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HomeMy WebLinkAboutRFP - 9975 Municipal Court Defense CounselRFP 9975 Municipal Court Defense Counsel Page 1 of 30 REQUEST FOR PROPOSAL 9975 MUNICIPAL COURT DEFENSE COUNSEL RFP DUE: 3:00 PM MT (Mountain Time), May 7, 2024 The City of Fort Collins is requesting proposals from qualified firms for a qualified Attorney or Attorneys to provide court-appointed defense counsel representation in Fort Collins Municipal Court. The City of Fort Collins may contract with more than one Attorney or Law firm. The appointed Attorneys shall provide legal services to indigent defendants in certain cases as necessary and appropriate. As part of the City’s commitment to sustainability, proposals must be submitted online through the Rocky Mountain E-Purchasing System (RMEPS) at http://www.bidnetdirect.com/colorado/city- of-fort-collins. Note: please ensure adequate time to submit proposals through RMEPS. Proposals not submitted by the designated Opening Date and Time will not be accepted by RMEPS. All questions should be submitted, in writing via email, to Ed Bonnette, CPM, CPPB, Senior Buyer at ebonnette@fcgov.com, with a copy to Patty Netherton, Project Manager, at PNetherton@fcgov.com, no later than 3:00 PM MT on April 23, 2024. Please format your e- mail to include: RFP 9975 MUNICIPAL COURT DEFENSE COUNSEL in the subject line. Questions received after this deadline may not be answered. Responses to all questions submitted before the deadline will be addressed in an addendum and posted on the Rocky Mountain E-Purchasing System webpage. Rocky Mountain E-Purchasing System hosted by BidNet A copy of the RFP may be obtained at http://www.bidnetdirect.com/colorado/city-of-fort-collins. This RFP has been posted utilizing the following Commodity Code(s): 96-149 Legal Services, Attorneys Legal Services – Attorneys, Attorney Services, Lawyer Services Prohibition of Unlawful Discrimination: The City of Fort Collins, in accordance with the provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to 2000d- 4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that any contract entered into pursuant to this advertisement, disadvantaged business enterprises will be afforded full and fair opportunity to submit bids in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award. 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 Financial Services Purchasing Division 215 N. Mason St. 2nd Floor PO Box 580 Fort Collins, CO 80522 970.221.6775 970.221.6707 fcgov.com/purchasing RFP 9975 Municipal Court Defense Counsel Page 2 of 30 discriminated against in violation of the above policy or participating in an employment discrimination proceeding. The City requires its Professionals 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 Professionals and their subcontractors/subconsultants at every tier. Public Viewing Copy: The City is a governmental entity subject to the Colorado Open Records Act, C.R.S. §§ 24-72-200.1 et seq. (“CORA”). Any proposals submitted hereunder are subject to public disclosure by the City pursuant to CORA and City ordinances. Professionals may submit one (1) additional complete proposal clearly marked “FOR PUBLIC VIEWING.” In this version of the proposal, Professionals may redact text and/or data that it deems confidential or proprietary pursuant to CORA. All pricing will be considered public records subject to disclosure under CORA and as such pricing cannot be redacted from the “FOR PUBLIC VIEWING” version of the proposal. Failure to provide a public viewing copy will be considered a waiver of any claim of confidentiality under CORA without regard to how the applicant’s proposal or certain pages of the proposal are marked confidential, proprietary, or similar. Such statement does not necessarily exempt such documentation from public disclosure if required by CORA, by order of a court of appropriate jurisdiction, or other applicable law. Generally, under CORA, trade secrets, confidential commercial information and financial data information may not be disclosed by the City. Proposals may not be marked “Confidential” or ‘Proprietary’ in their entirety. By responding to this RFP, Professionals hereby waives any and all claims for damages against the City for the City’s good faith compliance with CORA. All provisions and pricing of any contract resulting from this request for proposal will be public information. Professionals Registration: The City requires new Professionals receiving awards from the City to submit IRS form W-9 and requires all Professionals to accept Direct Deposit (Electronic) payment. If needed, the W-9 form and the Vendor Direct Deposit Authorization Form can be found on the City’s Purchasing website at www.fcgov.com/purchasing under Vendor Reference Documents. Please do not submit these documents with your proposal, however, if you take exception to participating in Direct Deposit (Electronic) payments please clearly note such in your proposal as an exception. The City may waive the requirement to participate in Direct Deposit (Electronic) payments at its sole discretion. Sales Prohibited/Conflict of Interest: No officer, employee, or member of City Council, shall have a financial interest in the sale to the City of any real or personal property, equipment, material, supplies or services where such officer or employee exercises directly or indirectly any decision-making authority concerning such sale or any supervisory authority over the services to be rendered. This rule also applies to subcontracts with the City. Soliciting or accepting any gift, gratuity favor, entertainment, kickback or any items of monetary value from any person who has or is seeking to do business with the City of Fort Collins is prohibited. Collusive or Sham Proposals: Any proposal deemed to be collusive or a sham proposal will be rejected and reported to authorities as such. Your authorized signature of this proposal assures that such proposal is genuine and is not a collusive or sham proposal. The City of Fort Collins reserves the right to reject any and all proposals and to waive any irregularities or informalities. Utilization of Award by Other Agencies: The City of Fort Collins reserves the right to allow other state and local governmental agencies, political subdivisions, and/or school districts to RFP 9975 Municipal Court Defense Counsel Page 3 of 30 utilize the resulting award under all terms and conditions specified and upon agreement by all parties. Usage by any other entity shall not have a negative impact on the City of Fort Collins in the current term or in any future terms. The selected Professional shall be required to sign the City’s Agreement prior to commencing services (see sample attached to this document). Sincerely, Gerry Paul Purchasing Director RFP 9975 Municipal Court Defense Counsel Page 4 of 30 I. BACKGROUND & OBJECTIVE / OVERVIEW A. Purpose The City of Fort Collins seeks a qualified Attorney or Attorneys to provide court-appointed defense counsel representation in