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HomeMy WebLinkAboutCORRESPONDENCE - AGREEMENT MISC - OPOWER (PKA POSITIVE ENERGY INC) (6)City of F6rt Collins 1/04'0� December 1, 2010 OPOWER, Inc. Attn: Mr. Chris Patton 1911 Fort Myer Drive, Suite 702 Arlington, VA 22209 Financial Services Purchasing Division 215 North Mason Street 2nd Floor PO Box 580 Fort Collins, CO 80522 970.221.6775 970.221.6707 - fax fcgov.com/Purchasing RE: Miscellaneous Contract for delivery's of Home Energy Reports, The Energy Insider Website and Program Reports for the City of Fort Collins Dear Mr. Patton: The City of Fort Collins wishes to extend the agreement term for the above captioned proposal per the existing terms and conditions and the following: 1). Section 16.f. of the Agreement is amended to read in its entirety: f. Confidentiality: Professional acknowledges that the City and Fort Collins Utilities are public entities subject to the provisions of the Colorado Public Records Act, C.R.S. §24-72-201 et seq. Any information submitted to the City by the Professional that the Professional deems confidential and/or proprietary will be designated as confidential and proprietary by the Professional at the time of disclosure. In the course and scope of the Services being performed under this Agreement, Professional may be provided, or by way of presence on City's premises or by use of or access to the City's computer system have access to information that is City's customer's confidential information. In addition to the above Professional acknowledges that the City is subject to the provision of the Fair and Accurate Credit Transactions Act of 2003 ("FACTA") 15 U.S.C. § 1681 et seq. In the event that during the performance of the Services, Professional detects unusual activity or breaches, or attempted breaches, in data security in relation to a City customer's account, including the web -based services provided pursuant to this Agreement, Professional will promptly notify the City. Despite any provision to the contrary, any customer information, including but not limited to, names, addresses, telephone numbers, or personal financial information of past or present customers is deemed Confidential Information, whether or not it is marked as confidential information. Professional agrees that is shall not use, commercialize or disclose such Confidential Information to any person or entity, except to its own employees or subcontractors having a "need to know"; provided that, in the case of subcontractors, Professional shall provide them with a copy of this paragraph and the subcontractor must agree to abide by its terms. The recipient shall hold and not engage in any use or disclosure of confidential information not expressly provided for in this Agreement. In the event any Party to this Agreement receives a request for such confidential and/or proprietary information from a third party, notice thereof shall promptly be given to the other Parties to this Agreement. The recipient shall take all reasonable steps to prevent any unauthorized possession, use, transfer or disclosure of such confidential information. Should the recipient learn of any such unauthorized possession, use, transfer or disclosure, it shall promptly notify the other Parties to this Agreement. If requested, the recipient shall deliver to the other Parties to this Agreement all confidential information (including all copies) disclosed to it with respect to this Agreement. The disclosure provision of this section shall not apply to information that a) the parties had in their possession prior to disclosure by any other party to this Agreement; b) becomes public knowledge through no fault of Professional; c) the recipient lawfully acquires from a third party not under an obligation of confidentiality to the disclosing party; or d) is Rev 06/2009 required to be disclosed by law or court order. In the event that the Professional ceases to perform services for the City, or the City so requests for any reason, the Professional shall promptly return to the City any and all information described hereinabove, including all copies, notes and/or summaries (handwritten or mechanically produced) thereof, in Its possession or control or as to which it otherwise has access. The receiving party understands and agrees that the disclosing party's remedies at law for a breach of the receiving party's obligations under this Confidentiality provision may be inadequate and that the disclosing party shall, in the event of any such breach, be entitled to seek equitable relief (including withopt limitation preliminary and permanent injunctive relief and specific performance) In addition to all other remedies provided hereunder or ava' able at law. I -/Ibe Initial Date The term will be extended for one (1) additional year, October 2, 2010 through October 1, 2011. If the renewal is acceptable to your firm, please sign this letter in the space provided and return all documents to the City of Fort Collins, Purchasing Division, P. O. Box 580, Fort Collins, CO 80522, within the next fifteen days. If this extension is not agreeable with your firm, we ask that you send us a written notice stating that you do not wish to renew the contract and state the reason for non -renewal. Please contact Opal F. Dick, CPPO, Senior Buyer at (970) 221-6778 if you have any questions regarding this matter. Sincerely, (aiasB. O'Neill II, CPPO, FNIGP Director of Purchasing and Risk Management Signature Date (Please indicate your desire to renew Miscellaneous Agreement by signing this letter and returning it to Purchasing Division within the next fifteen days.) JBO:jkb Rev 0612009 ACORDTM CERTIFICATE OF LIABILITY INSURANCE D 10/21/2010Y) PRODUCER Woodruff -Sawyer & Co. 220 Bush St., 7th Floor San Francisco CA 94104 (415) 391-2141 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED OPOWER Inc. 1515 N. Courthouse Road Suite 610 Arlington, VA 22201 INSURER A: AXIS Surplus Insurance Company 26620 INSURER B: Federal Insurance Company 20281 INSURER C: INSURER D: INSURER E: COVERAGES 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. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSRADD" LTR INSR TYPE OF INSURANCEDATE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS B X GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS MADE a OCCUR 35920716 10/19/2010 10/19/2011 EACH OCCURRENCE $ 1,000,000 DAMAGE TO PREMISES (EaENTED occureence` $ 1,000,000 MED EXP (Any one person) $ 10,000 PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2,000,000 POLICY PROjECT LOC B AUTOMOBILE LIABILITY ANY AUTO 73564431 10/19/2010 ! � 10/19/2011 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 BODILY INJURY (Per person) $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per accident) $ HIRED AUTOS NON -OWNED AUTOS X PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ ANY AUTO $ AUTO ONLY: AGG EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ $ DEDUCTIBLE $ RETENTION $ - WORKERS COMPENSATION AND TORY WC I IMITATU FR E.L. EACH ACCIDENT $ EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. DISEASE - EA EMPLOYEE $ OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below E.L. DISEASE - POLICY LIMIT $ A OTHER Errors & Omissions ECN000048931001 10/19/2010 10/19/2011 Limit $ 5,000,000 Retention $ 100,000 $ DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS The City of Fort Collins, its officers, and its employees are included as additional insureds with respect to General Liability only per attached 80 02 2000 form. GtK 1 II-IGAI t HULUEK t;ANL#rLLA I IUN I Uay rvoucc Iur rvuu-rayUrnur U1 ncmium City of Fort Collins, Utilities P.O. Box 580 Fort Collins, CO 80522 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Oawi�.�Z6' ACORD 25 (2001/08) ID #: © ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). 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). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) NAMtU[NbUKrU: UYUWEKInc. `J POLICY NUMBER: 35920716 twee General Liability Supplementary b. release attachments; Payments but only for bond amounts within the available Limit Of Insurance. We do not have to (continued) furnish these bonds. C. reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of such claim or suit, including actual loss of earnings up to $1000 a day because of time off from work. D. costs taxed against the insured in the suit, except any: 1. attorney fees or litigation expenses; or other loss, cost or expense; in connection with any injunction or other equitable relief. E. prejudgment interest awarded against the insured on that part of a judgment we pay. If we make an offer to pay- the applicable Limit Of Insurance, we will not pay any prejudgment interest based on that period of time after the offer. F. interest on the full amount of a judgment that accrues after entry of the judgment and before we have paid, offered to pay or deposited in court the part of the judgment that is within the applicable Limit Of Insurance. Supplementary Payments does not include any fine or other penalty. These payments will not reduce the Limits Of Insurance. Our obligation to make these payments ends when we have used up the applicable Limit Of Insurance. v4f'•:•:^:•}:?� :t???•\:+ii•: 4: 4iiiiiii?ii'r-i ^. ...}.. iy ::-: �ii:-i s is4?iiiiiiiii ii•{4i}iii}}iii:'4iii'4•.x •i.•.i?4:ish::w:rrr.�.�:::vn�i•:::n:�.v.+.w.4J.v:•::•i::: r:::::: x::•:::::. .4x::.:.:.v. �.0.:::::::: •.; v::y •. .. ...:..,.:....:: w.::: v:. ... w::::::. �:::::: . �::::.: �.... ..........::..:....:...............:..:. Coverage Territory This insurance applies anywhere, provided the insured's responsibility to pay damages, to which this insurance applies, is determined in a suit on the merits brought in the United States of America (including its possessions and territories), Canada or Puerto Rico, or in a settlement to which we agree. Who Is An Insured Sole Proprietorships If you are an individual, you and your spouse are insureds; but you and your spouse are insureds only with respect to the conduct of a business of which you are the sole owner. If you die: persons or organizations having proper temporary custody of your property are insureds, but they are insureds only with respect to the maintenance or use of such property and only for acts until your legal representative has been appointed-, and your legal representatives are insureds-, but they are insureds only with respect to their duties as your legal representatives. Such legal representatives will assume your rights and duties under this insurance. Liability Insurance Form 80-02-2000 (Rev. 4-01) Contract Page 5 o132 Who Is An Insured (continued) Partnerships Of Joint If you are a partnership (including a limited liability partnership) or a joint venture, you Ventures are aninsured. Your members, your partners and their spouses are insureds; but they are insureds only with respect to the conduct of your business. Limited Liability Companies If you are a limited liability company, you are an insured. Your members and their spouses are insureds; but they are insureds only with respect to the conduct of your business. Your managers are insureds; but they are insureds only with respect to their duties as your managers. 