HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 9200816Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
1
LICENSE AND SERVICES AGREEMENT NO. 4500121322
This SERVICES AGREEMENT (“Agreement”) is made and entered into as of APRIL 15,
2020 (“Effective Date”), by and between SACRAMENTO MUNICIPAL UTILITY DISTRICT, a
political subdivision of the State of California with its principal executive offices at 6201 S Street,
Sacramento, CA 95817-1899 (“SMUD” or “Licensor”), and the CITY OF FORT COLLINS,
COLORADO, a Colorado municipal corporation, with its principal executive offices at 300
LaPorte Avenue, Fort Collins, Colorado 80521 (“Licensee”).
Recitals
WHEREAS, SMUD is the owner of all right, title and interest in and to the documentation and
related information, including the intellectual property rights embodied therein, known as the
Electrification Valuation Tool;
WHEREAS, Licensee is a political subdivision of the State of Colorado seeking to receive and
implement the licensed services and materials described herein exclusively in the State of Colorado
in the operation of a municipally-owned utility;
WHEREAS, Licensee desires to engage SMUD to provide the services described herein, as an
independent contractor;
WHEREAS, Licensee desires to install and operate the Electrification Valuation Tool;
pursuant to the rights and licenses granted herein for Licensee’s non-exclusive use of the
Electrification Valuation Tool, and use of the documentation and related information for
permissible purposes; and
WHEREAS, SMUD desires to provide such services to Licensee and is willing to grant such
rights and licenses, on the terms and subject to the conditions of this Agreement.
NOW THEREFORE, in consideration of the mutual agreements set forth in this Agreement
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, SMUD and Licensee agree as follows:
Agreement
1. TERM
This Agreement shall commence on the Effective Date and remain in effect until the termination
date set forth on Schedule 1 hereto (“Term”), or until earlier terminated as specified in Section 12
(“Termination”).
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
2
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
2. SERVICES
A. Services. Licensee hereby engages SMUD to provide the services set forth on Schedule 1
hereto (“Services”). This description of the Services is intended to be a general description of the
goals SMUD shall achieve under this Agreement. SMUD shall determine the method, details and
means of performing the Services, subject to Licensee’s requirements for the completed project.
Unless specifically requested by Licensee in the case of a meeting, SMUD is not required to
perform the Services during a fixed hourly or daily time.
B. Equipment and Supplies. Unless otherwise agreed between Licensee and SMUD on
Schedule 1 or in a separate writing, SMUD shall furnish, at SMUD’s own expense, the equipment,
supplies and other materials used to perform the Services.
3. SMUD COMPENSATION
Licensee shall pay SMUD as set forth on Schedule 1 hereto (“SMUD Compensation”). The total
SMUD Compensation under this Agreement shall not exceed the amount set forth on Schedule 1
hereto, which shall constitute Licensee’s maximum financial obligation under this Agreement.
4. INVOICING, MANNER AND TIME OF PAYMENT
A. Invoicing. SMUD will submit to Licensee a single invoice by e-mail for hours, fixed fees,
and expenses; provided, however, that if additional Services are requested by Licensee and agreed
by SMUD in writing, SMUD will submit an invoice(s) no more frequently than once a month after
providing such additional Services.
B. Payments. Payments will be submitted via electronic wire or ACH pursuant to instructions
provided by SMUD.
C. Processing. Licensee shall process and pay all undisputed invoices within 30 days following
receipt thereof. SMUD shall maintain books and accounts of personnel and other recoverable
costs, if any, in accordance with generally accepted accounting principles and practices.
5. NON-EXCLUSIVE AGREEMENT
This Agreement does not establish an exclusive agreement for the Services between Licensee and
SMUD. This Agreement shall not be construed to limit Licensee’s right to obtain services or
software programs from other sources, nor shall this Agreement be construed to limit SMUD’s
right to grant others any further non-exclusive right or license of the Electrification Valuation Tool.
This Agreement alone establishes the rights, duties, and obligations of Licensee and SMUD with
respect to the subject matter hereof. Licensee shall have no right or interest whatsoever in any
intellectual property, documentation and related information of SMUD other than the rights and
licenses in the Electrification Valuation Tool granted herein. It is understood that SMUD’s
services are available to the general public and not to Licensee exclusively.
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
3
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
6. RELATIONSHIP OF THE PARTIES
SMUD is an independent contractor of Licensee. This Agreement shall not be construed to create
any association, partnership, joint venture, employee or agency relationship between Licensee and
SMUD for any purpose. Each party has no authority (and shall not hold itself out as having
authority) to bind the other. A party shall not make any agreements or representations on the
other’s behalf without the other party’s prior written consent.
