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HomeMy WebLinkAboutCONTRACT - RFQ - 9764 FAILURE ANALYSIS SERVICESOfficial Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 1 of 17 SERVICES AGREEMENT THIS AGREEMENT made and entered into the day and year set forth below by and between THE CITY OF FORT COLLINS, COLORADO, a Colorado Municipal Corporation, hereinafter referred to as the "City" and KTA-TATOR, INC, a Pennsylvania Corporation, hereinafter referred to as "Service Provider" or “KTA” or “Consultant”. WITNESSETH: In consideration of the mutual covenants and obligations herein expressed, it is agreed by and between the parties hereto as follows: 1. Scope of Services. The Service Provider agrees to provide services in accordance with the scope of services attached hereto as Exhibit A, consisting of four (4) pages 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 Ten (10) days following execution of this Agreement. Services shall be completed no later than ninety days (90). 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. The City may, at any time during the term of the project, 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 C, consisting of one (1) page and incorporated herein by this reference. 3. Contract Period. This Agreement shall commence November 13, 2023, and shall continue in full force and effect until November 12, 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) 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) 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 termination DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 2 of 17 to the Service Provider. Such notice shall be delivered at least ten (10) days prior to the termination date contained in said notice unless otherwise agreed in writing by the parties. In the event of early termination by the City, the Service Provider shall be paid for services rendered to the date of termination, subject only to the satisfactory performance of the Service Provider's obligations under this Agreement. Service Provider shall submit a final invoice within ten (10) days of the effective date of termination. Undisputed invoices shall be paid Net 30 days of the date of the invoice. Such payment shall be the Service Provider's sole right and remedy for such termination. 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: KTA-Tator, INC Attn: Robert Leggat 145 Enterprise Drive Pittsburgh PA 15275 412-726-4247 rleggat@kta.com City of Fort Collins Attn: Bounkheana Chhun PO Box 580 Fort Collins, CO 80522 bchhun@fcgov.com City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 purchasing@fcgov.com 7. City Representative. The City will designate, prior to commencement of the work, its representative who shall make, within the scope of his or her authority, all necessary and proper decisions with reference to the services provided under this agreement. All requests for contract interpretations, change order, and other clarification or instruction shall be directed to the City Representative. The initial City Representative for this agreement is Bounkheana Chhun and can be reached at bchhun@fcgov.com. The Representative is subject to change by the City. 8. Compensation. The City shall pay the Service Provider for the performance of this Agreement, subject to additions and deletions provided herein, not to exceed sixteen thousand dollars ($16,000) as per the attached Exhibit B, consisting of one (1) pages and incorporated herein by this reference. KTA shall submit an invoice upon completion and acceptance of the Report by the City. Invoices shall be emailed to invoices@fcgov.com with a copy to the City Representative. 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 8-186, DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 3 of 17 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. 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. 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 competence and care in accordance with accepted standards for work of a similar nature. b. Unless otherwise provided in the Agreement, all materials and equipment incorporated into any work shall be new and, where not specified, of the most suitable grade of their respective kinds for their intended use, and all workmanship shall be acceptable to City. c. Service Provider warrants all equipment, materials, labor and other work, provided under this Agreement, except City-furnished materials, equipment and labor, against defects and nonconformances in design, materials and workmanship/workwomanship for a period, the longer of; i.) The original manufacturer’s warranty term; or ii.) beginning with the start of DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 4 of 17 the work and ending twelve (12) months from and after final acceptance under the Agreement, regardless whether the same were furnished or performed by Service Provider or by any of its subcontractors of any tier. Upon receipt of written notice from City of any such defect or nonconformances, the affected item or part thereof shall be redesigned, repaired, or replaced by Service Provider in a manner and at a time acceptable to City. 