9 .n .. , ... professional .,. . ..... , , . . Other Organizations If you are an organiza tion (including a corporation) other than a partner ship, joint venture or limited liability company, you are an insured. Your directors and officers are insureds; but they are insureds only with respect to their duties as your directors or officers. Your stockholders and their spouses are insureds; but they are insureds only with respect to their liability as your stockholders. Employees Your employees are insureds; but they are insureds only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, no employee is an insured for: A. bodily injury, advertising injury or personal injury: 1. to you, to any of your directors, managers, members, officers or partners (whether or not an employee) or to any co -employee while such injured person is either in the course of his or her employment or while performing duties related to the conduct of your business; 2. to the brother, child, parent, sister or spouse of such injured person as a consequence of any injury described in subparagraph A.1. above; or 3. for which there is any obligation to share damages with or repay someone else who must pay damages because of any injury described in subparagraphs A.1. or A.2. above. With respect to bodily injury only, this limitation does not apply to: • you or to your directors, managers, members, .officers, partners or supervisors as insureds; or • your employees, as insureds, with respect to such damages caused by cardio-pulmonary resuscitation or first aid services administered by such an employee; or B. property damage to any property owned, occupied or used by you or by any of your directors, managers, members, officers or partners (whether or not an employee) or by any of your employees. This limitation does not apply to property damage to premises while rented to you or temporarily occupied by you with permission of the owner. Liability Insurance Form 80-02-2000(Rev. 4-01) Contract Page 6 of 32 eNu�e General Liability Who Is An Insured (continued) Volunteers Persons who are volunteer workers for you are insureds; but they are insureds only for acts within the scope of their activities for you and at your direction. RealEstate :::::.......................................................................... .................................................................................................................................................... ...::..:..:::.:..::..:::::::.:::. .........................:.::::::::::::::::.:::::::::::::::::::.::.:.:.:..:.::: Managers Persons (other than your employees) or organizations acting as your real estate managers are insureds; but they are insureds only with respect to their duties as your real estate managers. : ::..............................................<.:::.;::<.;:.;:.:.....................................................:.........:......... :.:....:...... .:........... Permissive Users :.:...: ..,.:..:.:.:.:......:.:..:.;.:..;.:..: Of With respect to mobile equipment registered in your name under a motor vehicle registration law: Mobile Equipment A. persons driving such equipment on a public road with your permission are insureds; and B. persons or organizations responsible for the conduct of such, persons described in subparagraph A. above are insureds; but they are insureds only with respect to the operation of the equipment and only if no other insurance of any kind is available to them. However, no person or organization is an insured with respect to: bodily injury to any co -employee of the person driving the equipment; or property damage to any property owned or occupied by or loaned or rented to you, or in your charge or the charge of the employer of any person who is an insured under this provision. Vendors Persons or organizations who are vendors of your products are insureds; but they are insureds only with respect to their liability for damages for bodily injury or property damage resulting from the distribution or sale of your products in the regular course of their business and only if this insurance applies to the products -completed operations hazard. However, no such person or organization is an insured with respect to any: • assumption of liability by them in a contract or agreement. This limitation does not apply to the liability for damages for bodily injury or property damage that such vendor would have in the absence of such contract or agreement; • representation or warranty unauthorized by you; • physical or chemical change in your products made intentionally by the vendor; • repackaging, unless unpacked solely for the purpose of inspection, demonstration or testing, or the substitution of parts under instruction from the manufacturer and then repacked in the original container; • failure to make such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business in connection with the distribution or sale of your products; • demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of your products; or • of your products which, after distribution or sale by you, have been labeled or relabeled or used as a container, ingredient or part of any other thing or substance by or for the vendor. Liability Insurance Form 80-02-2000 (Rev. 4-01) Contract Page 7 of 32 Who Is An Insured Vendors Further, no person or organization