7. INTELLECTUAL PROPERTY RIGHTS
A. Definitions
i. “Deliverable” means the deliverables set out on Schedule 1 (collectively, the
“Deliverables”)
ii. “Derivative Work” means work that is based upon one or more preexisting works,
such as revision, modification, translation, abridgement, condensation, expansion, or any
other form in which such preexisting works may be recast, transformed, or adapted and
that, if prepared without authorization of the owner of the preexisting work, would
constitute copyright infringement or other infringement of proprietary rights of the owner
therein.
iii. “Documentation” means any documentation and related information SMUD provides
to Licensee with the Electrification Valuation Tool.
iv. “Intellectual Property Rights” means any and all now known or hereafter known
tangible and intangible: (1) rights associated with works of authorship including
copyrights, moral rights and mask-works, (2) trademark and trade name rights and similar
rights, (3) know-how and trade secret rights, (4) patents, designs, algorithms, computer
programs and other industrial property rights, (5) all other intellectual and industrial
property rights of every kind and nature and however designated, whether arising by
operation of law, contract, license or otherwise, and (6) all registrations, initial applications,
renewals, extensions, continuations, divisions or reissues thereof now or hereafter existing,
made, or in force (including any rights in any of the foregoing).
v. “New Developments” means inventions, or claims to inventions, which constitute
advancements, developments, or improvements, whether or not patentable and whether or
not the subject of any patent application.
vi. “SMUD IP Rights” means those Intellectual Property Rights owned by, or licensed
to SMUD.
vii. [RESERVED].
B. License
i. Grant. In consideration of the fees payable to SMUD pursuant to Section 4 hereof,
and subject to the terms and conditions of this Agreement, SMUD hereby grants to
Licensee, and Licensee hereby accepts, a revocable (for cause), perpetual, non-transferable,
non-sublicensable, non-exclusive, limited right and license (“License”), solely under the
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
4
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
SMUD IP Rights, to use implementations of the Electrification Valuation Tool as part of
the Deliverable.
ii. Marking. Licensee agrees to appropriately mark all SMUD IP Rights, as applicable
and consistent with then-current applicable law on patent and/or copyright marking in the
manner required to preserve the rights of SMUD as the intellectual property owner.
iii. No Other Rights. Except as expressly set forth in this Section 7.B., no rights or
licenses are granted by SMUD to Licensee under any patents or other intellectual property
rights, whether expressly or by implication, estoppel or otherwise. All rights not expressly
granted by SMUD to Licensee under this Section 7.B. are reserved by SMUD.
C. Restrictions. Licensee agrees to the following restrictions on the Electrification Valuation
Tool. Failure to adhere to these restrictions may result in the revocation of the License at the sole
and unilateral discretion of SMUD with or without notice to Licensee, except as specifically set
forth herein:
i. SMUD will make the Electrification Valuation Tool available only as part of and as
necessary to use or operate the Deliverable and not as part of any third party products or
services.
ii. Licensee may not reproduce or transfer the Electrification Valuation Tool, or any
copy, adaptation, transcription, or merged portion thereof, except as expressly permitted in
writing by SMUD.
iii. Licensee shall not modify, correct, adapt, translate, enhance or otherwise prepare
Derivative Works or improvements of the Electrification Valuation Tool, nor make any
updates to the data/database used by the Electrification Valuation Tool, including but not
limited to updates to the data, tables, layouts, or schema, except as expressly permitted in
writing by SMUD.
iv. Licensee will not disclose or distribute any source code or underlying design or
implementation of the Electrification Valuation Tool to any third party or permit any
reverse engineering, decompilation or disassembly thereof. Licensee will not (and will not
permit any third party to) use the Electrification Valuation Tool or any source code or
underlying design or implementation (or any portion thereof) to develop or commercialize
any product, software or service that competes with or provides substitute functionality for
the Electrification Valuation Tool. Licensee agrees not to market, sell, offer to sell or
disclose the Electrification Valuation Tool.
v. SMUD is and will at all times remain the sole and exclusive owner of all right, title,
and interest in and to all the Intellectual Property Rights in the Electrification Valuation
Tool, including Documentation, and all modifications, customizations, and enhancements
thereof (including ownership of all trade secrets and copyrights pertaining thereto and/or
any rights in Derivative Works or improvements relating thereto), subject only to the rights
expressly granted by SMUD hereunder.