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) 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. If the non-defaulting party commences legal or equitable actions against the defaulting party, the defaulting party shall be liable to the non-defaulting party for the non-defaulting party's reasonable attorney fees and costs incurred because of the default. 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. Indemnity/Insurance. a. The Service Provider agrees to indemnify and save harmless the City, its officers, agents, and employees against and from any and all actions, suits, claims, demands or liability of any character whatsoever brought or asserted for injuries to or death of any person or persons, or damages to property to the extent directly arising out of, result from or occurring from the negligent performance of any service hereunder. b. The Service Provider shall take all necessary precautions in performing the work hereunder to prevent injury to persons and property. c. Without limiting any of the Service Provider's obligations hereunder, the Service Provider shall provide and maintain insurance coverage naming the City as an additional insured under this Agreement of the type and with the limits specified within Exhibit D, consisting of one (1) page attached hereto, and incorporated herein by this reference. The Service DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 5 of 17 Provider before commencing services hereunder, shall deliver to the City's Purchasing Director, purchasing@fcgov.com or P. O. Box 580, Fort Collins, Colorado 80522, one copy of a certificate evidencing the insurance coverage required from an insurance company acceptable to the City. 19. 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. 20. 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 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. 21. 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. 22. Colorado Open Records Act. The City is subject to Sec. 24-72-201 et seq. of the Colorado Revised Statute (CORA). This Agreement is subject to public disclosure in whole pursuant to CORA. 23. Force Majeure. No Party hereto shall be considered in default in the performance of an DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 6 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 Service Provider must provide written notice to the City of such condition within ten (10) days from the onset of such condition. 24. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit E - Confidentiality, consisting of Three (3 Pages), attached hereto, and incorporated herein by this reference. [Signature Page Follows] DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 7 of 17 THE CITY OF FORT COLLINS, COLORADO By: Gerry Paul, Purchasing Director Date: ATTEST: APPROVED AS TO FORM: KTA-TATOR INC. By: Printed: Title: Date: DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 12/5/2023 CEO David W. McFayden Assistant City Attorney 12/6/2023 City Clerk Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 8 of 17 EXHIBIT A SCOPE OF SERVICES Objective The City of Fort Collins solicited proposals from qualified firms to perform industrial coatings failure inspection, laboratory, and qualitative analyses, and provide professional and objective determinations of failure modes at the Drake Water Reclamation Facility (DWRF). The coatings requiring these services are specifically related to water reclamation applications. Background The City of Fort Collins Utilities operates and maintains two water reclamation facilities within the City’s service area. The Mulberry Water Reclamation Facility (MWRF), which is rated to treat up to 6 MGD, began serving the City in 1948. The Drake Water Reclamation Facility (DWRF), a 3-stage biological nutrient removal facility, has a treatment capacity up to 23 MGD, provides overall redundancy and waste solids treatment of the City’s first wastewater treatment facility, MWRF. Industrial coatings are often used in various processes throughout both water reclamation facilities to protect equipment and infrastructure from the harsh environments encountered during treatment. One such process where industrial coatings may be used are anaerobic digesters. DWRF has four (4) mesophilic anaerobic digesters on site as part of the solids treatment process. Anaerobic digesters treat the organic solid matter from the wastewater treatment process by reducing organic matter from an odiferous mixture to a relatively odor free dewaterable substance which can be put to beneficial reuse as biosolids. In 2019, an industrial coating was installed on the interior of the Digester 612. In early 2022, the Digester was cleaned-out which included the removal of thick biosolids, grit, and trash/rags. Since then, peeling and failing coating conditions have been observed (see attached photos for reference). The City of Fort Collins is interested in conducting a failure analysis on the coating in the interior of Digester 612 to determine the cause and possible remedy. Overview of Services to Be Provided 1. Conduct a field investigation, and laboratory analysis, into the coating failure occurring on the interior of Digester 612 steel lid. 2. Confined space entry required. Contractor to recommend access and scaffolding needs based on determined sample locations. City to provide access and scaffolding. 