HomeMy WebLinkAboutRFP - 9502 DISTRIBUTED ENERGY RESOURCE APPLICATION MANAGEMENT PLATFORMRFP 9502 Distributed Energy Resource Application Management Platform Page 1 of 47
REQUEST FOR PROPOSAL
RFP 9502 Distributed Energy Resource Application Management Platform
RFP DUE: 3:00 PM MT (Mountain Time), February 4, 2022.
The City of Fort Collins is requesting proposals from qualified Service Providers to provide a
solution accessible online that supports streamlined application processing for solar, battery
storage, and other distributed energy resource (DER) interconnection as well as incentive
program application processing, program administration and tracking functions.
As part of the City’s commitment to sustainability, proposals must be submitted online through
the Rocky Mountain E-Purchasing System (RMEPS) at http://www.bidnetdirect.com/colorado/city-
of-fort-collins. Note: please ensure adequate time to submit proposals through RMEPS. Proposals
not submitted by the designated Opening Date and Time will not be accepted by RMEPS.
A pre-proposal meeting will be held at 3:15 PM MT on January 18, 2022. The pre-proposal
meeting will be hosted on-line via Microsoft Teams or Zoom. Select or copy/paste the below link
into your browser for access to the meeting. Please be prepared to enter your name, company
name, and email into the chat for attendance purposes.
Time: Jan 18, 2022 03:15 PM Mountain Time
Join Zoom Meeting
https://us02web.zoom.us/j/88000470407?pwd=c1RLMTkrb0JOSklzS0hycnArNVdKUT09
Meeting ID: 880 0047 0407
Passcode: 989452
Find your local number: https://us02web.zoom.us/u/kbkmTuWODG
All questions should be submitted, via email, to JD McCune, Buyer II at
jmccune@fcgov.com, no later than 3:00 PM MT on January 25, 2022. Please format your e-
mail to include: RFP 9502 Distributed Energy Resource Application Management Platform
Questions in the subject line. Questions received after this deadline may not be answered.
Responses to all questions submitted before the deadline will be addressed in an addendum and
posted on the Rocky Mountain E-Purchasing System webpage.
Rocky Mountain E-Purchasing System hosted by BidNet
A copy of the RFP may be obtained at http://www.bidnetdirect.com/colorado/city-of-fort-collins.
Prohibition of Unlawful Discrimination: The City of Fort Collins, in accordance with the
provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to 2000d-
4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract
entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded
full and fair opportunity to submit bids in response to this invitation and will not be discriminated
against on the grounds of race, color, or national origin in consideration for an award.
Financial Services
Purchasing Division
215 N. Mason St. 2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6775
970.221.6707
fcgov.com/purchasing
RFP 9502 Distributed Energy Resource Application Management Platform Page 2 of 47
The City strictly prohibits unlawful discrimination based on an individual’s gender (regardless of
gender identity or gender expression), race, color, religion, creed, national origin, ancestry, age
40 years or older, marital status, disability, sexual orientation, genetic information, or other
characteristics protected by law. For the purpose of this policy “sexual orientation” means a
person’s actual or perceived orientation toward heterosexuality, homosexuality, and bisexuality.
The City also strictly prohibits unlawful harassment in the workplace, including sexual
harassment. Further, the City strictly prohibits unlawful retaliation against a person who engages
in protected activity. Protected activity includes an employee complaining that he or she has been
discriminated against in violation of the above policy or participating in an employment
discrimination proceeding.
The City requires its Service Providers to comply with the City’s policy for equal employment
opportunity and to prohibit unlawful discrimination, harassment and retaliation. This requirement
applies to all third-party Service Providers and their subcontractors/subconsultants at every tier.
Public Viewing Copy: The City is a governmental entity subject to the Colorado Open Records
Act, C.R.S. §§ 24-72-200.1 et seq. (“CORA”). Any proposals submitted hereunder are subject to
public disclosure by the City pursuant to CORA and City ordinances. Service Providers may
submit one (1) additional complete proposal clearly marked “FOR PUBLIC VIEWING.” In this
version of the proposal, Service Providers may redact text and/or data that it deems confidential
or proprietary pursuant to CORA. Failure to provide a public viewing copy will be considered a
waiver of any claim of confidentiality under CORA without regard to how the applicant’s proposal
or certain pages of the proposal are marked confidential, proprietary, or similar. Such statement
does not necessarily exempt such documentation from public disclosure if required by CORA, by
order of a court of appropriate jurisdiction, or other applicable law. Generally, under CORA trade
secrets, confidential commercial and financial data information is not required to be disclosed by
the City. Proposals may not be marked “Confidential” or ‘Proprietary’ in their entirety. By
responding to this RFP, Service Providers hereby waives any and all claims for damages against
the City for the City’s good faith compliance with CORA. All provisions of any contract
resulting from this request for proposal will be public information.
Service Providers Registration: The City requires new Service Providers receiving awards from
the City to submit IRS form W-9 or W-8BEN/W8-BEN-E (international firms) and requires all
Service Providers to accept Direct Deposit (Electronic) payment. If needed, the W-9 form and
the Vendor Direct Deposit Authorization Form can be found on the City’s Purchasing website at
www.fcgov.com/purchasing under Vendor Reference Documents. Please do not submit these
documents with your proposal, however, if you take exception to participating in Direct Deposit
(Electronic) payments please clearly note such in your proposal as an exception. The City may
waive the requirement to participate in Direct Deposit (Electronic) payments at its sole discretion.
Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council, shall
have a financial interest in the sale to the City of any real or personal property, equipment,
material, supplies or services where such officer or employee exercises directly or indirectly any
decision-making authority concerning such sale or any supervisory authority over the services to
be rendered. This rule also applies to subcontracts with the City. Soliciting or accepting any gift,
gratuity favor, entertainment, kickback or any items of monetary value from any person who has
or is seeking to do business with the City of Fort Collins is prohibited.
Collusive or Sham Proposals: Any proposal deemed to be collusive or a sham proposal will be
rejected and reported to authorities as such. Your authorized signature of this proposal assures
that such proposal is genuine and is not a collusive or sham proposal.
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The City of Fort Collins reserves the right to reject any and all proposals and to waive any
irregularities or informalities.
Utilization of Award by Other Agencies: The City of Fort Collins reserves the right to allow
other state and local governmental agencies, political subdivisions, and/or school districts to
utilize the resulting award under all terms and conditions specified and upon agreement by all
parties. Usage by any other entity shall not have a negative impact on the City of Fort Collins in
the current term or in any future terms.
The selected Service Provider shall be required to sign the City’s Agreement prior to commencing
services (see sample attached to this document).
Sincerely,
Gerry Paul
Purchasing Director
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I. BACKGROUND & OBJECTIVE / OVERVIEW
A. Objective
The City of Fort Collins Utilities (Utilities) is requesting proposals from qualified Service
Providers to provide a solution accessible online that supports streamlined application
processing for solar, battery storage, and other Distributed Energy Resource (DER)
interconnection as well as incentive program application processing, program
administration and tracking functions. Utilities is seeking to configure software to meet the
described requirements to the greatest extent possible and is not interested in customized
software solutions.
B. Background
Solar photovoltaic (PV) adoption has grown rapidly in Fort Collins over the past decade.
Over the past 16 years, Utilities has interconnected more than 23 megawatts (MW) of
customer-owned generation. The volume of unique project applications, once dozens per
year, now exceeds 600 per year with an annual growth rate as high as 40%. This growth
has strained the existing business process and spreadsheet-based tracking and reporting
system to its limits.
Fort Collins Utilities seeks to enhance the speed and efficiency of processing DER
interconnection and rebate applications, reduce administrative burdens, and updated
record storage systems associated with those applications. These enhancements will
improve the speed of project approval, reducing the timeframe for project installation and
associated benefits to customers and solar contractors.
Fort Collins has ambitious climate and energy goals including an 80% reduction in
community carbon emissions and 100% renewable electricity by 2030. Fort Collins
Utilities serves nearly 77,000 (both single family and multi-family) electric customers with
total annual sales of approximately 1,500 gigawatt-hours. The Utility also provides water,
wastewater, stormwater, internet, and financing services. More information about Fort
Collins Utilities can be found at www.fcgov.com/utilities.
Fort Collins is a vibrant community of approximately 175,000 residents located 65 miles
north of Denver, at the bast of the foothills of the Rocky Mountains. The City is 56 square
miles in size and is the northern extension of the “Colorado Front Range” urban corridor.
The City’s population includes over 34,000 college students.
To become familiar with Utilities’ existing DER incentive programs, Service Providers
should review the following websites:
• www.fcgov.com/solar
• www.fcgov.com/utilities/solar-contractor-resources
• www.fcgov.com/utilities/residential-battery-storage-program
II. SCOPE OF PROPOSAL
A. Scope of Work
Primary Requirements:
Capabilities of the software platform should include the following:
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A. Web form(s) for contractors to submit DE interconnection project applications for
generators of various sizes and types, energy storage, upgrades, or
enhancements to existing DER systems, and other generation or energy storage
options which may be allowed in the future.
B. Accept applications via web form using required fields and field-conditional logic
for intake of data associated with a project, including:
a. Details about the equipment, customer, DER equipment owner, and
contractors involved,
b. Details such as size and orientation of solar sub-arrays and inverter model
info,
c. Application fields that are only displayed conditionally based on other field
input. For example, battery system component details are required only if
the contractor indicates that battery storage is included in the project.
d. Support the attachment of supplemental documentation including plans,
customer contract, etc.
C. Capture digital signature of contractor submitting application as well as host
electric customer
D. Collect application fees based on logic and type of DE application
E. Trigger email notification to contractor and / or electric customer with message
templates for different scenarios such as:
a. Electronic approval of project application
b. Issue permission to operate
F. Support modifications to DER projects in progress by contractor, such as a change
in the size of a PV array and addition or removal of battery storage. Archive
outdated versions of plans and approvals. Modification triggers certain business
processes to repeat from a certain point, such as Technical Review.
G. Support the application for DER incentives offered through Utilities programs for
solar installation, battery storage installation, and other DER equipment incentives
that may emerge in the future. Incentive program functionality required:
a. Display available incentive(s) to applicant
b. Compute incentive based on data provided by applicant
c. Approve project installation with or without incentive based on incentive
program rules
H. Administrative business process management for Utilities staff:
a. Review project applications and monitor the progress of each application
in unique stages of application lifecycle from initiation to conclusion,
b. Save staff notes associated to applications which may be incomplete or
contain erroneous entries,
c. Provide stage-level approval (such as intake review, technical review, etc.)
or assignment and automated notification for internal assignments
according to business rules (example: technical review, distribution system
impact study (SIS),
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d. Track the date and name of staff approving stages of review,
e. Provide automated notification via email to one or multiple external
stakeholders according to business rules for a project (example: email
project approval, missing documentation, fire department project review,
etc.),
f. Update application status and advance through lifecycle according to
stage-gate process rules,
g. Organize, store, and track data entered via form for each project application
in conjunction with supplemental application documents uploaded,
h. Report on status of all project applications in-process,
i. Report on key performance indicators of handling interconnections and
rebate applications from initial receipt through interconnection and
incentive payment,
j. Notify contractor and/or customer of project applications driven by status
and age:
i. For purging unsubmitted draft applications
ii. For purging inactive approved projects that haven’t been completed
or have been canceled without notification to Utilities
k. Support tracking multiple contractors associated with a project, such as:
i. Applicant contractor
ii. Sales contractor
iii. Design contractor
iv. Installation contractor
v. Designated subcontractor(s)
I. Data warehousing of project applications received, organized by a premises-
specific identification number correlating to Utilities’ customer information system,
including:
a. Attached documents uploaded to the platform by contractor for each
application
b. Field inspection forms completed by Utilities staff
c. Photos and video documentation posted by contractor or by Utilities staff
d. Project review notes generated by staff
J. Ability to apply a decommissioned status to DER projects that received permission
to operate but were later removed,
K. Periodic export or transfer of a secure flat-file of project database records with
designated data fields,
L. Periodic export or transfer of all documents, notes and records associated with
each project to archive or document management system under Utilities’ control.