Fort Collins Municipal Court. The City of Fort Collins may contract with more than one Attorney or Law firm. The appointed Attorneys shall provide legal services to indigent defendants in certain cases as necessary and appropriate. Specifically, the Court is seeking an Attorney or Attorneys in good standing, licensed to practice law in the State of Colorado, to perform the following: • To represent and advocate for defendants and render effective assistance as appointed legal counsel; • To ensure the preservation, protection, and promotion of the defendant’s rights and interests; • To adhere to the Rules of Professional Conduct and other guidelines of professional conduct stated in statutes, rules, court decisions, codes, or canons; and • To act with reasonable diligence and promptness in representing clients. B. Background The Fort Collins Municipal Court is located in the City’s Administration Building at 215 N. Mason Street, on the 1st floor (use the north entrance to the building). The Court’s hours of operation are Monday through Friday 8:00AM to 4:00PM (excluding holidays and closed during lunch hours). In 2023, the Court processed approx. 8,450 general caseload files, including approx. 3,100 traffic or non-traffic misdemeanor cases. Defendants with qualifying cases may request court-appointed counsel if they are financially indigent. In 2023, this Court appointed defense counsel to over 400 cases. Additionally, this Court held 1,585 video advisements for case in which the defendant was in-custody at the Larimer County Jail. The number and frequency of qualifying cases and video advisements could increase during any year due to new state laws, new City ordinances adopted by City Council, and enforcement activities. II. SCOPE OF SERVICES The City intends that the Attorney or Attorneys shall act as appointed legal counsel and represent their clients in certain proceedings as necessary and appropriate when appointed by the Court. This representation may include but is not limited to: • Arraignments, • Prisoner video arraignment hearings, • Attorney pre-trial conferences, • Motion hearings, • Status conferences, • Trials to the Court, • Jury Trials. RFP 9975 Municipal Court Defense Counsel Page 5 of 30 The Attorney must represent that s/he has the present capacity, experience, and qualifications to perform professional services as court-appointed defense counsel. Minimum qualifications include: • Licensed by the State of Colorado Bar and admitted to practice law in the State of Colorado, • Knowledge of criminal law and legal principles and practices, • Knowledge of local ordinances, state laws, and constitutional law, • Ability to analyze and appraise case facts, Rules of Evidence, and jurisdiction, • Ability to communicate clearly and concisely, orally and in writing, • At the time of execution of the Agreement, the Attorney or Attorneys shall provide a copy of his/her Colorado Supreme Court Attorney Registration Card. The Attorney or Attorneys shall immediately notify the Court if the Attorney becomes ineligible to practice law under federal and/or state laws. All services performed under the Agreement by the Attorney, Attorneys, or their personnel shall comply with all applicable laws, rules, regulations and codes of the United States and State of Colorado, and with the charter, ordinances, rules and regulation of the City of Fort Collins. Court-appointed defense counsel appointment shall occur when, at the direction of the Chief Judge or Assistant Municipal Judge, the Attorney is contacted by a Municipal Court Clerk, Deputy Court Administrator, and/or Court Administrator. Verbal acceptance by the Attorney confirms that the Attorney is the attorney of record and s/he will promptly enter a written Entry of Appearance. The Attorney shall represent the defendant for whom s/he is appointed until further order of the Court, or until conclusion of the case. All court-appointments shall be authorized in writing by the Court. The Court shall provide initial case information to the Attorney of record to facilitate the case. All requests for Discovery shall be submitted to the Prosecution, handled by the Fort Collins City Attorney’s office. The City shall have the right to terminate, without cause, the Agreement with the approval of the Court. Any such termination shall not be considered a breach of the Agreement or any extension thereof. In the event the City of Fort Collins terminates the Agreement without cause, the Attorney shall be compensated in accordance with the terns of the Agreement for all work reasonably performed up until the effective date of termination. III. PAYMENT FOR SERVICES RENDERED The Attorney shall invoice the City of Fort Collins (through the Municipal Court) within thirty (30) days after disposition of each assigned case(s). The Attorney shall invoice the City of RFP 9975 Municipal Court Defense Counsel Page 6 of 30 Fort Collins for appearance during in-custody bond hearings within 10 days of the appearance. Invoices should be emailed monthly to invoices@fcgov.com with a copy to the Project Manager, Patty Netherton at PNetherton@fcgov.com . The fee paid for such representation shall be at the following rates: Attorneys: $85 per hour for representation on non-prisoner cases Paralegals: $33 per hour Investigator (if authorized by court): $44 per hour Attorneys: $100 per hour during in-custody prisoner first appearance hearings. An Attorney may charge a maximum of $2,000.00 per case if the case does not go to trial or $4,000.00 per case if the case goes to trial1. Any hours spent by the attorney over the maximum allowed per case will be considered “pro bono”. Any requests for additional fees for professional services used by the Attorney must be made in writing and submitted to the Chief Judge or Assistant Municipal Judge for approval prior to the Attorney using such services. The Fort Collins Municipal Court does not pay for the time of administrative support staff. Therefore, charges for time spent on administrative activities, such as setting up files, typing, copying discovery or other items, faxing documents, making deliveries, preparing payment requests, and mailing letters are not reimbursable costs. Attorneys are expected to have sufficient administrative support for these activities. Non-Allowable Expenses • Phone calls when no contact is made (i.e., no answer, client not available or message left to call back, etc.); • Fax charges; • Parking Fees; • Items purchased for indigent (or other) persons represented which includes meals, books, clothing, and other personal items; • Administrative activities (as previously discussed); Billing for Representation of Client with Multiple Cases: When billing for multiple cases in representation of the same client (i.e., companion cases), the appointee shall designate the bill as “concurrent.” This applies to situations in which activity occurs simultaneously in the representation of the party across the multiple cases (example: the appointee attends a single court