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HomeMy WebLinkAbout475843 ENSPIRIA SOLUTIONS INC - CONTRACT - RFP - 7140 TECHNICAL CONSULTANT AND PROGRAM MANAGEMENT FFIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT THIS FIRST AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT ("Amendment") is made and entered into the day -,and, year set forth below by and between THE CITY OF FORT COLLINS, COLORADO; aWunicipal Corporation ("City"). and ENSPIRIA SOLUTIONS, INC. ("Professional.). o � RECITALS: ' .r' A. On August 6, 2010, the parties entered into that certain Professional Services Agreement referenced in City of Fort Collins Purchase Order No. 9104131 (the "Agreement"). B. The parties now wish to amend the Agreement to add certain federal requirements related to the funding of the City's project (of which the Agreement is a part) by the U.S. Department of Energy. NOW THEREFORE, in exchange for the promises contained in the Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: That Paragraph 22 of the Agreement is hereby amended to read as follows: 22. Special Provisions. Special provisions or conditions relating to the services to be performed pursuant to this Agreement are set forth in Exhibit B — Confidentiality, consisting of one (1) page, Exhibit C — American Recovery & Reinvestment Act of 2009, consisting of three (3) pages, Exhibit D, consisting of one (1) page, and Exhibit E — Additional Federal Requirements, consisting of three (3) pages, all of which Exhibits are attached hereto and incorporated herein by this reference. 2. That attached Exhibit E is hereby incorporated into the Agreement. In the event of any conflict between the terms of the Agreement and Exhibits B through E, the terms of the Exhibits will control. 3. The terms of the Agreement remain in full force and effect except as modified by this Amendment. City of Fort Colluis Utilities Enspiria Solutions, Inc. Software Services Agreement B. Downtime. Enspiria will provide Client with not less than ten (10) days advance notice of any Scheduled Downtime. Notifications of Scheduled Downtime shall be delivered to Client's Primary Contact via electronic mail. Client understands and agrees that there may be instances where Enspiria needs to interrupt access to the Software Services without notice in order to protect the integrity of the Software or Software Services due to security issues, virus attacks, spam issues or other unforeseen circumstances. C. Access limitations. The maximum number of Client's employees, contractors, and other agents that are simultaneously accessing or using the Software at any given time shall not exceed the number of Concurrent Users specified in the applicable Work Order: Client's use of the Software may not exceed the scope of the use provisions above without the express written agreement of Enspiria and Client's payment of an increased Subscription Fee (based on the then -current list price). D. Software Availability. During the Subscription Period, the Software shall be deemed available at times described above unless the Software is not accessible to Client due to (i) a hardware failure of the server at the Enspiria Hosting Site, or (ii) a connection failure between the server hosting the Software and the closest internet router. Software bugs, errors or other problems are not relevant to availability, and are addressed under Section 2(B) —Software Services Support hereof. Enspiria shall not be responsible for the Software not. being available due to any cause beyond its control, including without limitation: (i) configuration of Client's frewall, antivirus software or hardware; (ii) Client's connection to the Internet; (iii) Internet congestion or (iv) any cause specified in Section 17 hereof. G. COMPENSATION FOR SERVICES RENDERED A. Price of Software Services. Client agrees to pay Enspiria a Subscription Fee for the Software Services provided during the Subscription Period in accordance with the pricing terms specified in each Work Order. B. Invoicing. Enspiria shall submit an invoice for the Subscription Fees related to the Software Services to be provided during the Initial Term (as described in the Work Order) of the Subscription Period upon execution of the applicable Work Order. Upon expiration of the Initial Term, Enspiria shall invoice Client at the beginning of each Renewal Term (as described in the Work Order). C. Expenses. Client agrees to pay expenses in accordance with the terms specified in each Work Order. If expenses are not included in the price of Software Services, such expenses will be reimbursed to Enspiria at cost. D. Taxes. The prices of Software Services provided under this Agreement are quoted exclusive of all state, local and other sales and use taxes. In the event such taxes and/or similar charges become applicable to Enspiria's Software Services, Client shall reimburse Enspiria for such applicable tax based upon a line item in the applicable invoice. 