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HomeMy WebLinkAboutWESTERN UNITED ELECTRIC SUPPLY CORPORATION - CONTRACT - SOLE SOURCE - SS 2023 - WESTERN UNITED ELECTRIC SUPPLY CORPORATIOfficial Purchasing Document Last updated 2/1/2023 SERVICES AGREEMENT THIS SERVICES AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Colorado Municipal Corporation, hereinafter referred to as the CITY and WESTERN UNITED ELECTRIC SUPPLY CORPORATION, a Colorado Corporation, 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. This AGREEMENT shall constitute the basic AGREEMENT between the parties for services for Wildlife Mitigation at City Substations. The SERVICE PROVIDER agrees to provide services in accordance with the Scope of Services attached hereto as Exhibit A, consisting of one (1) page and incorporated herein by this reference. The CITY may, at any time during the term of the Scope of Services, make changes to the scope of the particular services. Such changes shall be agreed upon in writing by the parties by Change Order, a sample of which is attached hereto as Exhibit B, consisting of one (1) page and incorporated herein by this reference. 2.Time of Commencement and Completion of Services. The services to be performed pursuant to this AGREEMENT shall be initiated within seven (7) calendar days following execution of this AGREEMENT. Services shall be completed no later than March 29, 2024. Time is of the essence. Any extensions of the time limit set forth above must be agreed upon in a writing signed by the parties. 3.Contract Period. This AGREEMENT shall commence October 16, 2023, and shall continue in full force and effect until October 15, 2024, 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 two (2) 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) calendar days prior to contract end. 4.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) calendar days from the onset of such condition. 5.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 SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 1 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Official Purchasing Document Last updated 2/1/2023 termination to the SERVICE PROVIDER. Such notice shall be delivered at least ten (10) calendar 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) calendar 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. 6.Notices. 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: SERVICE PROVIDER: CITY: Copy to: Western United Electric Supply Corp Attn: Anthony Cic 100 Bromley Business Parkway Brighton, CO 80603 acic@wue.coop City of Fort Collins Attn: Glenn Travis PO Box 580 Fort Collins, CO 80522 gtravis@fcgov.com City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 purchasing@fcgov.com 7.City Project Manager. The CITY will designate, prior to commencement of the work, its Project Manager 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 for contract interpretations, change order, and other clarification or instruction shal l be directed to the CITY Project Manager. The initial CITY Project Manager for this AGREEMENT is Glenn Travis and can be reached at gtravis@fcgov.com, or 970-416-4257. The Project Manager is subject to change by the CITY. 8.Compensation. The CITY shall pay the SERVICE PROVIDER for the performance of this Contract, subject to additions and deletions provided herein, eighty-five thousand, eight hundred thirty-four dollars ($85,834) as per the attached Exhibit C, consisting of two (2) pages and incorporated herein by this reference. Invoices shall be emailed to invoices@fcgov.com with a copy to the CITY 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. 9.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- SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 2 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Official Purchasing Document Last updated 2/1/2023 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 supporting appropriation has been made and non-appropriation shall not be treated as a breach by the CITY. 10.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. 11.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 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. The SERVICE PROVIDER shall require all subcontractors/subconsultants performing Work hereunder to maintain insurance coverage naming the CITY as an additional insured under this AGREEMENT of the type and with the limits specified within Exhibit D, attached hereto and incorporated herein by this reference. The SERVICE PROVIDER shall maintain a copy of each subcontract’s certificate evidencing the required insurance. Upon request, the SERVICE PROVIDER shall promptly provide the CITY with a copy of such certificate(s). 12.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. 13.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. 14.