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HomeMy WebLinkAboutCONTRACT - KINETIC INDUSTRY - RFP - 9880 VACUUM TRUCK CLEANING AND DISPOSAL SERVICESOfficial Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 1 of 17 MASTER SERVICES AGREEMENT WORK ORDER TYPE THIS MASTER AGREEMENT (AGREEMENT) made and entered into the day and year of the last dates signature set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Colorado Municipal Corporation (CITY), and KINETIC ENERGY SERVICES LLC, a Colorado Limited Liability Company, hereinafter referred to as "CONTRACTOR" or “KINETIC INDUSTRY. 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 CONTRACTOR agrees to provide Services in accordance with any project Work Orders for Vacuum Truck: Cleaning and Disposal Services, issued by the CITY. No Work is authorized hereunder except pursuant to any future Work Orders. A blank sample of a Work Order is attached hereto as Exhibit A, consisting of two (2) pages and is incorporated herein by this reference. A general Scope of Services is attached hereto as Exhibit B, consisting of one (1) page and is incorporated herein by this reference. The CITY reserves the right to independently solicit any project rather than issuing a Work Order to the CONTRACTOR for the same pursuant to this AGREEMENT. Irrespective of references to certain named third parties within this AGREEMENT or any Work Order, the CONTRACTOR shall be solely responsible for performance of all duties hereunder. The term (Service as used in this AGREEMENT shall include the Services(s) and deliverables contained in any Work Order issued by the CITY. The CITY may, at any time during the term of a particular Work Order and without invalidating the Work Order, make changes to the scope of the particular Service. Changes shall be agreed upon in writing by the parties by Change Order, a sample of which is attached hereto as Exhibit C, 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 as specified by each written Work Order or oral emergency service request. Oral emergency service requests will be acted upon without waiting for a written Work Order. Time is of the essence. 3. Contract Period. This AGREEMENT shall commence upon the execution of this document and shall continue in full force and effect for twelve (12) calendar months, 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. Any price changes shall not exceed three percent (3%) per DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 2 of 17 annual renewal. Written notice of renewal shall be provided to the CONTRACTOR and mailed no later than thirty (30) days before contract end. 4. Early Termination by City/Notices. 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 CONTRACTOR. Such notice shall be mailed 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 CONTRACTOR shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of the CONTRACTOR's obligations under this AGREEMENT. CONTRACTOR 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 CONTRACTOR's sole right and remedy for such termination. 5. Notices. All notices provided under this AGREEMENT shall be effective immediately when emailed or three business days from the date of the notice when mailed to the following addresses: CONTRACTOR: CITY: Copy to: Kinetic Industry Attn: CJ Schott 541 E Garden Drive Unit L Windsor, CO 80550 cj.schott@kineticindustry.com City of Fort Collins Attn: City Project Manager PO Box 580 Fort Collins, CO 80522 purchasing@fcgov.com City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 purchasing@fcgov.com 6. City Project Manager. The CITY's Project Manager will be shown on the specific Work Order and shall make, within the scope of the Project Manager’s authority, all necessary and proper decisions with reference to the Services(s) requested. All requests concerning this AGREEMENT shall be directed to the CITY Project Manager. 7. Contract Sum. This is an open-ended indefinite quantity AGREEMENT with no fixed total price or quantity. The Services to be performed, if any, will be stated on the individual Work Orders and will be priced in accordance with Exhibit D. The CITY makes no guarantee as to the number of Work Orders that may be issued or the actual amount of Services which will in fact be requested. 8. Compensation. In consideration of the Services to be performed pursuant to this AGREEMENT, the CITY agrees to pay and the CONTRACTOR on a time and reimbursable direct cost basis as designated in Exhibit D, consisting of one (1) page, attached hereto and incorporated by this reference. At the election of the CITY, each Work Order may contain a maximum fee, which shall be negotiated by the parties hereto for each Work Order. Itemized invoices shall be emailed to invoices@fcgov.com with a copy to the CITY Project Manager. The cost of the Services completed shall be paid to the CONTRACTOR following the submittal of a correct itemized invoice by the CONTRACTOR. The CITY is exempt from DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 3 of 17 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 8-186, 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 and non-appropriation shall not be treated as a breach by the CITY. 10. Liquidated Damages. CITY and CONTRCTOR recognize that time is of the essence of this AGREEMENT and that CITY will suffer financial loss if the Services are not completed within the times specified in the Work Order, plus any extensions thereof allowed in accordance with this AGREEMENT. They also recognize the delays, expenses and difficulties involved in proving in a legal proceeding the actual loss suffered by CITY if the Service is not completed on time. Accordingly, instead of requiring any such proof, CITY and CONTRACTOR agree that as liquidated damages for delay (but not as penalty) CONTRACTOR shall pay OWNER the amount set forth in each Work Order. 