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Additional Scope of Work and Tasks
Service Providers shall provide a description of automated testing for database stability
and standards for automated backup of platform structure, database records, redundancy,
and archive storage. Provide description of standard reporting and export options.
Proposal shall summarize the roles and responsibilities of the Service Provider and
Utilities for the complete delivery of the project.
Tasks for the Service Provider include:
1. Develop detailed plan for implementation of the Scope of Work to configure,
deliver, commission, test, and support roll out of platform within specified
timeframe.
2. Develop detailed plan which imports historic data to the platform database.
3. Complete configuration of Service Provider software to the agreed upon Scope of
Work.
4. Complete import and quality assurance review of historic DER project data (not
supporting project files).
5. Support Utilities staff through platform testing and resolution of identified issues.
6. Provide training materials and training events for operators and stakeholders at
Fort Collins Utilities (in-person or by interactive web meetings), deliver
documentation for platform configuration.
7. Participate in one training event offered to solar contractors (to be recorded),
8. Provide a plan for periodic records transfer compatible with a Utilities future data
warehouse solution. Describe end of contract records transfer if different than
archive process.
9. Maintain a schedule of project meetings necessary for project completion.
B. Additional Capabilities Disclosure
Beyond discussion of software platform requirements, Utilities requests information for
the following optional capabilities:
1. Integration or API to Accela software.
2. Integration with databases such as distribution system ESRI ArcGIS, Utilities
Customer Information System, etc. which could support real-time validation of
application field data with these other software systems.
3. Support applications for, and tracking of, distributed energy technologies such as
electric vehicle chargers or grid-integrated controllable electric water heaters.
4. Complete project field inspection forms remotely on tablets, linking inspection
records to specific project in the database.
5. Support maintaining a database of contractors which can:
a. Distinguish contractors authorized by Utilities as active in ‘Participating Solar
Contractor Network’.
b. Match DER application contractors to approved Participating Solar
Contractors list.
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c. Maintain status of contractor, employee contacts within each contractor
organization.
6. Reporting functionality to support incentive program management and
standardized industry reporting, such as:
a. Monthly and annual project and incentive application volume, incentive
dollars reserved and released for payment, by resource type (solar, battery,
etc.) and by sector (residential, commercial).
b. Total aggregate project applications and capacity additions by year, year-to-
date by DER type.
c. Energy Information Administration standardized reporting as required for
solar projects, battery storage, etc.
i. Identify changes made on projects since previous quarter or year to
explain amended data reporting.
7. Support interfacing to an enterprise content management system managed by
Utilities for storing project documents.
8. Track the records for each DER installed over time based on a premises
identification number, updating the record as the electric account holder for the
premises of each installation changes over time.
a. Support requesting and capturing signatures for a new Net Metering
Agreement triggered based on change of account holder.
C. Deliverables/Milestones
Utilities anticipates the following project milestones, which may be amended after
discussion with selected Service Provider:
1. Provide a Gantt chart detailing plan for implementation of the Scope of Work with a
timeline of completion for tasks and milestones.
2. Configuration:
a. Forms, workflows, and business processes established and connected.
b. Reporting and exports defined and proven.
c. Demonstration of operational platform, including exports and extracts.
3. Historic data field mapping and transfer to Service Provider, validation of data
loaded.
4. Commissioning and testing approved.
5. Go live with new application management platform.
6. Training and transfer of training materials complete, integration complete.
D. Minimum Qualifications
Experience delivering platform and services similar to this Scope of Work for a municipal
or co-op electric utility (50,000-300,000 customer system) is strongly preferred.
Demonstrated success delivering a similar solar or DER platform to at least 10 other
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electric utilities is required. Service Provider to show work experience by providing 5
references, including customer name and project manager contact information at different
client utilities for similar work delivered within the past 5 years.
E. Anticipated Schedule
The following represents the City’s target schedule for the RFP. The City reserves the
right to amend the target schedule at any time.
• RFP issuance: January 7, 2022
• Pre-Proposal Meeting: 3:15 PM MT on January 18, 2022
• Question deadline: 3:00 PM MT on January 25, 2022
• Final Addendum Issued: January 31, 2022
• Proposal due date: 3:00 PM MT on February 4, 2022
• Interviews (tentative): Week of February 7, 2022
• Platform Demo, review test model: Week of February 14, 2022
• Completion of project: July 31, 2022
F. Budget
The budget for this project is limited to a maximum of $125,000 inclusive of all initial
costs and first year licensing fees. Service Providers are to submit proposals with a
functional scope that fits within this amount. Any additional tasks can be prioritized to
aid the City in potentially identifying additional resources for implementation with the
above budget.
G. Interviews/Demonstration
In addition to submitting a written proposal, the top-rated Service Providers may be
interviewed by the RFP assessment team and asked to participate in an oral presentation
to provide an overview of the company, approach to the project and to address questions.
The evaluation criteria for the oral interviews will be the same as the criteria for the written
evaluations and is included in Section IV.
Because of recent events involving COVID-19, the City may use non-traditional methods
for the optional interview phase of the assessment process. The City will receive and score
written proposals. However, instead of traditional in-person interviews for the optional
interview session, the City may opt to use alternate methods including, but not limited to
remote interviews through a platform such as Microsoft Teams or Zoom.
H. Travel & Expenses
Subject to the terms of Agreement, reasonable expenses may be reimbursable per the
current rates found at www.gsa.gov. Service Provider will be required to provide original
receipts to the City for all travel expenses.
I. Subcontractors/Subconsultants
Service Provider will be responsible for identifying any subcontractors and/or
subconsultants in their proposal. Please note that the City will contract solely with the
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awarded Service Provider; therefore, subcontractors and/or subconsultants will be the
responsibility of the Service Provider.
J. Financial Qualifications (CONFIDENTIAL)
Service Providers selected as finalists may be required to submit a banking reference and
the most recent financial statement (audited preferred) including balance sheet and
income statement, as well as a statement of cash flows (the “Financial Information”).
K. Current standards
All work and/or materials must meet current standards in force by recognized technical
and professional societies, trade and materials supply associations, institutes and
organizations, bureaus and testing laboratories, and national, federal, state, county, and
local laws, codes and ordinances.
L. Fees, Licenses, Permits
The successful Service Provider shall be responsible for obtaining any necessary
licenses, fees or permits without additional expense to the City. All vehicles and equipment
shall be properly licensed and insured, carry the appropriate permits and be placarded as
required by law.
M. Laws and Regulations
The Service Provider agrees to comply fully with all applicable local, State of Colorado
and Federal laws and regulations and municipal ordinances to include American
Disabilities Act (ADA).
N. Invoicing and Payment
Invoices should be emailed monthly to invoices@fcgov.com with a copy to the Project
Manager. The cost of the work completed shall be paid to the Service Provider each month
following the submittal of a correct invoice by the Service Provider indicating the project
name, Purchase Order number, task description, hours worked, personnel/work type
category, hourly rate for each employee/work type category, date of the work performed
specific to the task, percentage of that work that has been completed by task, 3rd party
supporting documentation with the same detail and a brief progress report.
Payments will be made using the prices stated in the Agreement. In the event a service
is requested which is not stated in the Agreement, the Service Provider and the City will
negotiate an appropriate unit price for the service prior to the Service Provider initiating
such work.
The City pays invoices on Net 30 terms.
O. COVID-19 Compliance
The Service Provider and its subcontractors/consultants shall comply with all state,
county, and local laws, ordinances, and public health orders established to reduce the
spread of COVID-19, as applicable. The Service Provider shall ensure employees and
subcontractors/subconsultants with COVID-19 symptoms do not report to the job
site. Service Provider must organize work to ensure individuals minimize contact and
maximize social distancing. Individuals must wear all standard worksite personal
protective equipment (PPE). In addition, individuals should wear a mask or cloth face
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covering consistent with local public health recommendations and other applicable safety
requirements.
III. PROPOSAL SUBMITTAL
Please limit the total length of your proposal to a maximum of fifty (50) 8 ½ x 11” pages
(excluding cover pages, table of contents, dividers and Authorization form). Font shall be a
minimum of 10 Arial and margins are limited to no less than .5” for sides and top/bottom.
Extended page sizes, such as 11” x 17”, count as a single page and may be used for detailed
pricing. Links to other files or websites shall not be permitted. Proposals that do not conform
to these requirements may be rejected.
Service Providers are required to provide detailed written responses to the following items in
the order outlined below. The responses shall be considered technical offers of what Service
Providers propose to provide and shall be incorporated in the contract award as deemed
appropriate by the City. A proposal that does not include all the information required may be
deemed non-responsive and subject to rejection.
Responses must include all the items in the order listed below. It is suggested that the Service
Providers include each of the City’s questions with their response.
The City of Fort Collins shall not reimburse any firm for costs incurred in the preparation and
presentation of their proposal.
A. Cover Letter / Executive Summary
The Executive Summary should highlight the content of the proposal and features of the
program offered, including a general description of the program and any unique aspects
or benefits provided by your firm.
Indicate your availability to participate in the interviews/demonstrations on the proposed
dates as stated in the Schedule section.
B. Service Provider Information
1. Describe the Service Provider’s business and background, including size of the firm.
2. Number of years in the business.
3. Details about ownership.
4. An overview of services offered and qualifications.
5. Location(s) of offices. If multiple, please identify which will be the primary for our
account.
6. Primary contact information for the company including contact name(s) and title(s),
mailing address(s), phone number(s), and email address(s).
C. Scope of Proposal
1. Provide a detailed narrative of the services proposed if awarded the contract per the
scope above. The narrative should include any options that may be beneficial for the
City to consider.
2. Describe how the project would be managed and who would have primary
responsibility for its timely and professional completion.
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3. Briefly describe the approach to execute the scope of work to include the methods and
assumptions used, and any exceptions and/or risks.
4. Describe the methods and timeline of communication your firm will use with the City’s
Project Manager and other parties.
5. Include a description of the software platform and other analysis tools to be provided.
6. Identify what portion of work, if any, may be subcontracted or outsourced to
subconsultants. Include all applicable information herein requested for each Service
Provider.
7. Can the work be completed in the necessary timeframe, with target start and
completion dates met?
8. Are other qualified personnel available to assist in meeting the project schedule if
required?
9. Provide a Gantt chart with an outline of the schedule for completing tasks.
D. Firm Capability and Assigned Personnel
Provide relevant information regarding previous experience related to this or similar
projects, to include the following:
1. Provide an Organization Chart/Proposed Project Team: An organization chart
containing the names of all key personnel and subconsultants with titles and their
specific task assignment for this Agreement shall be provided in this section.
2. Provide resumes for each professional and technical person to be assigned to the
project, including partners, subconsultants, and subcontractors. Please limit resumes
to one page.
3. A list of qualifications for your firm and qualifications and experience of the specific
staff members proposed to perform the services described above.
4. References. Provide a minimum of five similar projects with electric utilities in the last
5 years that have involved the staff and subcontractors/subconsultants proposed to
work on this project. Include the owner’s name, title of project, beginning price, ending
price, contact name, email and phone number, subconsultants on the team and a brief
description of the work and any change orders. The Service Provider authorizes the
City to verify any and all information contained herein and hereby releases all those
concerned providing information as a reference from any liability in connection with
any information provided.
5. Provide any information that distinguishes Service Provider from its competition and
any additional information applicable to this RFP that might be valuable in assessing
Service Provider’s proposal.