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
5
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
vi. By accepting delivery of the Deliverables, Licensee acknowledges that SMUD claims
and reserves all rights and benefits that are afforded under federal copyright law in the
Electrification Valuation Tool, including Documentation.
vii. Licensee’s obligations hereunder remain in effect for as long as it continues to
possess or use the Electrification Valuation Tool, including Documentation.
D. Implementation of Electrification Valuation Tool. Licensee shall be solely responsible for,
and except for any consulting support or advisory services specifically contracted for in Schedule
1, SMUD shall have no obligation or liability with respect to, any support or maintenance with
respect to the Electrification Valuation Tool included in a Deliverable. Licensee will comply with
all applicable laws in connection with such activities, and will not engage in any deceptive,
misleading, illegal or unethical practices.
E. No License. Licensee has no right or license to use SMUD’s trademarks, service marks,
trade names, logos, symbols or brand names.
8. CONFIDENTIAL INFORMATION AND DATA SECURITY REQUIREMENTS
A. The parties shall execute the Non-Disclosure Agreement attached as an Appendix to this
Agreement (“Non-Disclosure Agreement”) before exchanging any confidential information or
data under this Agreement, as such confidential information is defined in the attached Non-
Disclosure Agreement (“Confidential Information”).
B. SMUD shall have the right for the full duration of time that Licensee is in possession or
control of any Confidential Information, to conduct an audit of Licensee’s compliance with the
data security and/or non-disclosure provisions of this Agreement.
C. No SMUD data is to be downloaded, stored, copied, transferred or removed from SMUD
systems to another party’s system or medium without the prior written approval of the SMUD
Information Security Officer.
D. All SMUD information technology systems are monitored for acceptable use. Licensee
acknowledges that there is no expectation of any right to privacy in any such materials and data
stored, processed, transmitted and /or maintained on SMUD property. Such material and data are
subject to inspection and can be confiscated by SMUD at any time, with or without notice and
with or without password protection.
9. REPRESENTATIONS AND WARRANTIES
A. Licensee represents, warrants and covenants to SMUD that:
i. Licensee has the right to enter into this Agreement, to grant the rights granted herein
and to perform fully all of Licensee’s obligations in this Agreement;
ii. Licensee’s entering into this Agreement with SMUD and Licensee’s performance of
its obligations under this Agreement do not and will not conflict with or result in any breach
or default under any other agreement to which Licensee is subject; and
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
6
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
iii. Licensee and its employees shall devote sufficient resources to enable SMUD to
perform the Services in a timely and reliable manner.
B. SMUD represents, warrants and covenants to Licensee that:
i. SMUD has the right to enter into this Agreement, to grant the rights granted herein
and to perform fully all of SMUD’s obligations in this Agreement; and
ii. SMUD’s entering into this Agreement with Licensee and SMUD’s performance of
its obligations under this Agreement do not and will not conflict with or result in any breach
or default under any other agreement to which SMUD is subject.
iii. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SMUD IP
RIGHTS ARE PROVIDED BY SMUD WITHOUT WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY
OTHER WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. SMUD
MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY THAT
THE SMUD IP RIGHTS WILL NOT INFRINGE ANY OTHER PATENT, COPYRIGHT,
TRADEMARK OR OTHER RIGHT.
iv. Nothing in this Agreement is or shall be construed as: (1) an obligation to bring or
prosecute actions or suits against third parties for intellectual property infringement; or (2)
an obligation to furnish any New Developments, know-how, technology, or technological
information not initially provided in Electrification Valuation Tool.