7. PAYMENT Enspiria Salutions,DB1119 5- Citv of Fort Collins Utilities Enspiria Solutions, Inc. Software Services Agreement Invoices shall be paid NET 30 days from date of invoice. In the event that an invoice remains unpaid for thirty (30) days after the date it is received by Client, Enspiria may charge Client interest at the rate of one and one-half percent (1.5%) per month on the unpaid balance over thirty (30) days. 8. TERM; TERMINATION OF AGREEMENT A. Term. This Agreement shall commence on the effective date first set forth above and shall remain in full force and effect until the earlier of (i) expiration of two (2) years and (ii) earlier termination, as provided herein. B. Default. If either party shall at any time commit a material breach of any covenant or obligation under this Agreement and (i) (with the exception of a breach of Section 10 hereof for which there is no cure period) shall fail to cure such breach within,ten (10) days of written notice of such breach or (ii) if such breach is not curable within ten (10) days of written notice, shall fail to diligently commence to cure it within ten (10) days of notice, the non -breaching party may at its option terminate this Agreement by written notice. C. Insolvency. Except as may be prohibited by the U.S. bankruptcy laws, in the event of either party's insolvency or inability to pay debts as they become due, voluntary or involuntary bankruptcy proceedings by or against a party hereto, or appointment of a receiver or assignment for the benefit of creditors, the other party may terminate this Agreement by written notice. D. Payments Upon Termination. Upon the expiration or termination of this Agreement or a Work Order for any reason, Client shall pay to Enspiria all undisputed amounts due and payable hereunder for Software Services performed prior to expiration or termination. E. Refund of Subscription Fees. In the event of termination of this Agreement or a Work Order for default or insolvency of Enspiria as described in Sections 8(B) or (C) above, Enspiria shall refund Client a pro rata portion of the then current Subscription Fees based upon the remaining portion of the Subscription Period to which the Subscription Fees apply. In the event of termination of this Agreement or a Work Order for any other reason, Client shall not be entitled to a refund of any portion of the Subscription Fees. F. Effect of Termination. Upon expiration or termination of this Agreement or a Work Order for any reason, Client's access to and use of the Software shall cease immediately. Upon expiration or termination of this Agreement or a Work Order, Enspiria shall within thirty (30) days following such expiration or termination certify the destruction of any Client Data within the possession of Enspiria. The parties agree to work in good faith to execute the foregoing in a timely and efficient manner. 9. INTELLECTUAL PROPERTY A. Software Services. All Software, Documentation and other Software Services are licensed and not sold. Client agrees that Enspiria and its third party licensors own all intellectual property rights, including, but not limited to any patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software, Documentation and Software Enspiria SolurionsrDB1119 6- Citv of Fort Collins Utilities Enspiria Solutions, Inc. Soffirare Services Agreement Services, and any corrections, bug fixes and updates to such Software, Documentation, and any derivative works thereof. Client may not. copy or distribute the Software or the Documentation, electronically or otherwise, for any purpose. B. Client Data. Notwithstanding the above, the Software Services do not include, and Client shall retain title to (i) Confidential Information of Client, (ii) all Client Data and derivatives thereof, and (iii) all other proprietary rights of Client. As stated in Section 3 hereof, Client Data, shall be and remain the sole and exclusive property of Client. 10. CONFIDENTIALITY OF INFORMATION A. Confidential Information. It is expected that pursuant to this Agreement one party may disclose to the other. certain information which will be considered by the disclosing party to be confidential, proprietary, or trade secret information (hereinafter referred to as "Confidential Information"). All such Confidential Information shall remain solely the property of the disclosing party, and its confidentiality shall be maintained and protected by the receiving party with no less than a reasonable degree of care. Except to the extent required by this Agreement and subject to the provisions of the Colorado Open Records Act, Sec. 24-72-201-et seq. Colo. Rev. Stat., the receiving party agrees not to duplicate in any manner the Confidential Information or to disclose it to any third party not having a need to know for the purposes of this Agreement. The receiving party further agrees not to use any Confidential Information for any purpose other than the implementation of this Agreement. The receiving party acknowledges and agrees that the disclosing party would be irreparably harmed if any of its Confidential Information were to be disclosed to third parties and further agrees that the disclosing party shall have the right to seek and obtain injunctive relief, without the necessity of posting a bond, cash, or otherwise, upon any violation of this section, in addition to any and all rights or remedies which may be available at law or in equity. Confidential Information does not include information which the receiving party can establish (i) was known to the receiving party prior to disclosure, (ii) is or becomes generally known or available to the public other than as a result of disclosure by receiving party, (iii) is disclosed to receiving party on a non - confidential basis by a third party with no obligation of confidentiality to disclosing party, (iv) is independently developed by receiving party without reference to Confidential Information, or (v) is a public record open for inspection under Colorado law. B. Return of Information. Upon termination or expiration of this Agreement for any reason, the receiving party shall return to the disclosing party any Confidential Information belonging to the disclosing party which is in the receiving party's possession, except as required by the Client's Records Retention Policy. 