E. Sustainability/TBL Methodology
In concise terms (no more than two pages), please describe your organization’s
commitment to sustainability and supporting values.
Each element of the Triple Bottom Line (TBL) sustainability criteria will receive equal
consideration in determining the final Sustainability/TBL score.
1. Address how your firm strives to incorporate all three aspects (social,
environmental, and economic) of TBL sustainable practices into the workplace.
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Provide examples along with any metrics used to measure success within your
firm.
2. Also provide examples of how your firm has incorporated all three aspects of TBL
sustainable practices in previous similar projects on which your firm has been the
prime Service Provider.
Some examples are provided below:
a. Environmental – Experience delivering projects / programs focused on
environmental health priorities in the areas of climate resiliency, water quality
and watershed protection, regulatory performance, management systems,
air quality, renewable energy, sustainable building and design, construction
materials management, and solid waste reduction.
b. Economic – Experience working and delivering projects with an emphasis
on strategic financial planning, job creation, business development, asset
management, various project delivery methods, value engineering, regional
partnerships, transparency, stakeholder engagement, strategic investments,
aging infrastructure, repurposing of existing facilities, and competing
financial priorities.
c. Social - Experience working and delivering projects, programs, and/or
initiatives that support Equity, Diversity, and Inclusion throughout your firm’s
workplace, including leadership, and supply chain. Examples of this may be
demonstration of working within cultural and language gaps, development of
diversity programs, diverse project teams, equitable opportunity vendor
supply chain, and how your firm has applied an equity lens to processes
such as recruitment, hiring, purchasing, career pathways, salaries, and staff
engagement.
F. Cost and Work Hours
In your response to this proposal, please provide the following:
1. Estimated Hours by Task: Provide estimated hours for each proposed task by job title
and employee name, including the time required for meetings, conference calls, etc.
2. Cost by Task: Provide the cost of each task identified in the Scope of Proposal section.
Provide a total not to exceed cost for the Scope of Proposal. Price all additional
services/deliverables separately.
3. Schedule of Rates: Provide a schedule of billing rates by category of employee and
job title to be used during the term of the Agreement. This fee schedule will be firm for
at least one (1) year from the date of the Agreement. The fee schedule will be used as
a basis for determining fees should additional services be necessary. Include a per
meeting rate in the event additional meetings are needed. A fee schedule for
subconsultants/subcontractors, if used, shall be included.
4. All direct costs (i.e., travel, printing, postage, etc.) specifically attributed to the project
and not included in the billing rates must be identified. Reasonable expenses may be
reimbursable as per the current rates found at www.gsa.gov. Service Provider will be
required to provide original receipts to the City for all travel expenses.
5. Include any applicable recurring annual costs for support & maintenance for 5 years.
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G. Sample Agreement
Included with this request for proposals is a sample Agreement that the City intends to
use for obtaining the services of the Service Provider. The Service Provider is required to
review this Agreement and indicate any objections to the terms of the contract. If revisions
to the contractual terms are requested, provide suggested revisions.
H. Acknowledgement
The Acknowledgement form is attached as Section V. Complete the attached form
indicating the Service Provider hereby acknowledges receipt of the City of Fort Collins
Request for Proposal and acknowledges that the Service Provider has read and agrees
to be fully bound by all of the terms, conditions and other provisions set forth in the RFP.
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IV. REVIEW AND ASSESSMENT CRITERIA
A. Proposal and Interview Criteria
Service Providers will be evaluated on the following criteria. This set of criteria will be the
basis for review and assessment of the written proposals and optional interview session.
At the discretion of the City, interviews of the top-rated Service Providers may be
conducted.
The rating scale shall be from 1 to 10, a rating of 1 doesn’t meet minimum requirements,
a rating of 5 means the category fulfills the minimum requirements, and 10 exceeds
minimum requirements in that category.
WEIGHTING
FACTOR
CATEGORY STANDARD QUESTIONS
3.0 Scope of Proposal
Does the proposal address all elements of the
RFP? Does the proposal show an
understanding of the project objectives,
methodology to be used and results/outcomes
required by the project? Are there any
exceptions to the specifications, Scope of Work,
or agreement? Can the work be completed in
the necessary time? Can the target start and
completion dates be met? Are other qualified
personnel available to assist in meeting the
project schedule if required?
3.0 Firm Capability &
Assigned Personnel
Does the firm have the resources, capacity and
support capabilities required to successfully
complete the project on-time and within budget?
Has the firm successfully completed previous
projects of this type and scope? Do the persons
who will be working on the project have the
necessary skills and qualifications?
1.0 Sustainability/TBL
Methodology
Does the firm demonstrate a commitment to all
three aspects (social, environmental, and
economic) of the Triple Bottom Line (TBL)
methodology of sustainability for this project and
in their company value system as evidenced by
their day-to-day business operating processes,
practices and procedures?
2.0 Cost & Work Hours
Does the proposal included detailed cost break-
down for each cost element as applicable and
are the line-item costs competitive? Do the
proposed cost and work hours compare
favorably with the Project Manager's estimate?
Are the work hours presented reasonable for the
effort required by each project task or phase?
RFP 9502 Distributed Energy Resource Application Management Platform Page 16 of 47
V. ACKNOWLEDGEMENT
Service Provider hereby acknowledges receipt of the City of Fort Collins Request for Proposal
and acknowledges that it has read and agrees to be fully bound by all of the terms, conditions
and other provisions set forth in the RFP 9502 Distributed Energy Resource Application
Management Platform and sample Agreement except as otherwise noted. Additionally,
Service Provider hereby makes the following representations to City:
a. All of the statements and representations made in this proposal are true to the best of the
Service Provider’s knowledge and belief.
b. Service Provider commits that it is able to meet the terms provided in this proposal.
c. This proposal is a firm and binding offer, for a period of 90 days from the date hereof.
d. Service Provider further agrees that the method of award is acceptable.
e. Service Provider also agrees to complete the proposed Agreement with the City of Fort
Collins within 10 days of notice of award. If contract is not completed and signed within
10 days, City reserves the right to cancel and award to the next highest rated firm.
f. Service Provider acknowledges receipt of addenda.
g. Service Provider acknowledges no conflict of interest.
h. Failure to provide a public viewing copy will be considered a waiver of any claim of
confidentiality under Colorado Open Records Act (CORA). Service Provider hereby
waives any and all claims for damages against the City for the City’s good faith compliance
with CORA.
Legal Firm Name:
Physical Address:
Remit to Address:
Phone:
Name of Authorized Agent of Firm:
Signature of Authorized Agent:
Primary Contact for Project:
Title: Email Address:
Phone: Cell Phone:
NOTE: ACKNOWLEDGMENT IS TO BE SIGNED & RETURNED WITH YOUR PROPOSAL.
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VI. SAMPLE AGREEMENT (FOR REFERENCE ONLY – DO NOT SIGN )
MASTER SOFTWARE SERVICES AGREEMENT (Cloud Based)
THIS MASTER SERVICES AGREEMENT (“Agreement”) is made between the CITY OF
FORT COLLINS, a municipal corporation of the State of Colorado (the “City”) and [COMPANY],
a [Business Type] registered to do business in Colorado, whose address is [Address]
(“Contractor”), jointly “the parties.”
RECITALS
WHEREAS, the City is desirous of engaging a hosted third-party solution provider to aid
the City in [Project # and Name]; and
WHEREAS, the Contractor has agreed to provide the hosted solution under the terms and
conditions as set out below.
IT IS HEREBY AGREED BETWEEN THE PARTIES AS FOLLOWS:
The recitals set forth above are incorporated herein.
1. DEFINITIONS. Whenever used herein, any schedules, exhibits, order forms, or addenda
to this Agreement, the following terms shall have the meanings assigned below unless
otherwise defined therein. Other capitalized terms used in this Agreement are defined in
the context in which they are used.
1.1 “Acceptance" means the Deliverable demonstrates to the City's reasonable
satisfaction that the Deliverable conforms to and operates in all material
respects according to the Acceptance Criteria, and if required, has
successfully completed Acceptance Testing in all material respects, and for
Deliverables not requiring Acceptance Testing that the Deliverable
reasonably conforms in all material respects to the Acceptance Criteria or
the City's requirements.
1.2 "Acceptance Certificate" means a written instrument by which the City
promptly notifies Contractor that a Deliverable has been Accepted or
Accepted with exceptions, and Acceptance Criteria have been met or waived,
in whole or in part.
1.3 "Acceptance Criteria" means functionality and performance requirements
determined by the City and set forth on the Order Form for the applicable
Product or Service, based upon the Specifications, which must be satisfied
prior to City's Acceptance of a Deliverable, or the System. City and Contractor
shall agree upon written Acceptance Criteria in the Order Form for the
applicable Product or Service.
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1.4 "Acceptance Date" means the date on which the City issues an Acceptance
Certificate for the System or a Deliverable.
1.5 "Acceptance Test" means the evaluation and testing method, procedures, or
both, that are set forth in the Order Form for the applicable Product or Service
and are used to determine whether or not the System or a Deliverable
requiring Acceptance Testing performs in accordance with the Acceptance
Criteria.
1.6 “Agreement” means this cloud computing Master Services Agreement
between City and Contractor, inclusive of all schedules, exhibits,
attachments, addenda and other documents incorporated by reference
between the City and Contractor, Contract Number [Contract # and Title].
1.7 “City Data” means all information, whether in oral or written (including
electronic) form, created by or in any way originating with City and all
information that is the output of any computer processing, or other electronic
manipulation, of any information that was created by or in any way
originating with City, in the course of using and configuring the Services
provided under this Agreement, and includes all records relating to City’s use
of Contractor Services.
1.8 "Cloud Unavailability" means a running virtual machine stops functioning
due to cloud infrastructure failure below the applicable commitment level,
and such failure is recorded in Contractor's trouble ticket system.
1.9 “Confidential Information” means any and all records or data that is
disclosed in written, graphic or machine recognizable form and is marked,
designated, labeled or identified at the time of disclosure as being
confidential or its equivalent, or, if the information is in verbal form, it is
identified as confidential or proprietary at the time of disclosure and is
confirmed in writing within thirty (30) Calendar Days of the disclosure and is
not subject to disclosure under CORA. Confidential Information shall
include, but is not limited to, PII, PHI, PCI, Tax Information, CJI, personnel
records, financial, statistical, personnel, human resources data or Personally
Identifiable Information and/or Personal Information as described in the
C.R.S 24-73-101, et seq; attorney/client privileged communications;
information which is exempt per federal laws (including but not limited to
copyright, HIPPA), all of which is not subject to disclosure under CORA.
Confidential Information does not include information which: (a) is public or
becomes public through no breach of the confidentiality obligations herein;
(b) is disclosed by the party that has received Confidential Information (the
"Receiving Party") with the prior written approval of the other party; (c) was
known by the Receiving Party at the time of disclosure; (d) was developed
independently by the Receiving Party without use of the Confidential
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Information; (e) becomes known to the Receiving Party from a source other
than the disclosing party through lawful means; (f) is disclosed by the
disclosing party to others without confidentiality obligations; or (g) is
required by law to be disclosed.
1.10 “CORA” means the Colorado Open Records Act, §§24-72-200.1, et. seq.,
C.R.S.
1.11 "Critical Incident" means that City's Service (whether colocation or Cloud) is
unavailable or has been materially impacted.
1.12 “Data Incident” means any accidental or deliberate event that results in or
constitutes an imminent threat of the unauthorized access, loss, disclosure,
modification, disruption, or destruction of any communications or
information resources of the City. Data Incidents include, without limitation
(i) successful attempts to gain unauthorized access to a City system or City
information regardless of where such information is located; (ii) unwanted
disruption or denial of service; (iii) the unauthorized use of a City system for
the processing or storage of data; or (iv) changes to City system hardware,
firmware, or software characteristics without the City’s knowledge,
instruction, or consent. It shall also include any actual or reasonably
suspected unauthorized access to or acquisition of computerized City Data
that compromises the security, confidentiality, or integrity of the City Data,
or the ability of City to access the City Data.
