HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 9201257Professional Services Agreement
MISC 2020 – Overlay, LLC Page 1 of 34
PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT made and entered into the day and year set forth below, by and
between THE CITY OF FORT COLLINS, COLORADO, a Municipal Corporation, hereinafter
referred to as the "City" and OVERLAY, LLC., hereinafter referred to as the "Professional".
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by
and between the parties hereto as follows:
1. Scope of Services. The Professional agrees to provide services in accordance with the
scope of services attached hereto as Exhibit A, consisting of five (5) pages, and incorporated
herein by this reference. Irrespective of references in Exhibit A to certain named third
parties, the Professional shall be solely responsible for performance of all duties hereunder.
2. The Work Schedule. The services to be performed pursuant to this Agreement shall be
performed in accordance with the Work Schedule attached hereto as Exhibit B, consisting
of one (1) page, and incorporated herein by this reference.
3. Contract Period. This Agreement shall commence August 21, 2020 and shall continue in
full force and effect until December 31, 2021, unless sooner terminated as herein provided.
In addition, at the option of the City, the Agreement may be extended for one (1) additional
one year period. Renewals and pricing changes shall be negotiated by and agreed to by
both parties. Written notice of renewal shall be provided to the Professional and mailed no
later than thirty (30) days prior to contract end.
4. Early Termination by City. Notwithstanding the time periods contained herein, the City may
terminate this Agreement at any time without cause by providing written notice of termination
to the Professional. Such notice shall be delivered at least fifteen (15) days prior to the
termination date contained in said notice unless otherwise agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage prepaid
and sent to the following addresses:
Professional: City: Copy to:
Overlay, LLC
Attn: Jonathan Dierking
1635 Blake St. Suite 200
Denver, CO 80202
City of Fort Collins
Attn: Kirk Longstein
PO Box 580
Fort Collins, CO 80522
City of Fort Collins
Attn: Purchasing Dept.
PO Box 580
Fort Collins, CO 80522
In the event of any such early termination by the City, the Professional shall be paid for
services rendered prior to the date of termination, subject only to the satisfactory
performance of the Professional's obligations under this Agreement. Such payment shall be
the Professional's sole right and remedy for such termination.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 2 of 34
5. Design, Project Indemnity and Insurance Responsibility. The Professional shall be
responsible for the professional quality, technical accuracy, timely completion and the
coordination of all services rendered by the Professional, including but not limited to designs,
plans, reports, specifications, and drawings and shall, without additional compensation,
promptly remedy and correct any errors, omissions, or other deficiencies. The Professional
shall indemnify, save and hold harmless the City, its officers and employees in accordance
with Colorado law, from all damages whatsoever claimed by third parties against the City;
and for the City's costs and reasonable attorney’s fees, arising directly or indirectly out of
the Professional's negligent performance of any of the services furnished under this
Agreement. The Professional shall maintain insurance in accordance with Exhibit E,
consisting of one (1) page, attached hereto and incorporated herein.
6. Compensation. In consideration of the services to be performed pursuant to this Agreement,
the City agrees to pay the Professional in accordance with Exhibit C, consisting of one (1)
page, attached hereto and incorporated herein. Monthly partial payments based upon the
Professional's billings and itemized statements are permissible. The amounts of all such
partial payments shall be based upon the Professional's City-verified progress in completing
the services to be performed pursuant hereto and upon the City's approval of the
Professional's actual reimbursable expenses. Final payment shall be made following
acceptance of the Work by the City. Upon final payment, all designs, plans, reports,
specifications, drawings, and other services rendered by the Professional shall become the
sole property of the City.
7. License. Upon execution of this Agreement, the Professional grants to the City an
irrevocable license to use any and all sketches, drawings, specifications, designs,
blueprints, data files, calculations, studies, analysis, renderings, models and other Work
Order deliverables (the “Instruments of Service”), in any form whatsoever and in any
medium expressed, for purposes of constructing, using, maintaining, altering and adding to
the project, provided that the City substantially performs its obligations under the
Agreement. The license granted hereunder permits the City and third parties reasonably
authorized by the City to reproduce applicable portions of the Instruments of Service for use
in performing services or construction for the project. In addition, the license granted
hereunder shall permit the City and third parties reasonably authorized by the City to
reproduce and utilize the Instruments of Service for similar projects, provided however, in
such event the Professional shall not be held responsible for the design to the extent the
City deviates from the Instruments of Service. This license shall survive termination of the
Agreement by default or otherwise.