hearing during which more than one of the client’s cases is discussed) and allows for the activity to be billed once via a “master” case. Cases in which the appointee’s activity does not overlap multiple cases should not be billed 1 This total billable amount may increase if the state courts increase the maximum billable amount allowed to alternate defense counsel for misdemeanor cases. It will not decrease during the contract period. RFP 9975 Municipal Court Defense Counsel Page 7 of 30 concurrently and should instead be billed by submitting separate invoices for each respective case. Itemized detail is to be submitted. Time must be described in sufficient detail to justify the amount of time spent on the activity. Time reported must include all time spent between the beginning and ending dates of the billing and must be in chronological order. Each entry must include the date the work was performed. The billing detail and itemization needs to include a date and a description of service performed. Time must be billed in tenths of an hour using the decimal system. One-tenth of an hour is equal to six (6) minutes. For example, 12 minutes is charged as 0.2 hours. Mileage itemization must include the date of the trip, the purpose of the trip, and the number of miles traveled for each trip. Other Allowable Expenses • Copy charges at the rate of $0.10 per page (specify the number of copies made); • Mileage at the rate defined by §24-9-104 C.R.S. (the actual number of miles must be specified for each trip); • Long-distance telephone calls at cost (if total billing exceeds $50, it must include a copy of the telephone bill with the following information highlighted: date, phone number, and charges); • Postage at cost (regular 1st class mail charges); Attorneys shall maintain records of all work performed relating to court appointments and make all such records available to the Municipal Court for inspection, audit, and evaluation in such form and manner as the court in its discretion may require, subject to attorney/client privilege. A. ANTICIPATED SCHEDULE The following represents the City’s target schedule for the RFP. The City reserves the right to amend the target schedule at any time. • RFP issuance: April 16, 2024 • Question deadline: 3:00 PM MT on April 23, 2024 • Final Addendum Issued: April 29, 2024 or before • Proposal due date: 3:00 PM MT on May 7, 2024 • Interviews (tentative): Week of May 20, 2024 • Award of Contract (tentative): June 1, 2024 IV. PROPOSAL SUBMITTAL REQUIREMENTS Qualified attorneys interested in performing the work described in this request for proposals must submit a complete proposal which addresses all elements of this RFP. A proposal that does not include all of the information required may be deemed incomplete and is subject to rejection. Limit the total length of your proposal to a maximum of 15 pages (excluding covers and dividers). The City reserves the right to reject proposals received that exceed 15 pages. All submissions shall include the following items listed below, in the order listed: RFP 9975 Municipal Court Defense Counsel Page 8 of 30 A. Executive Summary/Project Understanding: A one-page high-level overview of the solution you are proposing in order to fulfill the Scope of Services being sought under this RFP. B. Methods and Approach: Describe in detail how you plan to provide the Scope of Services described in this RFP. Sustainability: All qualified consulting firm/teams participating in the submitted proposal are to explain in detail what their organization does in the way of a Sustainability Plan as a subset of this section. This is to include as a minimum what you do in the way of use of materials, equipment, vehicles, fuel, recycling, office practices, etc. as an organization that demonstrates leadership and that you “walk the talk” in regard to sustainable practices within your own organization. C. Qualifications and Experience: Provide relevant information regarding previous experience related to developing similar plans and services to the ones listed under our Scope of Services above, to include: • Proof that you are licensed by the State of Colorado Bar and admitted to practice law in the State of Colorado • Number of years in the business for the firm, and the proposed attorneys • Overview of services offered and qualifications of the firm, and the proposed attorneys • Names and locations of similar projects. A minimum of three references of such projects, to include: i. Service provided ii. Date of service iii. Client organization iv. Contact name and title, phone, and email address of the public agency’s project manager. Confirm that the City may contact these references as part of our evaluation process. D. List of Project Personnel: This list should include the identification of the contact person with primary responsibility for this contract, the attorneys proposed for this contract, and any supervisory personnel who oversee the attorneys proposed for this contract. Include a brief resume or biography of the attorneys who will be working under the contract. List all attorneys who will back up the primary attorneys being proposed for this contract, in the event the primary attorneys are not available. E. Availability: Describe the capacity of attorneys to participate in this project in the context of the attorney firm’s/team’s other commitments. Location: Describe the location of your base office and its proximity to downtown Fort Collins. PLEASE INDICATE YOUR GENERAL CAPACITY TO BEGIN THE SERVICES NECESSARY FOR THIS WORK IMMEDIATELY AFTER THE MASTER PROFESSIONAL SERVICES AGREEMENT IS SIGNED. ALSO, AS PART OF YOUR PROPOSAL RESPONSE UNDER “AVAILABILITY”, PLEASE INDICATE YOUR AVAILABILITY FOR ON-SITE INTERVIEW IN FORT RFP 9975 Municipal Court Defense Counsel Page 9 of 30 COLLINS, COLORADO THE WEEK OF May 20, 2024 IN THE EVENT YOU ARE INVITED FOR AN ORAL INTERVIEW ROUND. F. Schedule of Rates: See Appendix A. Payment for Services Rendered. The fee paid for such representation shall be fixed at the rate of $85.00/hour up to a maximum of $2,000.00 per case if the case does not go to trial or $4,000.00 per case if the case goes to trial. Any hours spent by the attorney over the maximum allowed per case will be considered “pro bono”. Any requests for additional fees for professional services used by the Attorney must be made in writing and submitted to the Chief Judge or Assistant Municipal Judge for approval prior to the Attorney using such services. In this section of your proposal, confirm your understanding and acceptance of the fixed Hourly Rate; and the not-to-exceed per-case rates. G. Sample Agreement Included with this request for proposals is a sample Agreement that the City intends to use for obtaining the services of the Professional. The Professional is required to review this Agreement and indicate any objections to the terms of the contract. If revisions to the contractual terms are requested, provide suggested revisions. H. Acknowledgement The Acknowledgement