1.13 “Deliverable” means the Products or Services or documents or tangible work
products described in an Order Form to be provided to the City by Contractor
or the outcome to be achieved or output to be provided, in the form of a
tangible object or software that is produced as a result of Contractor’s work
that is intended to be delivered to the City by Contractor under this
Agreement.
1.14 “Documentation” means, collectively: (a) all materials published or otherwise
made available to City by Contractor that relate to the functional, operational
and/or performance capabilities of the Services; (b) all user, operator, system
administration, technical, support and other manuals and all other materials
published or otherwise made available by Contractor, including marketing
materials that describe the functional, operational and/or performance
capabilities of the Services; (c) any Requests for Information and/or
Requests for Proposals (or documents of similar effect) issued by City, and
the responses thereto from Contractor, and any document which purports to
update or revise any of the foregoing; and (d) the results of any Contractor
“Use Cases Presentation”, “Proof of Concept” or similar type presentations
or tests provided by Contractor to City or as required to be produced by
Contractor subject to the terms of this Agreement.
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1.15 “Downtime” means any period of time of any duration that the Services are
not made available by Contractor to City for any reason, including scheduled
maintenance or Enhancements.
1.16 “Effective Date” means the date on which this Agreement is fully approved
and signed by the City as shown on the Signature Page for this Agreement.
The Effective Date for Services may be set out in an order form or similar
exhibit.
1.17 “Enhancements” means any improvements, modifications, upgrades,
updates, fixes, revisions and/or expansions to the Services that Contractor
may develop or acquire and incorporate into its standard version of the
Services or which the Contractor has elected to make generally available to
its customers.
1.18 "Equipment" means any hardware, machinery, device, tool, computer,
computer component, computer system, including add-ons, or peripherals of
tangible form together with the necessary supplies for upkeep and
maintenance, and other apparatus, to be provided to the City by Contractor
under this Agreement.
1.19 "Error" means any defect, problem, condition, bug, or other partial or
complete inability of a Product to operate in accordance with the applicable
Specifications.
1.20 “Intellectual Property Rights” includes without limitation all right, title, and
interest in and to all (a) Patent and all filed, pending, or potential applications
for Patent, including any reissue, reexamination, division, continuation, or
continuation in part applications throughout the world now or hereafter filed;
(b) trade secret rights and equivalent rights arising under the common law,
state law, and federal law; (c) copyrights, other literary property or authors
rights, whether or not protected by copyright or as a mask work, under
common law, state law, and federal law; and (d) proprietary indicia,
trademarks, trade names, symbols, logos, and/or brand names under
common law, state law, and federal law.
1.21 "Order Form" means a quote in the form attached hereto as an Exhibit,
setting forth certain Products and/or Services to be provided pursuant to this
Agreement. Any reference to an "Order Form" in this Agreement includes
Products and/or Services purchased by City pursuant to Contractor's online
ordering process.
1.22 “PCI” means payment card information including any data related to credit
card holders’ names, credit card numbers, or other credit card information
as may be protected by state or federal law.
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1.23 “PII” means personally identifiable information including, without limitation,
any information maintained by the City about an individual that can be used
to distinguish or trace an individual’s identity, such as name, social security
number, date and place of birth, mother ‘s maiden name, or biometric
records. PII includes, but is not limited to, all information defined as
personally identifiable information in §§24-72-501 and 24-73-101, C.R.S.
1.24 “PHI” means any protected health information, including, without limitation
any information whether oral or recorded in any form or medium: (i) that
relates to the past, present, or future physical or mental condition of an
individual; the provision of health care to an individual; or the past, present,
or future payment for the provision of health care to an individual; and (ii)
that identifies the individual or with respect to which there is a reasonable
basis to believe the information can be used to identify the individual. PHI
includes, but is not limited to, any information defined as Individually
Identifiable Health Information by the federal Health Insurance Portability and
Accountability Act. If this Agreement involves the transmission of PHI a
separate Business Associates Agreement will become a part of this
Agreement.
1.25 "Product(s)" means software, Equipment, and supplies delivered, or to be
delivered, pursuant to an Order Form.
1.26 “Protected Information” includes, but is not limited to, personally-identifiable
information, student records, protected health information, criminal justice
information or individual financial information and other data defined under
§24-72-101 et seq., and personal information that is subject to local, state or
federal statute, regulatory oversight or industry standard restricting the use
and disclosure of such information. The loss of such Protected Information
would constitute a direct damage to the City.
1.27 “Project Manager” means the individual who shall serve as each party’s point
of contact with the other party’s personnel as provided in this Agreement.
1.28 “RFP Response” means any proposal submitted by Contractor to City in
response to City's Request for Proposal ("RFP") titled [ENTER RFP NAME,
NUMBER, AND DATE HERE].
1.29 “Service” means Contractor’s computing solutions, provided to City
pursuant to this Agreement, that provide the functionality and/or produce the
results described in the Documentation, including without limitation all
Enhancements thereto and all interfaces.
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1.30 "Service Level Agreement(s)" mean the provisions set forth on Exhibit [A]
attached hereto, which are incorporated into this Agreement by this
reference.
1.31 "Specifications" means the most current cumulative statement of
capabilities, functionality, and performance requirements for the Products or
Services as set out in the Acceptance Criteria, Order Forms, Documentation,
Contractor's representations, Contractor's proposal, and the City's Request
for Proposals.
1.32 “Subcontractor” means any third party engaged by Contractor to aid in
performance of the work or the Service. Contractor shall provide to the City
upon request a list of Subcontractors providing material services to the
Service.
1.33 "System" means the operational combination of all Products and Services
to be provided by Contractor to City under this Agreement.
1.34 “Third Party” means persons, corporations and entities other than
Contractor, City or any of their employees, contractors or agents.
1.35 “Third Party Host” means that the servers where the Contractor’s software
resides is at physical location, which is not controlled by the Contractor,
sometimes called “managed hosting”, for example, Amazon Web Service.
2. SCOPE OF WORK, SOFTWARE LICENSE, AND SERVICE LEVELS. See Exhibit A.
Scope of Work – implementation. Service Level Agreements – support / warranty /
maintenance agreement.
3. TERM. The term of the Agreement shall commence on [Date] and shall continue in full force
and effect until [Date] unless sooner terminated as herein provided. In addition, at the option
of the City, the Agreement may be extended for additional one-year periods not to exceed
four (4) additional one-year periods. Renewals and price changes shall be negotiated by
and agreed to by both parties. Written notice of renewal shall be provided to the Consultant
via email no later than thirty (30) days prior to contract end.
4. COMPENSATION AND PAYMENT:
4.1 Compensation: In consideration of the services to be performed pursuant to this
Agreement, the City agrees to pay the Consultant in accordance with Exhibit ,
consisting of ( ) page(s), attached hereto and incorporated herein, with
maximum compensation not to exceed ($ ). Monthly partial payments
based upon the Contractor's billings and itemized statements of reimbursable direct
costs are permissible. The amounts of all such partial payments shall be based upon
the Contractor's City-verified progress in completing the services to be performed
pursuant hereto and upon the City's approval of the Contractor's reimbursable direct
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costs. Final payment shall be made following acceptance of the Work by the City.
Upon final payment, all designs, plans, reports, specifications, drawings, and other
services rendered by the Contractor shall become the sole property of the City.
4.2 Reimbursement Expenses: The fees specified above include all expenses, and no
other expenses shall be separately reimbursed or incurred hereunder for the
provision of the Service(s).
4.3 Tax Exempt: The City is exempt from sales and use tax. The City’s Certificate of
Exemption license number is 09804502. A copy of the license is available upon
written request.
4.4 Invoicing: Contractor must submit invoice(s) to invoices@fcgov.com. Unless
otherwise mutually agreed, invoices shall be submitted monthly or upon
achievement of the applicable milestone payment schedule. Each invoice shall
include the City’s purchase order number, clear identification of the deliverable that
has been completed, and other information reasonably requested by the City.
Payment on all uncontested amounts shall be made Net 30 days from the date of
the invoice.
5. TERMINATION:
5.1 Notwithstanding the time periods contained herein, the City may terminate this
Agreement at any time without cause by providing written notice of termination to
the Consultant. Such notice shall be delivered at least ten (10) days prior to the
termination date contained in said notice unless otherwise agreed in writing by the
parties.
All notices provided under this Agreement shall be effective immediately when
emailed or three business days from the date of the notice when mailed to the
following addresses:
Contractor City: Copy to:
Attn:
City of Fort Collins
Attn:
PO Box 580
Fort Collins, CO 80522
City of Fort Collins
Attn: Purchasing Dept.
PO Box 580
Fort Collins, CO 80522
purchasing@fcgov.com
5.2 Each and every term and condition hereof shall be deemed to be a material element
of this Agreement. In the event either party should fail or refuse to perform according
to the terms of this agreement, such party may be declared in default. In the event a
party has been declared in default, such defaulting party shall be allowed a period
of thirty (30) days within which to cure said default. In the event the default remains
uncorrected, the party declaring default may elect to (a) terminate the Agreement
and seek damages; (b) treat the Agreement as continuing and require specific
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performance; or (c) avail himself of any other remedy at law or equity. If the non-
defaulting party commences legal or equitable actions against the defaulting party,
the defaulting party shall be liable to the non-defaulting party for the non-defaulting
party's reasonable attorney fees and costs incurred because of the default.
5.3 Upon termination of the Agreement, with or without cause, the Contractor shall have
no claim against the City by reason of, or arising out of, incidental or relating to
termination, except for compensation for work duly requested and satisfactorily
performed as described in the Agreement and shall refund to the City any prepaid
cost or expenses.
6. RIGHTS AND LICENSE IN AND TO DATA
6.1 The parties agree that as between them, all rights in and to City Data shall remain
the exclusive property of City, and Contractor has a limited, nonexclusive license to
access and use City Data as provided in this Agreement solely for the purpose of
performing its obligations hereunder.
6.2 All City Data created and/or processed by the Service is and shall remain the
property of City and shall in no way become attached to the Service, nor shall
Contractor have any rights in or to the City Data without the express written
permission of the City and may not include Protected Information.
6.3 This Agreement does not give a party any rights, implied or otherwise, to the
other’s data, content, or intellectual property, except as expressly stated in the
Agreement.
6.4 City retains the right to use the Service to access and retrieve data stored on
Contractor’s Service infrastructure at any time during the term of this Agreement
at its sole discretion.
7. DATA PRIVACY
7.1 Contractor will use City Data only for the purpose of fulfilling its duties under this
Agreement and for City’s sole benefit and will not share City Data with or disclose it
to any Third Party without the prior written consent of City or as otherwise required
by law. By way of illustration and not of limitation, Contractor will not use City Data
for Contractor’s own benefit and, in particular, will not engage in “data mining” of City
Data or communications, whether through automated or human means, except as
specifically and expressly required by law or authorized in writing by City.
7.2 Contractor will provide access to City Data only to those Contractor employees,
contractors and Subcontractors (“Contractor Staff”) who need to access the City
Data to fulfill Contractor’s obligations under this Agreement. Contractor will ensure
that, prior to being granted access to the City Data, Contractor Staff who perform
work under this Agreement have all undergone and passed criminal background
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screenings; have successfully completed annual instruction of a nature sufficient to
enable them to effectively comply with all data protection provisions of this
Agreement; have signed a non-disclosure agreement similar in form and content to
paragraph 15; and possess all qualifications appropriate to the nature of the
employees’ duties and the sensitivity of the City Data they will be handling.