11. INDEPENDENT CONTRACTOR STATUS Enspiria shall perform the Software Services under this Agreement as an independent contractor, and will be responsible for any and all social security, unemployment, workers' compensation and other withholding taxes for all of Enspiria's employees. Nothing contained in this Agreement shall be construed to create a relationship of employer and employees, master and servant, principal and agent, or coventurers between Client and Enspiria, or between Client and any employee of Enspiria. Enspiria agrees that it is not an agent of Client and does not have the authority to act on behalf of Client or to bind Client in any respect whatsoever. Client shall have no right to control or Enspiria Solulions%DD1119 7- City of Fort Colluis Utilities Enspiria Solutions, Inc. Soflware Services Agreement direct the details, manner, or means by which Enspiria performs the Services hereunder. In performing such Services, Enspiria shall have no control over or management authority with respect to Client or its operations. 12. NON -SOLICITATION OF ENSPIRIA EMPLOYEES Client agrees that it will not, during the term of this Agreement and for a period continuing for twelve (12) months after the expiration or termination of this Agreement, for any reason, directly or indirectly (i) solicit, influence, entice, or encourage any person who is then or had been within one (1) year of such action an employee of Enspiria to cease his or her relationship with Enspiria, or otherwise interfere with, disrupt, or attempt to disrupt any past, present, or prospective relationship, contractual or otherwise, between Enspiria and any of its employees, nor (ii) hire or attempt to hire, whether as an employee, consultant, or otherwise, any person who was employed by Enspiria at any time during the term of this Agreement. 13. NOTICES All notices and formal communications between the parties to this Agreement shall be in writing and addressed to the appropriate party as follows: CLIENT: Dennis Sumner 700 Wood Street Fort Collins, CO 80522 Telephone: (970) 221-6718 Facsimile: (970) 221-6619 With a copy to: City of Fort Collins Purchasing Dept. 215 N. Mason Street P.O. Box 580 Fort Collins, CO 80522 ENSPIRIA: President Enspiria Solutions, Inc. 5613 DTC Parkway, Suite 700 Greenwood Village, CO 80111 Telephone: (303) 741-8400 Facsimile: (303) 799-6766 All notices required or permitted hereunder shall be sufficient if given in writing and if delivered personally, by overnight courier, or by certified mail, return receipt to Enspiria or Client, as the case may be, at the addresses set forth above or at such other address as such party shall have designated in the manner provided in this section. Notice shall be Enspiria SolulionsiDB1119 8- Cite of Fort Collins Utilities Enspiria Solutions, Inc. Software Services Agreement deemed given on the date of receipt, in the case of personal delivery, or on the delivery or refusal date, as specified on the return receipt, in the case of overnight courier or certified mail. A party may change the address to which notices are to be sent by giving five (5) days written notice of such change of address to the other party. 14. INSURANCE During the term of this Agreement, Enspiria shall provide and maintain at its own expense the following kinds of insurance with limits of liability as set forth below: Worker's Compensation Statutory Commercial General Liability $2,b00,000 Automobile Liability $1,000,000 Excess Liability $2,000,000 Upon request, Enspiria shall provide Client with a certificate of insurance evidencing the coverages required above and stating the policy numbers and inception and expiration dates of all policies. 15. INDEMNITY A. Intellectual Property Indemnity. Enspiria shall indemnify and defend Client against any third parry claims that the Software or Software Services provided to Client by Enspiria infringe any United States patent or copyright during the term of the applicable Work Order. In the defense or settlement of any claim relating to infringing Software Services or Professional Services, Enspiria shall, in its reasonable judgment and at its option and expense: (i) obtain for Client the right to. continue using the Software and/or Software Services; (ii) replace or modify the Software and/or Software Services so that it becomes non -infringing while giving substantially equivalent functionality; or (iii) if Enspiria determines the remedies in (i) or (ii) are not commercially reasonable, as its sole obligation, terminate the applicable Work Order and refund to Client the related Subscription fees: Enspiria shall have no liability to indemnify and defend Client to the extent (i) the alleged infringement is based on infringing information, data, software, applications, services or programs created or furnished by or on behalf of Client; (ii) the alleged infringement is the result of a modification made by anyone other than Enspiria; or (iii) Client uses the Software and/or Software Services other than in accordance with this Agreement or any Documentation provided by Enspiria. This Section states Enspiria's entire liability and Client's sole and exclusive remedy for claims relating to infringement. B. General Indemnity. Enspiria agrees to defend, indemnify and hold Client and Its officers, directors, employees and agents harmless against any and all third party actions, claims, liabilities, damages, losses, costs or expenses of whatever nature or character for all injuries or damage of any type to any person or tangible property, if and to the extent caused by the negligent acts or omissions of Enspiria, its employees, or any subcontractor or its employees related to performing the Services pursuant to this Agreement. Where liability is attributable to the joint negligence or fault of Enspiria and any other person (including Client), Enspiria's duty of indemnification shall be limited to Enspiria's allocable share of such joint negligence or fault. Brrspiria SohilimmDB1 J 19 9- City of Fort Collins Utilities Enspiria Solutions, Inc. Software Services Agreement C. Conditions of Indemnification. The foregoing indemnification obligations are conditioned upon Client (i) notifying Enspiria promptly in writing of any claim or action pursuant to which Client is requesting indemnification, (ii) giving Enspiria sole control of the defense thereof and any related settlement negotiations, and (iii) cooperating and, at Enspiria's request and expense, assisting in such defense or settlement. 