form is attached as Section VI. Complete the attached form indicating the Professional hereby acknowledges receipt of the City of Fort Collins Request for Proposal and acknowledges that the Professional has read and agrees to be fully bound by all of the terms, conditions and other provisions set forth in the RFP. RFP 9975 Municipal Court Defense Counsel Page 10 of 30 V. REVIEW AND ASSESSMENT CRITERIA A. Proposal and Interview Criteria Professional firms will be evaluated on the following criteria. These criteria will be the basis for review and assessment of the written proposals and optional interview session. At the discretion of the City, interviews of the top rated firms may be conducted. The rating scale shall be from 1 to 10, with 1 being a poor rating, 5 being an average rating, and 10 being an outstanding rating. WEIGHTING FACTOR CATEGORY STANDARD QUESTIONS 3.0 Scope of Proposal Does the proposal address all elements of the RFP? Does the proposal show an understanding of the project objectives, methodology to be used and results/outcomes required by the project? Are there any exceptions to the specifications, Scope of Work, or agreement? 3.0 Firm Capability & Assigned Personnel Do the persons who will be working on the project have the necessary skills and qualifications? Are sufficient people of the requisite skills and qualifications assigned to the project? Does the firm have the resources, financial strength, capacity and support capabilities required to successfully complete the project on-time and in-budget? Has the firm successfully completed previous projects of this type and scope? 1.0 Availability Can the work be completed in the necessary time? Can the target start and completion dates be met? Are other qualified personnel available to assist in meeting the project schedule if required? Is the project team available to attend meetings as required by the Scope of Work? 1.0 Sustainability/TBL Methodology Does the firm demonstrate a commitment to Sustainability and incorporate Triple Bottom Line methodology in both their Scope of Work for the project, and their day-to-day business operating processes and procedures? 2.0 Cost & Work Hours Does the proposal included detailed cost break- down for each cost element as applicable and are the line-item costs competitive? Do the proposed cost and work hours compare favorably with the Project Manager's estimate? Are the work hours presented reasonable for the effort required by each project task or phase? Official Purchasing Document Last updated 10/2017 RFP 9975 Municipal Court Defense Counsel Page 11 of 30 VI. ACKNOWLEDGEMENT Professional hereby acknowledges receipt of the City of Fort Collins Request for Proposal and acknowledges that it has read and agrees to be fully bound by all of the terms, conditions and other provisions set forth in the RFP 9975 MUNICIPAL COURT DEFENSE COUNSEL and sample Agreement except as otherwise noted. Additionally, Professional hereby makes the following representations to City: a. All of the statements and representations made in this proposal are true to the best of the Professional’s knowledge and belief. b. Professional commits that it is able to meet the terms provided in this proposal. c. This proposal is a firm and binding offer, for a period of 90 days from the date hereof. d. Professional further agrees that the method of award is acceptable. e. Professional also agrees to complete the proposed Agreement with the City of Fort Collins within 10 days of notice of award. If contract is not completed and signed within 10 days, City reserves the right to cancel and award to the next highest rated firm. f. Professional acknowledges receipt of addenda. g. Professional acknowledges no conflict of interest. h. Professional acknowledges that the City is a governmental entity subject to the Colorado Open Records Act, C.R.S. §§ 24-72-200.1 et seq. (“CORA”). Any proposals submitted hereunder are subject to public disclosure by the City pursuant to CORA and City ordinances. Professionals may submit one (1) additional complete proposal clearly marked “FOR PUBLIC VIEWING.” In this version of the proposal, Professionals may redact text and/or data that it deems confidential or proprietary pursuant to CORA. All pricing will be considered public records subject to disclosure under CORA and as such pricing cannot be redacted from the “FOR PUBLIC VIEWING” version of the proposal. Failure to provide a public viewing copy will be considered a waiver of any claim of confidentiality under CORA without regard to how the applicant’s proposal or certain pages of the proposal are marked confidential, proprietary, or similar. Such statement does not necessarily exempt such documentation from public disclosure if required by CORA, by order of a court of appropriate jurisdiction, or other applicable law. Generally, under CORA, trade secrets, confidential commercial information and financial data information may not be disclosed by the City. Proposals may not be marked “Confidential” or ‘Proprietary’ in their entirety. By responding to this RFP, Professionals hereby waives any and all claims for damages against the City for the City’s good faith compliance with CORA. All provisions and pricing of any contract resulting from this request for proposal will be public information. Legal Firm Name: Physical Address: Remit to Address: Phone: Name of Authorized Agent of Firm: Official Purchasing Document Last updated 10/2017 RFP 9975 Municipal Court Defense Counsel Page 12 of 30 Signature of Authorized Agent: Primary Contact for Project: Title: Email Address: Phone: Cell Phone: NOTE: ACKNOWLEDGMENT IS TO BE SIGNED & RETURNED WITH YOUR PROPOSAL. Official Purchasing Document Last updated 10/2017 RFP 9975 Municipal Court Defense Counsel Page 13 of 30 APPENDIX A: Payment for Services Rendered MUNICIPAL COURT, FORT COLLINS, COLORADO Case No.: CaseNumber, Citation No.: defendantleadchargecitation, Charge: AllChargeStart AllChargeStatuteDescription AllChargeEnd ____________________________________________________________________________ ____ ORDER FOR COURT APPOINTMENT AND PAYMENT OF FEES ____________________________________________________________________________ ____ CITY OF FORT COLLINS by and on behalf of The People of the State of Colorado, v. DEFENDANTNAMELASTFIRST, DefendantStreetAddress DefendantMailingAddress DefendantCity DefendantState DefendantZip Defendant ____________________________________________________________________________ ____ It is hereby ordered that PrimaryDefenseAttorneyName is appointed as counsel for the above- named Defendant in this/these case(s). The fee paid for such representation shall be at the rate of $85.00/hour up to a maximum of $2,000.00 per case if the case does not go to trial or $4,000.00 per case if the case goes to trial. ____________________ Jill Hueser Municipal Judge Dated: Todaydate ************************************************************************************************************* ****** To be filled out by Counsel upon conclusion of Municipal Court case: ________ hours X $85.00/hour (in-Court and out-of-Court time) = $________ An accurate itemization for the hours billed is attached. Dated: ___________________________________ Counsel's signature Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 Municipal Court Defense Counsel Page 14 of 30 VII. SAMPLE AGREEMENT (FOR REFERENCE ONLY – DO NOT SIGN ) PROFESSIONAL SERVICES AGREEMENT THIS PROFESSIONAL SERVICES AGREEMENT (AGREEMENT) made and entered into the day and year set forth in Section 4 below by and between the CITY OF FORT COLLINS, COLORADO, a Colorado Municipal Corporation (CITY) and , a(n) [enter state] [business type] (PROFESSIONAL). 