HomeMy WebLinkAbout511903 STAR COMMUNITIES - CONTRACT - PURCHASE ORDER - 9126101V1lx/ SUSTAINABILITY
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®"� TOOLS FOR aTAR ASSESSING &
COMMUNITIES RATING COMMUNITIES
STAR CUSTOMER PROGRAM
SERVICES AGREEMENT
This STAR CUSTOMER PROGRAM SERVICES AGREEMENT (this "Agreement") is made as of the 151 day of November,
2012 ("Effective "Date"), by and between STAR Communities, 1200 First Street NE 5th Floor, Washington, DC
20002, ("SC") and the City of Fort Collins, Colorado, a city government with a principal address of Post Office
Box 580, Fort Collins, CO 80522-0580 ("Customer") and sets forth the terms and conditions under which
Customer agrees to participate in the STAR Community Pilot Program and under which SC agrees to provide
Customer with services pertaining community sustainability through the online reporting tool, the technical
guide, and the STAR Community Rating System as a whole (collectively, the "Services").
BACKGROUND
A. The Program (as defined below) convenes a group of leadership cities and counties in a 12-month
engagement to test and evaluate the system of measures developed by SC that allows a local government to
evaluate against a national sustainability standard (the "System"), the manual offering guidance, submittal
requirements, definitions, and references relating to the System (the "Technical Guide"); the online reporting
tool developed by SC that organizes and presents information required to meet sustainability goals (the "Tool");
and other associated products and services.
B. During the term of this Agreement, Customer and other pilot communities will provide feedback on
aspects of the System, such as point allocation, thresholds for certification, and submittal requirements. Pilot
communities will provide input and feedback on the design and capabilities of the Tool, including how it
processes and functions with a focus on data gathering, analysis and reporting. Pilot communities may also
provide feedback on program elements, fees and business processes associated with certification.
C. Customer would like to be among the first to receive a rating based on its performance across the
System's goals, objectives, and measures, would like to receive the Services SC offers under this Agreement,
and would like to have the opportunity to provide feedback to SC about the System, the Technical Guide, the
Tool, and other aspects of the Program so that SC may incorporate such commentary and feedback into the
foregoing products and services that it provides to clients in the future.
D. SC is willing to provide such Services and the opportunity for Customer to provide feedback under
the terms and conditions set forth below.
AGREEMENT
Now therefore, in consideration of the covenants set forth in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Use of Services.
1.1 License Grant. Conditioned on Customer's compliance with all of the terms and conditions of this
Agreement, SC hereby grants Customer a limited, non-exclusive, non -transferable license to access and use
the Services, including the Tool through SC -designated operating systems during the term of this
Agreement solely for the purposes of sharing information about Customer with SC, for facilitating the
evaluation of Customer in terms of the metrics used in the System, and the evaluation of the Tool and
other aspects of the Program for SC's benefit as described in this Agreement. Customer may not access the
Tool or the Services for use in developing a competing product or service. SC expressly reserves all rights
not expressly granted to Customer in this Agreement.
1.2 Restrictions. Customer shall not and shall not allow others to license, sublicense, sell, resell, transfer,
assign, distribute, commercially exploit, make available, or otherwise use the Tool, the Technical Guide, or
STAR Communities • c/o District Department of Environment
1200 First Street, NE, 5th floor • Washington, DC 20002
other materials provided to Customer as part of the Program in any way. Customer shall not, and shall not
allow others, to reverse engineer, decompile, disassemble, or otherwise access the source code, modify or
create derivative works from the Tool or the Technical Guide, make copies of the Tool or the Technical
Guide, or provide others with access to the Tool or the Technical Guide, remove or alter notices and
legends affixed to the Tool, disclose Confidential Information contained within the Tool or the Technical
Guide, or use the Tool or the Technical Guide in violation of any applicable law or regulation. Customer
shall not send or store infringing, obscene, threatening, or defamatory material, material that violates third
party privacy rights, material containing viruses, worms, or other harmful code in the Tool. Customer shall
not interfere with or disrupt the integrity or performance of the Tool or the Services.