8. City Representative. The City will designate, prior to commencement of work, its project
representative who shall make, within the scope of his or her authority, all necessary and
proper decisions with reference to the project. All requests for contract interpretations,
change orders, and other clarification or instruction shall be directed to the City
Representative.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 3 of 34
9. Project Drawings. Upon request and before final payment, the Professional shall provide
the City with reproducible drawings of the project containing accurate information on the
project as constructed. Drawings shall be of archival quality, prepared on stable mylar base
material using a non-fading process to provide for long storage and high quality
reproduction. "CD" disc of the as-built drawings shall also be submitted to the owner in and
AutoCAD version no older then the established City standard. The Professional
acknowledges the City is a governmental entity subject to the Colorado Open Records Act,
C.R.S. §§ 24-72-200.1, et seq. (the “CORA”), and documents in the City’s possession may
be considered public records subject to disclosure under the CORA.
10. Monthly Report. Commencing thirty (30) days after the date of execution of this Agreement
and every thirty (30) days thereafter, Professional is required to provide the City
Representative with a written report of the status of the work with respect to the Scope of
Services, Work Schedule, and other material information. Failure to provide any required
monthly report may, at the option of the City, suspend the processing of any partial payment
request.
11. Independent Contractor. The services to be performed by Professional are those of an
independent contractor and not of an employee of the City of Fort Collins. The City shall
not be responsible for withholding any portion of Professional's compensation hereunder for
the payment of FICA, Workers' Compensation, other taxes or benefits or for any other
purpose.
12. Subcontractors. The Professional may not subcontract any of the Work set forth in the
Exhibit A, Statement of Work without the prior written consent of the city, which shall not be
unreasonably withheld. If any of the Work is subcontracted hereunder (with the consent of
the City), then the following provisions shall apply: (a) the subcontractor must be a reputable,
qualified firm with an established record of successful performance in its respective trade
performing identical or substantially similar work, (b) the subcontractor will be required to
comply with all applicable terms of this Agreement, (c) the subcontract will not create any
contractual relationship between any such subcontractor and the City, nor will it obligate the
City to pay or see to the payment of any subcontractor, and (d) the Work of the subcontractor
will be subject to inspection by the City to the same extent as the Work of the Professional.
The Professional shall require all subcontractors performing Work hereunder to maintain
insurance coverage naming the City as an additional insured under this Agreement of the
type and with the limits specified within Exhibit E, consisting of one (1) page attached hereto
and incorporated herein by this reference. The Professional shall maintain a copy of each
subcontract’s certificate evidencing the required insurance. Upon request, the Professional
shall promptly provide the City with a copy of such certificate(s).
13. Personal Services. It is understood that the City enters into the Agreement based on the
special abilities of the Professional and that this Agreement shall be considered as an
agreement for personal services. Accordingly, the Professional shall neither assign any
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 4 of 34
responsibilities nor delegate any duties arising under the Agreement without the prior written
consent of the City.
14. Acceptance Not Waiver. The City's approval of drawings, designs, plans, specifications,
reports, and incidental work or materials furnished hereunder shall not in any way relieve
the Professional of responsibility for the quality or technical accuracy of the Work. The City's
approval or acceptance of, or payment for, any of the services shall not be construed to
operate as a waiver of any rights or benefits provided to the City under this Agreement.
15. Default. Each and every term and condition hereof shall be deemed to be a material element
of this Agreement. In the event either party should fail or refuse to perform according to the
terms of this agreement, such party may be declared in default.
16. Remedies. In the event a party has been declared in default, such defaulting party shall be
allowed a period of ten (10) days within which to cure said default. In the event the default
remains uncorrected, the party declaring default may elect to (a) terminate the Agreement
and seek damages; (b) treat the Agreement as continuing and require specific performance;
or (c) avail himself of any other remedy at law or equity. If the non-defaulting party
commences legal or equitable actions against the defaulting party, the defaulting party shall
be liable to the non-defaulting party for the non-defaulting party's reasonable attorney fees
and costs incurred because of the default.
17. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire
agreement between the parties and shall be binding upon said parties, their officers,
employees, agents and assigns and shall inure to the benefit of the respective survivors,
heirs, personal representatives, successors and assigns of said parties.
18. Law/Severability. The laws of the State of Colorado shall govern the construction,
interpretation, execution and enforcement of this Agreement. In the event any provision of
this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision of this
Agreement.