16. WARRANTY AND LIMIT OF LIABILITY A. Software Services Warranty. Enspiria has the experience and is qualified to perform the tasks involved with providing the Software Services in an efficient and timely manner. Enspiria will use commercially reasonable efforts to make the Software accessible using the Software Services in accordance with Section 5 hereof. Enspiria shall not be responsible for any failure of the Software Services due to a cause beyond its control. B. Software Warranty. The Software will achieve in all material respects the functionality described in the Documentation, and that such functionality shall be maintained during the Subscription Period of the applicable Work Order. C. Remedies.—Enspiria shall, without additional compensation and at its own cost and expense, and in accordance with Section 2(B) — Software Services Support set forth herein: (i) use commercially reasonable efforts to restore access to the Software using the Software Services and/or (ii) correct or revise any failure of the Software to achieve the functionality described in the Documentation. The foregoing represents Enspiria's sole obligation and Client's sole and exclusive remedy regarding warranties of the Software Services and Software. D. Disclaimer. THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT BY WAY OF LIMITATION, ANY IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE ABOVE WARRANTIES APPLY ONLY WITH RESPECT TO THE SOFTWARE AND SOFTWARE SERVICES PROVIDED BY ENSPIRIA PURSUANT TO THIS AGREEMENT. ENSPIRIA'S THIRD PARTY LICENSORS MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, THAT THE SOFTWARE WILL BE ERROR FREE, AND SUCH THIRD PARTY LICENSORS, THEIR AFFILIATES OR SUPPLIERS SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, ARISING FROM USE OF THE SOFTWARE. E. Inaccurate Information or Client Data. Enspiria shall not be responsible for any inaccuracies or insufficiencies contained in the Software Services resulting from incomplete or inaccurate information or Client Data supplied by Client or any third party not hired by Enspiria. F. Limit of Liability. Enspiria's liability arising out of its performance under this Agreement shall be limited to Client's actual direct damages not to exceed the Subscription Fees paid to Enspiria for Software Services during the immediately preceding twelve (12) months under the individual Work Order pursuant to which such liability arises. This monetary limitation of liability shall not apply to Enspiria's liability under Section 15 — Indemnity. In no event shall Enspiria, its employees or agents be liable for costs of procuring substitute goods or services; loss of earnings, profits or interest; Enspiria Solutions'DB1119 10- City of Fort Collins Utilities Enspiria Solutions, Inc. Software Services Agreement judgments, awards or contribution thereto or any other special, indirect or consequential damage, however caused. . G. Application and Exclusivity. 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. 17. DELAYS Any loss, damage, or delay in, or failure of, performance by Enspiria shall not constitute a default hereunder, be a ground for termination of this Agreement, or give rise to any claims for damage against Enspiria if such loss, damage, delay, or failure is attributable in whole or in part to any cause beyond the reasonable control of Enspiria. These causes include, but are not limited to, acts or omissions of Client causing delay, acts of God or the public enemy, compliance with any order, decree, or request of any governmental authority, fires, floods, explosions, accidents, riots, strikes, labor difficulties, or other concerted acts of workmen, power failure or any other cause not within the reasonable control of Enspiria. In the event of the occurrence of any such delay, the time for the performance by Enspiria of the Software Services shall be extended for a period of time equivalent to the time reasonably attributable to such delay. 18. ALTERNATIVE DISPUTE RESOLUTION A. Procedure. The parties desire to resolve disputes without litigation. Accordingly, except for an action seeking a temporary restraining order or injunction related to the purposes of this Agreement, or a suit to compel compliance with this dispute resolution provision, the parties agree to use the following alternative dispute resolution procedure as their initial remedy with respect to any controversy or claim arising out of or relating to this Agreement or its breach. At the written request of a party, the project managers shall meet and negotiate in good faith to resolve any dispute arising under this Agreement. If these persons cannot resolve the dispute within fifteen (15) business days of their initial meeting to resolve the dispute, then the senior management of each party shall meet to resolve the dispute. Thereafter, the location, format, frequency, duration, and conclusion of these discussions shall be left to the discretion of the representatives. Upon agreement between the parties, the representatives may utilize other alternative