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HomeMy WebLinkAboutIXOM WATERCARE INC - CONTRACT - SOLE SOURCE - IXOM WATERCARE INCOfficial Purchasing Document Last updated 7/19/2022 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 1 of 15 SERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter referred to as the "City" and IXOM WATERCARE INC., hereinafter referred to as "Service Provider". WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Scope of Services. The Service Provider agrees to provide services in accordance with the scope of services attached hereto as Exhibit A & B, consisting of two (2) pages and incorporated herein by this reference. 2. Contract Period. This Agreement shall commence December 19, 2022, and shall continue in full force and effect until December 18, 2023, 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 pricing changes shall be negotiated by and agreed to by both parties only at the time of renewal. Written notice of renewal shall be provided to the Service Provider and mailed no later than thirty (30) days prior to contract end. 3. Delay. If either party is prevented in whole or in part from performing its obligations by unforeseeable causes beyond its reasonable control and without its fault or negligence, then the party so prevented shall be excused from whatever performance is prevented by such cause. To the extent that the performance is actually prevented, the Service Provider must provide written notice to the City of such condition within ten (10) days from the onset of such condition. 4. Early Termination by City. 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 Service Provider. 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. In the event of early termination by the City, the Service Provider shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of the Service Provider's obligations under this Agreement. Service Provider shall submit a final invoice within ten (10) days of the effective date of termination. Undisputed invoices shall be paid Net 30 days of the date of the invoice. Such payment shall be the Service Provider's sole right and remedy for such termination. 5. Notice. All notices provided under this Agreement shall be effective immediately when emailed or three (3) business days from the date of the notice when mailed to the following addresses: DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/2022 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 2 of 15 Service Provider: City: Copy to: IXOM Watercare Inc. Attn: Courtney Pankowski 3225 Hwy 22 Dickinson, ND 58601 Courtney.Pankowski@ixom.com City of Fort Collins Attn: Nick Smiley PO Box 580 Fort Collins, CO 80522 nsmiley@fcgov.com jfredrickson@fcgov.com City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 purchasing@fcgov.com 6. Compensation. The City shall pay the Service Provider for the performance of this Contract, subject to additions and deletions provided herein, sixteen thousand, five hundred ninety-one dollars ($16,591) for Rigden Reservoir and six thousand, seven hundred dollars ($6,700) for Duck Lake as per the attached Exhibits A & B. Invoices shall be emailed to invoices@fcgov.com with a copy to the Project Manager. The cost of the work completed shall be paid to the Service Provider following the submittal of a correct itemized invoice by the Service Provider. 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. The City pays invoices on Net 30 days from the date of the invoice. 7. Appropriation. To the extent this Agreement or any provision in it constitutes a multiple fiscal year debt or financial obligation of the City, it shall be subject to annual appropriation by City Council as required in Article V, Section 8(b) of the City Charter, City Code Section 8 -186, and Article X, Section 20 of the Colorado Constitution. The City shall have no obligation to continue this Agreement in any fiscal year for which no such supporting appropriation has been made. 8. City Representative. The City will designate, prior to commencement of the work, its representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the services provided under this agreement. All requests concerning this agreement shall be directed to the City Representative. 9. Independent Service Provider. The services to be performed by Service Provider are those of an independent service provider and not of an employee of the City of Fort Collins. The City shall not be responsible for withholding any portion of Service Provider's compensation hereunder for the payment of FICA, Workmen's Compensation or other taxes or benefits or for any other purpose. 