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 Service. The PROFESSIONAL agrees to provide Services in accordance with the Scope of Services (Services) attached as Exhibit A, consisting of [# of Pages] and incorporated herein. Irrespective of references in Exhibit A to certain named third parties, the PROFESSIONAL shall be solely responsible for performance of all duties hereunder. 2. Project Schedule. Time is of the essence. The Services to be performed pursuant to this AGREEMENT shall be performed in accordance with the Project Schedule attached hereto as Exhibit [choose one], consisting of [# of Pages], and incorporated herein by this reference. 3. Changes. The CITY may, at any time during the term of the AGREEMENT, make changes to the AGREEMENT. Such changes shall be agreed upon in writing by the parties. 4. AGREEMENT Period. This AGREEMENT shall commence , 20 (the Effective Date) and shall continue in full force and effect until , 20 , unless sooner terminated as herein provided. In addition, at the option of the CITY, the AGREEMENT may be extended for additional one (1) year periods not to exceed four (4) additional one- year periods. Renewals and pricing changes shall be negotiated by and agreed to by both parties only at the time of renewal. [Any price changes shall not exceed percent ( %) per annual renewal]. Written notice of renewal shall be provided to the PROFESSIONAL no later than thirty (30) days before AGREEMENT end. 5. Early Termination by CITY. Notwithstanding the time periods contained herein, the CITY may terminate this AGREEMENT at any time without cause or penalty by providing at least ten (10) calendar days written notice of termination to the PROFESSIONAL. In the event of early termination by the CITY, the PROFESSIONAL shall be paid for Services rendered up to the date of termination, subject to the satisfactory performance of the PROFESSIONAL's obligations under this AGREEMENT. PROFESSIONAL shall submit a final invoice within ten (10) calendar days of the effective date of termination. Payment shall be the PROFESSIONAL's sole right and remedy for termination. Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 Municipal Court Defense Counsel Page 15 of 30 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: PROFESSIONAL: CITY: Copy to: Attn: Email Address City of Fort Collins Attn: PO Box 580 Fort Collins, CO 80522 Email Address City of Fort Collins Attn: Purchasing Dept. PO Box 580 Fort Collins, CO 80522 purchasing@fcgov.com All notices under this AGREEMENT shall be written. 7. Compensation. In consideration of the Services to be performed pursuant to this AGREEMENT, the CITY agrees to pay the PROFESSIONAL [on a time and reimbursable direct cost basis] [a fixed fee in the amount of ???? ($????)] [a fixed fee in the amount of ???? ($????) plus reimbusable direct costs. All such fees and costs shall not exceed ???? ($????)] in accordance with Exhibit [choose one], consisting of [# of Pages], attached and incorporated herein. Monthly partial payments based upon the PROFESSIONAL's billings and itemized statements are permissible. The amounts of all such partial payments shall be based upon the PROFESSIONAL's CITY-verified progress in completing the Services to be performed pursuant hereto and upon the CITY's approval of the PROFESSIONAL's actual reimbursable expenses. Final payment shall be made following acceptance of the Services by the CITY. Invoices shall be emailed to invoices@fcgov.com with a copy to the CITY Project Manager. The cost of the work completed shall be paid to the PROFESSIONAL following the submittal of a correct itemized invoice by the PROFESSIONAL. 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 undisputed invoices on Net 30 days from the date of the invoice submittal to the CITY or, for disputed invoices, Net 30 days from the date of CITY Project Manager’s approval. 8. Design and Service Standards. The PROFESSIONAL warrants and shall be responsible for the professional quality, technical accuracy, accessibility requirements under ADA and Public Accommodations and Technology Accessibility sections below, timely completion and the coordination of all Services rendered by the PROFESSIONAL, and the Project Instruments as defined in Section 12 below. The PROFESSIONAL shall, without additional compensation, promptly remedy and correct any errors, omissions, or other deficiencie s from such standards. 9. Indemnification. The PROFESSIONAL shall indemnify, defend, and hold harmless the CITY and its officers and employees, to the maximum extent permitted under Colorado law, against and from any and all actions, suits, claims, demands, or liability of any character whatsoever claimed by the PROFESSIONAL or third parties against the CITY Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 Municipal Court Defense Counsel Page 16 of 30 arising out of or related to this AGREEMENT (including but not limited to contract, tort, intellectual property, accessibility, or otherwise). This obligation extends to reimbursement of the CITY's defense costs and reasonable attorney’s fees. 10. Insurance. The PROFESSIONAL shall maintain insurance in accordance with Exhibit [choose one], consisting of [# of Pages], attached and incorporated herein. 11. Appropriation. To the extent this AGREEMENT, or any provision in it, requires payment of any nature in fiscal years subsequent to the current fiscal year and constitutes a multiple fiscal year debt or financial obligation of the CITY, it shall be subject to annual appropriation by the Fort Collins 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 there are no pledged cash reserves or supporting appropriations pledged irrevocably for purposes of payment obligations herein. Non-appropriation by the CITY shall not be construed as a breach of this AGREEMENT. 