7.3 If Contractor receives personal identifying information of a Colorado resident under
this Agreement, Contractor shall implement and maintain reasonable written security
procedures and practices that are appropriate to the nature of the personal
identifying information and the nature and size of Contractor’s business and its
operations. Unless Contractor agrees to provide its own security protections for the
information it discloses to a third-party service provider, Contractor shall require all
its third-party service providers to implement and maintain reasonable written
security procedures and practices that are appropriate to the nature of the personal
identifying information disclosed and reasonably designed to help protect the
personal identifying information subject to this Agreement from unauthorized access,
use, modification, disclosure, or destruction. Contractor and its third-party service
providers that maintain electronic or paper documents that contain personal
identifying information under this Agreement shall develop a written policy for the
destruction of such records by shredding, erasing, or otherwise modifying the
personal identifying information to make it unreadable or indecipherable when the
records are no longer needed.
7.4 Contractor may provide City Data to its agents, employees, assigns, and
Subcontractors as necessary to perform the work, but shall restrict access to
Confidential Information to those agents, employees, assigns, and Subcontractors
who require access to perform their obligations under this Agreement. Contractor
shall ensure all such agents, employees, assigns, and Subcontractors sign
agreements containing nondisclosure provisions at least as protective as those in
this Agreement, and that the nondisclosure provisions are in force at all times the
agent, employee, assign, or Subcontractor has access to any Confidential
Information. Contractor shall provide copies of those signed nondisclosure
provisions to the City upon execution of the nondisclosure provisions if requested by
the City.
8. DATA SECURITY AND INTEGRITY
8.1 All facilities, whether Contractor hosted or Third Party Hosted, used to store and
process City Data will implement and maintain administrative, physical, technical,
and procedural safeguards and best practices at a level sufficient to provide the
requested Service availability and to secure City Data from unauthorized access,
destruction, use, modification, or disclosure appropriate for the City Data. Such
measures include, but not limited to all applicable laws, rules, policies, publications,
and guidelines including, without limitation: (i) the most recently promulgated IRS
Publication 1075 for all Tax Information, (ii) the most recently updated PCI Data
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Security Standard from the PCI Security Standards Council for all PCI, (iii) the most
recently issued version of the U.S. Department of Justice, Federal Bureau of
Investigation, Criminal Justice Information Services Security Policy for all CJI, (iv)
the Colorado Consumer Protection Act, (v) the Children’s Online Privacy Protection
Act (COPPA), (vi) the Family Education Rights and Privacy Act (FERPA), (vii) §24-
72-101 et seq., (viii) the Telecommunications Industry Association (TIA)
Telecommunications Infrastructure Standard for Data Centers (TIA-942); (ix) the
federal Health Insurance Portability and Accountability Act for all PHI and the HIPAA
Business Associate Addendum attached to this Agreement, if applicable. The
Contractor shall submit to the Manager, within fifteen (15) days of the Manager’s
written request, copies of the Contractor’s policies and procedures to maintain the
confidentiality of protected health information to which the Contractor has access,
and if applicable, Contractor shall comply with all HIPAA requirements contained
herein or attached as an Exhibit. [If applicable, attach HIPAA Exhibit].
8.2 Contractor warrants that all City Data will be encrypted in transmission (including via
web interface) and in storage by a mutually agreed upon National Institute of
Standards and Technology (NIST) approved strong encryption method and
standard. The City may allow exceptions to encryption, however any limitations to
this provision will be by written agreement between the Parties.
8.3 Contractor shall at all times use industry-standard and up-to-date security tools,
technologies and procedures including, but not limited to anti-virus and anti-malware
protections and intrusion detection and reporting in providing Services under this
Agreement.
8.4 Contractor shall, and shall cause its Subcontractors, to do all of the following:
8.4.1 Provide physical and logical protection for all hardware, software,
applications, and data that meets or exceeds industry standards and the
requirements of this Agreement.
8.4.2 Maintain network, system, and application security, which includes, but is
not limited to, network firewalls, intrusion detection (host and network),
annual security testing, and improvements or enhancements consistent
with evolving industry standards.
8.4.3 Comply with State and federal rules and regulations related to overall
security, privacy, confidentiality, integrity, availability, and auditing.
8.4.4 Provide that security is not compromised by unauthorized access to
workspaces, computers, networks, software, databases, or other physical
or electronic environments.
8.4.5 Promptly report all Data Incidents, including Data Incidents that do not
result in unauthorized disclosure or loss of data integrity.
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8.4.6 Comply with all rules, policies, procedures, and standards issued by the
City’s Technology Services Security Section.
8.4.7 Subject to Contractor’s reasonable access security requirements and upon
reasonable prior notice, Contractor shall provide the City with scheduled
access for the purpose of inspecting and monitoring access and use of City
Data, maintaining City systems, and evaluating physical and logical
security control effectiveness.
8.4.8 Contractor shall perform current background checks in a form reasonably
acceptable to the City on all of its respective employees and agents
performing services or having access to City Data provided under this
Agreement, including any Subcontractors or the employees of
Subcontractors. A background check performed within 30 days prior to the
date such employee or agent begins performance or obtains access to City
Data shall be deemed to be current.
8.4.9 Contractor will provide notice to the Security and Compliance
Representative for the City indicating that background checks have been
performed. Such notice will inform the City of any action taken in response
to such background checks, including any decisions not to take action in
response to negative information revealed by a background check.
8.4.10 If Contractor will have access to Federal Tax Information under the
Agreement, Contractor shall comply with the background check
requirements defined in IRS Publication 1075 and §24-50-1002, C.R.S.
8.5 Contractor shall use, hold, and maintain Confidential and Protected Information in
compliance with any and all applicable laws and regulations only in facilities
located within the United States, and shall maintain a secure environment that
ensures confidentiality of all Confidential and Protected Information.
8.6 [Provisions 4.6 through 4.10 are Subject to Discussion] Prior to the Effective Date
of this Agreement, Contractor, will at its expense conduct or have conducted the
following, and thereafter, Contractor will at its expense conduct or have conducted
the following at least once per year, and immediately after any actual or reasonably
suspected Data Incident:
8.6.1 A SSAE 16/SOC 2 or other mutually agreed upon audit of Contractor’s
security policies, procedures and controls;
8.6.2 A quarterly external and internal vulnerability scan of Contractor’s systems
and facilities, to include public facing websites, that are used in any way to
deliver Services under this Agreement. The report must include the
vulnerability, age and remediation plan for all issues identified as critical or
high;
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8.6.3 A formal penetration test, performed by a process and qualified personnel
of Contractor’s systems and facilities that are used in any way to deliver
Services under this Agreement.
8.7 Contractor will provide City the reports or other documentation resulting from the
above audits, certifications, scans and tests within seven (7) business days of
Contractor’s receipt of such results.
8.8 Based on the results and recommendations of the above audits, certifications,
scans and tests, Contractor will, within thirty (30) calendar days of receipt of such
results, promptly modify its security measures in order to meet its obligations under
this Agreement and provide City with written evidence of remediation.
8.9 City may require, at its expense, that Contractor perform additional audits and
tests, the results of which will be provided to City within seven (7) business days
of Contractor’s receipt of such results.
8.10 Contractor shall protect data against deterioration or degradation of data quality
and authenticity, including, but not limited to annual Third-Party data integrity
audits. Contractor will provide City the results of the above audits.
9. RESPONSE TO LEGAL ORDERS, DEMANDS OR REQUESTS FOR DATA
9.1 Except as otherwise expressly prohibited by law, Contractor will:
9.1.1 If required by a court of competent jurisdiction or an administrative body to
disclose City Data, Contractor will notify City in writing immediately upon
receiving notice of such requirement and prior to any such disclosure;
9.1.2 Consult with City regarding its response;
9.1.3 Cooperate with City’s reasonable requests in connection with efforts by City
to intervene and quash or modify the legal order, demand or request; and
9.1.4 Upon City’s request, provide City with a copy of its response.
9.2 If City receives a subpoena, warrant, or other legal order, demand or request seeking
data maintained by Contractor, City will promptly provide a copy to Contractor.
Contractor will supply City with copies of data required for City to respond within
forty-eight (48) hours after receipt of copy from City and will cooperate with City’s
reasonable requests in connection with its response.
10. DATA INCIDENT RESPONSE
10.1 The Contractor shall maintain documented policies and procedures for Data Incident
and breach reporting, notification, and mitigation. If the Contractor becomes aware
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of any Data Incident, it shall notify the City immediately and cooperate with the City
regarding recovery, remediation, and the necessity to involve law enforcement, as
determined by the City. If there is a Data Incident impacting residents of Colorado
or any other jurisdiction, the Contractor shall cooperate with the City to satisfy
notification requirements as currently defined in either federal, state, or local law.
Unless Contractor can establish that none of Contractor or any of its agents,
employees, assigns or Subcontractors are the cause or source of the Data Incident,
Contractor shall be responsible for the cost of notifying each person who may have
been impacted by the Data Incident. After a Data Incident, Contractor shall take
steps to reduce the risk of incurring a similar type of Data Incident in the future as
directed by the City, which may include, but is not limited to, developing and
implementing a remediation plan that is approved by the City at no additional cost to
the City.
10.2 Contractor shall report, either orally or in writing, to City any Data Incident involving
City Data, or circumstances that could have resulted in unauthorized access to or
disclosure or use of City Data, not authorized by this Agreement or in writing by City,
including any reasonable belief that an unauthorized individual has accessed City
Data. Contractor shall make the report to City immediately upon discovery of the
unauthorized disclosure, but in no event more than forty-eight (48) hours after
Contractor reasonably believes there has been such unauthorized use or disclosure.
Oral reports by Contractor regarding Data Incidents will be reduced to writing and
supplied to City as soon as reasonably practicable, but in no event more than forty-
eight (48) hours after oral report.
10.3 Immediately upon becoming aware of any such Data Incident, Contractor shall fully
investigate the circumstances, extent and causes of the Data Incident, and report
the results to City and continue to keep City informed daily of the progress of its
investigation until the issue has been effectively resolved.
10.4 Contractor’s report discussed herein shall identify: (i) the nature of the unauthorized
use or disclosure, (ii) the data used or disclosed, (iii) who made the unauthorized
use or received the unauthorized disclosure (if known), (iv) what Contractor has done
or shall do to mitigate any deleterious effect of the unauthorized use or disclosure,
and (v) what corrective action Contractor has taken or shall take to prevent future
similar unauthorized use or disclosure.
10.5 Within five (5) calendar days of the date Contractor becomes aware of any such
Data Incident, Contractor shall have completed implementation of corrective actions
to remedy the Data Incident, restore City access to the Services as directed by City,
and prevent further similar unauthorized use or disclosure.
10.6 Contractor, at its expense, shall cooperate fully with City’s investigation of and
response to any such Data Incident.
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10.7 Except as otherwise required by law, Contractor will not disclose or otherwise
provide notice of the incident directly to any person, regulatory agencies, or other
entities, without prior written permission from City.
10.8 Notwithstanding any other provision of this Agreement, and in addition to any other
remedies available to City under law or equity, Contractor will promptly reimburse
City in full for all costs incurred by City in any investigation, remediation or litigation
resulting from any such Data Incident, including but not limited to providing
notification to Third Parties whose data were compromised and to regulatory bodies,
law-enforcement agencies or other entities as required by law or contract;
establishing and monitoring call center(s), and credit monitoring and/or identity
restoration services to assist each person impacted by a Data Incident in such a
fashion that, in City’s sole discretion, could lead to identity theft; and the payment of
legal fees and expenses, audit costs, fines and penalties, and other fees imposed
by regulatory agencies, courts of law, or contracting partners as a result of the Data
Incident.