10. Subcontractors. Service Provider may not subcontract any of the Work set forth in the Exhibit A, Statement of Work without the prior written consent of the City, which shall not be unreasonably withheld. If any of the Work is subcontracted hereunder (with the consent of the City), then the following provisions shall apply: (a) the subcontractor must be a reputable, qualified firm with an established record of successful performance in its respective trade performing identical or substantially similar work, (b) the subcontractor will be required to DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/2022 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 3 of 15 comply with all applicable terms of this Agreement, (c) the subcontract will not create any contractual relationship between any such subcontractor and the City, nor will it obligate the City to pay or see to the payment of any subcontractor, and (d) the work of the subcontractor will be subject to inspection by the City to the same extent as the work of the Service Provider. Irrespective of any subcontractors named in Exhibit A, Service Provider shall be solely responsible for performance of all duties hereunder. 11. Personal Services. It is understood that the City enters into the Agreement based on the special abilities of the Service Provider and that this Agreement shall be considered as an agreement for personal services. Accordingly, the Service Provider shall neither assign any responsibilities nor delegate any duties arising under the Agreement without the prior written consent of the City. 12. Acceptance Not Waiver. The City's approval or acceptance of, or payment for any of the services shall not be construed to operate as a waiver of any rights or benefits provided to the City under this Agreement or cause of action arising out of performance of this Agreement. 13. Warranty. a. Service Provider warrants that all work performed hereunder shall be performed with the highest degree of competence and care in accordance with accepted standards for work of a similar nature. b. Unless otherwise provided in the Agreement, all materials and equipment incorporated into any work shall be new and, where not specified, of the most suitable grade of their respective kinds for their intended use, and all workmanship shall be acceptable to City. c. Service Provider warrants all equipment, materials, labor and other work, provided under this Agreement, except City-furnished materials, equipment and labor, against defects and nonconformances in design, materials and workmanship/workwomanship for a period, the longer of; i.) The original manufacturer’s warranty term; or ii.) beginning with the start of the work and ending twelve (12) months from and after final acceptance under the Agreement, regardless whether the same were furnished or performed by Service Provider or by any of its subcontractors of any tier. Upon receipt of written notice from City of any such defect or nonconformances, the affected item or part thereof shall be redesigned, repaired, or replaced by Service Provider in a manner and at a time acceptable to City. 14. Default. 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 thereof. 15. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) 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 performance; or (c) DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/2022 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 4 of 15 avail themselves 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. 16. Entire Agreement; Binding Effect; Order of Precedence; Authority to Execute. This Agreement, along with all Exhibits and other documents incorporated herein, shall constitute the entire Agreement of the parties regarding this transaction and shall be binding upon said parties, their officers, employees, agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal representatives, successors and assigns of said parties. Covenants or representations not contained in this Agreement shall not be binding on the parties. In the event of a conflict between terms of the Agreement and any exhibit or attachment, the terms of the Agreement shall prevail. Each person executing this Agreement affirms that they have the necessary authority to sign on behalf of their respective party and to bind such party to the terms of this Agreement. 17. Indemnity/Insurance. a. The Service Provider agrees to indemnify and save harmless the City, its officers, agents and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever brought or asserted for injuries to or death of any person or persons, or damages to property arising out of, result from or occurring in connection with the performance of any service hereunder. b. The Service Provider shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property. c. Without limiting any of the Service Provider's obligations hereunder, the Service Provider shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement of the type and with the limits specified within Exhibit D, consisting of one (1) page attached hereto, and incorporated herein by this reference. The Service Provider before commencing services hereunder, shall deliver to the City's Purchasing Director, purchasing@fcgov.com or P. O. Box 580, Fort Collins, Colorado 80522, one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. 