19. Prohibition Against Unlawful Discrimination. The City of Fort Collins, in accordance with the
provisions of Title VI of the Civil Rights Act of 1964 (78 Stat. 252, 42 US.C. §§ 2000d to
2000d-4) and the Regulations, hereby notifies all bidders that it will affirmatively ensure that
any contract entered into pursuant to this advertisement, disadvantaged business
enterprises will be afforded full and fair opportunity to submit bids in response to this
invitation and will not be discriminated against on the grounds of race, color, or national
origin in consideration for an award.
The City strictly prohibits unlawful discrimination based on an individual’s gender
(regardless of gender identity or gender expression), race, color, religion, creed, national
origin, ancestry, age 40 years or older, marital status, disability, sexual orientation, genetic
information, or other characteristics protected by law. For the purpose of this policy “sexual
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 5 of 34
orientation” means a person’s actual or perceived orientation toward heterosexuality,
homosexuality, and bisexuality. The City also strictly prohibits unlawful harassment in the
workplace, including sexual harassment. Further, the City strictly prohibits unlawful
retaliation against a person who engages in protected activity. Protected activity includes
an employee complaining that he or she has been discriminated against in violation of the
above policy or participating in an employment discrimination proceeding.
The City requires its vendors to comply with the City’s policy for equal employment
opportunity and to prohibit unlawful discrimination, harassment and retaliation. This
requirement applies to all third-party vendors and their subcontractors at every tier.
20. Prohibition Against Employing Illegal Aliens. Pursuant to Section 8-17.5-101, C.R.S., et.
seq., the Professional represents and agrees that:
a. As of the date of this Agreement:
1. The Professional does not knowingly employ or contract with an illegal alien who will
perform work under this Agreement; and
2. The Professional will participate in either the e-Verify program created in Public Law
208, 104th Congress, as amended, and expanded in Public Law 156, 108th
Congress, as amended, administered by the United States Department of Homeland
Security (the “e-Verify Program”) or the Department Program (the “Department
Program”), an employment verification program established pursuant to Section 8-
17.5-102(5)(c) C.R.S. in order to confirm the employment eligibility of all newly hired
employees to perform work under this Agreement.
b. The Professional shall not knowingly employ or contract with an illegal alien to perform
work under this Agreement or knowingly enter into a contract with a subcontractor that
knowingly employs or contracts with an illegal alien to perform work under this
Agreement.
c. The Professional is prohibited from using the e-Verify Program or Department Program
procedures to undertake pre-employment screening of job applicants while this
Agreement is being performed.
d. If the Professional obtains actual knowledge that a subcontractor performing work under
this Agreement knowingly employs or contracts with an illegal alien, the Professional
shall:
1. Notify such subcontractor and the City within three days that the Professional has
actual knowledge that the subcontractor is employing or contracting with an illegal
alien; and
2. Terminate the subcontract with the subcontractor if within three days of receiving the
notice required pursuant to this section the subcontractor does not cease employing
or contracting with the illegal alien; except that the Professional shall not terminate
the contract with the subcontractor if during such three days the subcontractor
provides information to establish that the subcontractor has not knowingly employed
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 6 of 34
or contracted with an illegal alien.
e. The Professional shall comply with any reasonable request by the Colorado Department
of Labor and Employment (the “Department”) made in the course of an investigation that
the Department undertakes or is undertaking pursuant to the authority established in
Subsection 8-17.5-102 (5), C.R.S.
f. If the Professional violates any provision of this Agreement pertaining to the duties
imposed by Subsection 8-17.5-102, C.R.S. the City may terminate this Agreement. If
this Agreement is so terminated, the Professional shall be liable for actual and
consequential damages to the City arising out of the Professional’s violation of
Subsection 8-17.5-102, C.R.S.
g. The City will notify the Office of the Secretary of State if the Professional violates this
provision of this Agreement and the City terminates the Agreement for such breach.
21. Special Provisions. Special provisions or conditions relating to the services to be performed
pursuant to this Agreement are set forth in Exhibit D – Software Use Addendum, consisting
of sixteen (16) pages, and Exhibit F - Confidentiality, consisting of three (3) pages, attached
hereto and incorporated herein by this reference.
[Signature Page Follows]
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 7 of 34
THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul
Purchasing Director
DATE:
ATTEST:
APPROVED AS TO FORM:
OVERLAY, LLC.