11. DATA RETENTION AND DISPOSAL
11.1 Contractor will retain Data in an End User’s account, including attachments, until the
End User deletes them or for the time period mutually agreed to by the parties in this
Agreement.
11.2 Using appropriate and reliable storage media, Contractor will regularly backup Data
and retain such backup copies consistent with the City’s data retention policies.
11.3 At the City’s election, Contractor will either securely destroy or transmit to City
repository any backup copies of City. Contractor will supply City a certificate
indicating the records disposed of, the date disposed of, and the method of
disposition used.
11.4 Contractor will retain logs associated with End User activity consistent with the City’s
data retention policies.
11.5 Contractor will immediately preserve the state of the data at the time of the request
and place a “hold” on data destruction or disposal under its usual records retention
policies of records that include data, in response to an oral or written request from
City indicating that those records may be relevant to litigation that City reasonably
anticipates. Oral requests by City for a hold on record destruction will be reduced to
writing and supplied to Contractor for its records as soon as reasonably practicable
under the circumstances. City will promptly coordinate with Contractor regarding the
preservation and disposition of these records. Contractor shall continue to preserve
the records until further notice by City.
12. DATA TRANSFER UPON TERMINATION OR EXPIRATION
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12.1 Upon expiration or earlier termination of this Agreement or any Services provided in
this Agreement, Contractor shall accomplish a complete transition of the Services
from Contractor to the City or any replacement provider designated solely by the City
without any interruption of or adverse impact on the Services or any other services
provided by third parties in this Agreement. Contractor shall cooperate fully with the
City or such replacement provider and promptly take all steps required to assist in
effecting a complete transition of the Services designated by the City. All services
related to such transition shall be performed at no additional cost beyond what would
be paid for the Services in this Agreement. Contractor shall extend the Agreement
on a monthly basis if additional time is required beyond the termination of the
Agreement, if necessary, to effectuate the transition and the City shall pay a
proration of the subscription fee.
12.2 Upon the expiration or termination of this Agreement, Contractor shall return City
Data provided to Contractor or destroy City Data and certify to the City that it has
done so, as directed by the City. If Contractor is prevented by law or regulation from
returning or destroying Confidential Information, Contractor warrants it will guarantee
the confidentiality of, and cease to use, such Confidential Information. To the extent
that Contractor is requested to perform any services beyond the return of the City’s
Data in connection with termination assistance, the same shall be performed
pursuant to a written statement of work under this Agreement and paid for by City,
applying Contractor’s then-current rates for daily/hourly work, as the case may be.
13. COMPLIANCE WITH APPLICABLE LAWS AND CITY POLICIES. Contractor will comply
with all applicable laws in performing the Services under this Agreement. Any Contractor
personnel visiting City’s facilities will comply with all applicable City policies regarding
access to, use of, and conduct within such facilities. City will provide copies of such policies
to Contractor upon request.
14. WARRANTIES, REPRESENTATIONS AND COVENANTS. Contractor represents and
warrants that.
14.1 The Service will conform to applicable specifications, and operate and produce
results substantially in accordance with the Documentation and the Exhibits attached
hereto, and will be free from deficiencies and defects in materials, workmanship,
design and/or performance during the Term of this Agreement;
14.2 All technology related services will be performed by qualified personnel in a
professional and workmanlike manner, consistent with industry standards;
14.3 Contractor has the requisite ownership, rights and licenses to perform its obligations
under this Agreement fully as contemplated hereby and to grant to the City all rights
with respect to the software and Services free and clear from all liens, adverse
claims, encumbrances and interests of any Third Party;
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14.4 There are no pending or threatened lawsuits, claims, disputes or actions: (i) alleging
that any software or service infringes, violates or misappropriates any Third-Party
rights; or (ii) adversely affecting any software, service or supplier's ability to perform
its obligations hereunder;
14.5 The Service will not violate, infringe, or misappropriate any patent, copyright,
trademark, trade secret, or other intellectual property or proprietary right of any Third
Party.
14.6 The software and Service will contain no malicious or disabling code that is intended
to damage, destroy or destructively alter software, hardware, systems or data.
Contractor’s obligations for breach of the Services warranty shall be limited to using
its best efforts, at its own expense, to correct or replace that portion of the Services
which fails to conform to such warranty, and, if Contractor is unable to correct any
breach in the Services Warranty by the date which is sixty (60) calendar days after
City provides notice of such breach, City may, in its sole discretion, either extend the
time for Contractor to cure the breach or terminate this Agreement and receive a full
refund of all amounts paid to Contractor under this Agreement.
14.7 Disabling Code Warranty. Contractor represents, warrants and agrees that the
Services do not contain and City will not receive from Contractor any virus, worm,
trap door, back door, timer, clock, counter or other limiting routine, instruction or
design, or other malicious, illicit or similar unrequested code, including surveillance
software or routines which may, or is designed to, permit access by any person, or
on its own, to erase, or otherwise harm or modify any City system or Data (a
"Disabling Code"). In the event a Disabling Code is identified, Contractor shall take
all steps necessary, at no additional cost to City, to: (a) restore and/or reconstruct
any and all Data lost by City as a result of Disabling Code; (b) furnish to City a
corrected version of the Services without the presence of Disabling Codes; and, (c)
as needed, re-implement the Services at no additional cost to City. This warranty
shall remain in full force and effect as long as this Agreement remains in effect.
14.8 Third Party Warranties and Indemnities. Contractor will assign to City all Third Party
warranties and indemnities that Contractor receives in connection with any products
provided to City. To the extent that Contractor is not permitted to assign any
warranties or indemnities through to City, Contractor agrees to specifically identify
and enforce those warranties and indemnities on behalf of City to the extent
Contractor is permitted to do so under the terms of the applicable Third Party
agreements.
14.9 Contractor warrants it has complied and shall comply with all applicable federal,
state, and local laws and regulations of its domicile and wherever performance
occurs during the term of this Agreement.
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14.10 Delivery of Products shall not be construed to represent Acceptance, nor shall
Delivery of Products relieve Contractor from its responsibility under any
representation or warranty. If the City makes a payment for a Product prior to
Acceptance, the payment does not grant a waiver of any representation or warranty
by Contractor.
15. CONFIDENTIALITY
15.1 Contractor shall keep confidential, and cause all Subcontractors to keep confidential,
all City Data, unless the City Data are publicly available. Contractor shall not, without
prior written approval of the City, use, publish, copy, disclose to any third party, or
permit the use by any third party of any City Data, except as otherwise stated in this
Agreement, permitted by law, or approved in writing by the City. Contractor shall
provide for the security of all Confidential Information in accordance with all
applicable laws, rules, policies, publications, and guidelines. If Contractor or any of
its Subcontractors will or may receive the following types of data, Contractor or its
Subcontractors shall provide for the security of such data according to the following:
(i) the most recently promulgated IRS Publication 1075 for all Tax Information and in
accordance with the Safeguarding Requirements for Federal Tax Information,
attached to this Contract as an Exhibit if applicable; (ii) the most recently updated
PCI Data Security Standard from the PCI Security Standards Council for all PCI; (iii)
the most recently issued version of the U.S. Department of Justice, Federal Bureau
of Investigation, Criminal Justice Information Services Security Policy for all CJI; and
(iv) the federal Health Insurance Portability and Accountability Act for all PHI and in
accordance with the HIPAA Business Associate Agreement attached to this
Agreement as an Exhibit if applicable.
15.2 The Receiving Party agrees to exercise the same degree of care and protection with
respect to the Confidential Information that it exercises with respect to its own similar
Confidential Information and not to directly or indirectly provide, disclose, copy,
distribute, republish or otherwise allow any Third Party to have access to any
Confidential Information without prior written permission from the disclosing party.
However: (a) either party may disclose Confidential Information to its employees and
authorized agents who have a need to know; (b) either party may disclose
Confidential Information if so required to perform any obligations under this
Agreement; and (c) either party may disclose Confidential Information if so required
by law (including court order or subpoena). Nothing in this Agreement shall in any
way limit the ability of City to comply with any laws or legal process concerning
disclosures by public entities. Contractor acknowledges that any responses,
materials, correspondence, documents or other information provided to City are
subject to applicable state and federal law, including the Colorado Open Records
Act, and that the release of Confidential Information in compliance with those acts
or any other law will not constitute a breach or threatened breach of this Agreement.
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15.3 The Receiving Party will inform its employees and officers of the obligations under
this Agreement, and all requirements and obligations of the Receiving Party under
this Agreement shall survive the expiration or earlier termination of this Agreement.
The Receiving Party shall not disclose City Data or Confidential Information to
Subcontractors unless such Subcontractors are bound by non-disclosure and
confidentiality provisions at least as strict as those contained in this Agreement.
16. COLORADO OPEN RECORDS ACT. The City is subject to Sec. 24-72-201 et seq. of the
Colorado Revised Statute (CORA). This Agreement is subject to public disclosure to the
extent required by CORA.
17. SOFTWARE AS A SERVICE, SUPPORT AND SERVICES TO BE PERFORMED: (SAAS)
17.1 Contractor, under the general direction of, and in coordination with, the City’s Chief
Information Officer or other designated supervisory personnel (the “Manager”)
agrees to provide the Services listed on Exhibit A and perform the technology related
services described on attached Exhibit B (the “Statement of Work” or “SOW”).
17.2 As the Manager directs, the Contractor shall diligently undertake, perform, and
complete all of the technology related services and produce all the deliverables set
forth on Exhibit to the City’s satisfaction.
17.3 The Contractor is ready, willing, and able to provide the technology related services
and the Services required by this Agreement.
17.4 The Contractor shall faithfully perform the technology related services in accordance
with the standards of care, skill, training, diligence, and judgment provided by highly
competent individuals performing services of a similar nature to those described in
the Agreement and in accordance with the terms of the Agreement.
17.5 User ID Credentials. Internal corporate or customer (tenant) user account
credentials shall be restricted as per the following, ensuring appropriate identity,
entitlement, and access management and in accordance with established policies
and procedures:
17.5.1 Identity trust verification and service-to-service application (API) and
information processing interoperability (e.g., SSO and Federation)
17.5.2 Account credential lifecycle management from instantiation through
revocation
17.5.3 Account credential and/or identity store minimization or re-use when
feasible
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17.5.4 Adherence to industry acceptable and/or regulatory compliant
authentication, authorization, and accounting (AAA) rules (e.g.,
strong/multi-factor, expire able, non-shared authentication secrets)
17.6 Vendor Supported Releases. The Contractor shall maintain the currency all
third-party software used in the development and execution or use of the software
including, but not limited to: all code libraries, frameworks, components, and other
products (e.g., Java JRE, code signing certificates, .NET, jQuery plugins, etc.),
whether commercial, free, open-source, or closed-source; with third-party vendor
approved and supported releases.
18. GRANT OF LICENSE; RESTRICTIONS:
18.1 Contractor hereby grants to City a right and license to: (a) display, perform, and use
the Service; and (b) use all intellectual property rights necessary to use the Service
as authorized in subparagraph (a).
18.2 Title to and ownership of the Service will remain with Contractor. City will not reverse
engineer or reverse compile any part of the Service. City will not remove, obscure
or deface any proprietary notice or legend contained in the Service or Documentation
without Contractor's prior written consent.
19. DELIVERY AND ACCEPTANCE:
19.1 Right to Perform Acceptance Testing. Prior to Accepting Deliverables, the City shall
have the right to perform Acceptance Testing to evaluate the Deliverable(s) to
ensure they meet Acceptance Criteria, if any, set forth on the applicable Order Form
or Statement of Work. Contractor shall cooperate with the City in the development
of Acceptance Criteria that shall be codified in the applicable Order Form or
Statement of Work that will set forth the location, date, and other specifications of
the Acceptance Testing, if any. Acceptance Testing may occur in one or more
phases, depending on the integration of contingent products, scalability,
performance tuning or other measurable features or milestones.