18. Law/Severability. The laws of the State of Colorado shall govern the construction, interpretation, execution, and enforcement of this Agreement. The Parties further agree that Larimer 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. 19. Prohibition Against Unlawful Discrimination. The City, 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 DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/2022 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 5 of 15 Regulations, affirmatively ensures that for all contracts entered into with the City, disadvantaged business enterprises are afforded a full and fair opportunity to bid on the contract and are not to be discriminated against on the grounds of race, color, or national origin in consideration for an award. 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 vendors 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 vendors and their subcontractors at every tier. 20. Governmental Immunity Act. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the notices, requirements, immunities, rights, benefits, protections, limitations of liability, and other provisions of the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq. and under any other applicable law. 21. 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 in whole pursuant to CORA. 22. Limitation of Liability. a. Notwithstanding anything set out in this Agreement, to the maximum extent permitted by law, Seller’s liability to the City, its employees, agents, officers, contractors or consultants whether such liability arises in contract, tort (including negligence), pursuant to an indemnity, in equity or otherwise is limited in the aggregate to USD$100,000 for any and all claims arising from or in connection with this Agreement. The foregoing limitation of liability shall not apply in respect of: (i) general liability insurance proceeds recovered by the Seller, in which case, Seller’s liability is limited to the insurance proceeds recovered up to USD $1 million; and (ii) personal injury or death resulting from a negligent act or omission of the Seller. b. Notwithstanding anything set out in this Agreement, neither party shall be liable to the other for any consequential loss or indirect loss suffered or incurred by the other party including but not limited to any loss of profits, loss of business revenue, f ailure to realise expected profits or savings, liquidated damages payable pursuant to other agreements, loss of goodwill or reputation, loss of opportunity, overhead costs, loss of contracts, loss DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/2022 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 6 of 15 of value in any intellectual property, other any other indirect or economic loss howsoever arising. 23. Force Majeure. No Party hereto shall be considered in default in the performance of an obligation hereunder to the extent that performance of such obligation is delayed, hindered, or prevented by force majeure. Force majeure shall be any cause beyond the control of the defaulting Party which could not reasonably have been foreseen and guarded against. Force majeure includes, but is not limited to, acts of God, fires, riots, pandemics, incendiarism, interference by civil or military authorities, compliance with regulations or orders of military authorities, and acts of war (declared or undeclared), provided such cause could not have been reasonably foreseen and guarded against by the defaulting Party. Force majeure shall not include increases in labor, commodity, utility, material, supply, fuel, or energy costs, or compliance with regulations or orders of civil authorities. 24. Contract Defined. This Contract incorporates the terms and conditions of the following documents, attached as exhibits hereto and incorporated herein by this reference. Should there be a conflict among the documents, their terms and conditions shall prevail in the following order: a. Services Agreement; b. Exhibit A: Quote #SP23006 for Rigden Reservoir, consisting of one (1) page dated 10/28/2022; c. Exhibit B: Quote #SP-FOR04-221103 for Duck Lake, consisting of one (1) page dated 11/7/2022; d. Exhibit C: IXOM Watercare’s General Terms & Conditions, consisting of two (two) pages. 25. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit E - Confidentiality, consisting of three (3) pages, attached hereto, and incorporated herein by this reference. [Signature Page Follows] DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/2022 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 7 of 15 THE CITY OF FORT COLLINS, COLORADO By: Gerry Paul, Purchasing Director Date: ATTEST: APPROVED AS TO FORM: IXOM WATERCARE INC. By: Printed: Title: Date: DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F 1/4/2023 Sales & Service Manager Courtney Pankowski Assistant City Attorney ll 1/11/2023 City Clerk Official Purchasing Document Last updated 7/19/2022 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 8 of 15 EXHIBIT A SCOPE OF SERVICES – RIGDEN RESERVOIR DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/22 