By:
Printed:
Title:
Date:
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
CEO
Jonathan Dierking
8/28/2020
Assistant City Attorney ll
8/31/2020
City Clerk
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 8 of 34
EXHIBIT A
SCOPE OF SERVICES
Background
The City of Fort Collins (City) Building Energy and Water Scoring Program
(Program) (Ordinance 2018-144) requires transparency of energy and water efficiency of
commercial and multifamily buildings 5,000 square feet and above. Comparing the energy and
water performance of one building against another in the same sector allows commercial real
estate stakeholders such as building owners, operators, and tenants, to evaluate the highest-
performing, lowest-operating cost option, and to monitor their performance in the market place.
The Program requires reported performance information be made publicly available through the
City’s Open Data initiative. In addition to notifications, warnings, and exemptions, the Program
may issue citations to building owners who do not comply with the provisions of the Ordinance.
The following details the tasks, milestones and deliverables associated with implementing and
configuring the Touchstone Benchmarking™ software platform to manage each of the required
elements of the adopted Ordinance.
Platform Overview
Touchstone Benchmarking™ Platform Design Overview
The Touchstone Benchmarking™ platform (Platform)will allow for automated integration
with Portfolio Manager with real-time tracking of building data. This will also allow for
communication tracking with building owners for both phone call notes and email tracking.
The following provides an overview of the core functionalities of the Platform:
# Features / Functionality
General Functions and Features
1 No limit on the volume of data held or number of records that can be generated.
2 Ability to import large file sizes (minimum of 25MB). State any limit on file size uploads.
3 Ability to import at least 250 individual data fields per record.
4
Ability to store building information such as building address, unique building ID, tax assessor parcel
number, and building size.
5 Ability to store basic “customer” contact information such as name, company, phone number, and email
6 address. Ability to create relationships between contact records and building records.
7 Ability to maintain a parent-child hierarchy of buildings.
8
Ability to perform automatic quality control functions (e.g. flagging errors in benchmarking reports or
incomplete building records) on imported data.
9
Ability to track supplementary compliance data (e.g. exemption and extension applications, building
reporting fee payment and incidental non-compliance fine payments).
10 Ability to track multiple deadlines (e.g reporting extension deadlines).
Interfaces
11 Ability to import data from third party systems such as ENERGYSTAR Portfolio Manager® & City financial
systems
12
Ability to match building records, contacts and benchmarking reports through custom building IDs,
building addresses, or other user defined fields.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 9 of 34
13
Ability to merge historical records with future data without overwriting historical records, to create an
ongoing compliance record.
User Interface
14 Standardize screen interface (hierarchical menus, tabs, window panes) with standard function keys and
screen headers.
15 Ability to track support and interactions associated with each contact and building record.
16 Ability for staff to edit all contact, building, and benchmarking report records manually.
17 Ability for staff to edit the relationships between all contact, building, and benchmarking report records
manually.
18 Ability for to develop rules to define quality control checks on imported data.
19 Ability to display compliance status for each building record.
20 Ability to provide notifications for overdue deadlines to platform users.
Dashboard and Reporting Analytics
21 Ability to set a combination of filters as input parameters to a dashboard (e.g. outstanding support requests).
22 Outputs (reports, dashboard, and alerts) presented with common look and feel.
23 Ability to generate ad hoc queries and summary reports on stored data.
24 Ability to display report data through visualization tools, such as maps, charts, or graphs.
25
Ability to retain data for historical reporting cycles and query as specified for any point(s) in time or
defined time period.
26 Ability to query and report by any field available.
27 Ability to perform keyword searches.
28 Ability to create a query by modifying an existing report or query.
29 Ability to export the results of reports or queries in a variety of formats (.cvs, .pdf, Excel). Specify formats
Building supported. Owner Scorecards
Create customizable building owner scorecards
Ability for users to automate creation and email of building owner scorecards
Scorecard records saved to each building record
Public Facing Map
Real-time display of approved building data metrics through online public facing map
Ability to filter building data based on definted metrics
Ability to compare building
Provide savings potential based on city/state defined metrics
Provide historical building metrics including increase / descrease percentages
Customizable to provide city program information
Security
30 Provide secure log in credentials for administrators and users.
31 Allow multiple users to access the Solution at one time.
32 Hosted data maintained at a secure facility located within the US.
Additional Features
33 Ability to create rule-based responses and send automatic email correspondences.
34 Ability to send automated email notifications to external contacts for errors in submitted reports, expiration
35 dates, Ability to etc. send mass communications to stored contacts.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 10 of 34
System Design – Discovery Sessions
Professional will conduct a discovery session with the City to identify the core data tracking and
data presentation needs of the City team. This session will also include a discussion and review
of the covered building list (from the intermediate reference tables previously created by
Professional), building owner data and City data source integration points.