3. Failure Investigation Report, including description of the means and methods of the field investigation and laboratory analysis, summary of sample analysis and testing, interpretation of results, photographic log, and recommendations for in-place repair. 4. Review and Q&A session with selected staff to review report findings and recommendations. Contractor Requirements 1. Current Association for Materials Protection and Performance (AMPP) Senior Certified Coatings Inspector credentials (previously NACE CIP Level 3 or SSPC PCI Level 3 Certification). 2. Minimum of five (5) years of experience of coating specific failure analysis experience with previous coating related testimonial experience, especially similar coating applications and environments. 3. Confined Space Entry Training. DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 9 of 17 S cope of Services The coatings failure analysis services will be conducted by a KTA Senior Coatings Consultant and will consist of the following tasks: Task 1 – Data Collection The first step in the coatings failure analysis will consist of the collection of data and documentation. Based on the information made available to KTA by the City of Fort Collins, this may include a review of the following: Coating Specification – To determine the required thickness, method of application, degree of surface preparation and other performance related criteria. Painting History – Including information regarding the approximate chronology of surface preparation, shop primer application, field application and maintenance touch-up that may have occurred. Miscellaneous Background – Including details of any other pertinent correspondence made available to KTA. Task 2 – Field Investigation In order to identify potential causes of the coating failure, the Consultant will visit the site. The actual scope of services provided during the site visit and during the subsequent laboratory investigation (Task 3) and report preparation (Task 4) depends largely upon the specific circumstances of the coating failure and the findings observed during the site visit. Examples of tasks that may be undertaken include: Visual Examination – The coating is visually examined in representative failing and non-failing areas to determine the presence of contamination, poor application technique or other objectionable characteristics. Pattern of Failure – A determination is made whether there is a noticeable pattern to the failure, for example, whether delamination is occurring mostly in low spots, at welds, etc. Adhesion – Field coating adhesion is assessed in accordance with ASTM D3359, “Standard Test Methods for Measuring Adhesion by Tape Test” and/or ASTM D6677, “Standard Test Method for Evaluating Adhesion by Knife.” These methods involve scribing the coating with a knife and evaluating the adhesion according to an ASTM rating scale. Because adhesion DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 10 of 17 testing is destructive, the number of adhesion tests may be limited. Depending on the nature of the coating failure, alternate adhesions tests may be performed. Dry Film Thickness – The dry film thickness of the coating system and individual layers (as appropriate) is measured to determine whether the thickness is in accordance with specification and/or manufacturer's datasheets or whether thickness is related to the failure. The thickness may also be determined by examination of field samples in the KTA laboratory. Additional Testing – Other field tests may be performed by the Consultant as deemed necessary. Sample Procurement – Samples are removed from representative areas and returned to the KTA laboratory for analysis as described below in Task 3. Photographic Documentation – Photographs of representative areas of the coating and the KTA sample sites are taken. KTA supplies its employees with typical personal protective equipment required to safely perform their tasks in the field. However, it is understood that the City of Fort Collins will provide safe access to the area (i.e., ladders, aerial lifts, and their operation, etc.) and an escort. It is understood that the City of Fort Collins will drain, clean, and ventilate the confined space prior to the field investigation (i.e., entry by KTA). If there are any changes in the characteristics of the work area (e.g., conditions not anticipated when this proposal was written) or in the scope of services performed by KTA, the confined spaces to be entered will be reevaluated by KTA. Where such reevaluation causes confined spaces to be reclassified as permit-required confined spaces, resulting changes in the scope of services and associated costs will be addressed in a revised proposal. Task 3 – Laboratory Analysis The samples collected during the field investigation will be returned to the KTA laboratory for analysis. At a minimum, the samples are typically examined under a microscope to determine the number and thickness of coats (in cross-section) as well as the presence of contamination, voids, or other objectionable property. Analysis using infrared spectroscopy is also anticipated to identify the generic coating type of samples. Depending on the findings from the field investigation and the basic laboratory microscopic examination, other analytical tests may be performed. KTA has a full service, in- house coatings laboratory, and has the capability