1.3 Access. When the Tool becomes available after the Effective Date, SC will provide Customer with log in and
password information. Customer may designate employees to use the log in credentials; third parties may
receive access with the written consent of SC. Customer shall be responsible for all acts and omissions of
such independent contractor to the same extent as if the individual were an employee of Customer.
Customer shall be responsible for maintaining the security of the log in and password information and for
all use of the Tool through such log in and password information. Customer shall promptly notify SC if
Customer becomes aware of any unauthorized access or use of Customer's assigned log in and password
information and shall take reasonable measures to stop such unauthorized access or use. Customer is
responsible for providing its own internet connection, hardware, software, browser, and other system
requirements necessary to access and use the Tool.
2. Parties' Obligations.
2.1. Responsibilities of SC. SC will provide Customer with:
• Access to the System including up to 10 electronic downloads of the Technical Guide
• Subscription to the Tool for 12 months; this may extend beyond the term of this Agreement
• Introduction to System version 1.0, a 1.5 hr web -based course
• Dedicated program and technical support from the SC team
• Monthly peer networking and regular education/training opportunities
• Use of prototype tools, calculators and geospatial applications, as they become available
• Facilitation of regular peer to peer networking calls with other pilot communities
• Guidance on data collection needs and loading data into the online reporting tool
2.2. Responsibilities of Customer
Customer will designate a project manager and will participate in peer networking and education/training
opportunities where practical. Customer will provide SC with comments, suggestions, and other feedback
about the System, the Technical Guide, and the Tool themselves. Customer will be responsible for the
accuracy, quality, completeness, integrity, legality, and reliability of all data and content it enters into the
Tool.
3. STAR Pilot Community Program
Customer acknowledges that the Program is a pilot program and that the related Tool, Technical Guide, and
other products and services provided as part of the Program may contain bugs, defects and errors. Customer
has agreed to participate in this pilot program, which means it is among the first to benefit from it and is
required to provide feedback to SC during the term of this Agreement. Customer acknowledges that the
Program is expected to be imperfect and incomplete.
4. Use of Data and Improvements.
SC will solicit feedback from Customer about how to design reports and to present information and ratings.
Customer acknowledges and agrees that SC is free to implement (or not) all ideas, modifications, revisions,
edits, enhancements, improvements, corrections, and other changes (collectively, "Modifications") Customer
proposes, suggests, or recommends to SC and that SC shall be the exclusive owner of all right, title, and interest
in and to them. Customer assigns to SC whatever right, title, and interest it may have in such Modifications,
including any intellectual property rights arising out of them.
Customer will gather and input data into the Tool. Customer will retain ownership of the data it enters into the
Tool. Customer grants SC a non-exclusive, perpetual, worldwide, royalty -free license to use, display, publish and
aggregate this data for the purpose of improving and demonstrating the Program. SC will not use the data for
any other purposes without first obtaining Customer's consent. Customer will not provide SC with any personal
identifying information for any purposes. The rights granted in this Section shall survive the term of this
Agreement.
S. Public Announcements.
After the Effective Date, the parties will jointly prepare a press release announcing the fact that Customer is
participating in the Program that both parties may publish and post on their respective websites. The parties
acknowledge and agree that Customer's participation in the Program is not Confidential Information, but that
the precise terms and conditions governing the relationship between the parties is Confidential Information (as
defined below). Customer will provide the following information to SC upon execution of this Agreement: (a)
Customer logo in color in .tif or .eps format at 300 dpi and (b) hyperlink to Customer's website to be used on SC
website and in printed materials to announce Customer's participation in the Program. Customer may use the
phrase "Pilot STAR Community" to refer to itself publicly.