Data Tracking and Presentation Functionality
The data tracking and data presentation needs review will discuss items such as, but is not
limited to:
1) Current state of covered building list and owner data
2) The City’s data presentation preferences
a. Dashboard customization
3) Building owner communication tracking design
a. Email / outreach templates that can be configured in the Platform
4) Building owner scorecard options and designs
5) Building or program data to be tracked beyond information provided within the Portfolio
Manager reports
a. i.e. performance verification reports, energy audits, energy efficiency retrofit data, etc.
6) Public-facing benchmarking mapping details
Deliverables
1) Discovery session notes
2) Platform configuration details
Software & Database Configuration
Database Configuration
Based on the discovery session input from the City’s team, Professional’s web / database
development staff will configure the core Platform. This will include, but is not limited to:
1) Building data tracked
2) Dashboard configurations
3) Building contact information
4) Portfolio Manager automated report download configuration
5) Direct APIs and automated webforms
a. i.e. online exemption request forms, APIs to City data (when available)
6) Building communication tracking configurations (email/phone)
7) Building performance metrics (audits, energy efficiency retrofit data) - Optional
Once the core system is configured, Professional will review the design and layout with the City
Staff to confirm it meets the City’s expectations. This will include a demo of the design with
multiple feedback rounds and updates, if necessary.
Data Upload
Upon City approval of the initial information layout and design, Professional will upload the final
covered building list, contact information and additional datapoints identified within the discovery
sessions.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 11 of 34
Professional will also configure the automated nightly download of the Energy Star Portfolio
Manager data request report for the upcoming year’s submissions.
Building Owner Communication Design & Configuration
Professional will work with the City to develop the content and design of the building owner
communications facilitated through the Platform. Professional will facilitate a working session
with the City team to review the various communication channels, their impact on building
owners and the different potential functionalities.
Building owner communication channels include:
1) Building owner automated email response
a. i.e. Report approved, in process, denied, etc.
2) Building owner compliance notice emails and mailing templates
3) Standardized help center email templates
4) Building owner scorecard design and configuration
5) Public facing map design and configuration
City approved automated email responses will be input into the system to respond to activities
such as submittal status, submittal errors, or approvals. This will also include standardized email
templates that can be used by City Staff when communicating with building owners.
Professional will also upload the approved scorecard design/language for automated direct
emailing functionality.
City Team Account Setup
Professional will setup user accounts for all City Staff approved for access to the Platform.
Professional will work with the City’s Project Manager to identify and configure the access and
security level of each individual user.
Deliverables
1) Touchstone Benchmarking™ configured database
2) Dashboard configured
3) Building owner communication designs
4) Building owner scorecard final design
5) Public facing map final design
6) City account logins
Testing and Refinement
Once the Platform has been configured and the initial data upload has been completed and
tested by Professional, an online demonstration of the system will be provided to the City Staff.
Professional will then work with the City Staff to discuss any feedback on the configuration or
data aspects and update the system accordingly. Multiple rounds of feedback and updates will
be utilized, if necessary.
City Staff will be able to provide direct feedback to Professional’s Program Manager as well as
ongoing punch list items. Professional will also use an online issues/resolution tracking tool,
which the City Staff will have access to through the testing and refinement phase.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 12 of 34
Deliverables
1) Platform Demonstration to City Staff
2) Responses and update timeline for City feedback
City Staff Training & Go Live
Once all building data, automated email, and scorecard language have been uploaded and
tested within the Platform, Professional will provide one in-person training as well as additional
web-based training session with City Staff. Professional will also provide digital training manuals
for both use of the system as well as City Staff process flows. As new functionalities are
provided in the future, additional online trainings will be provided.
Upon completion of testing and City Staff training, Professional and City Staff will execute the
final acceptance and begin accepting building owner reporting and help center administration
use of the Platform.
Deliverables
1) City Staff system training
2) Software setup and user manual
Ongoing Technical Support and Maintenance
Professional will provide ongoing technical support and maintenance services. In addition to
these services, Professional will also support the City in annual ongoing data update / upload
activities such as:
1) Annual update of newly constructed buildings to the covered buildings list
a. (Data to be provided by City)
2) Annual update of building ownership contact information from assessor data
a. (Data to be provided by City)
3) Annual rollover of Portfolio Manager reporting links
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 13 of 34
EXHIBIT B
IMPLEMENTATION SCHEDULE
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 14 of 34
EXHIBIT C
COMPENSATION
The City agrees to pay Professional in accordance with the annual fee listed below. The City’s
payment terms are Net 30.
