HomeMy WebLinkAbout506424 EXCERGY CORPORATION - CONTRACT - RFP - 7414 TECHNICAL CONSULTATION & PROGRAM MGMT FOR SUPPROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below, by and
between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter
referred to as the "City" and Excergy Corporation, hereinafter referred to as "Professional'.
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed
by and between the parties hereto as follows:
1. Services to be Performed.
a. This Agreement shall constitute the basic agreement between the parties for
services for 7414 Technical Consultation and Program Management for Support and Integration
of Smart Grid Solution and Related Services. The conditions set forth herein shall apply to all
services performed by the Service Provider on behalf of the City and particularly described in
Work Orders agreed upon in writing by the parties from time to time. Such Work Orders, a
sample of which is attached hereto as Exhibit "A", consisting of one (1) page and incorporated
herein by this reference, shall include a description of the services to be performed, the location
and time for performance, the amount of payment, any materials to be supplied by the City and
any other special circumstances relating to the performance of services. No work order shall
exceed $1,000,000. The only services authorized under this agreement are those which are
performed after receipt of such Work Order, except in emergency circumstances where oral
work requests may be issued. Oral requests for emergency actions will be confirmed by
issuance of a written Work Order within two (2) working days.
b. The City may, at any time during the term of a particular Work Order and
without invalidating the Agreement, make changes within the general scope of the particular
services assigned and the Service Provider agrees to perform such changed services.
2. Changes in the Work. The City reserves the right to independently bid any services
rather than issuing work to the Service Provider pursuant to this Agreement. Nothing within this
EXHIBIT A
WORK ORDER FORM
PURSUANT TO AN AGREEMENT BETWEEN
THE CITY OF FORT COLLINS
AND
EXCERGY CORPORATION
IIL\I:19Ii
Work Order Number:
Purchase Order Number:
Project Title: 7414 Technical Consultation and Program Management for Support and Integration of
Smart Grid Solution and Related Services
Commencement Date:
Completion Date:
Maximum Fee: (time and reimbursable direct costs):
Project Description:
Scope of Services:
User Acceptance
Professional agrees to perform the services
identified above and on the attached forms in
accordance with the terms and conditions
contained herein and in the Professional Services
Agreement between the parties. In the event of a
conflict between or ambiguity in the terms of the
Professional Services Agreement and this work
order (including the attached forms) the
Professional Services Agreement shall control.
The attached forms consisting of _ (_) pages
are hereby accepted and incorporated herein, by
this reference, and Notice to Proceed is hereby
given.
Professional
City of Fort Collins
By:
Dennis Sumner, Project Manager
Date:
By:
Steve Catanach, L&P Operations Manager
Date:
By:
Brian Janonis, Utilities Executive Director
(greater than $1,000,000)
Date:
By:
James B. O'Neill II, CPPO, FNIGP
Director of Purchasing and Risk Management
(over $60,000.00)
Date:
EXHIBIT B
CONFIDENTIALITY
IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the "City") pursuant to
this Agreement (the "Agreement"), the Professional hereby acknowledges that it has been
informed that the City has established policies and procedures with regard to the handling of
confidential information and other sensitive materials.
In consideration of access to certain information, data and material (hereinafter individually and
collectively, regardless of nature, referred to as "information") that are the property of and/or
relate to the City or its employees, customers or suppliers, which access is related to the
performance of services that the Professional has agreed to perform, the Professional hereby
acknowledges and agrees as follows:
That information that has or will come into its possession or knowledge in connection with the
performance of services for the City may be confidential and/or proprietary. The Professional
agrees to treat as confidential (a) all information that is owned by the City, or that relates to the
business of the City , or that is used by the City in carrying on business, and (b) all information
that is proprietary to a third party (including but not limited to customers and suppliers of the
City) . The Professional shall not disclose any such information to any person not having a
legitimate need -to -know for purposes authorized by the City. Further, the Professional shall not
use such information to obtain any economic or other benefit for itself, or any third party, except
as specifically authorized by the City.
The foregoing to the contrary notwithstanding, the Professional understands that it shall have no
obligation under this Agreement with respect to information and material that (a) becomes
generally known to the public by publication or some means other than a breach of duty of this
Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the
request for such disclosure is proper and the disclosure does not exceed that which is
required. In the event of any disclosure under (b) above, the Professional shall furnish a copy of
this Agreement to anyone to whom it is required to make such disclosure and shall promptly
advise the City in writing of each such disclosure.