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 SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 3 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Official Purchasing Document Last updated 2/1/2023 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 for a period, the longer of; i.) The original manufacturer’s warranty term; or ii.) beginning with the start of the work and ending twenty-four (24) 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. 15.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. 16.Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) calendar 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) avail themselves of any other remedy at law or equity. 17.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. 18.Indemnification. a.The SERVICE PROVIDER shall indemnify, defend, and hold harmless the CITY and its officers and employees, to the maximum extent permitted under Colorado law, against and from any and all actions, suits, claims, demands or liability of any character whatsoever claimed by the SERVICE PROVIDER or third parties against the CITY arising out of or related to this AGREEMENT (not limited to contract, tort, intellectual SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 4 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Official Purchasing Document Last updated 2/1/2023 property, or otherwise). This obligation extends to reimbursement of the CITY's costs and reasonable attorney fees as to third party claims. b. The SERVICE PROVIDER shall take all necessary precautions in performing the Work hereunder to prevent injury to persons and property. 19. Insurance. The SERVICE PROVIDER shall maintain insurance in accordance with Exhibit D, consisting of one (1) page, attached hereto and incorporated herein. 20. 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. 21. 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 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 participa ting 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. 22. 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. 23. 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 SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 5 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Official Purchasing Document Last updated 2/1/2023 to CORA. 24. 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 t he 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 regula tions 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. 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) calendar days from the onset of such condition. 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] SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 6 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Official Purchasing Document Last updated 2/1/2023 THE CITY OF FORT COLLINS, COLORADO By: Gerry Paul, Purchasing Director Date: ATTEST: APPROVED AS TO FORM: WESTERN UNITED ELECTRIC SUPPLY CORPORATION By: Greg Mordini, President Date: SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 7 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 10/24/2023 Assistant City Attorney 10/25/2023 City Clerk Official Purchasing Document Last updated 2/1/2023 EXHIBIT A SCOPE OF SERVICES Western United is the local distributor for Hubbell Power Systems (HPS) who represents the manufacturer of the wildlife mitigation solution. The solution is a precise-fit custom made-to-order product that has an exacting fit to within 1/8th of an inch accuracy to the underlying equipment. The precise-fit is achieved through images of customer substation equipment; designers who plot the equipment and design the cover; a patented made-to-order manufacturing process and shipping in a turnkey boxed solution complete with a Site Protection Plan for installation. The material is a fast set polymer that meets specific test criteria of the IEEE 1656-2010 Guide. The SERVICE PROVIDER will have a certified lineman on-site at both the Harmony and Dixon Creek substations for the sole purpose of dimensional data collection through taking high resolution photographs. This work can be done with the substation still energized. Existing wildlife mitigation covers are to be removed in the areas where replacements are to be provided so better data in the photos. After data collection, a Full Scope Plan (FSP) will be provided for CITY approval along with any changes to the quote value if necessary. After receiving CITY approval, the wildlife mitigation solution will designed, manufactured, and shipped to the CITY. Any and all questions from the beginning of the Data Collection process onward can go through the SERVICE PROVIDER’S Project Manager. SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 8 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Official Purchasing Document Last updated 7/19/22 EXHIBIT B CHANGE ORDER NO. PROJECT TITLE: SERVICE PROVIDER: Western United ORIGINAL BID/RFP NUMBER & NAME: PO NUMBER: DESCRIPTION: 1.Reason for Change: Why is the change required? 