19.2 After an Acceptance Test and if at any time the Service does not conform, the City
will notify Contractor in writing within sixty (60) days and will specify in reasonable
detail the identified failures and possible reasons for failure. Contractor will, at its
expense, repair or replace the nonconforming product within fifteen (15) days after
receipt of the City’s notice of deficiency.
19.3 If the City issues an Acceptance Certificate for an "Acceptance with Exception(s)"
the City will list the exception(s) and the date for Contractor's correction of the
Error(s). If Error(s) are corrected by the listed date(s) the City agrees to commence
further Acceptance Testing of the Deliverable or affected portion(s). If the Deliverable
passes the Acceptance Tests, the City will issue an Acceptance Certificate.
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19.4 If a Deliverable fails a second or subsequent Acceptance Test (or in the event of a
single Acceptance Test, the Acceptance Test) in no event shall there be an increase
to the original price agreed to by the Parties for the Deliverable.
19.5 The foregoing procedure will be repeated until the City accepts or finally rejects the
Deliverable, in whole or part, in its sole discretion. In the event that the Service does
not perform to the City’s satisfaction, the City reserves the right to repudiate
acceptance. In the event that the City finally rejects the Service, or repudiates
acceptance of it, Contractor will refund to the City all fees paid, if any, by the City
with respect to the Service.
19.6 If the City is not satisfied with the Contractor’s performance of the technology related
services described in the Statement of Work, the City will so notify Contractor within
thirty (30) days after Contractor’s performance thereof. Contractor will, at its own
expense, re-perform the service within fifteen (15) days after receipt of City's notice
of deficiency. The foregoing procedure will be repeated until City accepts or finally
rejects the technology related service in its sole discretion. In the event that City
finally rejects any technology related service, Contractor will refund to City all fees
paid by City with respect to such technology related service.
19.7 The Contractor warrants that during the term of this Agreement that the Service and
any associated components will not materially diminish during the subscription Term.
20. STATUS OF CONTRACTOR: The Contractor is an independent contractor retained to
perform professional or technical services for a limited period of time. It is understood that
the City enters into the Agreement based on the special abilities of the Contractor and that
this Agreement shall be considered as an agreement for personal services. Accordingly,
the Contractor shall neither assign any responsibilities nor delegate any duties arising under
the Agreement without the prior written consent of the City.
21. EXAMINATION OF RECORDS: Any authorized agent of the City, including the City Auditor
or his or her representative, has the right to access and the right to examine any pertinent
books, documents, papers, and records of the Contractor, involving transactions related to
the Agreement until the latter of three (3) years after the final payment under the Agreement
or expiration of the applicable statute of limitations.
22. WHEN RIGHTS AND REMEDIES NOT WAIVED: In no event shall any action by either
Party hereunder constitute or be construed to be a waiver by the other Party of any breach
of covenant or default which may then exist on the part of the Party alleged to be in breach,
and the non-breaching Party’s action or inaction when any such breach or default shall exist
shall not impair or prejudice any right or remedy available to that Party with respect to such
breach or default; and no assent, expressed or implied, to any breach of any one or more
covenants, provisions or conditions of the Agreement shall be deemed or taken to be a
waiver of any other breach.
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23. INSURANCE: During the term of the Agreement, the Contractor shall maintain insurance
in accordance with the requirement of Exhibit C. For Commercial General Liability, Auto
Liability and Cyber Liability, the Contract’s insurer(s) shall include the City, its elected and
appointed officials, employees, and volunteers as additional insured.
24. DEFENSE AND INDEMNIFICATION:
24.1 Contractor hereby agrees to defend, indemnify, reimburse and hold harmless City,
its appointed and elected officials, agents and employees (“Indemnified Parties”) for,
from and against all liabilities, claims, judgments, suits or demands for damages to
persons or property arising out of, resulting from, or relating to the work performed
under this Agreement (“Claims”), unless such Claims have been specifically
determined by the trier of fact to be the sole negligence or willful misconduct of the
City. This indemnity shall be interpreted in the broadest possible manner to
indemnify City for any acts or omissions of Contractor or its Subcontractors either
passive or active, irrespective of fault, including City’s concurrent negligence
whether active or passive, except for the sole negligence or willful misconduct of
City.
24.2 Contractor’s duty to defend and indemnify City shall arise at the time written notice
of the Claim is first provided to City regardless of whether claimant has filed suit on
the Claim. Contractor’s duty to defend and indemnify City shall arise even if City is
the only party sued by claimant and/or claimant alleges that City’s negligence or
willful misconduct was the sole cause of claimant’s damages.
24.3 Contractor will defend any and all Claims which may be brought or threatened
against City and will pay on behalf of City any expenses incurred by reason of such
Claims including, but not limited to, court costs and attorney fees incurred in
defending and investigating such Claims or seeking to enforce this indemnity
obligation. Such payments on behalf of City shall be in addition to any other legal
remedies available to City and shall not be considered City’s exclusive remedy.
24.4 Insurance coverage requirements specified in this Agreement shall in no way lessen
or limit the liability of the Contractor under the terms of this indemnification obligation.
The Contractor shall obtain, at its own expense, any additional insurance that it
deems necessary for the City’s protection.
24.5 Contractor shall indemnify, save, and hold harmless the Indemnified Parties, against
any and all costs, expenses, claims, damages, liabilities, and other amounts
(including attorneys’ fees and costs) incurred by the Indemnified Parties in relation
to any claim that any Deliverable, Service, software, or work product provided by
Contractor under this Agreement (collectively, “IP Deliverables”), or the use thereof,
infringes a patent, copyright, trademark, trade secret, or any other intellectual
property right.
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24.6 This defense and indemnification obligation shall survive the expiration or
termination of this Agreement.
25. COLORADO GOVERNMENTAL IMMUNITY ACT: The parties hereto understand and
agree that the City is relying upon, and has not waived, the monetary limitations and all other
rights, immunities and protection provided by the Colorado Governmental Act, § 24-10-101,
et seq., C.R.S. (2003).
26. PROHIBITED TERMS. Any term included in this Agreement that requires the City to
indemnify or hold Contractor harmless; requires the City to agree to binding arbitration; limits
Contractor’s liability for damages resulting from death, bodily injury, or damage to tangible
property; or that conflicts with this provision in any way shall be void ab initio. Nothing in
this Agreement shall be construed as a waiver of any provision of §24-106-109 C.R.S.
27. TAXES, CHARGES AND PENALTIES: The City shall not be liable for the payment of taxes,
late charges or penalties of any nature other than the compensation stated herein, except
for any additional amounts which the City may be required to pay under D.R.M.C. § 20-107
to § 20-115.
28. ASSIGNMENT; SUBCONTRACTING: The Contractor shall not voluntarily or involuntarily
assign any of its rights or obligations, or subcontract performance obligations, under this
Agreement without obtaining the Manager’s prior written consent. Any assignment or
subcontracting without such consent will be ineffective and void and shall be cause for
termination of this Agreement by the City. The Manager has sole and absolute discretion
whether to consent to any assignment or subcontracting, or to terminate the Agreement
because of unauthorized assignment or subcontracting. In the event of any subcontracting
or unauthorized assignment: (i) the Contractor shall remain responsible to the City; and (ii)
no contractual relationship shall be created between the City and any sub-consultant,
Subcontractor or assign.
29. NO THIRD PARTY BENEFICIARY: Enforcement of the terms of the Agreement and all
rights of action relating to enforcement are strictly reserved to the parties. Nothing contained
in the Agreement gives or allows any claim or right of action to any third person or entity.
Any person or entity other than the City or the Contractor receiving services or benefits
pursuant to the Agreement is an incidental beneficiary only.
30. NO AUTHORITY TO BIND CITY TO CONTRACTS: The Contractor lacks any authority to
bind the City on any contractual matters. Final approval of all contractual matters that
purport to obligate the City must be executed by the City in accordance with the City’s
Charter.
31. AGREEMENT AS COMPLETE INTEGRATION-AMENDMENTS: The Agreement is the
complete integration of all understandings between the parties as to the subject matter of
the Agreement. No prior, contemporaneous or subsequent addition, deletion, or other
modification has any force or effect, unless embodied in the Agreement in writing. No oral
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representation by any officer or employee of the City at variance with the terms of the
Agreement or any written amendment to the Agreement will have any force or effect or bind
the City.
32. SEVERABILITY: Except for the provisions of the Agreement requiring appropriation of
funds and limiting the total amount payable by the City, if a court of competent jurisdiction
finds any provision of the Agreement or any portion of it to be invalid, illegal, or
unenforceable, the validity of the remaining portions or provisions will not be affected if the
intent of the parties can be fulfilled.
33. NOTICES: All notices required by the terms of the Agreement must be hand delivered, sent
by overnight courier service, mailed by certified mail, return receipt requested, or mailed via
United States mail, postage prepaid, to the addresses set forth in Paragraph 5.
Notices hand delivered or sent by overnight courier are effective upon delivery. Notices
sent by certified mail are effective upon receipt. Notices sent by mail are effective upon
deposit with the U.S. Postal Service. The parties may designate substitute addresses where
or persons to whom notices are to be mailed or delivered. However, these substitutions will
not become effective until actual receipt of written notification.
34. GOVERNING LAW; VENUE: The Agreement will be construed and enforced in accordance
with applicable federal law, the laws of the State of Colorado, and the Charter, Revised
Municipal Code, ordinances, regulations, and Executive Orders of the City, which are
expressly incorporated into the Agreement. Unless otherwise specified, any reference to
statutes, laws, regulations, charter or code provisions, ordinances, executive orders, or
related memoranda, includes amendments or supplements to same. The parties further
agree that Larimar County District Court is the proper venue for all disputes. If the City
subsequently agrees in writing that the matter may be heard in federal court, venue will be
in Denver District Court. In the event any provision of this Agreement shall be held invalid
or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision of this Agreement
35. NO DISCRIMINATION IN EMPLOYMENT: In connection with the performance of work
under this contract, the Contractor may not refuse to hire, discharge, promote or demote, or
discriminate in matters of compensation against any person otherwise qualified, solely
because of race, color, religion, national origin, gender, age, military status, sexual
orientation, gender identity or gender expression, marital status, or physical or mental
disability. The Contractor shall insert the foregoing provision in all subcontracts.
36. LEGAL AUTHORITY: Contractor represents and warrants that it possesses the legal
authority, pursuant to any proper, appropriate and official motion, resolution or action passed
or taken, to enter into the Agreement. Each person signing and executing the Agreement
on behalf of Contractor represents and warrants that he has been fully authorized by
Contractor to execute the Agreement on behalf of Contractor and to validly and legally bind
Contractor to all the terms, performances and provisions of the Agreement. The City shall
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have the right, in its sole discretion, to either temporarily suspend or permanently terminate
the Agreement if there is a dispute as to the legal authority of either Contractor or the person
signing the Agreement to enter into the Agreement.
37. NO CONSTRUCTION AGAINST DRAFTING PARTY: The parties and their respective
counsel have had the opportunity to review the Agreement, and the Agreement will not be
construed against any party merely because any provisions of the Agreement were
prepared by a particular party.
38. ORDER OF PRECEDENCE: In the event of any conflicts between the language of the
Agreement and the exhibits, the language of the Agreement controls.
39. SURVIVAL OF CERTAIN PROVISIONS: The terms of the Agreement and any exhibits and
attachments that by reasonable implication contemplate continued performance, rights, or
compliance beyond expiration or termination of the Agreement survive the Agreement and
will continue to be enforceable. Without limiting the generality of this provision, the
Contractor’s obligations to provide insurance and to indemnify the City will survive for a
period equal to any and all relevant statutes of limitation, plus the time necessary to fully
resolve any claims, matters, or actions begun within that period.