of performing electron microscopy with elemental x-ray analysis, gas chromatography/mass spectroscopy, ion chromatography, and a number of other applicable analytical tests. Forensic evaluation of coating failures requires selection of appropriate methodologies to support or eliminate various failure theories. The Consultant will work in conjunction with the laboratory staff to select analytical method(s) necessary to identify and/or confirm potential causes of the failure. DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 11 of 17 Task 4 –Report Preparation Once the field investigation and laboratory analysis have been completed, the Consultant will prepare a report, including a summary of the field and laboratory investigation results and a discussion of these results including coating repair recommendations. The final report will be submitted within approximately three weeks after completion of the laboratory evaluation. The Consultant will participate in a remote review and Q&A session after the report is issued. SCHEDULE KTA’s professional services group has five NACE 3 certified Sr Coating Consultants. As a result, we are typically able to provide onsite services within 2 weeks of receipt of the executed Agreement. DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 12 of 17 EXHIBIT B COST ESTIMATE Because the complexity of the investigation and the extent of the laboratory analysis required will vary depending on the results of the site investigation, KTA invoices for failure analysis services on a time and material basis. However, for planning purposes, the cost to provide these coating failure analysis services is anticipated not to exceed $16,000 plus expenses invoiced at GSA rates where applicable. Senior Coatings Consultant: 40 hours at $305 = $12,200, Laboratory Analysis Estimate: $3,000. Remote participation in meetings after the site visit and report review will be invoiced at $305/ hour. KTA will invoice only for actual services provided and expenses incurred in accordance with the KTA Fee schedule below. * Note – Samples submitted for analysis will be disposed of and a sample disposal fee will be invoiced approximately 30 days following release of the final report or upon request, the samples will be returned to the client at the client’s expense. KTA-TATOR, INC. 2023 FEE SCHEDULE Executive Consultants $350.00/hour Technician II $145.00/hour Chairman of the Board Sr. Coatings Technician Chief Executive Officer Sr. EH&S Technician President Sr. Engineering Technician Chief Operations Officer Chemical Technician Chief Professionals $305.00/hour Technician I $120.00/hour Vice President Drafter/Designer Senior Coatings Consultant EH&S Technician Business Unit Manager Engineering Technician Laboratory/Consulting/Engineering Manager CAD Designer Principal Engineer Senior Professionals $230.00/hour Support $80.00/hour Senior Industrial Hygienist Administrative Professional Senior EH&S Professional Project Coatings Consultant Senior Engineer Senior Technical Specialist Lab Supervisor/Senior Chemist Project Professionals $200.00/hour Project Engineer Project Management Specialist Project EH&S Specialist Technical Specialist Chemical Technician/Project Manager Application Specialist/Project Manager DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 13 of 17 EXHIBIT C CHANGE ORDER NO. PROJECT TITLE: SERVICE PROVIDER: Service Provider's Name 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 SERVICE PROVIDER: Service Provider By: Date: Name: Title: ACCEPTANCE: Date: Name, City Representative REVIEWED: Date: Name, Buyer or Senior Buyer ACCEPTANCE: Date: Name, Title ACCEPTANCE: Date: Gerry Paul, Purchasing Director (if greater than $60,000 DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 14 of 17 EXHIBIT D INSURANCE REQUIREMENTS The Service Provider will provide, from insurance companies acceptable to the City, the insurance coverage designated hereinafter and pay all costs. Before commencing work under this bid, the Service Provider shall furnish the City with certificates of insurance showing the type, amount, class of operations covered, effective dates and date of expiration of policies. In case of the breach of any provision of the Insurance Requirements, the City, at its option, may take out and maintain, at the expense of the Service Provider, such insurance as the City may deem proper and may deduct the cost of such insurance from any monies which may be due or become due the Service Provider under this Agreement. Insurance certificates should show the certificate holder as follows: City of Fort Collins Purchasing Division PO Box 580 Fort Collins, CO 80522 The City, its officers, agents and employees shall be named as additional insureds on the Service Provider 's general liability and automobile liability insurance policies by marking the appropriate box or adding a statement to this effect on the certificate, for any claims arising out of work performed under this Agreement. Insurance coverages shall be as follows: A. Workers' Compensation & Employer's Liability. The Service Provider shall maintain during the life of this Agreement for all of the Service Provider's employees engaged in work performed under this agreement. Workers' Compensation & Employer’s Liability insurance shall conform with