10. INDEMNIFICATION
A. Indemnification by Licensee. Subject to all claim limitations and other protections afforded
Licensee by law, Licensee will defend (with counsel reasonably acceptable to SMUD) against any
third party claims and will unconditionally protect, indemnify, and hold harmless SMUD, and its
past, present and future directors, officers, representatives, agents, and employees (each, a “SMUD
Party”), from and against any and all losses, damages, claims, liabilities, judgments, actions,
settlements, lawsuits, fines, levies, assessments, penalties, interest, costs and expense (including
without limitation, reasonable attorneys’ and other professionals’ fees, expert witness fees, and
other costs and expenses in connection with any claim, action, suit or proceeding brought against
SMUD or a SMUD Party) which SMUD or any SMUD Party may incur, suffer, or become liable
for, attributable to, or arising out of:
i. Any breach of any representation, warranty, or obligation under this Agreement by
Licensee or any of Licensee’s directors, officers, agents, representatives, employees,
subcontractors, or permitted assigns (each a “Representative” and collectively
“Representatives”);
ii. Any claim that Licensee’s use of the Electrification Valuation Tool in combination
with any hardware, software, system, network, service or other matter whatsoever that is
neither provided by SMUD nor authorized by SMUD in this Agreement (including the
Documentation), infringes any patent, copyright, trademark, trade secret, or other
proprietary right of a third party, except to the extent that SMUD is liable for inducement
or contribution for such infringement;
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
7
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
iii. Any negligent acts or omissions, misapplication, misuse, including recklessness or
willful misconduct by or on behalf of Licensee or any of Licensee’s Representatives, with
respect to the Electrification Valuation Tool or Documentation or otherwise in connection
with this Agreement; and
iv. Any use of the Electrification Valuation Tool or Documentation by or on behalf of
Licensee, or any of Licensee’s authorized users that is outside the purpose, scope or manner
of use authorized by this Agreement or the Documentation, or in any manner contrary to
SMUD’s instructions.
The indemnification set forth in this section shall survive the termination of this Agreement.
B. SMUD WILL NOT BE LIABLE FOR ANY LOST PROFITS, COSTS OF PROCURING
SUBSTITUTE GOODS OR SERVICES, LOST BUSINESS, FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER SPECIAL DAMAGES
SUFFERED BY LICENSEE, SUBLICENSEES, JOINT VENTURES, OR AFFILIATES
ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ALL CAUSES OF ACTION
OF ANY KIND (INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY
AND BREACH OF WARRANTY) EVEN IF THE PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. SMUD’S TOTAL AGGREGATE LIABILITY TO
LICENSEE SHALL IN NO EVENT EXCEED TWENTY-SEVEN THOUSAND FIVE
HUNDRED DOLLARS ($27,500.00).
11. AUDIT RIGHTS
A. Audit Procedure. Licensee shall maintain, for a period of three (3) years following the
termination of this Agreement, records in connection with the Services received hereunder
(including any books, records and accounts regarding Licensee’s use of the Electrification
Valuation Tool under this Agreement), with the exception of Confidential Information as governed
by Section 12.C. SMUD may, upon SMUD’s request and expense, and with reasonable notice,
inspect and audit Licensee’s use of the Electrification Valuation Tool under this Agreement at any
time during the Term and for a period of three (3) years thereafter. Licensee shall make available
all such equipment, information and personnel, and provide such cooperation and assistance, as
may reasonably be requested by SMUD with respect to such audit. Such audits shall be performed
either by SMUD personnel or by an independent third party whom SMUD may use for the purpose
of making such audits. SMUD and Licensee shall establish procedures for performing such audits
and shall preserve the confidential and proprietary status of audited documents and information.
B. Results of Audit. If the audit determines that Licensee’s use of the Electrification Valuation
Tool does not comport with the usage permitted by this Agreement and/or Licensee’s obligations
under this Agreement, Licensee shall take immediate steps to bring itself into compliance with the
Agreement. Licensee’s failure to do so will constitute grounds for termination for cause of the
Agreement as set forth in Section 12.
12. TERMINATION
A. [RESERVED].
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
8
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
B. Termination for Default/Breach. SMUD may terminate this Agreement for cause, without
liability to SMUD. As used in the preceding sentence, "cause" may include, but not necessarily
be limited to, Licensee’s material default or breach of any provision of this Agreement and the
Licensee fails to cure the default/breach within 30 days of written notice by SMUD describing the
default/breach.
Should Licensee fail to cure the default/breach within 30 days of the written notice, SMUD may
provide written notice to the Licensee indicating the reason for termination and the effective
termination date. Upon notice of termination on the effective date, Licensee shall immediately
cease use of the Electrification Valuation Tool under this Agreement. Notwithstanding anything
to the contrary contained herein, SMUD shall not be liable for any cost or expense incurred by
Licensee after termination of this Agreement. Licensee shall not be entitled to receive any
consequential damages as a result of early termination.
C. Licensee’s Obligations Upon Termination. Upon expiration or termination of this
Agreement, or at any other time upon SMUD’s written request, Licensee shall promptly:
i. Return to SMUD all software, tools, equipment or other materials, if any, provided
by SMUD for Licensee’s use;
ii. Deliver to SMUD all tangible documents and materials (and any copies) containing,
reflecting, incorporating or based on the Confidential Information;
iii. Permanently erase all of the Confidential Information from Licensee’s computer
systems; and
iv. Certify in writing to SMUD that Licensee has complied with the requirements of this
section.