dispute resolution procedures, such as mediation, to assist in the negotiations. Discussions and correspondence among the representatives for the purposes of these negotiations shall be treated as Confidential Information, developed for the purpose of settlement, exempt from discovery and production, which shall not be admissible in arbitration or in any lawsuit without the concurrence of both parties. Documents identified in or provided with such communications, which are not prepared for purposes of the negotiations, are not so exempted and may, if otherwise admissible, be admitted in evidence in the arbitration or lawsuit. If the dispute is not resolved within thirty (30) business days after the first meeting of the project managers, either party is free to use any other available remedy, including litigation, or, if agreed to by both parties, arbitration. Enspiria Sohdions/DB1119 11- Citv of Fort Collins Utilities Enspiria Solutions, Inc. Software Services Agreement B. Continued Services. Enspiria shall carry on and be paid for the Software Services not in dispute during any arbitration or litigation proceedings, unless otherwise agreed by Enspiria and Client in writing. 19. MISCELLANEOUS A. Governinq Law. This Agreement will be governed by the laws of the State of Colorado, US, without regard to the conflicts of laws principles of such State. B. Enforcement Expenses. In the event of any arbitration or legal action to enforce any of the terms of the Agreement, the prevailing party shall be entitled to its reasonable attorney fees, including attorney fees at trial and on appeal. C. Captions and Headings. The captions and headings herein are for convenience only and in no way shall be used in the interpretation or construction of this Agreement. D. Waiver of Compliance. Any failure by either party hereto to enforce at any time any term or condition of this Agreement shall not be considered a waiver of that parry's right to later enforce each and every term and condition hereof. E. Assignment and Binding Effect. This Agreement may not be assigned by either party hereto without the prior written consent of the other party, which shall not be unreasonably withheld of delayed, and any such attempted assignment shall be void, except that, each party may assign this Agreement, and/or any of its rights and/or obligations hereunder upon written notice to the other party in the event of a merger or acquisition, without the prior written consent of the other party. This Agreement shall be binding upon and inure to the benefit of each of the parties and its respective successors and permitted assigns. F. Severability. If any provision of this Agreement or the application thereof to any party or circumstance shall be declared invalid, illegal, or unenforceable, the remainder of this Agreement shall be valid and enforceable to the extent permitted by applicable law. In such event, the parties shall use their best commercially reasonable efforts to replace the invalid or unenforceable provision with a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision. G. Survival of Terms. The terms and conditions of this Agreement shall survive the expiration or termination of this Agreement to the full extent necessary for their enforcement and for the protection of the party in whose favor they operate. H Limitation on Actions No action, regardless of form, arising under or relating to this Agreement, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment of any invoice may be brought by a party not later than one year following the date of the last payment due to such party of any invoice hereunder. I. Currency. All monetary references in this Agreement are references to United States currency. Solutions,DB1119 12- City of Fort Collins Utilities Enspiria Solutions, Inc. Software Services Agreement J. Entire Agreement. This Agreement and the Attachments hereto constitute the entire agreement between the parties and shall supersede all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. If Client issues a purchase order, memorandum, or other instruments covering the Software or Services provided under this Agreement, it is agreed that such document is for Client's internal purposes only and all terms and conditions contained therein which are additional to or inconsistent with this Agreement shall be of no force and effect.. This Agreement shall not be varied other than by an instrument in writing of subsequent date hereto, executed by the duly authorized representatives of both parties. K. Obligations Subiect to Appropriation. Obligations of the Client in subsequent fiscal years are subject to the annual appropriation of funds sufficient and intended for such purpose by Client's City Council in its sole discretion. L. Federal Requirements. Because the Client's project is funded in part by the U.S. Department of Energy, the parties agree to comply with the obligations of "Contractor' described in the Federal Requirements attached and incorporated herein as Attachment B. In the event of a conflict between the terms of this Agreement and the Federal Requirements, the Federal Requirements will control. IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first set forth above. CITY OF FORT COLLINS, COLORADO ENSPI O�LU,TI INC. By: �� By: i� . " LC Name: James B. O'Neill II, CPPO, FNIGP Name: Chip Scott Title: Director of Purchasing and Risk Management ATTEST: City Clerk APPROV � F70M: Assistan City Atte6hey Title: President by Legal5/2/12:D8 �OF FCRT� :Z Enspiria Solutions DB1119 13- City of Fort Collins Utilities Enspiria Solutions, Inc. Software Services Agreement WORK ORDER No. 1 This Work Order No.1, dated effective April 12, 2012, is attached