2.Description of Change: Provide details of the changes to the Work 3.Change in Price: 4.Change in Time: ORIGINAL CONTRACT PRICE $ .00 TOTAL APPROVED CHANGE ORDER .00 TOTAL PENDING CHANGE ORDER .00 TOTAL THIS CHANGE ORDER .00 TOTAL % OF THIS CHANGE ORDER % TOTAL C.O.% OF ORIGINAL CONTRACT % ADJUSTED CONTRACT COST $ .00 SERVICE PROVIDER: Date: Name, Title ACCEPTANCE: Date: Name, Project Manager REVIEWED: Date: Name, Buyer or Senior Buyer ACCEPTANCE: Date: Gerry Paul, Purchasing Director (if greater than $60,000) ACCEPTANCE: Date: Name, Title REVIEWED: Date: Name, Title SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 9 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 QUOTATION 2059261 Western United Electric Supply Corp Order Date Order Number 12/16/2022 08:11:19 Page 1 of 1 Quote Expires On: 12/22/2022 100 Bromley Business Parkway Brighton, CO 80603 US 303-659-2356 Pricing and lead times are subject to change at time of shipment due to market volatility Fort Collins, CO 80521-2719 City of Fort Collins 700 WOOD FORT COLLINS, CO 80521 US Requested By: Glenn Travis Customer ID: Attn: Invoice . US PO Box 580 300 Laporte Ave Bill To:Ship To: City of Fort Collins 970-212-2900 10026 Ship Route TakerPO Number Dixon Creek Proposal Base + Option 2 MNICKELL Item ID Item DescriptionRemaining Quantities UOM Di s p . Unit Size Pricing UOM Unit PriceUnit Size Price Extended AllocatedOrdered Delivery Instructions:Proposal No.: 32963328 Version: # B Department: Wildlife Mitigation DIXON CREEK BASE PLUS OPTION 21.000.00 29,778.000000EAEA1.00 29,778.00 1.0 1.0Dixon Creek Base Plus Option 2 PRICE +/- 15% SUB-TOTAL:Total Lines:1 29,778.00 0.00TAX: U.S. Dollars 29,778.00AMOUNT DUE: 19.1.3681 - 09/23/19 EXHIBIT C BID SCHEDULE/ COMPENSATION SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 10 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 QUOTATION 2059259 Western United Electric Supply Corp Order Date Order Number 12/16/2022 08:03:23 Page 1 of 1 Quote Expires On: 12/22/2022 100 Bromley Business Parkway Brighton, CO 80603 US 303-659-2356 Pricing and lead times are subject to change at time of shipment due to market volatility Fort Collins, CO 80521-2719 City of Fort Collins 700 WOOD FORT COLLINS, CO 80521 US Requested By: Glenn Travis Customer ID: Attn: Invoice . US PO Box 580 300 Laporte Ave Bill To:Ship To: City of Fort Collins 970-212-2900 10026 Ship Route TakerPO Number Harmony Proposal Base + Option 2 MNICKELL Item ID Item DescriptionRemaining Quantities UOM Di s p . Unit Size Pricing UOM Unit PriceUnit Size Price Extended AllocatedOrdered Delivery Instructions:Proposal No.: 32961429 Version: # B Department: Wildlife Mitigation HARMONY BASE PLUS OPTION 21.000.00 56,056.000000EAEA1.00 56,056.00 1.0 1.0Harmony Base Plus Option 2 PRICE +/- 15% SUB-TOTAL:Total Lines:1 56,056.00 0.00TAX: U.S. Dollars 56,056.00AMOUNT DUE: 19.1.3681 - 09/23/19 SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 11 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Official Purchasing Document Last updated 7/19/22 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. SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 12 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Official Purchasing Document Last updated 7/19/22 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 “Dis closing Party.” The party receiving the Disclosing Party’s confidential information shall be referenced as the “Receiving Party.” 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, s chematics, 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. SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 13 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Official Purchasing Document Last updated 7/19/22 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 informat ion 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 SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 14 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Official Purchasing Document Last updated 7/19/22 •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 deletio n) 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 c ourt of competent jurisdiction to enjoin or remedy any violation of this AGREEMENT. SS 2023 - Services Agreement with Red Flags & Confidentiality Western United Electric Supply Corporation - Wildlife Mitigation at City Substations Page 15 of 15 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 05 ARB 025-23 $2,000,000 $1,000 $2,000,000 $2,000,000 OCCURRENCE-BASIS GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY COMPREHENSIVE FORM PREMISES / OPERATIONS UND / EXPLOSION & COLLAPSE PRODUCTS / COMP OPS CONTRACTUAL BROAD-FORM PROPERTY DAMAGE NO GENERAL AGGREGATE to 5/1/2023 5/1/2025 EACH OCCURRENCE DAMAGE TO RENTED PREMISES MED EXP (PER PERSON) PERSONAL & ADV INJURY $2,000,000ANY AUTO AUTOMOBILE HIRED & NON-OWNED AUTO GARAGE LIABILITY (ANY AUTO) 05 ARB 025-23 to 5/1/2023 5/1/2025 COMBINED SINGLE LIMIT (EACH ACCIDENT) $250 $500 COMP DEDUCTIBLE COLLISION DEDUCTIBLE WORKERS COMPENSATION AND EMPLOYERS LIABILITY $500,000 $500,000 STATUTORY $500,00005 WC 025-23 to 1/1/2023 1/1/2024 WC LIMITS E.L. EACH ACCIDENT E.L. DISEASE EACH EMPLOYEE E.L. DISEASE - POLICY LIMIT WC LIMITS ALL-RISK BLANKET PROPERTY 05 ARB 025-23 to 5/1/2023 5/1/2025 $1,000 $68,413,870PROPERTY LIMIT PROPERTY DEDUCTIBLE NAIC: 11118 P.O. Box 15147, Lenexa, KS 66285-5147 CERTIFICATE OF INSURANCE THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. (913) 541-0150 fax (913) 541-9004 www.federatedrural.com THIS IS TO CERTIFY THAT: IS, AT THE ISSUE DATE OF THIS CERTIFICATE, INSURED BY THE COMPANY UNDER THE POLICY(IES) LISTED BELOW. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TYPE OF INSURANCE POLICY NUMBER POLICY DATES LIMITS ($) 9/15/2023 Western United Electric Supply Corporation 100 Bromley Business Parkway Brighton, CO 80603 IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must 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). It is agreed that where required by mortgage, lease, or other legal agreement, the interests of mortgagees, lessees, and loss payees are insured as their interests may appear as additional insured’s and/or loss payees. Blanket Additional Insured and Waiver of Subrogation are included under General Liability and Automobile Liability insurance if required by written contract or agreement. FREIE Cert v.8/10 CERTIFICATE HOLDER:CANCELLATION: SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE: DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EQUIPMENT / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS CITY OF FT. COLLINS 700 WOOD STREET PO BOX 580 FT COLLINS, CO 80522 DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314 Section II, General Liability and Automobile Liability Insurance, Item F. Persons Insured, is amended to include any person or organization for whom the policyholder is performing operations when the policyholder and the person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured or insureds to this policy. Such person or organization is an additional insured only with respect to liability caused, in whole or in part, by the policyholder’s acts or omissions, or by the acts or omissions of others acting on the policyholder’s behalf, provided: 1. The insurance afforded to such additional insured or insureds only applies to the extent permitted by law; and 2. If such coverage is required by written contract or agreement, the insurance afforded will not be broader than that required by the contract or agreement to be provided to the additional insured or insureds; and 3. If such coverage is required by written contract or agreement, the insurance afforded shall not exceed the limit of insurance required by the contract or agreement, or the applicable Limit of Liability stated in the Declarations, whichever is less. 4. If required by written contract or agreement, the Company waives any rights of recovery against the additional insureds shown above because of payments made under Section II, General Liability. Such waiver applies only to the extent that the policyholder has waived its rights of recovery against such person(s) or organization(s) prior to loss. 5. The following amends General Condition H. Other Insurance, and supersedes any provision to the contrary: This insurance is primary to and will not seek contribution from any other insurance available to an additional insured under this policy provided that: (1) The additional insured is a Named Insured under such other insurance; and (2) It is required by written contract or agreement that this insurance would be primary and would not seek contribution from any other insurance available to the additional insured. With respect to the insurance afforded to these additional insureds, no coverage shall apply to Personal Injury or Property Damage arising out of or caused directly or indirectly by providing or failing to provide any professional service. This exclusion shall not apply to the rendering of emergency first aid or incidental medical service. A professional service can mean, but is not limited to Personal Injury or Property Damage arising out of the rendering of, or the failure to render, any architectural, engineering or surveying services, including: a. The preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or b. Supervisory, inspection, architectural or engineering activities. This endorsement shall not, in any event, increase the Limit of Liability stated in the Declarations. All other policy provisions apply. 05 ARB 025-23 Western United Electric Supply Corp. This endorsement changes the policy. Please read it carefully Blanket Additional Insured & Waiver of Subrogation Endorsement Misc Blanket Additional Insured (1-21)Page 1 of 1 © 2020 Federated Rural Electric Insurance Exchange Includes copyrighted material of Insurance Services Office, Inc. with its permission DocuSign Envelope ID: CA1002B6-4024-4CE4-BA58-D511880E3314