Fee Structure
Annual Fee
Touchstone Benchmarking
Software License &
Configuration
Year 1 Year 2
$28,000 $28,000*
*Year 2 is contingent upon renewing this Agreement.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 15 of 34
EXHIBIT D
SOFTWARE USE ADDENDUM
This Software License Addendum (the “Addendum”), dated as of August 21, 2020 (the
“Effective Date”), by and between Touchstone Benchmarking, LLC, a Colorado limited liability
company (“Touchstone”) and City of Fort Collins (“Customer”) is part of and incorporated into
that certain Agreement for Services between Overlay LLC and City of Fort Collins dated as of
August 21, 2020 (the “Master Agreement”).
1) Definitions. Capitalized terms not defined below have the meaning set forth in the Master
Agreement.
“Access Credentials” means any user name, identification number, password, or other
security code or method used to verify an individual’s identity and authorization to access and use
the Hosted Services.
“Action” has the meaning set forth in Section 12(a).
“Addendum” has the meaning set forth in the preamble.
“Authorized User” means each of the individuals authorized to use the Services pursuant
to the terms and conditions of this Addendum.
“Confidential Information” has the meaning set forth in Section 9(a).
“Customer” has the meaning set forth in the preamble.
“Customer Data” means information, data and other content, in any form or medium that
is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an
Authorized User by or through the Hosted Services. For the avoidance of doubt, Customer Data
does not include Resultant Data or any other information reflecting the access or use of the
Services by or on behalf of Customer or any Authorized User.
“Customer Failure” has the meaning set forth in Section X.
“Customer Indemnitee” has the meaning set forth in Section X.
“Customer Systems” means the Customer’s information technology infrastructure,
including computers, software, hardware, databases, electronic systems (including database
management systems) and networks, whether operated directly by Customer or through the use
of third-party services.
“Disclosing Party” has the meaning set forth in Section X.
“Documentation” means any user manuals or Hosted Services instructions that
Touchstone provides or makes available to Customer in any form or medium and which describe
the functionality, components, features or requirements of the Hosted Services.
“Effective Date” has the meaning set forth in the preamble.
“Fees” has the meaning set forth in Section X.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 16 of 34
“Force Majeure Event” means any circumstances beyond either party’s reasonable
control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or
other civil unrest, embargoes or blockades in effect on or after the date of this Addendum, national
or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances,
passage of Law or any action taken by a governmental or public authority, including imposing an
embargo, export or import restriction, quota or other restriction or prohibition or any complete or
partial government shutdown, or national or regional shortage of adequate power or
telecommunications or transportation.
“Harmful Code” means any virus, worm, malware or other malicious computer code.
“Hosted Services” means the software-as-a-service offering described in the Statement
of Work under the Master Agreement, including to host, manage, operate and maintain the
Software for remote electronic access and use by Customer and its Authorized Users
“Indemnitee” has the meaning set forth in Section X.
“Indemnitor” has the meaning set forth in Section X.
“Intellectual Property Rights” means any and all registered and unregistered rights
granted, applied for or otherwise now or hereafter in existence under or related to any patent,
copyright, trademark, trade secret, database protection or other intellectual property rights laws,
and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty,
common law, judgment, decree or other requirement of any federal, state, local or foreign
government or political subdivision thereof, or any arbitrator, court or tribunal of competent
jurisdiction.
“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions,
judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind,
including reasonable attorneys’ fees and the costs of enforcing any right to indemnification
hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity,
governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means information provided to Touchstone by or at the direction
of Customer, information which is created or obtained by Touchstone on behalf of Customer, or
information to which access was provided to Touchstone by or at the direction of Customer, in
the course of Touchstone’s performance under this Agreement that: (i) identifies or can be used
to identify an individual (including, without limitation, names, signatures, addresses, telephone
numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an
individual (including, without limitation, employee identification numbers, government-issued
identification numbers, passwords or PINs, user identification and account access credentials or
passwords, financial account numbers, credit report information, student information, biometric,
health, genetic, medical, or medical insurance data, answers to security questions, and other
personal identifiers), in case of both subclauses (i) and (ii), including, without limitation, all
Sensitive Personal Information. Customer's business contact information is not by itself Personal
Information.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 17 of 34
“Professional Services” means those professional services provided by Touchstone to
Customer pursuant to the Scope of Services, Exhibit A-1 of the Master Agreement.