statutory limits of $100,000 per accident, $500,000 disease aggregate, and $100,000 disease each employee, or as required by Colorado law. B. General Liability. The Service Provider shall maintain during the life of this Agreement such General Liability as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for General Liability, shall not be less than $1,000,000 combined single limits for bodily injury and property damage. C. Automobile Liability. The Service Provider shall maintain during the life of this Agreement such Automobile Liability insurance as will provide coverage for damage claims of personal injury, including accidental death, as well as for claims for property damage, which may arise directly or indirectly from the performance of work under this Agreement. Coverage for property damage shall be on a "broad form" basis. The amount of insurance for Automobile Liability, shall not be less than $1,000,000 combined single limits for bodily injury and property damage. In the event any work is performed by a subcontractor, the Service Provider shall be responsible for any liability directly or indirectly arising out of the work performed under this Agreement by a subcontractor, which liability is not covered by the subcontractor's insurance. DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 15 of 17 EXHIBIT E CONFIDENTIALITY IN CONNECTION WITH THE SERVICES to be provided by Service Provider under this Agreement, the parties agree to comply with reasonable policies and procedures with regard to the exchange and handling of confidential information and other sensitive materials between the parties, as set forth below. 1. Definitions. For purposes of this Agreement, the party who owns the confidential information and is disclosing same shall be referenced as the “Disclosing Party.” The party receiving the Disclosing Party’s confidential information shall be referenced as the “Receiving 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, Service Provider shall treat as Confidential Information all customer identifiable information in any form, whether or not bearing a mark of confidentiality or otherwise requested by the City, including but not limited to account, address, billing, consumption, contact and other customer data. In the case of disclosure in non-documentary form of non-customer identifiable information, made orally or by visual inspection, the Disclosing Party shall have the right, or, if requested by the Receiving Party, the obligation to confirm in writing the fact and general nature of each disclosure within a reasonable time after it is made in order that it is treated as Confidential Information. Any information disclosed to the other party prior to the execution of this Agreement and related to the services for which Service Provider has been engaged shall be considered in the same manner and be subject to the same treatment as the information disclosed after the execution of this Agreement with regard to protecting it as Confidential Information. 3. Use of Confidential Information. Receiving Party hereby agrees that it shall use the Confidential Information solely for the purpose of performing its obligations under this Agreement and not in any way detrimental to Disclosing Party. Receiving Party agrees to use the same degree of care Receiving Party uses with respect to its own proprietary or confidential information, which in any event shall result in a reasonable standard of care to prevent unauthorized use or disclosure of the Confidential Information. Except as otherwise provided herein, Receiving Party shall keep confidential and not disclose the Confidential Information. The City and Service Provider shall cause each of their directors, officers, employees, agents, representatives, and subcontractors to become familiar with, and abide by, the terms of this section, which shall survive this Agreement as an on-going obligation of the Parties. Service Provider shall not use such information to obtain any economic or other benefit for itself, or any third party, other than in the performance of obligations under this Agreement. DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis 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, 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 • Application Security Controls and Procedures (User Authentication, Security Controls, and Security Procedures, Policies and Logging) DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 Official Purchasing Document Last updated 2/1/2023 Services Agreement RFQ# 9764 Failure Analysis Services Page 17 of 17 • Incident Response • Vulnerability Assessments • Hosted Services • Personnel Security b) Subcontractors. Service Provider may use subcontractors, though such activity shall not release or absolve Service Provider from the obligation to satisfy all conditions of this Agreement, including the data security measures described in this Exhibit, and to require a substantially similar level of data security, appropriate to the types of services provided and Customer Data received, for any subcontractor Service Provider may use. Accordingly, any release of data, confidential information, or failure to protect information under this Agreement by a subcontractor or affiliated party shall be attributed to Service Provider and may be considered to be a material breach of this Agreement. 