6. Intellectual Property.
Customer acknowledges and agrees that all right, title, and interest in the Tool, the Technical Guide, the
System, the STAR COMMUNITIES marks and other marks used in connection with the Program, and all products
and Services related to the Program, including any corrections, updates, modifications, revisions, upgrades,
additional programming, and other developments belong exclusively to SC, who is the sole owner of all right,
title, and interest in and to the copyrights, trade secrets, trademarks, patents, and other intellectual property
rights arising out of the foregoing materials. Any use made of corrections, updates, modifications, revisions,
upgrades, additional programming, and other developments to such materials created during the term of this
Agreement are subject to the license provisions above and other terms and conditions of this Agreement.
7. Confidentiality
7.1. Confidential Information. Customer acknowledges that during the term of this Agreement, it may be
exposed to and receive Confidential Information that SC owns and desires to protect from unauthorized
disclosure or use including without limitation the System, the Technical Guide, the Tool, and information
concerning the foregoing, other communities in the Program, and information marked confidential
("Confidential Information"), which may be expressed in oral, written, electronic, or other form and
through communications from SC or otherwise.
7.2. Exclusions. Confidential Information shall not include: (a) information that is or becomes generally known
to the public other than through breach of a duty of confidentiality to SC; or (b) information Customer had
in its possession at the time of disclosure that was not acquired from SC or a third party that owed a duty
of confidentiality to SC as evidenced by Customer's pre-existing written records. If a court order requires
Customer to disclose Confidential Information, Customer must first give SC prompt written notice and the
opportunity to obtain relief to preserve the confidentiality of the Confidential Information.
7.3.Obligations. Customer shall not disclose the Confidential Information to anyone or allow anyone to access
or use it. Customer shall protect SC's Confidential Information at least to the same extent and in the same
manner it protects its own similar information, but in no event using less than reasonable methods. If
Customer becomes aware of any unauthorized access to or disclosure of any Confidential Information,
Customer shall promptly take all appropriate actions to protect against the further dissemination and use
of such Confidential Information and notify SC.
7.4. Restricted Use. Customer may use the Confidential Information only for the limited purposes permitted
under this Agreement, and especially not to compete with SC. Customer acknowledges that title to the
Confidential Information and any derivative works, improvements upon or modifications to the
Confidential Information shall remain at all times with SC and that the Confidential Information has value.
Upon SC's request at any time, and upon the expiration or termination of this Agreement for any reason,
Customer shall return to SC all Confidential Information or, at SC's option, destroy any materials containing,
regarding or derived from the Confidential Information.
7.5. Remedies. Customer acknowledges that any violation of this Section would result in irreparable injury to SC.
In the event of a breach or threatened breach of the terms of this Section, SC's remedy at law would be
inadequate and STAR Community shall be entitled to specific performance and/or injunctive relief.
8. Pricing, Payment, Invoices
8.1.Pricing. The Program fees are based on population in accordance with the table set forth on Exhibit A,
included and made a part of this Agreement. Customer represents that as of the Effective Date it is a city
with a population of 146,868.
8.2.Invoicing, Payment. SC will charge Customer a fee equal to the amount set forth opposite its population
size on the table set forth on Exhibit A. Customer's payment in U.S. Dollars is due before December 15,
2012 and shall be sent to: STAR Communities, Attn: Hilari Varnadore, Director, c/o District Dept. of
Environment, 1200 First Street NE 5th Floor, Washington, DC 20002.
9. Term and Termination
9_1.Term. The term of this Agreement begins on the Effective Date and continues for one year, concluding on
October 31, 2013. Access to the online reporting tool will extend beyond this term to March 31, 2014.
9_2.Termination for Breach. Either party may terminate this Agreement if the other party breaches the
Agreement and fails to cure the breach within thirty (30) days after written notice from the non -breaching
party.