“Receiving Party” has the meaning set forth in Section X.
“Representatives” means, with respect to a party, that party’s employees, officers,
directors, consultants, agents, independent contractors, service providers, sublicenses,
subcontractors and legal advisors.
“Resultant Data” means data and information related to Customer's use of the Services
that is used by Touchstone in an aggregate and anonymized manner, including to compile
statistical and performance information related to the provision and operation of the Services.
“Service Credits” has the meaning set forth in Schedule B.
“Services” means both Hosted Services and Professional Services, as set forth in the
Scope of Services, Exhibit A to the Master Agreement.
“Sensitive Personal Information” means an (i) individual's government-issued
identification number (including Social Security number, driver's license number, or state-issued
identification number); (ii) financial account number, credit card number, debit card number, or
credit report information, with or without any required security code, access code, personal
identification number, or password that would permit access to an individual’s financial account;
or (iii) biometric, genetic, health, medical, or medical insurance data.
“Software” means the Touchstone software application or applications, and all new
versions, updates, revisions, improvements and modifications of the foregoing, that Touchstone
provides remote access to and use of as part of the Hosted Services.
“Subcontractor” has the meaning set forth in Section X.
“Third Party Data” means information, data and other content, in any form or medium that
is collected, downloaded or otherwise received, directly or indirectly from a third party by or
through the Hosted Services.
“Touchstone” has the meaning set forth in the preamble.
“Touchstone Indemnitee” has the meaning set forth in Section X.
“Touchstone Platform” means the Software, Documentation and Touchstone Systems
and any and all other information, data, documents, materials, works and other content, devices,
methods, processes, hardware, software and other technologies and inventions, that are directly
provided or used by Touchstone or any Subcontractor in providing the Services.
“Touchstone Personnel” means all individuals involved in the performance of Services
as employees, agents or independent contractors of Touchstone or any Subcontractor.
“Touchstone Systems” means the information technology infrastructure used by or on
behalf of Touchstone in performing the Services, including all computers, software, hardware,
databases, electronic systems (including database management systems) and networks, whether
operated directly by Touchstone or through the use of third-party services.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 18 of 34
2) Hosted Services.
a) Provision of Services. Touchstone shall provide Hosted Services to Customer according
to the terms of this Addendum, during the Term, as more fully in accordance with the
Master Agreement and attached statements of work describing such services.
b) Service and System Control. Except as otherwise expressly provided in this Addendum,
as between the parties:
i) Touchstone has and will retain sole control over the operation, provision, maintenance
and management of the Hosted Services and Touchstone Platform; and
ii) Customer has and will retain sole control over the operation, maintenance and
management of, and all access to and use of, the Customer Systems, and sole
responsibility for all access to and use of the Services and Touchstone Platform by
any Person by or through the Customer Systems or any other means controlled by
Customer or any Authorized User.
c) Touchstone Changes. Touchstone reserves the right, in its sole discretion, to make any
changes to the Services and Touchstone Platform that it deems necessary or useful to
maintain or enhance the Services or Touchstone Platform or to comply with applicable
Law. Any changes that require an increase in cost, whether in the form of a one-time
charge, or increase in monthly subscription or installment fee shall be first submitted in
writing not less than sixty days prior to going into effect, and shall not be effective until
approved in writing by Customer.
d) Subcontractors. Touchstone may from time to time in its discretion engage third parties
to perform Services (each, a “Subcontractor”), provided that all Subcontractors are
bound by confidentiality and data security obligations no less restrictive than those in this
Addendum and maintain insurance as described in the Master Agreement. Any breach of
this Addendum by a Subcontractor shall be deemed to be a breach by Touchstone.
3) Professional Services. From time to time, the parties may agree that Touchstone will provide
to Customer certain Professional Services, such as configuration and implementation, etc.
The scope of such services, and additional terms if any, shall be set forth in a Statement of
Work that will become effective upon the execution of such Statement of Work by both parties.
Each Statement of Work shall be subject to, and become a part of this Addendum, except as
otherwise expressly agreed in writing by the parties.