13. EQUAL EMPLOYMENT OPPORTUNITY
Licensee shall not discriminate against any employee or applicant for employment contrary to the
provisions of applicable state and/or federal antidiscrimination laws. Licensee shall ensure that
this requirement is applied to applicants and employees in actions including, but not limited to
recruiting, hiring, working conditions, benefits, training programs, promotions, layoffs or
terminations, use of SMUD or Licensee facilities, and all other terms and conditions of
employment.
14. DISPUTE RESOLUTION, ATTORNEYS’ FEES
A. Any legal suit, action or proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby may be instituted in the federal courts of the United States of
America or the courts of the state of California, and each party irrevocably submits to the
jurisdiction of such courts in any such suit, action or proceeding. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or any proceeding
in such courts, or to the exercise of personal jurisdiction by such courts, and irrevocably waive and
agree not to plead or claim in any such court that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum. It is further agreed that service of
process in any such litigation may be made in the manner provided for in the Federal Rules of
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
9
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
Civil Procedure or in any other manner provided for in said rules for service upon a person outside
the State of California.
B. [RESERVED].
15. GENERAL PROVISIONS
A. Amendment. No amendment, modification or supplement to this Agreement shall be binding
on any of the parties unless it is in writing and signed by the parties in interest at the time of the
modification.
B. Assignment; Successor and Assigns. Licensee shall not assign any rights, or delegate or
subcontract, any obligations under this Agreement without SMUD’s prior written consent. Any
assignment in violation of the foregoing shall be deemed null and void. Subject to the limits on
assignment stated above, this Agreement will inure to the benefit of, be binding upon, and be
enforceable against, each of the parties hereto and their respective successors and permitted
assigns.
C. Captions. None of the captions of the sections of this Agreement shall be construed as a
limitation upon the language of the sections, said captions having been inserted as a guide and
partial index and not as a complete index of the contents of such sections.
D. Public Entity Laws. Licensee acknowledges that SMUD is a political subdivision of the
State of California, formed under and governed by the California Municipal Utility District Act,
and accordingly is a public agency subject to California laws. The terms of this Agreement and
all of SMUD’s rights and obligations hereunder are subject and subordinate to SMUD’s
compliance with such California laws. SMUD similarly acknowledges that Licensee is a political
subdivision of the State of Colorado, and is a public agency whose powers, obligations and
liabilities are subject to Colorado laws and a municipal charter.
E. Entire Agreement/Integration. This Agreement and all Schedules, Appendices, and Exhibits
hereto, as well as agreements and other documents referred to in this Agreement constitute the
entire agreement between the parties with regard to the subject matter hereof and thereof. This
Agreement supersedes all previous agreements between or among the parties. There are no
agreements, representations or warranties between or among the parties other than those set forth
in this Agreement or the documents and agreements referred to in this Agreement.
F. Further Assurances. The parties to this Agreement agree to execute and deliver all such other
instruments and take all such other actions that may be reasonably necessary from time to time to
effectuate the transactions contemplated by this Agreement and carry out the purposes of the
agreements contained herein.
G. Notices. All notices, reports, records or other communications that are required or permitted
to be given to the parties under this Agreement shall be sufficient in all respects if given in writing
and delivered in person, by telecopy (provided it is followed by overnight courier), by overnight
courier or by registered or certified mail, postage prepaid, return receipt requested, to the receiving
party at the address set forth on Schedule 1 hereto or to such other address as such party may have
given to the other party by notice pursuant to this subsection. Notice shall be deemed given on the
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
10
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
date of delivery, in the case of personal delivery or telecopy, or on the delivery or refusal date, as
specified on the return receipt, in the case of overnight courier or registered or certified mail.
H. Remedies Not Exclusive. No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law or in equity.
I. Severability. If any term, provision, covenant or condition of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions of this Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated so long as the provision, covenant or condition determined to be invalid,
void or unenforceable does not materially alter the essential terms of this Agreement.
J. Survival of Terms. The provisions of Sections 7, 8, 10, 11, 12, 14, 15, Schedule 1, and the
Non-Disclosure Agreement of this Agreement shall survive the expiration or termination of this
Agreement.
K. Third Party Beneficiaries/Parties in Interest. This Agreement and all conditions and
provisions hereof are for the sole and exclusive benefit of the parties hereto and their respective
successors and assigns and are not intended for the benefit of any other person.