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 Professional understands and agrees that the City's remedies at law for a breach of the
Professional's obligations under this Confidentiality Agreement may be inadequate and that the
City shall, in the event of any such breach, be entitled to seek equitable relief (including without
limitation preliminary and permanent injunctive relief and specific performance) in addition to all
other remedies provided hereunder or available at law.
EXHIBIT C
FEDERAL REQUIREMENTS
Access to Records: Contractor agrees to provide access to its books, documents, papers, and
records to the extent such are subject to inspection under applicable law
for the purpose of audit, examination, excerpts, and transcriptions.
Record Retention: Contractor shall retain all records for the greater of five years or for so long
as such records pertain to any disputes or other pending matters.
Clean Air Act: Contractor will comply with all applicable standards, orders, or
requirements issued under section 306 of the Clean Air Act (42 U.S.C.
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive
Order 11738, and Environmental Protection Agency regulations (40 CFR
part 15).
Energy Policy and Conservation Act: Contractor will comply with mandatory standards and
policies relating to energy efficiency which are contained in the state
energy conservation plan issued in compliance with the Energy Policy
and Conservation Act (Pub. L. 94-163, 89 Stat. 871).
Lobbying Restrictions: By accepting funds under this award, you agree that none of the funds
obligated on the award shall be expended, directly or indirectly, to
influence congressional action on any legislation or appropriation matters
pending before Congress, other than to communicate to Members of
Congress as described in 18 U.S.C. 1913. This restriction is in addition to
those prescribed elsewhere in statute and regulation.
No Obligation by the Federal Government: The Purchaser and Contractor acknowledge and
agree that, notwithstanding any concurrence by the Federal Government
in or approval of the solicitation or award of the underlying contract,
absent the express written consent by the Federal Government, the
Federal Government is not a party to this contract and shall not be
subject to any obligations or liabilities to the Purchaser, Contractor, or any
other party (whether or not a party to that contract) pertaining to any
matter resulting from the underlying contract.
The Contractor agrees to include the above clause in each subcontract
financed in whole or in part with Federal assistance provided by DOE. It
is further agreed that the clause shall not be modified, except to identify
the subcontractor who will be subject to its provisions.
Federal Changes: Subject to Pricing and Time Schedule as provided below, Contractor shall
at all times comply with all applicable DOE regulations, policies,
procedures and directives, including without limitation those listed directly
or by reference in the Grant Agreement between City and DOE, as they
may be amended or promulgated from time to time during the term of this
contract.
Pricing and Time Schedule: The price(s) and time schedule(s) set forth
herein are based on applicable laws, rules, regulations, orders or
requirements of governmental authorities and other applicable codes and
standards effective on the day prior to the date of Contractor' bid,
proposal, quote or other response to the City's initial solicitation or inquiry.
Any change to any law, rule, regulation, order, code, standard or
requirement (including any, changes in application or interpretation
thereof) which requires any change or addition to the work hereunder
shall entitle Contractor to an equitable adjustment in the Agreement
price(s) and time schedule(s).
Early Termination by City: Notwithstanding the time periods contained herein, the City may
terminate this Agreement at any time without cause by providing written
notice of termination to the Professional. Such notice shall be delivered at
least fifteen (15) days prior to the termination date contained in said
notice unless otherwise agreed in writing by the parties. In the event of
any such early termination by the City, the Contractor shall be paid for all
services performed prior to the date of termination including a reasonable
profit margin on such services and for all reasonable costs arising from
such termination Such payment shall be the Contractor's sole right and
remedy for such termination
Disputes: The parties shall make a diligent, good faith attempt to resolve by
negotiation all disputes arising out of or in connection with this
Agreement. If such negotiation is unsuccessful within a period of forty-
five (45) days, the parties shall make a diligent, good faith attempt to
settle the dispute by mediation. If such mediation is unsuccessful within a
reasonable period of time, either party may submit any unresolved
dispute to arbitration in accordance with the Commercial Arbitration Rules
of the American Arbitration Association. Any such arbitration shall be
conducted in Denver, Colorado, by the Regional Office of the American
Arbitration Association. Any award shall be final and binding, and may be
entered into a court of competent jurisdiction for enforcement.