9_3.Termination for Cause. Either party may terminate this Agreement immediately, without notice, if (i) the
other party becomes subject to a voluntary or involuntary bankruptcy, reorganization, liquidation,
receivership, assignment of the benefit of creditors or other insolvency proceeding; (ii) the other party is
unable to pay its debts as they become due or admits in writing its inability to pay its debts generally; (iii)
the other party becomes subject to any statutory, administrative or court order or other official action that
prevents it from continuing to fulfill its obligations under this Agreement; or (iv) the other party (or any of
its officers, employees, directors or principals) commits fraud or criminal acts, whether or not in connection
with this Agreement.
9.4.Effect of Termination. Upon termination of this Agreement, Customer shall provide SC with a complete
copy of all data collected in connection with the Program to date. Customer shall immediately cease use of
Tool, the Technical Guide, the Confidential Information, and all other property belonging to SC and shall
return to SC or, at SC's election, destroy any such information in its possession within ten days of the
effective date of termination of this Agreement. The termination, expiration, or cancellation of this
Agreement shall not affect the respective rights and obligations of the parties arising under this Agreement
before the effective date of termination, and shall not limit the parties' rights and remedies under
applicable law or in equity. Neither party shall be liable to the other party for damages for the proper
termination of this Agreement in accordance with this Section.
10. Notices
All notices required under this Agreement shall be effective when given in writing a) upon personal delivery; b)
five (5) days after having been sent by United States mail, registered or certified, return receipt requested,
postage prepaid; or c) two (2) days after deposit with a commercial overnight carrier, with written verification
of receipt. All communications shall be sent to the applicable party's address set forth below or to such other
address as may be designated by written notice.
If to SC:
If to Customer:
Hilari Varnadore, Director
Jim O'Neil, Director
STAR Communities
Purchasing and Risk Management
c/o District Department of Environment
City of Fort Collins
1200 First Street NE 7th Floor
215 N. Mason
Washington, DC 20002
Fort Collins, CO 80522
11. Representations and Warranties
Each party represents to the other that it has the full right, power, and authority to enter into and perform its
obligations under this Agreement, and that it is not party to any agreement or understanding that would
conflict with this Agreement. Each party represents and warrants that neither its execution and delivery of this
Agreement nor its performance of any of its obligations contemplated in this Agreement will violate any
provision of law or any order of any court or any governmental authority to which the party is subject.
Customer represents and warrants that all information and data it provides to SC under this Agreement will be
true, accurate, unaltered and complete, and will contain no untrue statement or omission of material fact or
data. Customer represents and warrants that it will not tamper with data collected under the STAR Customer
Pilot Program.
12. Disclaimer, Limitation of Liability. Limited Remedy.
Except as set forth expressly in Section 11, SC makes no representation, warranty, express or implied, with
respect to the products, Services, and information provided under this Agreement or their quality, accuracy,
timeliness, suitability, completeness, security, availability, or condition. SC assumes no liability or responsibility
for any errors or omissions in any media on which data is provided, and the Services and products are provided
"as is" with all faults. SC expressly disclaims warranties of merchantability, and fitness for a particular purpose.
SC does not warrant that the Services will be non -infringing, error free or uninterrupted or that it will operate
with any particular hardware, software, system, or data. In no event shall SC's liability exceed the amount of
the fees paid by Customer. In no event shall SC have any liability for any special, exemplary, punitive,
consequential, incidental, or other similar damages, including without limitation, loss of profits, loss of
revenues, loss of data, or the like. If SC breaches any warranty or otherwise fails to perform any obligations
under this Agreement, SC's sole and exclusive obligation, and Customer's sole and exclusive remedy, will be
SC's re -performance of the affected Services, or a prorated refund of the fees Customer paid for the affected
Services, as determined by SC.
13. Miscellaneous
13.1. No Assignment. This Agreement is binding on and inures to the benefit of the parties and their
respective successors and permitted assigns. Customer shall not assign, delegate, sublease, or subcontract
any or all of its rights, liabilities, or obligations under the Agreement without the prior written consent of
SC.