L. No Waiver. No waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provisions, whether or not similar, nor shall any waiver constitute
a continuing waiver. No waiver shall be binding unless executed in writing by the party making
the waiver.
M. Counterpart, Facsimile Signatures. This Agreement may be executed in multiple
counterparts and by facsimile or electronic signature, each of which shall be deemed an original
and all of which together shall constitute one instrument.
[signature page follows]
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
11
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
ACCEPTED FOR ACCEPTED FOR
CITY OF FORT COLLINS,
COLORADO, a Colorado municipal
corporation
SACRAMENTO MUNICIPAL UTILITY
DISTRICT
By: By:
Name: Gerry Paul Name: Nicole Howard
Title: Purchasing Director Title: Chief Customer Officer
Date: Date:
Attachments
Appendix Schedule 1
Appendix Non-Disclosure Agreement
Approved as to form: Approved as to form:
__________________________________ __________________________________
SMUD Legal, Sr. Attorney
ATTEST:
__________________________________
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
4/30/2020
Assistant City Attorney ll
5/8/2020
City Clerk
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
12
APPENDIX - SCHEDULE 1
Services Description and Compensation
1. Agreement Termination Date. This Agreement shall terminate on the later of the end of
business on that date 6 months after the Effective Date (as stated on the first page of the
License and Service Agreement) or September 30, 2020.
2. Services.
2.1 Scope of Work. SMUD will:
a. Phase 1: Electrification Valuation Tool
I. SMUD will provide Fort Collins Utility with an Electrification Valuation Tool
(“Tool”), including an electrification planning spreadsheet with descriptions of each
tab and instructions to enter the Tool’s required inputs.
II. SMUD will provide an executive summary of the output based on the information
Fort Collins Utilities has input into the Tool.
b. Phase 2: Advisory Services
I. SMUD will provide up to thirty (30) hours total of consulting support services.
These services will be available for six (6) months starting from the Effective Date.
The thirty (30) hours of consulting support services is exclusive of the travel time for
one (1) on-site visit to Fort Collins, CO.
2.2 Deliverables.
a. Electrification Valuation Tool, including an electrification planning spreadsheet.
b. Executive summary of the Tool’s output based on Licensee’s input.
3. SMUD Contract Manager and Administrator.
SMUD Contract Manager: Sandra Kopp (916) 732- 6926
Contract Administrator: Tasha Crawford (916) 732- 6205
4. Project Schedule.
a. Electrification Valuation Tool will be delivered to Licensee within two (2) weeks
after the Effective Date.
b. Consulting support hours must be used no later than six (6) months from the
Effective Date.
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
13
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
5. Compensation.
Licensee will compensate SMUD at the rate(s) set forth below:
Phase 1: Electrification Valuation Tool Cost
A. Electrification Valuation Tool with instructions $16,500
Total Phase 1 $16,500
Phase II: Advisory Services
A. Up to 30hrs Advisory Services $8,500*
B. Travel expenses for one (1) round-trip to Fort Collins
Not to exceed
$2,500
Total Phase II $11,000
Total project (Phase I and Phase II) $27,500
* Advisory Services Cost does not include reimbursement for travel expenses. Travel expenses
for one (1) round-trip to Fort Collins will be billed separately, and not to exceed $2,500.
6. Maximum Compensation. SMUD’s compensation under this Agreement shall not exceed
$27,500.
7. Additional Provisions. [RESERVED].
8. Notice Addresses.
If to SMUD: If to Licensee:
Dejona Lopez John Phelan
Energy Services Sr. Manager
6201 S Street, #B357 Fort Collins Utilities
Sacramento, CA 95819 222 LaPorte Ave., PO Box 580
916-732-5331 Fort Collins, CO 80521
dejona.lopez@smud.org jphelan@fcgov.com
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
14
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
APPENDIX - CONFIDENTIALITY AND NON-DISCLOSURE
AGREEMENT
This Confidentiality and Non-Disclosure Agreement (“NDA”) is entered into as of this 6th day of
April, 2020, by and between the Sacramento Municipal Utility District (“SMUD”), a political
subdivision of the State of California, with its principal executive offices at 6201 S Street,
Sacramento, CA 95817-1899, and the CITY OF FORT COLLINS, COLORADO, a Colorado
municipal corporation, with its principal executive offices at 300 LaPorte Avenue, Fort Collins,
Colorado (“Licensee”); referred to collectively as "Parties" and individually as "Party."