11. Independent Contractor. It is agreed that in the performance of any Services hereunder, the CONTRACTOR is an independent contractor responsible to the CITY only as to the Services stated in the particular W ork Order and to the extent that the Services shall be done in accordance with the terms, plans and specifications incorporated into each Work Order. 12. Subcontractors. CONTRACTOR may not subcontract any of the Services set forth in the subsequent Work Orders without the prior written consent of the CITY, which shall not be unreasonably withheld. If any of the Services are 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 Services, (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 Services of the subcontractor will be subject to inspection by the CITY to the same extent as the Services of the CONTRACTOR. 13. Personal Services. It is understood that the CITY enters into the AGREEMENT based on the special abilities of the CONTRACTOR and that this AGREEMENT shall be considered as an agreement for personal services. Accordingly, the CONTRACTOR shall neither assign any responsibilities nor delegate any duties arising under the AGREEMENT without the prior written consent of the CITY. DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 4 of 17 14. 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 under the AGREEMENT or of any cause of action arising out of the performance of this AGREEMENT. 15. Warranty. a. CONTRACTOR warrants that all Services performed hereunder shall be performed with the highest degree of competence and care in accordance with accepted standards for Services of a similar nature. b. Unless otherwise provided in the AGREEMENT, all materials and equipment incorporated into any Services 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. CONTRACTOR warrants all equipment, materials, labor and other Services, provided under this AGREEMENT, except City-furnished materials, equipment and labor, against defects and nonconformances in design, materials and workmanship/workwomanship for a period beginning with the start of the Services and ending twelve (12) months from and after final acceptance under the AGREEMENT, regardless whether the same were furnished or performed by CONTRACTOR 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 CONTRACTOR in a manner and at a time acceptable to CITY. 16. 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. 17. Remedies. In the event a party has been declared in default, such defaulting party shall be allowed a period of ten (10) calendar days from the date of notice 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. In the event of a dispute regarding this AGREEMENT, each party shall bear its own attorney fees and costs. 18. 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 DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 5 of 17 sign on behalf of their respective party and to bind such party to the terms of this AGREEMENT. 19. Indemnity/Insurance. a. To the maximum extent permitted by Colorado law, the CONTRACTOR 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 CONTRACTOR shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property. c. Without limiting any of the CONTRACTOR's obligations hereunder, the CONTRACTOR 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 E, consisting of one (1) page, attached hereto and incorporated herein by this reference. The CONTRACTOR 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. 20. Law/Severability. The laws of the State of Colorado shall govern the construction, interpretation, execution, and enforcement of this AGREEMENT without regard to conflict- of -law principles. 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 the U.S District Court for the District of Colorado in Denver. 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 associated 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 DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 6 of 17 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. 22. Utilization by Other Agencies. The CITY reserves the right to allow other state and local governmental agencies, political subdivisions, and/or school districts (Agencies) to utilize the resulting award under all terms and conditions specified and upon agreement by all parties. Usage by any other entity shall not have a negative impact on the CITY in the current term or in any future terms. Nothing herein shall be deemed to authorize or empower the Agency to act as an agent for the CITY in connection with the exercise of any rights hereunder, and neither party shall have any right or authority to assume or create any obligation or responsibility on behalf of the other. The other Agency shall be s olely responsible for any debts, liabilities, damages, claims or expenses incurred in connection with any agreement established between them and the CONTRACTOR. The CITY’s concurrence hereunder is subject to the CONTRACTOR’s commitment that this authorization shall not have a negative impact on the Services to be completed for the CITY. 23. 