13.2. Amendments and Waivers. This Agreement may not be modified or amended except in writing signed
by the parties, and none of its provisions may be waived except in writing signed by the party to be
charged. No waivers will be implied, whether from any custom or course of dealing or any delay or failure
in a party's exercise of its rights and remedies under this Agreement or otherwise. Any waiver granted by a
party will not obligate such party to grant any further, similar, or other waivers.
13.3. Cumulative Remedies. Except as otherwise provided in this Agreement, all remedies are cumulative, in
addition to all other remedies available to a party at law or in equity or otherwise, whether exercised in
whole or in part.
13.4. No Joint Venture, No Third Party Beneficiary. The parties are independent contractors in performing
their obligations, each party is acting independently. This Agreement is not intended to be, nor shall it be
construed as, a joint venture, partnership, or other business organization. This Agreement is for the sole
benefit of the parties and is not for the benefit of any third party.
13.5. Survival. All representations, warranties, confidentiality obligations, indemnities, termination
provisions, and this Section, shall survive the expiration or termination of this Agreement.
13.6. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.
13.7. Construction; Governing Law. The language of this Agreement is a product of the mutual effort of the
parties. This Agreement shall be construed fairly as to the parties, and it shall not be construed for or
against any of the parties on the basis of the extent to which that party participated in drafting it. This
Agreement and the rights, duties, and obligations of the parties to this Agreement shall be interpreted,
construed, performed, and enforced in accordance with and shall be governed by the laws of the District
of Columbia.
13.8. Captions, Exhibits, Severobility. The captions in this Agreement are for convenience only, and in no way
limit or amplify the provisions of this Agreement. All exhibits attached to the Agreement are by reference
made a part of it, and this Agreement governs in case of any conflict. If any provision of this Agreement is
held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall
not affect any other provision of this Agreement unless it materially impairs the ability of the parties to
consummate the transactions contemplated by this Agreement.
13.9. Effectiveness. The preparation, revision, or delivery of this document for examination and discussion is
not an offer to enter into any agreement and is merely a part of the negotiations between the parties.
Neither party shall have any obligation or liability to the other at law or in equity or otherwise (including
claims based on detrimental reliance or promissory estoppel) relating to the subject matter hereof unless
and until both parties shall have executed and delivered this Agreement.
13.10. Force Majeure. Each party shall be excused for delay in performance under this Agreement when and
to the extent that performance is prevented or delayed by severe weather, fire, flood, tornado, acts of
God, acts of war, explosion, national defense requirements, or any other similar cause beyond the
reasonable control of such party (each a "Force Majeure Event"). The party whose performance is delayed
or prevented by a Force Majeure Event shall give prompt written notice to the other party describing such
cause as it occurs. Any delay due to a Force Majeure Event shall continue only for so long as the Force
Majeure Event continues, and only to the extent that the party is so prevented or delayed. A party affected
by a Force Majeure Event shall take commercially reasonable steps to correct the underlying condition
within a reasonable time.
13.11. Entire Agreement. This Agreement, including the background and exhibit, constitutes the entire
agreement between the parties and supersedes all prior and contemporaneous agreements with respect
to this subject matter, whether written or oral.
IN WITNESS WHEREOF, the parties, through their authorized representatives, have executed this Agreement as of
the Effective Date:
STAR COMMUNITIES CI FORT COLL NS, CO
By By
Name: Na e:
Title: Title: LSD L 10 (J
Date: Date: 1( z 1Z A7r�lK``cL�
EXHIBIT A: Pricing Table
City participation _
County Participation
Population Size _
Registration Fees ($)
Population Size
Registration Fees ($)
Under 100,000
3,500
Under 100,000
3,500
100,001-200,000
5,000
100,001-300,000
5,000
200,001-400,000
7,500
300,001-500,000
7,500
400,001-700,000
10,000
500,001-1,000,000
10,000
700,001-1,000,000
12,500
000, 001-2,000, 000
1000
12,500
Over 1,000,000
15,000
Over 2 million
15,000