In connection with 4500121322 (“Agreement”) between SMUD and Licensee, SMUD is
furnishing Licensee with certain Confidential Information that is either non-public, confidential,
and/or proprietary in nature. For the purposes of this NDA, “Confidential Information” is all (a)
information furnished by SMUD and labeled as “confidential,” “trade secret,” or “proprietary”
and, if disclosed orally, summarized in written format within thirty (30) calendar days of disclosure
and identified as “confidential,” “trade secret,” or “proprietary,” (b) information furnished by
SMUD that is not labeled as “confidential,” “trade secret,” or “proprietary,” but which after
disclosure SMUD notifies Licensee as being “confidential,” “trade secret,” or “proprietary,” or (c)
the data listed in Attachment A. If Licensee receives notification under subsection (b) above,
Licensee shall then immediately label such information as “confidential,” “trade secret,” or
“proprietary.” SMUD shall retain all ownership rights over its Confidential Information. In order
to receive the Confidential Information, Licensee agrees to the following conditions:
1. The Confidential Information will be kept confidential and shall not, without SMUD’s
prior written consent, be disclosed by Licensee its directors, officers, agents,
representatives, employees, subcontractors, or permitted assigns (each a “Representative”
and collectively “Representatives”), in any manner whatsoever, in whole or in part, and
shall not be used in any manner directly or indirectly by Licensee or its Representatives,
other than in connection with providing services under the Contract. Moreover, Licensee
agrees to reveal the Confidential Information only to Licensee Representatives who need
to know the Confidential Information for the purpose of providing services under the
Agreement, who are informed by Licensee of the confidential nature of the Confidential
Information, and who shall agree to act in accordance with the terms and conditions of this
NDA. Licensee shall be responsible for any breach of this NDA by Licensee or its
Representatives.
2. During the term of this NDA, if any additional information is required to fulfill Licensee’s
obligations in connection with the Agreement, SMUD will label or identify such
information as “confidential,” “trade secret,” or “proprietary,” or update Attachment A to
list the additional Confidential Information. All revisions to Attachment A shall be
countersigned by SMUD and Licensee prior to SMUD sending the Confidential
Information.
3. Without SMUD’s prior written consent, except as required by law, Licensee nor its
Representatives will disclose to any person the fact that the Confidential Information has
been made available to such Licensee or its Representatives.
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
15
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
4. Licensee will use, and ensure that each Licensee Representative uses, commercially
reasonable efforts to maintain the confidentiality of Confidential Information. Within
thirty (30) calendar days of termination of the Agreement, unless directed to retain or return
Confidential Information by SMUD, any and all Confidential Information in the possession
or control of Licensee or its Representatives shall be destroyed in accordance with this
section. When destroying Confidential Information stored electronically, including but not
limited to servers, workstations, laptops, databases, electronic mail backup tapes or other
system backup media (“Electronic Data”), Licensee shall use appropriate data deletion
methods, consistent with technology best practice standards, to ensure the Electronic Data
cannot be recovered. If Electronic Data cannot be immediately deleted or removed from
backup media, temporary retention is allowed, so long as the backup media are maintained
in confidence, not readily accessible to unauthorized access, and the Electronic Data are
overwritten in the ordinary course of business in a manner that cannot be recovered. All
paper documents that contain Confidential Information, whether received from SMUD or
reproduced by Licensee or its Representatives must be shredded using at least a cross-cut
shredder or pulverized.
5. Licensee must provide a letter of certification to the SMUD Project Manager (below)
substantially in the form of Attachment B to this NDA and signed by an officer of the
company attesting to the destruction or return of the Confidential Information in
conformance with this NDA.
Sandra Kopp
Sacramento Municipal Utility District
6301 S Street, Mailstop A102
Sacramento CA 95817
6. If there is a breach of confidentiality of Confidential Information, Licensee will notify the
SMUD Information Security Officer by email and telephone without unnecessary delay
using the contact information provided below. Licensee agrees to cooperate with SMUD
in identifying the extent of which Confidential Information has been exposed and the
measures necessary to limit further exposure of Confidential Information.