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 9 of 15 EXHIBIT B SCOPE OF SERVICES – DUCK LAKE DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/22 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 10 of 15 EXHIBIT C IXOM WATERCARE GENERAL TERMS AND CONDITIONS OF SALE & SERVICES The Service Agreement dated December 19, 2022, between the parties and these terms and conditions (collectively, “Terms and Conditions”) govern all services and components supplied in the course of providing those services (collectively, “Services”) agreed to be supplied by IXOM Watercare Inc (“Seller”) to any person to whom any quotation is made or who is offering to contract with the Seller (“Buyer”). The Terms and Conditions are incorporated into any order, offer, arrangement or understanding between the Seller and the Buyer (including pursuant to a quotation or letter of offer accepted by the Buyer) as well as any quotation or invoice or any other document to which they are attached (individually and collectively “Order”). In the event of a conflict between the Services Agreement and these General Terms & Conditions of Sale, the Services Agreement shall prevail. All purchases by Buyer are expressly limited and conditioned upon acceptance of the Terms and Conditions and without limiting any other mode of acceptance, Buyer’s acceptance of the Services manifests Buyer’s assent to the Terms and Conditions and the credit terms offered by Seller. 1. PRICES; TAXES; PAYMENT TERMS; DEFAULT. a. Prices for Services and any adjustments to such prices shall be determined in accordance with Seller’s final pricing letter or offer forming part of the Contract which has been accepted by Buyer (“Price”). The Buyer may accept that pricing letter and its contents either through written confirmation or by accepting, receiving or allowing the provision of any of the Services. b. Prices do not include any sales, use, excise, privilege, or other taxes or assessments imposed on the Services sold hereunder and unless Buyer provides proof of exemption satisfactory to Seller, such may be added to the price of the Services. c. Payment terms are net 30 days from date of correct invoice. Payments not received when due shall incur service charges at the rate of 1½% per month (18% per annum) until paid, compounded on a daily basis. d. If any of the events set out in this Section 1(d)(i) through (v) below occur, Seller reserves the right, among other remedies, to delay or suspend further provision of Services or require full or partial cash payment in advance until all sums due have been paid. Buyer shall be liable for all costs and expenses incurred by Seller in collecting any overdue amounts, including without limitation reasonable attorneys’ fees. i. Buyer defaults in any payments or is unable or states that it is unable to pay its debts as and when they fall due. ii. Buyer commits an act of bankruptcy, files a voluntary petition in bankruptcy or has filed against it an involuntary petition in bankruptcy or has a trustee, receiver, liquidator, custodian, conservator, manager, controller or voluntary administrator appointed in respect of Buyer’s estate or any part of Buyer’s property or assets. iii. Buyer passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it. iv. Buyer makes an assignment for the benefit of its creditors. Seller is required to provide notification to Buyer of any assignments within sixty (60) calendar days. v. Buyer experiences any analogous event having substantially similar effect to any of the events listed above. DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/22 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 11 of 15 2. SERVICE DELIVERY AND RESPONSIBILITY TO PURCHASE. a. Unless agreed otherwise in writing, all Service delivery dates are estimates only. Seller shall make all reasonable efforts to have Services completed on or about the date or within the time frame of the Order but Seller shall not be liable for any failure or delay in completion for any reason. b. Unless agreed otherwise in writing, all shipments are F.O.B. Destination. c. Title; Risk of Loss or Damage: Title to and risk of loss of the Goods shall pass to Buyer upon delivery, F.O.B. Destination. 3. Safe Storage Handling & Use; Assumption of Risk; Indemnification: Buyer acknowledges that it is familiar with the risks associated with the storage, handling and use of Goods and any waste resulting therefrom. Accordingly and notwithstanding anything to the contrary set forth in the Contract, Buyer covenants and warrants and shall ensure that (i) that it and its employees, agents, carriers and customers are familiar with and adhere to all necessary and appropriate precautions and safety measures to safely store, handle or use the Goods; (ii) it and its employees, agents, carriers and customers shall comply with all applicable Laws, including without limitation, environmental laws and regulations pertaining to the storage, handling and use of Goods; (iii) shall obtain and comply with all required permits and licenses. Seller takes no responsibility for, and Buyer assumes all risks associated with waste characterization, regulatory status and chemical composition of any product, process, material, waste or substance into which the Goods are incorporated or applied. 