from whom you have acquired your products, or any container, (continued) ingredient or part entering into, accompanying or containing your products, is an insured under this provision. Lessors Of E:: u:::........................................................................................................................................................................................................................... q ipment Persons or organizations from whom you lease equipment are insureds; but they are insureds only with respect to the maintenance or use by you of such equipment and only if you are contractually obligated to provide them with such insurance as is afforded by this contract. However, no such person or organization is an insured with respect to any: damages arising out of their sole negligence; or occurrence that occurs, or offense that is committed, after the equipment lease ends. ........................................................................................................................................................................................................ Lessors O.. PremisesPer ............................................... sons or organizations from whom you lease premises are insureds; but they are insureds only with respect to the ownership, maintenance or use of that particular part of such premises leased to you and only if you are contractually obligated to provide them with such insurance as is afforded by this contract. However, no such person or organization is an insured with respect to any: damages arising out of their sole negligence; occurrence that occurs, or offense that is committed, after you cease to be a tenant in the premises; or structural alteration, new construction or demolition operations performed by or on behalf of them. ...:... ..:..:..: . Subsidiary Or, Newly If there is no other insurance available, the following organizations will qualify as named insureds: Acquired Or Formed a subsidiary organization of the first named insured shown in the Declarations of which, at Organizations the beginning of the policy period and at the time of loss; such first named insured controls, either directly or indirectly, more than fifty (50) percent of the interests entitled to vote generally in the election of the governing body of such organization; or a subsidiary organization of the first named insured shown in the Declarations that such first named insured acquires or forms during the policy period, if at the time of loss such first named insured controls, either directly or indirectly, more than fifty (50) percent of the interests entitled to vote generally in the election of the governing body of such organization. Limitations On Who Is An A. Except to the extent provided under the Subsidiary Or Newly Acquired Or Formed Insured Organizations provision above, no person or organization is an insured with respect to the conduct of any person or organization that is not shown as a named insured in the Declarations. B. No person or organization is an insured with respect to the: 1. ownership, maintenance or use of any assets; or conduct of any person or organization whose assets, business or organization; Liability Insurance Form 80-02-2000 (Rev. 4-01) Contract Page 8 of 32 General Liability Who Is An Insured Limitations On Who Is An you acquire, either directly or indirectly, for any: Insured bodily injury or property damage that occurred; or (continued) • • advertising injury or personal injury arising out of an offense first committed; in whole or in part, before you, directly or indirectly, aquired such assets, business or organization. Limits Of Insurance The Limits Of Insurance shown in the Declarations and the rules below fix the most we will pay, regardless of the number of:• • claims made or suits brought; or • persons or organizations making claims or bringing suits. The Limits Of Insurance apply separately to each consecutive annual period and to any remaining period of less than twelve (12) months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than twelve (12) months. 16 that case, the additional period will be deemed part of the last preceding period for purposes of determining the Limits Of Insurance. General Aggregate Limit Subject to the Each Occurrence Limit, the General Aggregate Limit is the most we will pay for the sum of: • damages for bodily injury and property damage, except damages included in the products -completed operations hazard; and • medical expenses. .. ................. ..X.X.:.:.' ....... .......... ............ Products -Completed Subject to the Each Occurrence Limit, the Products -Completed Operations Aggregate Limit is the Operations Aggregate most we will pay for the sum of damages for bodily injury and property damage included in the Limit products -completed operations hazard. .............. ::::::, ... Advertising Injury And The Advertising Injury And Personal Injury Aggregate Limit is the most we will pay for the sum of Personal Injury Aggregate damages for advertising injury and personal injury. Limit ..................... . ........ ... Each Occurrence Limit The Each Occurrence Limit is the most we will pay for the sum of: damages for bodily injury and property damage; and medical expenses-, arising out of any one occurrence. Any amount paid for damages or medical expenses will reduce the amount of the applicable aggregate limit available for any other payment. Liability Insurance Form 80-02-2000 (Rev. 4-01) Contract Page 9 of 32