SMUD Information Security Officer
Email: InformationSecurity@smud.org
Telephone: 916-732-5200
7. The term “Confidential Information” shall not include such portions of the Confidential
Information which (i) are or become generally available to the public other than as a result
of a disclosure by Licensee or its Representatives, or (ii) become available to Licensee or
its Representatives on a non-confidential basis from a source other than SMUD who is not
prohibited from disclosing such information to Licensee or its Representatives by a legal,
contractual, or fiduciary obligation, or (iii) the disclosing Licensee or its Representatives
knew prior to disclosure as evidenced by such Licensee or its Representatives’ written
records; or (iv) is disclosed under the order or requirement of a court, administrative
agency, or other governmental body or is otherwise required by law to be disclosed
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
16
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
including, but not limited to, the California Public Records Act and Colorado Open
Records Act, or (v) has been independently developed by Licensee or its Representatives
without access to or use of SMUD’s Confidential Information.
8. In the event that Licensee or its Representatives or anyone to whom Licensee or its
Representatives transmits the Confidential Information pursuant to this NDA becomes
legally compelled to disclose any of the Confidential Information, Licensee will provide
SMUD with prompt notice so that SMUD may seek a protective order or other appropriate
remedy and/or waive compliance with the provisions of this NDA. In the event that such
protective order or other remedy is not obtained, or that SMUD in writing waives
compliance with the provisions of this NDA, such Licensee or its Representatives will
furnish only that portion of the Confidential Information which such Licensee or its
Representatives is advised by opinion of counsel is legally required, and will exercise
industry best practices to obtain reliable assurance that confidential treatment will be
accorded the Confidential Information.
9. Licensee acknowledges that remedies at law may be inadequate to protect against breach
of this NDA, and Licensee hereby in advance agrees to the granting of injunctive relief in
SMUD’s favor without proof of actual damages in addition to, and not in lieu of, all other
remedies available to SMUD.
10. Licensee further acknowledges that no failure or delay by SMUD in exercising any right,
power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof, or of any other grant, power, or privilege hereunder, so operate as
a waiver.
11. Any disputes regarding this NDA shall be resolved in accordance with the dispute
resolution provisions of the Agreement.
12. Upon the termination of the Agreement, all Confidential Information obtained under this
NDA shall be destroyed pursuant to Sections 4 and 5 above. Notwithstanding such
termination, the obligations of Licensee and its Representatives to protect the
confidentiality of the Confidential Information shall survive in perpetuity.
13. This NDA further applies to Confidential Information already disclosed to Licensee by
SMUD prior to the date of this NDA. By signing this NDA, Licensee certifies that any
Confidential Information already disclosed to Licensee by SMUD has not been disclosed
to a third party. This previously disclosed Confidential Information is under the same
obligations and restrictions as stated in this NDA.
14. This NDA, together with the Agreement, represents the entire agreement of the Parties
pertaining to the subject matter of this NDA, and supersedes any and all prior oral
discussions and/or written correspondence or agreements between the Parties with respect
thereto.
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
17
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
IN WITNESS WHEREOF, each Party has caused this NDA to be executed by its respective, fully
authorized representative as of the date first written above.
SACRAMENTO MUNICIPAL UTILITY
DISTRICT
By:
Title:
Date:
CITY OF FORT COLLINS, COLORADO, a
Colorado municipal corporation
By
Gerry Paul
Title: Purchasing Director
Date:
Approved as to form:
__________________________________
ATTEST:
__________________________________
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
4/30/2020
Chief Customer Officer
Assistant City Attorney ll
5/8/2020
City Clerk
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
18
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
Attachment A
Confidential Information
1. The Electrification Valuation Tool and any of the content and formulas in the Tool
2. Instructions on how to use the Electrification Valuation Tool
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0
SACRAMENTO MUNICIPAL UTILITY DISTRICT
AGREEMENT NUMBER 4500121322 APRIL 15, 2020
19
Agreement - Sacremento Municipal Utility District.docx Services Agreement 11012012.dotm
Attachment B
Letter of Certification
<ENTER COMPANY NAME>
<ENTER COMPANY ADDRESS>
<Date>
<SMUD CONTRACT MANAGER>
Sacramento Municipal Utility District
6301 S Street, <ENTER MAIL STOP NUMBER>
Sacramento, CA 95817
RE: Letter of Certification: <Destruction>/ <Return> of SMUD Confidential
Information
Pursuant to the Non Disclosure Agreement between <ENTER COMPANY NAME> and
SMUD dated, <DATE>, all SMUD Confidential Information has been
<destroyed>/<returned> in accordance with the provisions of the Non Disclosure
Agreement.
<Signature of Officer of Company>
<Printed Name of Officer of Company>
<Telephone number of Officer of Company>
DocuSign Envelope ID: 75C77208-9158-4D91-B59E-B5EB5382B3E0