Performance during Dispute: Unless otherwise directed by City, Contractor shall continue
performance under this Contract while matters in dispute are being
resolved
Claims for Damages: Should either party to the Contract suffer injury or damage to person or
property because of any act or omission of the party or of any of his
employees, agents or others for whose acts he is legally liable, a claim for
damages therefore shall be made in writing to such other party within a
reasonable time after the first observance of such injury of damage.
Remedies: The laws of the State of Colorado shall govern the validity, interpretation
and enforcement of this Agreement. Assignment may be made only with
the written consent of both parties; provided, however, that Contractor
may assign to its affiliate without consent. Venue for the resolution of any
dispute requiring court action shall be in U.S.Federal Court in Denver,
Colorado.
Rights and Remedies: The duties and obligations imposed by the Contract Documents and
the rights and remedies available there under shall be in addition to and
not a limitation of any duties, obligations, rights and remedies otherwise
imposed or available by law. No action or failure to act by the (Recipient),
(Architect) or Contractor shall constitute a waiver of any right or duty
afforded any of them under the Contract, nor shall any such action or
failure to act constitute an approval of or acquiescence in any breach
there under, except as may be specifically agreed in writing.
"American Recovery and Reinvestment Act of 2009"
II. Procurement Provisions:
This contract is funded by the "American Recovery and Reinvestment Act of 2009" (ARRA). In
compliance with the ARRA contractors and subcontractor must adhere to the following
provisions:
III. ARRA TITLE XV—ACCOUNTABILITY AND TRANSPARENCY
BUY AMERICAN
SEC. 1605. USE OF AMERICAN IRON, STEEL, AND MANUFACTURED GOODS. (a) None of
the funds appropriated or otherwise made available by this Act may be used for a project for the
construction, alteration, maintenance, or repair of a public building or public work unless all of
the iron, steel, and manufactured goods used in the project are produced in the United States.
(b) Subsection (a) shall not apply in any case or category of cases in which the head of the
Federal department or agency involved finds that— (1) applying subsection (a) would be
inconsistent with the public interest; (2) iron, steel, and the relevant manufactured goods are not
produced in the United States in sufficient and reasonably available quantities and of a
satisfactory quality; or (3) inclusion of iron, steel, and manufactured goods produced in the
United States will increase the cost of the overall project by more than 25 percent. (c) If the
head of a Federal department or agency determines that it is necessary to waive the application
of subsection (a) based on a finding under subsection (b), the head of the department or agency
shall publish in the Federal Register a detailed written justification as to why the provision is
being waived. (d) This section shall be applied in a manner consistent with United States
obligations under international agreements.
ECONOMIC STABILIZATION CONTRACTING
SEC. 1611. HIRING AMERICAN WORKERS IN COMPANIES RECEIVING TARP FUNDING.
(a) SHORT TITLE. —This section may be cited as the "Employ American Workers Act". (b)
PROHIBITION.— (1) IN GENERAL. —Notwithstanding any other provision of law, it shall be
unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of
2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to
hire any nonimmigrant described in section 101(a)(15)(h)(i)(1b) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) unless the recipient is in compliance with the requirements
for an H-1 B dependent employer (as defined in section 212(n)(3) of such Act (8 U.S.C.
1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not
apply. (2) DEFINED TERM. —In this subsection, the term "hire" means to permit a new
employee to commence a period of employment.
EXHIBIT D
Fort Collins AMFC Expense Guidelines:
Lodging, Per Diem Meals and Incidentals and Other expenses:
December 19, 2011
Fort Collins Policy:
Lodging:
• Hotels will be reimbursed at $84/day provided the government rate is available. If the
government rate is not available, the best available rate shall be used and a printout of
the available rates at the time of the reservation provided as documentation.
• Hotel taxes do not count to the $84 limit, i.e. the rate is $84 plus applicable taxes.
• Receipts are to be provided.
• Actual expense will apply
Meals and Incidentals:
In lieu of requiring expense receipts, Fort Collins will use Federal GSA per diem guidelines.
• Daily rate: $56
• Travel Days rate: 75% of $56 = $42
Vehicle Expenses:
• All costs related to rental vehicles (gas, parking, etc.) must be documented if they are to
be reimbursed. The standard for vehicle size is mid -size to lower.
• If a private vehicle is used, mileage will be reimbursed using the mileage rate set by the
IRS. The most direct route is the standard for determining total mileage.
Extra Ordinary Cost
• Prior authorization required.