to and made a part of the Software Services Agreement, dated April 12, 2012, between Enspiria Solutions, Inc. ("Enspiria") and The City of Fort Collins, Colorado ("Client'). SOFTWARE SERVICES TO BE PROVIDED: Enspiria shall provide the Software Services referenced in Section 2 of the Software Services Agreement in accordance with the following criteria: A. Software: Web Based Software Licensed to Client: ESlntial Metrics Tool B. Enspiria Hosting Site: 5613 DTC Parkway, Suite 700, Greenwood Village, CO 80111 C. Number of Concurrent Users: 5 D. Client Data: Meter Interval Data TERM 1 SUBSCRIPTION PERIOD: The term of this Work Order shall commence upon the effective date set forth above and shall continue through the end of the Subscription Period, as defined below. The Subscription Period during which Client may access the Software shall commence upon September 1, 2012 and continue for an initial period ending on December 31, 2013 (the "Initial Term"), unless sooner terminated in accordance with the Software Services Agreement. Upon expiration of the Initial Term, the Subscription Period shall automatically renew for successive renewal terms of one calendar month each (each a "Renewal Term"), unless sooner terminated in accordance with the Software Services Agreement, or Client gives Enspiria written notice of termination not less than thirty (30) days prior to commencement of any Renewal Term. The term "Subscription Period" shall mean the Initial Term and all Renewal Terms. PRIMARY CONTACT: Dennis Sumner, City of Fort Collins Utilities, AMFC Project Manager COMPENSATION AND AUTHORIZATION: f: Software Services. Client shall pay Enspiria a monthly Subscription Fee of $5,000 during the Subscription Period. Upon expiration of the Initial Term, Enspiria shall invoice Client at the beginning of each Renewal Term."" INVOICE AND PAYMENT TERMS: Enspiria shall invoice Client, and Client' shall pay Enspiria in accordance with the Services Agreement. Enspiria Solulions`DB11] 9 14- THE C OF FORT COLLINS, COLORADO Date: 2-- : Z By: r Ja B. O'Neill II, C PO, FNIGP of urchasing & Risk Management c, ATTEST: Vim:' ':O� wa SEAL: S Z City Clerk ' � APPR ED T FORM: c0<pRADD•, As nt Cit ttorney ATTEST: orate S cretary ENSPIRIA SO,L� S, VOL— We President Date: 57/i, //Z_ 't'Ijg1111� � •'ry' ' i [Corporate Sealp -' ft '.pL J U1 •ii� City of Fort Colluis Utilities Enspiria Solutions, Inc. Software Services Agreement INVOICE PREPARATION: On each invoice, Enspiria shall provide the following information: • Agreement Number or Purchase Order Number Date of Invoice • Number of Invoice (in sequential order) • Billing Period • Description of Services Provided • Hours Expended, if applicable • Description of Payment Milestone, if applicable • Any Authorized Expenses (with receipts), if applicable • Total Cost per Project Enspiria shall submit one (1) invoice to the following address: ACCOUNTS PAYABLE City of Fort Collins Utilities 700 Wood Street Fort Collins, Colorado 80522 In the event of any conflict between the terms of this Work Order and the terms of the Software Services Agreement, the terms of the Software Services Agreement will control. ENSPIR OLUTION INC. City of Fort Collins Utilities By: �? By: Name: Chip Scott Name: J mes B. O'Neill ll, CPPO, FNIGP Title: President Title: Diirreeccto of Purchasing & Risk Management s/2/> 2 Date: O L (r Enspiria SolutionsiDB1119 15- Citv of Fort Collins Utilities Enspiria Solutions, Inc. Software Services Agreement ATTACHMENT B 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. Enspiria SOlutions,DB1119 16- City of Fort Collins Utilities Enspiria Solutions, Inc. Software Services Agreement 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 Contractor. 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 SblutionsIDB1119 Citv of Fort Colluis Utilities Enspiria Solutions, Inc. Software Services Agreement 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 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" 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: 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. Enspiria SolulionsIDBI119 18- City of Fort Collins Utilities Enspiria Solutions, Inc. Software Services Agreement 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)(1 5)(h)(i)(b) 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. Enspiria Solulions,DBJ 119 19- EXHIBIT E ADDITIONAL 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 Contractor. 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 govem 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 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. City of Fort Colluis Utilities Enspiria Solutions, hic. Software Services Agreement ESINTIALM METRICS TOOL SOFTWARE SERVICES AGREEMENT BETWEEN CITY OF FORT COLLINS UTILITIES AND ENSPIRIA SOLUTIONS, INC. This SOFTWARE SERVICES AGREEMENT (hereinafter referred to as "Agreement") is made and entered into effective as of this 12 day of April 2012, by and between The City of Fort Collins, Colorado, a Municipal Corporation (hereinafter referred to as "Client") and Enspiria Solutions, Inc., of 5613 DTC Parkway, Suite 700, Greenwood Village, CO 80111 (hereinafter referred to as "Enspiria"). In consideration of the covenants and agreements contained. herein and other good and valuable consideration, the sufficiency of which is hereby mutually acknowledged, the parties hereto agree as follows: 1. STATEMENT OF SERVICES — WORK ORDERS A. Services. Enspiria agrees to (i) license and deliver certain hosted web based Software (as defined below) as a service, and certain other related services, necessary for Client's productive use of such Software, as described herein, on a subscription fee basis (collectively, "Software Services"). The Software Services are described herein and specified in the written Work Orders executed by both parties, incorporated herein by reference and made a part hereof. The Work Orders shall be substantially in the form attached hereto as Attachment A and made a Part hereof. Enspiria shall perform the Services in compliance with the terms and conditions of this Agreement. This Agreement and each Work Order shall remain in effect unless terminated as provided herein. B. Client Obligations. Client shall perform its responsibilities as described or referred to herein and in each Work Order, and fully cooperate with Enspiria in its performance of the Software Services. C. Term of Software Service Performance. For the term' of the Subscription Period described in the applicable Work Order ("Subscription Period"), as the same may be amended, Enspiria shall make the Software Services available to Client as described in Section 5 hereof. D. Modification of Software Services. Client and Enspiria reserve the right to subsequently amend a Work Order to make changes to the Software Services to be performed. If such change(s) increase or decrease either the cost of or time required to perform the required Software Services, then the parties will mutually agree to an equitable adjustment to the compensation and/or the time to perform the Services. Any modifications to a Work Order shall be in writing and executed by both Client and Enspiria. Enspiria Solutions,DB1119 1- Cite of Fort Collins Utilities Enspiria Solutions, Inc. Soffivare Services Agreement 2. SOFTWARE SERVICES Software Services shall include: A. Software Via the Internet. Enspiria grants to Client, and Client accepts, a nontransferable, nonexclusive license and right to access the web based Software described in the applicable Work Order (the "Software") via the Internet and use the Software and the related user documentation provided by Enspiria ("Documentation") only as authorized in this Agreement, for its own purpose and operations, during the Subscription Period of the applicable Work Order. Client acknowledges that its access and use of the Software will be web -based only. The Software will not be provided to Client in CD-ROM form (or any other form of media) and will not be installed on any servers or other computer equipment owned or otherwise controlled by Client. The latest supported version of the Software will be hosted by Enspiria via the Internet from the hosting site specified in the Work Order (the "Enspiria Hosting Site"), and accessed and used by Client through the use of the Internet and Client's computers. Enspiria will provide Client with a user name and password in order to access the Software. The assigned user name and password may only be used by the number of concurrent users designated in the applicable Work Order ("Concurrent Users"). Client acknowledges and agrees that it is only acquiring the right to use the Software. Enspiria retains all rights not specifically granted to Client hereunder. This license grant is conditioned upon Client's timely payment of the applicable Subscription Fees. B. Software Services Support Enspiria will provide e-mail support to Client during the term of the applicable Work Order as described below: (i) Software Services Support is .available 8:00 a.m. to 5:00 p.m. Mountain Time,.Monday through Friday, excluding holidays. (ii) Enspiria Software Services Support will assist you with the following types of issues: • Unable to access Software due to failure of Enspiria equipment or Enspiria internet connection Software not functioning properly • Questions concerning operation of the Software (iii) Client may access the support resources by a Concurrent User or the Primary Contact (defined below) sending an electronic mail to: support _enspiria.com. (iv) The scope of the Software Services Support does not include: • Editing or modification of the Software or Client Data (as defined below) at Client's request • Diagnosis or correction of problems with Client's equipment or connection to the internet C. Upgrades. Enspiria will install upgrades to and new releases of the Software which are generally made available to its other licensees, including patches and/or fixes, as Enspiria SolulionsOB1119 2- City of Fort Collins Utilities Enspiria Solutions, Inc. Software Services Agreement they are made available, at no charge, during the Subscription Period of the applicable Work Order. D. System Monitoring. Enspiria will monitor performance of its systems and network infrastructure in order to evaluate the overall performance and availability of the Software Services, and will take reasonable steps to address systems and network infrastructure requirements as necessary to maintain Software performance and availability. E. Data Retention and Backup. During the term of the applicable Work Order, Enspira shall archive and retain the Client Data (defined below) received in connection with performing the Software Services. As part of this retention of Client Data, Enspiria shall maintain a tape backup of Client Data for an orderly and timely recovery of such data in the event that the Services may be interrupted. Enspiria shall store a tape backup of Client Data in an off -site facility no less often than weekly. 