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. 24. Colorado Open Records Act. The CONTRACTOR acknowledges the CITY is a governmental entity subject to Colorado Open Records Act, C.R.S § 24-72-201 et seq. (CORA), and documents in the CITY’s possession may be considered public records subject to disclosure under CORA. The CONTRACTOR understands that this AGREEMENT may be subject to public disclosure under CORA. 25. Dust Control. The CONTRACTOR shall abide by the CITY’s “Dust Control and Prevention Manual,” which is available for public download at https://www. fcgov.com/airquality/pdf/dust-prevention-and-control-manual.pdf, and is incorporated herein by this reference. The CITY has implemented this manual for all projects performed for the City of Fort Collins or located within the CITY’s limits. 26. ADA and Public Accommodations. In performing the Services required hereunder, the CONTRACTOR agrees to meet all the requirements of the Americans with Disabilities Act of 1990 and applicable rules and regulations (ADA), along with all applicable Colorado public accommodation laws imposed on the CONTRACTOR or on the CITY as a public entity, including but not limited to C.R.S. §§ 24-85-101, et seq. 27. Force Majeure. No Party hereto shall be considered in default in the performance of an DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 7 of 17 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. To the extent that the performance is actually prevented, the Consultant must provide written notice to the CITY of such condition within ten (10) days from the onset of such condition. 28. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this AGREEMENT are set forth in Exhibit F - Confidentiality consisting of three (3) pages, attached hereto and incorporated herein by this reference. [Signature Page Follows] DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 8 of 17 THE CITY OF FORT COLLINS, COLORADO By: Gerry Paul Purchasing Director Date: ATTEST: APPROVED AS TO FORM: KINETIC INDUSTRY By: Printed: Title: Date: DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B 11/3/2023 Vice President KC Martin Assistant City Attorney 11/6/2023 City Clerk Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 9 of 17 EXHIBIT A WORK ORDER FORM PURSUANT TO A MASTER AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND KINETIC INDUSTRY WORK ORDER NUMBER: PM's Tracking # PROJECT TITLE: ORIGINAL RFP NUMBER & NAME: 9880 Vacuum Truck: Cleaning and Disposal Services MASTER AGREEMENT EFFECTIVE DATE: Original Contract Date ARCHITECT/ENGINEER: If using a 3rd party architect/engineer or City PM/Engineer CITY PROJECT MANAGER: CITY PM WORK ORDER COMMENCEMENT DATE: WORK ORDER COMPLETION DATE: MAXIMUM FEE: (time and reimbursable direct costs): PROJECT DESCRIPTION/SCOPE OF SERVICES: CONTRACTOR agrees to perform the services identified above and on the attached forms in accordance with the terms and conditions contained herein and in the Master AGREEMENT between the parties. In the event of a conflict between or ambiguity in the terms of the Ma ster AGREEMENT and this Work Order (including the attached forms) the Master AGREEMENT shall control. Pricing stated on this Work Order shall be consistent with the pricing in the Master AGREEMENT or subsequent renewals as of the Work Order commencement date and will be held firm through completion of this Work Order. The attached forms consisting of ( ) page(s) are hereby accepted and incorporated herein, by this reference, and Notice to Proceed is hereby given after all parties have signed this document. CONTRACTOR: Kinetic Industry By: Date: Name: Title: DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 10 of 17 CITY’S ACCEPTANCE & EXECUTION: This Work Order and the attached Contract Documents are hereby accepted and incorporated herein by this reference. ACCEPTANCE: Date: Name, City Project Manager REVIEWED: Date: JD McCune, Buyer II ACCEPTANCE: Date: Name, Title ACCEPTANCE: Date: Name, Title ACCEPTANCE: Date: Gerry Paul, Purchasing Director (if greater than $60,000) DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 11 of 17 EXHIBIT B GENERAL SCOPE OF SERVICES In accordance with any future Work Orders, the parties anticipate that CONTRACTOR will provide vacuum truck extraction and disposal services to handle a range of projects in an industrial environment for the Drake Water Reclamation Facility (DWRF), Mulberry Water Reclamation Facility (MWRF), Meadow Springs Ranch biosolids facility (MSR), Fort Collins Water Treatment Facility (FCWTF), Drinking Water Distribution System, Sanitary Collection System, Raw Water Supply System, Stormwater, and Light & Power. CONTRACTOR will be responsible for the professional quality, technical accuracy, and the coordination of all Services provided and shall comply with all the applicable provisions of the Local, State and Federal laws including required licensing and professional certifications. No Work is authorized hereunder except pursuant to any future Work Orders. Throughout this contract, the CITY may have