Expenses Not Allowed
• Liquor, movies, or entertainment (including in -room movies);
• Sporting events;
• Laundry, dry-cleaning or shoe repair;
• Personal phone calls, including connection and long-distance fees;
• Computer connections (unless required for City business);
• Other personal expenses not directly related to City business;
• Convenience charges;
• Rescheduling Airline Charges not related to City requirements.
• Excessive meal tip amounts generally over 20%;
• Delivery fees shall not exceed 10% of the total bill, if not already included;
• Hotel Cleaning Tips;
• Extra Baggage for one day trips;
• Air Travel (when local);
• Items that are supplied by the City.
Time Frame for Reporting
• Per contract (every 30 days).
Reference:
The Federal GSA guidelines for Fort Collins are $84/day for hotel and $56 for meals and
incidentals (MME). (Incidentals are defined as 1) fees and tips given to porters, baggage
carriers, bellhops, hotel maids, stewards or stewardesses , and 2) transportation between
places of lodging or business and places where meals are taken). Hotel taxes (i.e. lodging
taxes) are not covered by per diem and are expensed as a separate line item.
The ME is further broken down by:
• Breakfast: $9
• Lunch: $13
• Dinner: $29
• Incidentals: $5
Federal guidelines further provide for the use of 75% of the MWE rate for travel days, i.e. $42
for Fort Collins.
CORPORATE CERTIFICATE
I, being duly sworn, hereby certify that Excergy Corporation mentioned in the
Professional Services Agreement with City of Fort Collins, Colorado (RFP #7414 —
Technical Consultation and Program Management Services for Smart Grid Solutions) is
a corporation duly organized under the laws of Colorado and has as its principal place of
business Suite 575, 3773 Cherry Creek North Drive, Denver, Colorado, 80209, and that I
am President of Excergy Corporation and, as a lawful representative of said corporation,
I am authorized to execute certain documents, including the Professional Services
Agreement with City of Fort Collins, Colorado (RFP #7414.— Technical Consultation and
Program Management Services for Smart Grid Solutions), on behalf of said corporation.
w
In witness whereof, I set my hand before a Notary Public on this I U day of
August, 2012.
Jaif(es A. Ketchledge
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
Subscribed and sworn before me this U day of August, 2012, by James A.
Ketchledge.
WITNESS my hand and official seal.
MY COMMISSION EXPIRES:
My commission expires: APril 5, 2015
Agreement shall obligate the City to have any particular service performed by the Service
Provider.
3. Time of Commencement and Completion of Services. The services to be performed
pursuant to this Agreement shall be initiated as specified by each written Work Order or oral
emergency service request. Oral emergency service requests will be acted upon without
waiting for a written Work Order. Time is of the essence.
4. Contract Period. This Agreement shall commence September 1, 2012, and shall
continue in full force and effect until August 31, 2013, unless sooner terminated as herein
provided. In addition, at the option of the City, the Agreement may be extended for additional
one year periods not to exceed four (4) additional one year periods. Renewals and pricing
changes shall be negotiated by and agreed to by both parties. The Denver Boulder Greeley
CPIU published by the Colorado State Planning and Budget Office will be used as a guide.
Written notice of renewal shall be provided to the Professional and mailed no later than ninety
(90) days prior to contract end.
5. Early Termination by City. Notwithstanding the time periods contained herein, the
City may terminate this Agreement at any time without cause by providing written notice of
termination to the Professional. Such notice shall be delivered at least fifteen (15) days prior to
the termination date contained in said notice unless otherwise agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage prepaid and
sent to the following addresses:
Professional: City: With Copy to:
Excergy Corporation City of Fort Collins City of Fort Collins
Attn: James Ketchledge Attn: Dennis Sumner Attn: Purchasing Dept.
3773 Cherry Creek North Drive, Suite 575 PO Box 580 PO Box 580
Denver, CO 80209 Fort Collins, CO 80522 Fort Collins, CO 80522
In the event of any such early termination by the City, the Professional shall be paid for services
rendered prior to the date of termination, subject only to the satisfactory performance of the
Professional's obligations under this Agreement. Such payment shall be the Professional's sole
right and remedy for such termination.