3. CLIENT DATA A. Data of Client. The Client's data as described in the applicable Work Order, and any derivatives thereof, including reports derived therefrom, which is accessed by or contained in any Enspiria repository (the "Client Data,") shall be and remain the sole and exclusive property of Client. Client Data shall also be known and treated by Enspiria as Confidential Information in accordance with Section 10 hereof. B. Data License. Client hereby grants Enspiria a license to utilize the Client Data hereunder for the sole and exclusive purpose of providing the Software Services, including a license to access, store, record, transmit, maintain and display Client Data only to the extent necessary in providing the Software Services. C. Data Security. Without limiting Enspiria's obligation of confidentiality as further described herein, Enspiria shall be responsible for establishing and maintaining an information security program that is designed to: (i) ensure the security and confidentiality of the Client Data; (ii) protect against any anticipated threats or hazards to the security or integrity of the Client Data; (iii) protect against unauthorized access to or use of the Client Data; (iv) ensure the proper return or disposal of Client. Data; and, (v) ensure that all subcontractors of Enspiria, if any, comply with all of the foregoing. 4. CLIENT RESPONSIBILITIES A. System Administration. Client will retain responsibility for administering security within its information technology system (e.g., the granting of rights to a user for access to the Software using the user name and password assigned by Enspiria). Client is responsible for maintaining its user desktops and providing user's network access to the Software. Client is also responsible for ensuring that its users comply with this Agreement with respect to use of the Software and Documentation. Client shall provide connectivity and security to the internet for its location(s) for'purposes of providing adequate access to Software at the Enspiria Hosting Site. Enspiria shall not be responsible for the reliability or continued availability of the communications lines, or the corresponding security configurations, used by Client in connecting to the internet to access the Software. Client shall advise Enspiria of any changes to Client's operations, Primary Contact (defined below), Enspiria Solulions ] H 9 3- Cite of Fort Collins Utilities Enspiria Solutions, Inc. Soffirare Services Agreement or Concurrent Users; or other information that would require a change in the support, operation, or configuration of the hosted Software. B. Information Access. If it is necessary for Enspiria to use or access information or materials that are subject to proprietary rights of, or controlled by a third party, Client hereby agrees to obtain for Enspiria, all necessary licenses and rights with respect to such information and materials as necessary to perform the Software Services. Client warrants that Enspiria's use or access of such information or materials will not infringe on the rights of any third party. C. Client Data. Any Client Data provided by Client or a third party to Enspiria in connection with the Software Services shall be in a condition and form that requires no manipulation or correction by Enspiria. Enspiria shall not be required to validate Client Data for content, correctness or form. Client shall be responsible for ensuring that any Client Data is accurate, not corrupt in any way, and does not contain any viruses. D. Client Contact. Each Work Order shall identify, and name, an appropriate individual, with corresponding contact information, including email address, as the "Primary Contact" with whom Enspiria should communicate matters regarding the Software Services and who has the authority to make Software Services decisions, including without limitation, release of Client data to Enspiria, restoration of data, and other configuration changes. E. Software Restrictions. Use of the Software is restricted to use only for Client's internal business purposes. Client may not use the Software for the benefit of any third parties or provide service bureau or other access or use of the Software to third parties without Enspiria's prior written consent. Client may not, directly or indirectly, sublicense, assign, transfer, sell, rent, lend, lease or otherwise provide the Software, or any portion thereof, including without limitation any of the Documentation, or any portion thereof, to any third party. Client may not translate, modify, reverse engineer, disassemble, decompile or make any attempt to ascertain, derive or obtain the source code for the Software. Client may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Software. Client agrees that all right, title and interest in and to the Software, Documentation, Software Services and derivative works thereof, including all associated intellectual property rights, are and shall at all times remain with Enspiria and its third party licensors. 5. AVAILABILITY A. Accessibility. Enspiria shall make the Software available via the Internet for Client's use during the Subscription Period of the applicable Work Order on Client's computer systems that meet the Enspiria recommendations for access to the Software set forth in the applicable Work Order, which Client acknowledges it has reviewed. During the Subscription Period, Enspiria will use commercially reasonable efforts to provide Client with access to the latest supported version of the Software via the Internet through the Enspiria Hosting Site on a twenty-four hour, seven day a week basis, with support available only from 8:00 a.m. to 5:00 p.m. Mountain Time, Monday through Friday, excluding scheduled system backup or other on -going maintenance as required and scheduled in advance ("Scheduled Downtime") and Enspiria's pre -scheduled holidays. Client may attempt to access the Software at any time; however, in the event of a problem with the Enspiria Hosting Site, the Software may not be available outside the support hours set forth above. Fnspiria Solutions. -DR] H9 4-