4. INTELLECTUAL PROPERTY. Seller is the sole and exclusive owner of the Intellectual Property in the Services and processes incorporated in such Services, and the rights attached to that Intellectual Property. Nothing herein grants to Buyer any right, title or interest in or to any of the Intellectual Property in the Services. Buyer shall not claim to have acquired any right, title or interest to the Intellectual Property in the Services by virtue of purchasing Services sold hereunder. Buyer shall not deconstruct, reverse compile or reverse engineer the Services in any way for the purpose of deciphering or replicating the composition of the Services. As used herein, “Intellectual Property” means any intellectual or industrial property right anywhere in the world including, without limitation, any patent, patent application, utility model, copyright (including copyright in manuals, databases, and promotional materials), registered design and other design rights, unpatented secrets and innovations, confidential information, and any other rights that may subsist anywhere in the world in improvements, inventions and other manufacturing processes or technical and other information of Seller. Buyer shall not resell, distribute or supply the Services to any third party for any reason without Seller's prior written consent DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/22 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 12 of 15 EXHIBIT D INSURANCE REQUIREMENTS The Service Provider 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 Service Provider 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 Service Provider, 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 Service Provider 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 Service Provider '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 Service Provider shall maintain during the life of this Agreement for all of the Service Provider'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 Service Provider 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 Service Provider 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 Service Provider 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. DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/22 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 13 of 15 EXHIBIT E CONFIDENTIALITY IN CONNECTION WITH THE SERVICES to be provided by Service Provider under this Agreement, the parties agree to comply with reasonable policies and procedures with regard to the exchange and handling of confidential information and other sensitive materials between the parties, as set forth below. 1. Definitions. For purposes of this Agreement, the party who owns the confidential information and is disclosing same shall be referenced as the “Disclosing Party.” The party receiving the Disclosing Party’s confidential information shall be referenced as the “Receiving Part y.” 2. Confidential Information. Confidential Information controlled by this Agreement refers to information which is not public and/or is proprietary and includes by way of example, but without limitation, City customer information, utility data, service billing records, customer equipment information, location information, network security system, business plans, formulae, processes, intellectual property, trade secrets, designs, photographs, plans, drawings, schematics, methods, specifications, samples, reports, mechanical and electronic design drawings, customer lists, financial information, studies, findings, inventions, and ideas. To the extent practical, Confidential Information shall be marked “Confidential” or “Proprietary.” Nevertheless, Service Provider shall treat as Confidential Information all customer identifiable information in any form, whether or not bearing a mark of confidentiality or otherwise requested by the City, including but not limited to account, address, billing, consumption, contact and other customer data. In the case of disclosure in non-documentary form of non-customer identifiable information, made orally or by visual inspection, the Disclosing Party shall have the right, or, if requested by the Receiving Party, the obligation to confirm in writing the fact and general nature of each disclosure within a reasonable time after it is made in order that it is treated as Confidential Information. Any information disclosed to the other party prior to the execution of this Agreement and related to the services for which Service Provider has been engaged shall be considered in the same manner and be subject to the same treatment as the information disclosed after the execution of this Agreement with regard to protecting it as Confidential Information. 