40. INUREMENT: The rights and obligations of the parties herein set forth shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and
assigns permitted under this Agreement.
41. TIME IS OF THE ESSENCE: The parties agree that in the performance of the terms,
conditions, and requirements of this Agreement, time is of the essence.
42. FORCE MAJEURE: Neither party shall be responsible for failure to fulfill its obligations
hereunder or liable for damages resulting from delay in performance as a result of war, fire,
strike, riot or insurrection, natural disaster, unreasonable delay of carriers, governmental
order or regulation, complete or partial shutdown of plant, unreasonable unavailability of
equipment or software from suppliers, default of a Subcontractor or vendor (if such default
arises out of causes beyond their reasonable control), the actions or omissions of the other
party or its officers, directors, employees, agents, Contractors or elected officials and/or
other substantially similar occurrences beyond the party’s reasonable control (“Excusable
Delay”) herein. In the event of any such Excusable Delay, time for performance shall be
extended for a period of time as may be reasonably necessary to compensate for such
delay.
43. PARAGRAPH HEADINGS: The captions and headings set forth herein are for convenience
of reference only and shall not be construed so as to define or limit the terms and provisions
hereof.
44. APPROPRIATION. To the extent this Agreement constitutes a multiple fiscal year debt or
financial obligation of the City, it shall be subject to annual appropriation by City Council as
required by Article V, Section 8(b) of the City Charter, City Code Section 8-186, and Article
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X, Section 20 of the Colorado Constitution. The City shall have no obligation to continue
this Contract in any fiscal year in which no such appropriation is made and any termination
required due to non-appropriation shall not result in any damages or be considered default.
45. CITY EXECUTION OF AGREEMENT: This Agreement is expressly subject to and shall not
be or become effective or binding on the City until it has been fully executed by all signatories
of the City.
46. COUNTERPARTS OF THIS AGREEMENT: This Agreement may be executed in
counterparts, each of which shall be deemed to be an original of this Agreement.
47. ELECTRONIC SIGNATURES AND ELECTRONIC RECORDS: Contractor consents to the
use of electronic signatures by the City. The Agreement, and any other documents requiring
a signature hereunder, may be signed electronically by the City in the manner specified by
the City. The Parties agree not to deny the legal effect or enforceability of the Agreement
solely because it is in electronic form or because an electronic record was used in its
formation. The Parties agree not to object to the admissibility of the Agreement in the form
of an electronic record, or a paper copy of an electronic document, or a paper copy of a
document bearing an electronic signature, on the ground that it is an electronic record or
electronic signature or that it is not in its original form or is not an original.
48. ADVERTISING AND PUBLIC DISCLOSURE: The Contractor shall not include any
reference to the Agreement or to services performed pursuant to the Agreement in any of
the Contractor’s advertising or public relations materials without first obtaining the written
approval of the Manager. Any oral presentation or written materials related to services
performed under the Agreement will be limited to services that have been accepted by the
City. The Contractor shall notify the Manager in advance of the date and time of any
presentation. Nothing in this provision precludes the transmittal of any information to City
officials.
49. COMPLIANCE TO APPLICABLE LAW. The Contractor covenants and agrees to comply
with all federal, state, or local laws.
50. ON-LINE AGREEMENT DISCLAIMER. Notwithstanding anything to the contrary herein,
the City shall not be subject to any provision included in any terms, conditions, or
agreements appearing on Contractor’s or a Subcontractor’s website or any provision
incorporated into any click-through or online agreements related to the work unless that
provision is specifically referenced in this Agreement.
51. PCI/DSS COMPLIANCE: [ONLY FOR CREDIT CARD INTERFACE]
51.1 Any contractor who provides or has access to software, systems, hardware, or
devices which process and/or interact with payment card information or payment
cardholder data must be compliant with the current version of the Payment Card
Industry Data Security Standard (PCI DSS).
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51.2 The Contractor covenants and agrees to comply with Visa’s Cardholder Information
Security Program/CISP, MasterCard’s Security Data Program and SDP Rules, and
with all other credit card association or National Automated Clearing House
Association (NACHA) rules or rules of member organizations (generally
“Association”), and further covenants and agrees to maintain compliance with the
Payment Card Industry Data Security Standards (PCI DSS), MasterCard Site Data
Protection (SDP), and (where applicable) the VISA Payment Application Best
Practices (PABP) (collectively, the “Security Guidelines”). Contractor represents
and warrants that all of the hardware and software components that it utilizes for the
City or uses under this Agreement is and will be PCI DSS compliant. All service
providers that Contractor uses under the Agreement must be recognized by VISA
as compliant with PABP. Contractor further agrees to exercise reasonable due
diligence to ensure that all of its service providers, agents, business partners,
contractors, Subcontractors and any person or entity that may have access to credit
card information under this Agreement maintain compliance with the Security
Guidelines and comply in full with the terms and conditions set out in this Section.
Contractor further certifies that the equipment, as described herein, will be deployed
in a manner that meets or exceeds the PADSS and/or PCI certification and will be
deployed on a network that meets or exceeds PCI standards. Contractor shall
demonstrate its compliance with PCI DSS by annually providing the City an executed
Attestation of Compliance. Contractor must provide verification to the City, prior to
start up and ongoing annually during the term of this Agreement, that all modules of
the Contractor’s system(s) that interface with or utilize credit card information in any
manner or form of collection are Payment Card Industry Data Security Standards
(PCI DSS) compliant.
51.3 The Contractor shall not retain or store CVV2/CVC2 data subsequent to
authorization of a credit card transaction, shall prohibit disclosure of any and all
cardholder information, and in the event of a compromise of credit card information
of any kind, Contractor shall immediately notify the City in writing, and shall provide,
at Contractor’s sole expense, all necessary and appropriate notification to parties
and persons affected by such disclosure and compromise.
51.4 The Contractor must provide quarterly results of a network scan for all Internet or
IVR payment acceptance modules that verify PCI DSS compliance, or in the City’s
sole discretion, allow the City’s contracted PCI DSS compliance auditor full access
to the Contractor’s system(s) at any time to provide this verification to the City. Any
cost associated with the City’s contracted PCI DSS compliance auditor will be paid
by the City. If any Association requires an audit of the Contractor or any of
Contractor’s service providers, agents, business partners, contractors, or
Subcontractors due to a data security compromise event related to this Agreement,
Contractor agrees to cooperate with such audit. If as a result of an audit of the City
it is determined that any loss of information is attributable to the Contractor, the
Contractor shall pay the City’s reasonable costs relating to such audit, including
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attorney’s fees. No review, approval, or audit by the City shall relieve the Contractor
from liability under this section or under other provisions of this Agreement.
51.5 Incident Response. In the event Contractor becomes aware of a confirmed or
suspected security incident involving the unauthorized disclosure or theft of PCI
Data, Contractor shall (a) notify the City promptly, (b) cooperate in any investigation,
(c) promptly take reasonable measures included in the Services contracted by the
City hereunder to prevent further unauthorized access or use of City Data, (d)
cooperate with the City's notification to affected individuals if such notification is
required by applicable law or regulation, and (e) perform all such other acts, or
cooperate with the City's performance of all such other acts, that are required with
respect to such security incident by applicable law or regulation, Contractor shall
provide assistance as reasonably requested by the City for any additional
requirements related to a security incident.
51.6 In the event of a security incident, or if, in the City's reasonable opinion, there is a
suspected violation of security, fraud, or a potential data or security breach, the City
may request an investigation by an independent third-party qualified PCI Forensic
Investigator (PFI). If the investigation reasonably finds that such violation, fraud, or
breach is the result of Contractor's actions or omissions Contractor shall reimburse
the City as set forth below.
51.7 In addition to all other defense and indemnity obligations undertaken by the
Contractor under this Agreement, the Contractor, to the extent that its performance
of this Agreement includes the allowance or utilization by members of the public of
credit cards to pay monetary obligations to the City or the Contractor, or includes the
utilization, processing, transmittal and/or storage of credit card data by the
Contractor, shall defend, release, indemnify and save and hold harmless the City
against any and all fines, penalties, assessments, costs, damages or other financial
obligations, however denominated, assessed against the City and/or the Contractor
by credit card company(s), financial institution(s) or by the National Automated
Clearing House Association (NACHA) or successor or related entity, including but
not limited to, any credit card company fines, regardless of whether considered to
be consequential, special, incidental or punitive damages, costs of notifying parties
and persons affected by credit card information disclosure, the cost of replacing
active credit cards, and any losses associated with fraudulent transaction(s)
occurring after a security breach or loss of information with respect to credit card
information, and shall defend, release, indemnify, and save and hold harmless the
City from any and all claims, demands, suits, actions, liabilities, causes of action or
legal or equitable proceedings of any kind or nature, of or by anyone whomsoever,
in any way affected by such credit card data or utilizing a credit card in the
performance by Contractor of this Agreement. In furtherance of this, Contractor
covenants to defend and indemnify the City and the Contractor shall maintain
compliance with the Payment Card Industry Data Security Standard (PCI DSS) and
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with all other requirements and obligations related to credit card data or utilization
set out in this Agreement.
THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul, Purchasing Director
Date:
ATTEST:
APPROVED AS TO FORM:
SERVICE PROVIDER'S NAME
By:
Printed:
Title:
Date:
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EXHIBIT A
SCOPE OF SERVICE
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EXHIBIT B
STATEMENT OF WORK
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EXHIBIT C
INSURANCE REQUIREMENTS
The Contractor will provide, from insurance companies acceptable to the City, the insurance
coverage designated hereinafter and pay all costs. Before commencing work under this bid, the
Contractor shall furnish the City with certificates of insurance showing the type, amount, class of
operations covered, effective dates and date of expiration of policies.
In case of the breach of any provision of the Insurance Requirements, the City, at its option, may
take out and maintain, at the expense of the Contractor, such insurance as the City may deem
proper and may deduct the cost of such insurance from any monies which may be due or become
due the Contractor under this Agreement.
Insurance certificates should show the certificate holder as follows:
City of Fort Collins
Purchasing Division
PO Box 580
Fort Collins, CO 80522
The City, its officers, agents and employees shall be named as additional insureds on the
Contractor 's general liability and automobile liability insurance policies by marking the
appropriate box or adding a statement to this effect on the certificate, for any claims arising
out of work performed under this Agreement.
Insurance coverages shall be as follows:
A. Workers' Compensation & Employer's Liability. The Contractor shall maintain during the life
of this Agreement for all of the Contractor's employees engaged in work performed under this
agreement. Workers' Compensation & Employer’s Liability insurance shall conform with
statutory limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease
each employee, or as required by Colorado law.
B. General Liability. The Contractor shall maintain during the life of this Agreement such General
Liability as will provide coverage for damage claims of personal injury, including accidental
death, as well as for claims for property damage, which may arise directly or indirectly from
the performance of work under this Agreement. Coverage for property damage shall be on a
"broad form" basis. The amount of insurance for General Liability, shall not be less than
$1,000,000 combined single limits for bodily injury and property damage.
C. Automobile Liability. The Contractor shall maintain during the life of this Agreement such
Automobile Liability insurance as will provide coverage for damage claims of personal injury,
including accidental death, as well as for claims for property damage, which may arise directly
or indirectly from the performance of work under this Agreement. Coverage for property
damage shall be on a "broad form" basis. The amount of insurance for Automobile Liability,
shall not be less than $1,000,000 combined single limits for bodily injury and property damage.
In the event any work is performed by a subcontractor, the Contractor shall be responsible for
any liability directly or indirectly arising out of the work performed under this Agreement by a
subcontractor, which liability is not covered by the subcontractor's insurance.
D. Cyber Insurance. The Contractor shall maintain cyber insurance in the amount of not less
than $3,000,000.