9. Confidential Information is not to be stored on any local workstation, laptop, or media such as CD/DVD, USB drives, external hard drives or other similar portable devices unless the Service Provider can ensure security for the Confidential Information so stored. Work stations or laptops to be used in the Work will be required to have personal firewalls on each, as well as have current, active anti-virus definitions. 10. The Agreement not to disclose Confidential Information as set forth in this Exhibit shall apply during the term of the Work and at any time thereafter unless specifically authorized by the City in writing. 11. If Service Provider breaches this Agreement, in the City’s sole discretion, the City may immediately terminate this Agreement and withdraw Service Provider’s right to access Confidential Information. 12. Notwithstanding any other provision of this Agreement, all material, i.e., various physical forms of media in which Confidential Information is contained, including but not limited to writings, drawings, tapes, diskettes, prototypes or products, shall remain the sole property of the Disclosing Party and, upon request, shall be promptly returned, together with all copies thereof to the Disclosing Party. Upon such return of physical records, all digital and electronic data shall also be deleted in a non-restorable way by which it is no longer available to the Receiving Party. Written verification of the deletion (including date of deletion) is to be provided to the Disclosing Party within ten (10) days after completion of engagement, whether it be via termination, completion or otherwise. 13. Service Provider acknowledges that the City may, based upon the representations made in this Agreement, disclose security information that is critical to the continued success of the City’s business. Accordingly, Service Provider agrees that the City does not have an adequate remedy at law for breach of this Agreement and therefore, the City shall be entitled, as a non- exclusive remedy, and in addition to an action for damages, to seek and obtain an injunction or decree of specific performance or any other remedy, from a court of competent jurisdiction to enjoin or remedy any violation of this Agreement. DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME:CONTACT (A/C, No):FAX E-MAILADDRESS: PRODUCER (A/C, No, Ext):PHONE INSURED REVISION NUMBER:CERTIFICATE NUMBER:COVERAGES 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). 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. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD 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. $ $ $ $PROPERTY DAMAGE BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS ONLY AUTOSAUTOS ONLY NON-OWNED SCHEDULEDOWNED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT EROTH-STATUTEPER LIMITS(MM/DD/YYYY)POLICY EXP(MM/DD/YYYY)POLICY EFFPOLICY NUMBERTYPE OF INSURANCELTRINSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB $EACH OCCURRENCE $AGGREGATE $ OCCUR CLAIMS-MADE DED RETENTION $ $PRODUCTS - COMP/OP AGG $GENERAL AGGREGATE $PERSONAL & ADV INJURY $MED EXP (Any one person) $EACH OCCURRENCE DAMAGE TO RENTED $PREMISES (Ea occurrence) COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO-JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) © 1988-2016 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD HIRED AUTOS ONLY Willis Towers Watson Northeast, Inc. c/o 26 Century Blvd P.O. Box 305191 Nashville, TN 372305191 USA KTA-Tator, Inc. 145 Enterprise Drive Pittsburgh, PA 15275 Professional Liability Includes Pollution Coverage. RE: Failure Analysis Services The City, its officers, agents and employees is an Additional Insured where required by written contract. The City, its officers, agents and employees is an Additional Insured with regard to Automobile Liability where required by City of Fort Collins Purchasing Division PO Box 580 Fort Collins, CO 80522 04/05/2023 1-877-945-7378 1-888-467-2378 certificates@willis.com Transportation Insurance Company 20494 Continental Insurance Company Arch Insurance Company 35289 11150 Illinois Union Insurance Company 27960 W28654100 A 1,000,000 100,000 15,000 1,000,000 2,000,000 2,000,000 Y 6020429631 01/01/2023 01/01/2024 B 1,000,000 01/01/202401/01/2023Y6020429676 ZAWCI9403206C 1,000,000No01/01/2023 01/01/2024 1,000,000 1,000,000 D Professional Liability Per Claim:CEO G71762506 004 01/01/2023 01/01/2024 Annual Aggregate: 292137523970792SR ID:BATCH: $1,000,000 $1,000,000 Willis Towers Watson Certificate Center Page 1 of 2DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557 ACORD 101 (2008/01) The ACORD name and logo are registered marks of ACORD © 2008 ACORD CORPORATION. All rights reserved. THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER:FORM TITLE: ADDITIONAL REMARKS ADDITIONAL REMARKS SCHEDULE Page of AGENCY CUSTOMER ID: LOC #: AGENCY CARRIER NAIC CODE POLICY NUMBER NAMED INSURED EFFECTIVE DATE: KTA-Tator, Inc. 145 Enterprise Drive Pittsburgh, PA 15275 written contract. 2 2 Willis Towers Watson Northeast, Inc. See Page 1 See Page 1 See Page 1 See Page 1 25 Certificate of Liability Insurance W28654100CERT:2921375BATCH:23970792SR ID: DocuSign Envelope ID: 24688774-5A58-472C-9EAD-715C70AE1557