3. Use of Confidential Information. Receiving Party hereby agrees that it shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement and not in any way detrimental to Disclosing Party. Receiving Party agrees to use the same degree of care Receiving Party uses with respect to its own proprietary or confidential information, which in any event shall result in a reasonable standard of care to prevent unauthorized use or disclosure of the Confidential Information. Except as otherwise provided herein, Receiving Party shall keep confidential and not disclose the Confidential Information. The City and Service Provider shall cause each of their directors, officers, employees, agents, representatives, and subcontractors to become familiar with, and abide by, the terms of this section, which shall survive this Agreement as an on-going obligation of the Parties. Service Provider shall not use such information to obtain any economic or other benefit for itself, or any third party, other than in the performance of obligations under this Agreement. DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/22 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 14 of 15 4. Exclusions from Definition. The term “Confidential Information” as used herein does not include any data or information which is already known to the Receiving Party or which before being divulged by the Disclosing Party (1) was generally known to the public through no wrongful act of the Receiving Party; (2) has been rightfully received by the Receiving Party from a third party without restriction on disclosure and without, to the knowledge of the Receiving Party, a breach of an obligation of confidentiality; (3) has been approved for release by a written authorization by the other party hereto; or (4) has been disclosed pursuant to a requirement of a governmental agency or by operation of law. 5. Required Disclosure. If the Receiving Party is required (by interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process, or by federal, state, or local law, including without limitation, the Colorado Open Records Act) to disclose any Confidential Information, the Parties agree the Receiving Party will provide the Disclosing Party with prompt notice of such request, so the Disclosing Party may seek an appropriate protective order or waive the Receiving Party’s compliance with this Agreement. The Receiving Party shall furnish a copy of this Agreement with any disclosure. 6. Notwithstanding paragraph 5, Service Provider shall not disclose Confidential Information to any person, directly or indirectly, nor use it in any way, except as required or authorized in writing by the City. 7. Red Flags Rules. Service Provider must implement reasonable policies and procedures to detect, prevent and mitigate the risk of identity theft in compliance with the Identity Theft Red Flags Rules found at 16 Code of Federal Regulations part 681. Further, Service Provider must take appropriate steps to mitigate identity theft if it occurs with one or more of the City’s covered accounts and must as expeditiously as possible notify the City in writing of significant breeches of security or Red Flags to the City. 8. Data Protection and Data Security. In addition to the requirements of paragraph 7, Service Provider shall have in place information security safeguards designed to conform to or exceed industry best practices regarding the protection of the confidentiality, integrity and availability of utility and customer information and shall have written agreements requiring any subcontractor to meet those standards. These information security safeguards (the “Information Security Program”) shall be materially consistent with, or more stringent than, the safeguards described in this Exhibit. a) Service Provider’s information security safeguards shall address the following elements:  Data Storage, Backups and Disposal  Logical Access Control (e.g., Role-Based)  Information Classification and Handling  Secure Data Transfer (SFTP and Data Transfer Specification)  Secure Web Communications  Network and Security Monitoring  Application Development Security DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F Official Purchasing Document Last updated 7/19/22 Services Agreement with Red Flags & Confidentiality SS2022 IXOM-Medora Page 15 of 15  Application Security Controls and Procedures (User Authentication, Security Controls, and Security Procedures, Policies and Logging)  Incident Response  Vulnerability Assessments  Hosted Services  Personnel Security b) Subcontractors. Service Provider may use subcontractors, though such activity shall not release or absolve Service Provider from the obligation to satisfy all conditions of this Agreement, including the data security measures described in this Exhibit, and to require a substantially similar level of data security, appropriate to the types of services provided and Customer Data received, for any subcontractor Service Provider may use. Accordingly, any release of data, confidential information, or failure to protect information under this Agreement by a subcontractor or affiliated party shall be attributed to Service Provider and may be considered to be a material breach of this Agreement. 