12. Project Instruments and License. a. Upon execution of this AGREEMENT, the PROFESSIONAL grants to the CITY an irrevocable, unlimited and royalty free license to use any and all sketches, drawings, as-builts, specifications, designs, blueprints, data files, calculations, studies, analysis, renderings, models, plans, reports, and other deliverables (Project Instruments), in any form whatsoever and in any medium expressed, for purposes of constructing, using, maintaining, altering and adding to the project, provided that the CITY substantially performs its obligations under the AGREEMENT. The license granted hereunder permits the CITY and third parties reasonably authorized by the CITY to reproduce applicable portions of the Project Instruments for use in performing the Services or construction for the project. In addition, the license granted hereunder shall permit the CITY and third parties reasonably authorized by the CITY to reproduce and use the Project Instruments for similar projects, provided however, in such event the PROFESSIONAL shall not be held responsible for the design to the extent the CITY deviates from the Project Instruments. This license shall survive termination of the AGREEMENT by default or otherwise. b. Upon payment of each invoice, associated Project Instruments rendered by the PROFESSIONAL shall become the CITY’s property. The PROFESSIONAL shall provide the CITY with the Project Instruments in electronic format in a mutually agreed upon file type. 13. CITY Project Manager. The CITY will designate, before commencement of the Services, the CITY Project Manager who shall make, within the scope of their 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 Project Manager. Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 Municipal Court Defense Counsel Page 17 of 30 The initial CITY Project Manager for this AGREEMENT is [Enter Name] and can be reached at [Enter Email] or [Enter Phone]. The CITY Project Manager is subject to change by the CITY. 14. Project Status Report. A project status report is required to accompany all invoices and shall be submitted to the CITY Project Manager. The progress status report shall contain a written report of the delivery status of the Services with respect to the Scope of Services, project schedule, previous invoices, outstanding balance, percent billed and other material information as requested by the CITY. Failure to provide any required report may, at the option of the CITY, suspend the processing of any payment request. 15. Independent Contractor. The Services to be performed by the PROFESSIONAL are those of an independent contractor and not of an employee of the CITY. The CITY shall not be responsible for withholding or remitting any portion of the PROFESSIONAL's compensation hereunder or any other amounts on behalf of PROFESSIONAL for the payment of FICA, Workers' Compensation, unemployment insurance, other taxes or benefits or for any other purpose. 16. Personal Services. It is understood that the CITY enters into this AGREEMENT based on the special abilities of the PROFESSIONAL and that this AGREEMENT shall be considered as an AGREEMENT for personal services. Accordingly, the PROFESSIONAL shall neither assign any responsibilities nor delegate any duties arising under this AGREEMENT without the prior written consent of the CITY. 17. Subcontractors/Subconsultants. The PROFESSIONAL may not subcontract any of the Services without the prior written consent of the CITY, which shall not be unreasonably withheld. If any of the Services is subcontracted hereunder, with the consent of the CITY, then the following provisions shall apply: (a) the subcontractor/subconsultant 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/subconsultant will be required to comply with all applicable terms of this AGREEMENT; (c) the subcontract will not create any contractual relationship between any subcontractor/subconsultant and the CITY, nor will it obligate the CITY to pay or see to the payment of any subcontractor/subconsultant; and (d) the Services of the subcontractor/subconsultant will be subject to inspection by the CITY to the same extent as the Services of the PROFESSIONAL. The PROFESSIONAL shall require all subcontractor/subconsultants performing Services hereunder to maintain insurance coverage naming the CITY as an additional insured under this AGREEMENT and Exhibit [choose one], consisting of [# of Pages], attached and incorporated herein. The PROFESSIONAL shall maintain a copy of each subcontractor’s/subconsultant’s certificate evidencing the required insurance. Upon request, the PROFESSIONAL shall promptly provide the CITY with a copy of the certificate(s). 18. Acceptance Not Waiver. The CITY's approval of Project Instruments furnished hereunder Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 Municipal Court Defense Counsel Page 18 of 30 shall not in any way relieve the PROFESSIONAL of responsibility for the quality or technical accuracy of the Services. 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. 19. 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 to or refuse to perform according to the terms of this AGREEMENT, that party may be declared in default upon notice. 20. Remedies. In the event a party has been declared in default, the 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 event of a dispute regarding this AGREEMENT, each party shall bear its own attorney fees and costs. 21. Entire Agreement; Binding Effect; 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 the matter recited herein. This AGREEMENT supersedes any prior agreements, promises, or understandings as to the matter recited herein. The AGREEMENT shall be binding upon the 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 regarding the matter recited herein 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 that party to the terms of thi s AGREEMENT. 22. Law/Severability. The laws of the State of Colorado and the City of Fort Collins Charter and Municipal Code shall govern the construction, interpretation, execution and enforcement of this AGREEMENT—without regard to choice of law or 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 U.S. District Court for the District of Colorado. In the event any provision of this AGREEMENT shall be held invalid or unenforceable by any court of competent jurisdiction, that holding shall not invalidate or render unenforceable any other provision of this AGREEMENT. 23. Use by Other Agencies. The CITY reserves the right to allow other state and local governmental agencies, political subdivisions, and/or school districts (collectively Agency) to use the CITY’s award determination to the PROFESSIONAL. Use by any other entity Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 Municipal Court Defense Counsel Page 19 of 30 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 solely responsible for any debts, liabilities, damages, claims or expenses incurred in connection with any agreement established solely between the Agency and the PROFESSIONAL. The CITY’s concurrence hereunder is subject to the PROFESSIONAL’s commitment that this authorization shall not have a negative impact on the Services to be completed for the CITY. 24. Prohibition Against Unlawful Discrimination. The PROFESSIONAL acknowledges that 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); Section §§24-34-401, et seq., C.R.S., and any associated State or Federal laws and regulations, 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 forty (40) years or older, marital status, disability, sexual orientation, genetic information, or other characteristics protected by law. Pursuant to CITY 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 the employee has been discriminated against in violation of the above policy or participating in an employment discrimination proceeding. The PROFESSIONAL shall comply with the CITY’s policy for equal employment opportunity and prohibit unlawful discrimination, harassment and retaliation. This requirement also applies to all third-party subcontractors/subconsultants at every tier. 25. ADA and Public Accommodations. In performing the Services required hereunder, the PROFESSIONAL agrees to meet all requirements of the Americans with Disabilities Act of 1990, §§24-85-101, et seq., C.R.S., and all applicable rules and regulations (ADA), and all applicable Colorado public accommodation laws, which are imposed directly on the PROFESSIONAL or which would be imposed on the CITY as a public entity. 