6. Design, Proiect Indemnity and Insurance Responsibility. The Professional shall be
responsible for the professional quality, technical accuracy, timely completion and the
coordination of all services rendered by the Professional, including but not limited to designs,
plans, reports, specifications, and drawings and shall, without additional compensation,
promptly remedy and correct any errors, omissions, or other deficiencies. The Professional
shall indemnify, save and hold harmless the City, its officers and employees in accordance with
Colorado law, from all damages whatsoever claimed by third parties against the City; and for the
City's costs and reasonable attorney's fees, arising directly or indirectly out of the Professional's
negligent performance of any of the services furnished under this Agreement. The Professional
shall maintain commercial general liability insurance in the amount of $500,000 combined single
limits and errors and omissions insurance in the amount of $1,000,000.
7. Compensation. In consideration of the services to be performed pursuant to this
Agreement, the City agrees to pay Professional on a time and reimbursable direct cost basis
according to the following schedule:
a. Professional Services:
i. Hourly Billing Rates:
Title
2012 Hourly Billing Rate:
Executive Consultant
$350.00
Project Director
$212.00
Project Manager
$191.00
Associate Project Manager
$150.00
Solution Architect
$191.00
Principal Consultant
$191.00
System Engineer
$191.00
Communications Specialist
$212.00
ii. Annual Adjustments: Applicable annual percentage adjustments to 2017 based
on adjustments made for services provided beginning January first of each year are
3.5% approximately.
b. Reimbursable direct costs: Reimbursable expenses shall be conform to Fort Collins
AMFC Expense Guidelines attached hereto as Exhibit D and as may be revised from
time to time over the course of this agreement subject to factors influencing applicable
cost and subject to mutual agreement by both parties.
c. Payment: Monthly partial payments based upon the Professional's billings and
itemized statements of reimbursable direct costs 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 reimbursable direct costs. Final payment shall be made following
acceptance of the work by the City. Upon final payment, all designs, plans, reports,
specifications, drawings and other services rendered by the Professional shall become
the sole property of the City.
8. City Representative. The City will designate, prior to commencement of work, its
project representative who shall make, within the scope of his or her authority, all necessary and
proper decisions with reference to the project. All requests for contract interpretations, change
orders, and other clarification or instruction shall be directed to the City Representative.
9. Monthly Report. Commencing thirty (30) days after the date of execution of this
Agreement and every thirty (30) days thereafter, Professional is required to provide the City
Representative with a written report of the status of the work with respect to the Scope of
Services, Work Schedule, and other material information. Failure to provide any required
monthly report may, at the option of the City, suspend the processing of any partial payment
request.
10. Independent Contractor. The services to be performed by Professional are those of
an independent contractor and not of an employee of the City of Fort Collins. The City shall not
be responsible for withholding any portion of Professional's compensation hereunder for the
payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose.
11. 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.
12. Acceptance Not Waiver. The City's approval of drawings, designs, plans,
specifications, reports, and incidental work or materials furnished hereunder shall not in any way
relieve the Professional of responsibility for the quality or technical accuracy of the work. 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.
13. Default. Each and every term and condition hereof shall be deemed to be a material
element of this Agreement. In the event either party should fail or refuse to perform according
to the terms of this agreement, such party may be declared in default.
14. Remedies. In the event a party has been declared in default, such defaulting party
shall be allowed a period of ten (10) days within which to cure said default. In the event the
default remains uncorrected, the party declaring default may elect to (a) terminate the
Agreement and seek damages; (b) treat the Agreement as continuing and require specific
performance; or (c) avail himself of any other remedy at law or equity. If the non -defaulting
party commences legal or equitable actions against the defaulting party, the defaulting party
shall be liable to the non -defaulting party for the non -defaulting party's reasonable attorney fees
and costs incurred because of the default.
15. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire
agreement between the parties and shall be binding upon said parties, their officers, employees,
agents and assigns and shall inure to the benefit of the respective survivors, heirs, personal
representatives, successors and assigns of said parties.
16. Law/Severability. The laws of the State of Colorado shall govern the construction,
interpretation, execution and enforcement of this Agreement. In the event any provision of this
Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision of this Agreement.
17. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S.,
et. seq., Professional represents and agrees that:
a. As of the date of this Agreement:
1. Professional does not knowingly employ or contract with an illegal alien who
will perform work under this Agreement; and
2. Professional will participate in either the e-Verify program created in Public
Law 208, 104th Congress, as amended, and expanded in Public Law 156, 108th
Congress, as amended, administered by the United States Department of
Homeland Security (the "e-Verify Program") or the Department Program (the
"Department Program"), an employment verification program established
pursuant to Section 8-17.5-102(5)(c) C.R.S. in order to confirm the employment
eligibility of all newly hired employees to perform work under this Agreement.
b. Professional shall not knowingly employ or contract with an illegal alien to perform
work under this Agreement or knowingly enter into a contract with a subcontractor that
knowingly employs or contracts with an illegal alien to perform work under this
Agreement.
c. Professional is prohibited from using the e-Verify Program or Department Program
procedures to undertake pre -employment screening of job applicants while this
Agreement is being performed.
d. If Professional obtains actual knowledge that a subcontractor performing work under
this Agreement knowingly employs or contracts with an illegal alien, Professional shall:
1. Notify such subcontractor and the City within three days that Professional has
actual knowledge that the subcontractor is employing or contracting with an
illegal alien; and
2. Terminate the subcontract with the subcontractor if within three days of
receiving the notice required pursuant to this section the subcontractor does not
cease employing or contracting with the illegal alien; except that Professional
shall not terminate the contract with the subcontractor if during such three days
the subcontractor provides information to establish that the subcontractor has not
knowingly employed or contracted with an illegal alien.
e. Professional shall comply with any reasonable request by the Colorado Department
of Labor and Employment (the "Department") made in the course of an investigation that
the Department undertakes or is undertaking pursuant to the authority established in
Subsection 8-17.5-102 (5), C.R.S.
f. If Professional violates any provision of this Agreement pertaining to the duties
imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If this
Agreement is so terminated, Professional shall be liable for actual and consequential
damages to the City arising out of Professional's violation of Subsection 8.17.5-102,
C.R.S.
g. The City will notify the Office of the Secretary of State if Professional violates this
provision of this Agreement and the City terminates the Agreement for such breach.
18. Red Flaps Rules. Service Provider must implement reasonable policies and
procedures to detect, prevent and mitigate the risk of identity theft in compliance with the
Identity Theft Red Flags Rules found at 16 Code of Federal Regulations part 681. Further,
Service Provider must take appropriate steps to mitigate identity theft if it occurs with one or
more of the City's covered accounts.
19. Special Provisions. Special provisions or conditions relating to the services to be
performed pursuant to this Agreement are set forth in Exhibit "B " - Confidentiality, attached
hereto and incorporated herein by this reference and Exhibit "C" American Recovery &
Reinvestment Act of 2009.
20. Methodology. The Professional has developed numerous proven -proprietary products,
software, processes, tools, materials, industry templates and data, concepts and knowledge that
provide the methodologies for delivery of the Services (collectively, "Methodologies"). The City
agrees that the Professional owns as its intellectual property all such Methodologies and any
modifications or enhancements thereto and derivative works based thereon. The City agrees to
use its best efforts to prevent the disclosure of any such proprietary Methodologies to external
or third parties without the prior approval in writing from the Professional. Nothing in this
Agreement shall restrict or prohibit the Professional's right to use concepts, techniques, know
how or other intellectual property used or developed in the course of performing these Services.
The Professional grants to the City a royalty free license to reproduce and use, for the City's
business purposes only, any Methodologies included in the work product developed for the City
related to this Agreement.
21. Limitation of Liability. The Professional's liability arising out of its performance under this
Agreement shall be limited to the City's actual direct damages not to exceed the amount paid to
Professional under this Agreement. This limitation is not applicable to the Professional's liability
under the indemnification provisions of Section 6. In no event shall the Professional, its
employees or agents be liable for costs of procuring substitute goods or services; loss of
earnings, profits or interest; judgments, awards or contribution thereto or any other special,
indirect or consequential damage, however caused. Except for an obligation to make
payments, neither party shall be in default to the extent any nonperformance is caused by a
circumstance beyond such party's reasonable control. The warranties, obligations, liabilities and
remedies of the parties, as provided herein, are exclusive and in lieu of any others available at
law or in equity. To the fullest extent allowed by law, releases from, and limitations of liability
shall apply notwithstanding the breach of contract, tort including negligence, strict liability or
other theory of legal liability of the party released or whose liability is limited.
p4.F0RT
THE CITY OF FORT COLLINS, COLORADO
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By:
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.�c0.�(Jaines B. O'Neill Il, CPPO, FNIGP
LO irector of Purchasing & Risk Management
DATE:
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City Clerk
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A sistant City Attornkj7--
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EXCERGY CORPORA
By: / �L
Title:
CORPORATE PRESIDENT
Date: 9/l7`�/ ZGl
(Corporate Seal)
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