9. Confidential Information is not to be stored on any local workstation, laptop, or media such as CD/DVD, USB drives, external hard drives or other similar portable devices unless the Service Provider can ensure security for the Confidential Information so stored. Work stations or laptops to be used in the Work will be required to have personal firewalls on each, as well as have current, active anti-virus definitions. 10. The Agreement not to disclose Confidential Information as set forth in this Exhibit shall apply during the term of the Work and at any time thereafter unless specifically authorized by the City in writing. 11. If Service Provider breaches this Agreement, in the City’s sole discretion, the City may immediately terminate this Agreement and withdraw Service Provider’s right to access Confidential Information. 12. Notwithstanding any other provision of this Agreement, all material, i.e., various physical forms of media in which Confidential Information is contained, including but not limited to writings, drawings, tapes, diskettes, prototypes or products, shall remain the sole property of the Disclosing Party and, upon request, shall be promptly returned, together with all copies thereof to the Disclosing Party. Upon such return of physical records, all digital and electronic data shall also be deleted in a non-restorable way by which it is no longer available to the Receiving Party. Written verification of the deletion (including date of deletion) is to be provided to the Disclosing Party within ten (10) days after completion of engagement, whether it be via termination, completion or otherwise. 13. Service Provider acknowledges that the City may, based upon the representations made in this Agreement, disclose security information that is critical to the continued success of the City’s business. Accordingly, Service Provider agrees that the City does not have an adequate remedy at law for breach of this Agreement and therefore, the City shall be entitled, as a non- exclusive remedy, and in addition to an action for damages, to seek and obtain an injunction or decree of specific performance or any other remedy, from a court of competent jurisdiction to enjoin or remedy any violation of this Agreement. DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 12/28/2022 (701) 224-7043 (701) 483-1234 41297 Ixom Watercare Inc. 3225 Highway 22 N Dickinson, ND 58601 35289 15580 20494 A 1,000,000 VRS0005824 3/22/2022 3/22/2023 100,000 Employer's Liability 10,000 1,000,000 2,000,000 2,000,000 X Stop Gap Stop Gap 1,000,000 1,000,000B BUA7014690902 3/22/2022 3/22/2023 5,000,000C VES0003691 3/22/2022 3/22/2023 5,000,000 0 D WC714690916 3/22/2022 3/22/2023 1,000,000 1,000,000 1,000,000 A Contractors VRS0005824 3/22/2022 Pollution Occurrence 1,000,000 A Contractors VRS0005824 3/22/2022 3/22/2023 Pollution Aggregate 2,000,000 City of Fort Collins Attn: Nick Smiley PO Box 580 Fort Collins, CO 80522 IXOMWAT-01 PKUNTZ Choice Insurance 323 18th St W Dickinson, ND 58601 Phoebe Kuntz p.kuntz@insurewithchoice.com Scottsdale Insurance Company Continental Insurance Company Scottsdale Indemnity Company Transportation Insurance Company X 3/22/2023 X X X X X X X X DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTEDCLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGGJECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE CLAIMS-MADE AGGREGATE $ DED RETENTION $ PER OTH- STATUTE ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMITDESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved.ACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) $ $ $ $ $ The ACORD name and logo are registered marks of ACORD 1/5/2023 (701) 224-7043 (701) 483-1234 41297 Ixom Watercare Inc. 3225 Highway 22 N Dickinson, ND 58601 35289 15580 20494 A 1,000,000 X VRS0005824 3/22/2022 3/22/2023 100,000 Employer's Liability 10,000 1,000,000 2,000,000 2,000,000 X Stop Gap Stop Gap 1,000,000 1,000,000B X BUA7014690902 3/22/2022 3/22/2023 5,000,000C VES0003691 3/22/2022 3/22/2023 5,000,000 0 D WC714690916 3/22/2022 3/22/2023 1,000,000 1,000,000 1,000,000 A Contractors VRS0005824 3/22/2022 Pollution Occurrence 1,000,000 A Contractors VRS0005824 3/22/2022 3/22/2023 Pollution Aggregate 2,000,000 Certificate holder is included as additional insured with respects to General Liability and Automobile Liability when required by written contract per form #'s CG2010(04-13) & CNA71527XX(10-12). City of Fort Collins Attn: Nick Smiley PO Box 580 Fort Collins, CO 80522 IXOMWAT-01 PKUNTZ Choice Insurance 323 18th St W Dickinson, ND 58601 Phoebe Kuntz p.kuntz@insurewithchoice.com Scottsdale Insurance Company Continental Insurance Company Scottsdale Indemnity Company Transportation Insurance Company X 3/22/2023 X X X X X X X X DocuSign Envelope ID: C8D2F366-9080-4BBA-AFCB-A64224C2E81F