26. Technology Accessibility. The PROFESSIONAL represents that the Project Instruments hereunder, shall fully comply with all applicable provisions of §§24-85-101, et seq., C.R.S., and the Accessibility Standards for Individuals with a Disability, as established by the State of Colorado Governor’s Office of Information Technology (OIT) pursuant to §24-85-103 (2.5), C.R.S., including all updates and amendments to those standards as provided by the OIT. The PROFESSIONAL shall also comply with all State of Colorado technology standards related to technology accessibility and with Level AA of the most current version of the Web Content Accessibility Guidelines (WCAG), incorporated in the State of Colorado technology standards. Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 Municipal Court Defense Counsel Page 20 of 30 To confirm that the Project Instruments meet these standards, the PROFESSIONAL may be required to demonstrate compliance.  The PROFESSIONAL shall indemnify, save, and hold harmless the CITY against any and all costs, expenses, claims, damages, liability, court awards and other amounts (including attorneys’ fees and related costs) incurred by the CITY in relation to the PROFESSIONAL’s failure to comply with §§24-85-101, et seq., C.R.S., or the Accessibility Standards for Individuals with a Disability as established by OIT pursuant to §24-85-103 (2.5), C.R.S. The CITY may require the PROFESSIONAL’s compliance to the State’s Accessibility Standards to be determined by a third party selected by the CITY to attest to the Project Instruments and software compliance with §§24-85-101, et seq., C.R.S., and the Accessibility Standards for Individuals with a Disability as established by OIT pursuant to §24-85-103 (2.5), C.R.S. 27. Data Privacy. PROFESSIONAL will comply with all applicable data privacy regulations and laws, specifically including Colorado’s Privacy Act, C.R.S Section 6-1-1301 et seq. (the Privacy Act). PROFESSIONAL shall ensure that each person processing any personal data connected to the Services is subject to a duty of confidentiality with respect to the data. If applicable, PROFESSIONAL shall require that any subcontractors meet the obligations of PROFESSIONAL with respect to any personal data connected to this AGREEMENT. The Parties agree that upon termination of the Services that PROFESSIONAL shall, at the CITY’s choice, delete or return all personal data to the CITY unless retention of the personal data is required by law. PROFESSIONAL shall make available to the CITY all information necessary to demonstrate compliance with the obligations of the Privacy Act. PROFESSIONAL shall allow for, and contribute to, reasonable audits and inspections by the CITY or the CITY’s designated auditor. 28. 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. Sections 24-10-101 et seq. and under any other applicable law. 29. Colorado Open Records Act. The PROFESSIONAL acknowledges the CITY is a governmental entity subject to the Colorado Open Records Act, C.R.S. Sections 24-72- 200, et seq. (CORA), and documents in the CITY’s possession may be considered public records subject to disclosure under the CORA. 30. Delay. Time is of the essence. Subject to Force Majeure in Section 31 of this AGREEMENT, if the PROFESSIONAL is temporarily delayed in whole or in part from performing its obligations, then the PROFESSIONAL shall provide written notice to the CITY within two (2) business days defining the nature of the delay. Provision of written notice under this Section shall not operate as a waiver of any rights or benefits provided to the CITY under this AGREEMENT. 31. Force Majeure. No party hereto shall be considered in default in the performance of an Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 Municipal Court Defense Counsel Page 21 of 30 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 party that 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 the cause could not have been reasonably foreseen and guarded against by the affected 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 PROFESSIONAL must provide notice to the CITY of such condition within ten (10) calendar days from the onset of the condition. 32. Special Provisions. Special provisions or conditions relating to the Services to be performed pursuant to this AGREEMENT are set forth in Exhibit [choose one] - Confidentiality, consisting of four (4) pages incorporated herein. 33. Order of Precedence. In the event of a conflict or inconsistency within this AGREEMENT, the conflict or inconsistency shall be resolved by giving preference to the documents in the following order of priority: (a) The body of this AGREEMENT (and any written amendment), (b) Exhibits to this AGREEMENT, and (c) The Purchase Order document. 34. Prohibited Terms. Nothing in any Exhibit or other attachment shall be construed as a waiver of any provision above. Any terms included in any Exhibit or other attachment that requires the CITY to indemnify or hold PROFESSIONAL harmless; requires the CITY to agree to binding arbitration; limits PROFESSIONAL’s liability; or that conflicts with statute, City Charter or City Code in any way, shall be void. [Signature Page Follows] Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 Municipal Court Defense Counsel Page 22 of 30 THE CITY OF FORT COLLINS, COLORADO By: Gerry Paul Purchasing Director Date: ATTEST: APPROVED AS TO FORM: PROFESSIONAL'S NAME By: Printed: Title: Date: Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 Municipal Court Defense Counsel Page 23 of 30 EXHIBIT A SCOPE OF SERVICES Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 Municipal Court Defense Counsel Page 24 of 30 EXHIBIT [CHOOSE ONE] BID SCHEDULE/COMPENSATION The following pricing shall remain fixed for the initial term of this AGREEMENT. Any applicable price adjustments may only be negotiated and agreed to in writing at the time of renewal. Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 City of Fort Collins Defense Counsel Page 25 of 30 Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 City of Fort Collins Defense Counsel Page 26 of 30 EXHIBIT [CHOOSE ONE] INSURANCE REQUIREMENTS The PROFESSIONAL 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 PROFESSIONAL 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 PROFESSIONAL, insurance as the CITY may deem proper and may deduct the cost of the insurance from any monies which may be due or become due the PROFESSIONAL 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 PROFESSIONAL'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 and Employer's Liability. The PROFESSIONAL shall maintain Workers’ Compensation and Employer’s Liability insurance during the life of this AGREEMENT for all of the PROFESSIONAL's employees engaged in work performed under this AGREEMENT. Workers' Compensation and 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 PROFESSIONAL shall maintain during the life of this AGREEMENT 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 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 PROFESSIONAL shall maintain during the life of this AGREEMENT 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. D. Errors and Omissions. The PROFESSIONAL shall maintain errors and omissions insurance in the amount of $1,000,000. E. Cybersecurity. The PROFESSIONAL shall maintain cybersecurity insurance in the amount of $5,000,000. In the event any work is performed by a subcontractor/subconsultant, the PROFESSIONAL shall be responsible for any liability directly or indirectly arising out of the work performed under this Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 City of Fort Collins Defense Counsel Page 27 of 30 AGREEMENT by a subcontractor/subconsultant, which liability is not covered by the subcontractor/subconsultant's insurance. Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 City of Fort Collins Defense Counsel Page 28 of 30 EXHIBIT [CHOOSE ONE] CONFIDENTIALITY IN CONNECTION WITH THE SERVICES to be provided by PROFESSIONAL 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 referenced information and is disclosing same shall be referenced as the “Disclosing Party.” The party receiving the Disclosing Party’s information shall be referenced as the “Receiving Party.” 2. Confidential Information. Confidential Information controlled by this AGREEMENT refers to information that is not public and/or is proprietary, including but not limited to 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, ideas, CITY customer identifiable information (including account, address, billing, consumption, contact, and other customer data), utility metering data, service billing records, customer equipment information. To the extent practical, Confidential Information shall be marked “Confidential” or “Proprietary.” Nevertheless, PROFESSIONAL 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 the non-exclusive list of Confidential Information above. 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 before the execution of this AGREEMENT and related to the services for which PROFESSIONAL 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 PROFESSIONAL shall cause each of their directors, officers, employees, agents, representatives, and subcontractors to become familiar with, and abide by, the terms of this Exhibit, which shall survive this AGREEMENT as an on-going obligation of the Parties. PROFESSIONAL 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. Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 City of Fort Collins Defense Counsel Page 29 of 30 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: (a) was generally known to the public through no wrongful act of the Receiving Party; (b) 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; (c) has been approved for release by a written authorization by the other party hereto; or (d) has been disclosed pursuant to a requirement of a governmental agency or by operation of law, subject to Paragraph 5 below. 5. Required Disclosure. Notwithstanding Paragraph 4(d) above, if the Receiving Party receives a request (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 immediate notice of such request, so the Disclosing Party may seek an appropriate protective order before disclosure or waive the Receiving Party’s compliance with this Exhibit. The Receiving Party shall furnish a copy of this Exhibit with any disclosure. Notwithstanding this Paragraph 5, Receiving Party shall not disclose Confidential Information to any person, directly or indirectly, nor use it in any way, except as required by law or authorized in writing by Disclosing Party. 6. Data Protection and Data Security. PROFESSIONAL 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 Confidential 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) PROFESSIONAL’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) • Incident Response • Vulnerability Assessments Official Purchasing Document Last updated 3/2024 Professional Services Agreement RFP 9975 City of Fort Collins Defense Counsel Page 30 of 30 • Hosted Services • Personnel Security (b) Subcontractors. PROFESSIONAL may use subcontractors, though such activity shall not release or absolve PROFESSIONAL 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 Confidential Information received, for any subcontractor PROFESSIONAL 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 PROFESSIONAL and may be considered to be a material breach of this AGREEMENT. 7. Information Storage. 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 PROFESSIONAL can ensure security for the Confidential Information so stored. Workstations 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. 8. Continuing Obligation. The agreement not to disclose Confidential Information as set forth in this Exhibit shall apply during the term of the Services and or AGREEMENT and at any time thereafter unless specifically authorized by the CITY in writing. 9. Termination Remedy. If PROFESSIONAL breaches any of the terms of this Exhibit, in the CITY’s sole discretion, the CITY may immediately terminate this AGREEMENT and withdraw PROFESSIONAL’s right to access Confidential Information. 10. Return of Information. Notwithstanding any other provision of this AGREEMENT to provide Project Instruments and work product, all material, i.e., various physical forms of media in which Confidential Information is stored, 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 return of such materials, 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. Upon Disclosing Party’s request, 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. 11. Injunctive Relief. PROFESSIONAL Receiving Party acknowledges that the Disclosing Party may, based upon the representations made in this AGREEMENT, disclose security information that is critical to the continued success of the Discloser’s business. Accordingly, Receiving Party agrees that the Disclosing Party does not have an adequate remedy at law for breach of this AGREEMENT and therefore, the Disclosing Party 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.