projects that are scheduled and pre‐arranged, but there may also be unanticipated and emergency requests needing immediate attention. The CONTRACTOR will need to work with CITY operators and maintenance personnel to deliver Services while also maintaining continuity of operations without disruption of services. The CITY will provide waste characterizations of materials requiring off-site disposal for each project, as applicable. In addition, the CITY may provide (but is not obligated to) high-pressure wash water to the CONTRACTOR at no charge, depending on the location and facility. Some potential projects may include, but are not limited to the following:  Removal of struvite and sludge material from the top and/or side hatch of the MagPrex Reactor, cleaning of reactor, and disposal of material off-site at DWRF.  Providing vacuum truck and disposal services to remove grit material, hair, and rags from aeration basins at MWRF. Confined space entry required.  Removal and disposal of material from DWRF RV dump station.  Removal, cleaning, and disposal of sludge from Sludge Holding Tank at DWRF.  Removal of filter media at the FCWTF.  Removal of sand and grit from the bottom of the DWRF Headworks screw pumps to clean and evaluate bearing clearance.  Removal and spreading of biosolids material from DWRF.  Emergency vacuum truck, cleaning, and disposal services.  Removal of sediment from various water quality vaults including the car wash vault located at 701 Wood St.  Cleaning sediment from large bridges in drainage channels and irrigation ditches including the City bridge located at 2333 W. Drake Rd. and the irrigation/stormwater ditch.  Dewatering from underground electrical vaults, which are 10x10x8ft up to 10x30x8ft around the City in the roadway. The CONTRACTOR will occasionally be required to perform emergency Services on weekends and outside normal business hours of 7:00am to 4:00pm, Monday through Friday. The CITY expects quality work meeting or exceeding minimum industry and health and safety standards. Needed Services during the contract period will be requested through issuance of Work Orders. There is no guaranteed minimum amount of Services to be awarded. DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 12 of 17 EXHIBIT C CHANGE ORDER NO. PROJECT TITLE: CONTRACTOR: KINETIC INDUSTRY WORK ORDER NUMBER: 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 Work Order Price: 4. Change in Work Order Time: ORIGINAL WORK ORDER 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 WORK ORDER % ADJUSTED WORK ORDER COST $ .00 CONTRACTOR: KINETIC INDUSTRY By: Date: Name: Title: ACCEPTANCE: Date: Name, City Project Manager REVIEWED: Date: JD McCune, Buyer II ACCEPTANCE: Date: Gerry Paul, Purchasing Director (if greater than $60,000) DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 13 of 17 EXHIBIT D PER UNIT PRICING The following per unit pricing shall remain fixed for the initial term of this AGREEMENT and will be reflected in any future Work Orders issued hereunder. Any applicable price adjustments may only be negotiated and agreed to in writing at the time of renewal. DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 14 of 17 EXHIBIT E INSURANCE REQUIREMENTS The CONTRACTOR will provide, from insurance companies acceptable to the CITY, the insurance coverage designated hereinafter and pay all costs. Before commencing Services under this AGREEMENT, the CONTRACTOR shall furnish the CITY with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies. In case of the breach of any provision of the Insurance Requirements, the CITY, at its option, may take out and maintain, at the expense of the CONTRACTOR, such insurance as the CITY may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the CONTRACTOR under this AGREEMENT. Insurance certificates should show the certificate holder as follows: City of Fort Collins Purchasing Division PO Box 580 Fort Collins, CO 80522 The CITY, its officers, agents and employees shall be named as additional insureds on the CONTRACTOR 's general liability and automobile liability insurance policies by marking the appropriate box or adding a statement to this effect on the certificate, for any claims arising out of Services performed under this AGREEMENT. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The CONTRACTOR shall maintain Workers’ Compensation & Employer’s Liability insurance during the life of this AGREEMENT and for all of the CONTRACTOR's employees engaged in Services performed under this AGREEMENT. Workers' Compensation & Employer’s Liability insurance shall conform with statutory limits of $100,000 per accident, $500,000 d isease aggregate, and $100,000 disease each employee, or as otherwise required by Colorado law. B. General Liability. The CONTRACTOR shall maintain during the life of this AGREEMENT such General 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 Services under this AGREEMENT. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for General Liability shall not be less than $1,000,000 combined single limits for bodily injury and property damage. C. Automobile Liability. The CONTRACTOR shall maintain during the life of this AGREEMENT such Automobile Liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of Services 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 Services are performed by a subcontractor, the CONTRACTOR shall be responsible for any liability directly or indirectly arising out of the Service performed under this AGREEMENT by a subcontractor, which liability is not covered by the subcontractor's insurance. DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 15 of 17 EXHIBIT F CONFIDENTIALITY IN CONNECTION WITH THE SERVICES to be provided by CONTRACTOR 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 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, 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, CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR 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. CONTRACTOR 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: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 16 of 17 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, CONTRACTOR 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. CONTRACTOR 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, CONTRACTOR 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, CONTRACTOR 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) CONTRACTOR’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  Application Security Controls and Procedures (User Authentication, Security Controls, and Security Procedures, Policies and Logging) DocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B Official Purchasing Document Last updated 3/13/23 Services Agreement – Work Order Type RFP 9880 Vacuum Truck: Cleaning and Disposal Services Page 17 of 17  Incident Response  Vulnerability Assessments  Hosted Services  Personnel Security b) Subcontractors. CONTRACTOR may use subcontractors, though such activity shall not release or absolve CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR 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 CONTRACTOR can ensure security for the Confidential Information so stored. Work stations or laptops to be used in the Services 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 Services and at any time thereafter unless specifically authorized by the CITY in writing. 11. If CONTRACTOR breaches this AGREEMENT, in the CITY’s sole discretion, the CITY may immediately terminate this AGREEMENT and withdraw CONTRACTOR’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. CONTRACTOR 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, CONTRACTOR 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: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B 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 4/28/2023 11150 Kinetic Energy Services, LLC PO Box 530 Milliken, CO 80543 A 1,000,000 81REG5039701 5/1/2023 5/1/2024 100,000 Sudden & Accidental 10,000 1,000,000 2,000,000 2,000,000 1,000,000A 81CAB5039701 5/1/2023 5/1/2024 CA9948 Endt MCS90 Endt 10,000,000A 81REU5039801 5/1/2023 5/1/2024 10,000,000 10,000 A 81WCI5039701 5/1/2023 5/1/2024 1,000,000 1,000,000 1,000,000 Policies shown above include Blanket Additional Insured (except WC), Blanket Waiver of Subrogation, Blanket Notice of Cancellation and Follow Form endorsements (including sudden and accidental pollution) that provide such coverage to The City of Fort Collins, Engineering Dept on a primary and non-contributory basis when a written contract between the named insured and The City of Fort Collins, Engineering Dept requires such status. City of Fort Collins Attn: Engineering Department 281 N College Avenue Fort Collins, CO 80524 KINEIND-01 CAYERKES Alliant Insurance Services, Inc. 6400 S Fiddlers Green Cir Ste 2000 Greenwood Village, CO 80111 Arch Insurance Company X X X X X X X X X X X DocuSign Envelope ID: E2676A9D-3391-4475-8AA5-35DC700960EEDocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B FORM NUMBER: EFFECTIVE DATE: The ACORD name and logo are registered marks of ACORD ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE FORM TITLE: Page of THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, ACORD 101 (2008/01) AGENCY CUSTOMER ID: LOC #: AGENCY NAMED INSURED POLICY NUMBER CARRIER NAIC CODE © 2008 ACORD CORPORATION. All rights reserved. Alliant Insurance Services, Inc. KINEIND-01 SEE PAGE 1 1 SEE PAGE 1 ACORD 25 Certificate of Liability Insurance 1 SEE P 1 Kinetic Energy Services, LLC PO Box 530 Milliken, CO 80543 SEE PAGE 1 CAYERKES 1 REMARKS Pollution Liability (Sudden and Accidental) Policy No.: 81REG5039701 Arch Insurance Company 05/01/2023-2024 Limit: 1,000,000 Umbrella Schedule of Underlying policies include Pollution Liability (Sudden & Accidental), General Liability, Auto Liability, and Employers' Liability. CONTRACTUAL LIABILITY APPLIES PER POLICY TERMS AND CONDITIONS Policies shown on this Certificate of Insurance include Blanket Additional Insured (except WC), Blanket Waiver of Subrogation, Blanket Notice of Cancellation and Follow Form endorsements (including Sudden and Accidental Pollution) that provide such coverage to the certificate holder on a primary and non-contributory basis when a written contract between the named insured and the certificate holder requires such status. 30 day Notice of Cancellation. Stop Gap Coverage is included. WC includes Alternate Employer endorsement. The Commercial Auto policy includes MCS90 and CA9948 Endorsements. DocuSign Envelope ID: E2676A9D-3391-4475-8AA5-35DC700960EEDocuSign Envelope ID: DB38C68D-3EBF-46A1-ABC1-1422CDAFEB2B