters, travel time is paid at the base rate
established for the firm’s employee/attorney, except that the time utilized working on other matters
should not be billed to NMSU. A firm may not submit more than one proposed rate increase per year
(reflecting new rates for all attorneys expected to represent NMSU). An attorney’s hourly fee shall not
exceed the lowest fee charged to any of the firm’s clients. The signature of the UGC must be included on
the first invoice submitted after the approval of the rate change. In the absence of such approval, the
UGC will pay billing statements based on negotiated rates.

Costs. Routine costs may be included in all bills. All other costs incurred are reimbursable only when
budgeted in advance or with prior written approval of the UGC responsible. All costs must be
reasonable under the circumstances and may not exceed the actual cost incurred by the Outside
Counsel.
1. Photocopies (routine cost): Photocopies not to exceed $0.15 for color copies and $.0085 for
black and white; with invoices indicating the price per page and the number of copies made.
2. Long distance telecommunications (routine cost): phone calls and long distance fax charges;
with invoices indicating the date of the call or fax, the telephone number, and the actual costs.
3. Travel Expenses (preapproved): automobile mileage is reimbursed at the state mileage
reimbursement rate with distances based on Google Maps; air travel is reimbursed at the coach
or economy fare (receipt must be provided upon request); meals are reimbursed only at the
NMSU per diem rate (call UGC to determine amount); and lodging expenses may be based on
actual expense at business class hotel (receipt must be available upon request).

Billing Information. Bills must be submitted monthly, no later than thirty (30) days following the end
of the month in which services were rendered. NMSU’s fiscal year ends on June 30, and it is
particularly important that bills for services in May are received as early as possible in June. All bills
should be sent to UGC for handling. UGC is committed to the prompt payment of billing statements that
conform to our requirements – typically within 30 days of receipt. Given that payments processing
occurs in another NMSU unit, Outside Counsel should direct its billing staff to contact UGC directly if bills
are not paid within 60 days of dispatch. Bills that are transmitted electronically must be directed to
gencounsel@nmsu.edu. Outside Counsel should address any concerns or questions about the UGC
billing expectations with us as soon as practicable. All invoices for services performed at an hourly rate
are to contain at least the following information.
1. Date of each task performed;
2. Name of the person performing the task;
3. Brief but detailed description of the task performed;
4. Time devoted to the task in increments of one tenth of an hour;
5. Billing rate for each person (at rates previously contracted by NMSU for the person performing
the task);
6. Itemized breakdown of billed costs, without markups by the firm.

NMSU Outside Counsel Guidelines Exhibit B Page 3 of 4

UGC11162021
Non-Billable Time and Items. NMSU will not pay for time or costs of the following:
1. Preparation of budgets, invoices, routine diary reviews (not precipitated by any legal event,
phone call, or receipt of correspondence), status reports which reiterate facts already known by
the UGC, or responses to billing inquires;
2. Attendance at weekly staff meetings and any internal firm events such as retreats;
3. Clerical or paralegal work performed by attorneys; clerical work performed by paralegals;
4. Secretarial, word processing, proofreading, filing, office machine attendants (photocopy or
faxing), librarian or other clerical services (normal, temporary, or overtime);
5. Training or education of personnel;
6. Marketing and relationship-building time;
7. Basic research on matters presumed to be within the firm’s expertise or on matters of common
knowledge among reasonably experienced counsel in the locale;
8. Computerized legal research such as Westlaw or Lexis;
9. Cellular telephone charges; Local telephone or facsimile charges;
10. Meals (other than meals with a client or witness, or while away from the firm on travel
representing the UGC office);
11. Local travel time and expenses unless approved on a case by case basis;
12. Billing of a “miscellaneous” or “other” category of expenses, without specification of each
expense;
13. Credit card processing fees incurred for pass-through costs; or
14. Any other expense properly chargeable to overhead or as a capital expense.

F. Other

Conflicts of Interest. NMSU expect Outside Counsel to comply with all applicable professional guidelines
governing conflicts. Prior to beginning work on any NMSU matter, your firm should identify, disclose,
and clear to the satisfaction of the UGC any potential conflict of interest. Any conflicts that arise or may
arise after the commencement of work for NMSU are be disclosed to and resolved with the UGC.

Media Contacts. Outside Counsel are prohibited from making statements to the media on behalf of
NMSU without express authorization from the UGC. Outside Counsel should refer all media inquiries to
UGC. NMSU has a professional communication office that will issue public statements regarding NMSU
legal matters, if any, after clearance by UGC. UGC will consult with Outside Counsel before authorizing
such statements.

Reputation Protection. NMSU’s reputation is highly valued asset. With respect to legal assignments, we
expect Outside Counsel to be vigilant about both identifying the reputational risk and communicating
that risk effectively to us. Outside Counsel’s conduct in representing NMSU also impacts NMSU’s
reputation, and Outside Counsel is expected to conduct its representation with due regard for that fact.
NMSU is interested in doing what is right in a given situation, and expects to receive Outside Counsel’s
advice and counsel on how to achieve a fair and just outcome in all legal matters.

Amendments. These Outside Counsel Guidelines, including the billing guidelines, may be revised from
time to time by the UGC, and such amendment shall become effective for all matters subsequently
assigned and accepted following communication of the revised guidelines to Outside Counsel.

END OF DOCUMENT

NMSU Outside Counsel Guidelines Exhibit B Page 4 of 4

UGC11162021