4) Service Levels and Credits; Support Services.
a) Service Levels and Credits. Subject to the terms and conditions of this Addendum,
Touchstone will ensure the Hosted Services are reasonably available in accordance with
the Service Level Exhibit set forth in Schedule A to this Addendum.
b) In the event of a Service Level Failure, Touchstone shall issue a credit to Customer in the
amount and as set forth in Schedule B to this Addendum, subject to the limitations therein.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 19 of 34
c) Support Services. The Hosted Services include Touchstone’s standard customer support
services set forth in Schedule B to this Addendum.
5) Reservation of Rights and Customer Restrictions.
a) Reservation of Rights. Nothing in this Addendum grants any right, title or interest in or to
(including any license under) any Intellectual Property Rights in or relating to, the Services
or Touchstone Platform, whether expressly, by implication, estoppel or otherwise. All
right, title and interest in and to the Services and the Touchstone Platform are and will
remain with Touchstone or the applicable third-party rights holder. Except for the limited
licensed expressly provided in this Addendum grants Touchstone any right, title or interest
in or to (including any license under) any Intellectual Property Rights in or relating to,
Customer Data, whether expressly, by implication, estoppel or otherwise. All right, title
and interest in and to the Customer Data are and will remain with Customer or the
applicable third-party rights holder.
b) Authorization Limitations and Restrictions. Customer shall not, and shall not permit any
other Person to, access or use the Services or Touchstone Platform except as expressly
permitted by this Addendum and, in the case of third-party materials, the applicable third-
party license addendum. Further, Customer shall not, except as this Addendum expressly
permits:
i) copy, modify, or create derivative works or improvements of the Services or
Touchstone Platform;
ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise
make available any Services or Touchstone Platform to any Person, including on or in
connection with the internet or any time-sharing, service bureau, software as a service,
cloud, or other technology or service;
iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to
derive or gain access to the object source code of the Services or Touchstone
Platform, in whole or in part;
iv) access or use the Services or Touchstone Platform other than by an Authorized User
through the use of his or her own then-valid Access Credentials, including through
bypass or breach or any security device or protection used by the Services or
Touchstone Platform
v) input, upload, transmit or otherwise provide to or through the Services or Touchstone
Systems, any information or materials that are unlawful or injurious, or contain,
transmit or activate any Harmful Code;
vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm
in any manner the Services, Touchstone Systems or Touchstone’s provision of
services to any third party, in whole or in part;
vii) remove, delete, alter or obscure any trademarks, Documentation, warranties or
disclaimers, or any copyright, trademark, patent or other intellectual property or
proprietary rights notices from any Services or Touchstone Platform, including any
copy thereof;
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 20 of 34
viii) access or use the Services or Touchstone Platform for purposes of competitive
analysis of the Services or Touchstone Platform, the development, provision or use of
a competing software service or product or any other purpose that is to Touchstone’s
detriment or commercial disadvantage; or
ix) upload or transmit any Personal Information to or through the Touchstone Platform.
6) Customer Obligations.
a) Customer Systems and Cooperation. Customer shall: (a) set up, maintain and operate
in good repair all Customer Systems on or through which the Services are accessed or
used as set forth in Documentation; and (b) provide Touchstone Personnel with such
access to Customer’s premises and Customer Systems as is reasonably necessary for
Touchstone to perform the Services.
b) Responsibility for Users. Customer shall be responsible for any unauthorized creation,
collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal
Information uploaded to or transmitted through the Touchstone Platform.
7) Intellectual Property Rights.
a) Services and Touchstone Platform. All right, title and interest in and to the Services and
Touchstone Platform, including all Intellectual Property Rights therein, are and will remain
with Touchstone and the respective rights holders in any third-party materials.
b) Customer Data. As between Customer and Touchstone, Customer is and will remain the
sole and exclusive owner of all Customer Data, subject to the rights granted in Section
10(c)
c) Limited Consent to Use Customer Data. Customer hereby irrevocably grants all such
rights and permissions in or relating to Customer Data as are necessary for Touchstone
to perform and enforce this Agreement and exercise Touchstone’s rights and perform
Touchstone’s obligations hereunder, including but not limited to the improvement of the
Hosted Services, the Touchstone Platform and for the benefit of Customer. The license
to use Customer Data shall be limited to the purposes of this performing the obligations
contained in this Addendum and shall not authorize Touchstone to use such information
for any other purpose.
d) Feedback. If Customer or any of its employees, contractors, or Authorized Users sends
or transmits any communications or materials to Touchstone by mail, email, telephone, or
otherwise, suggesting or recommending changes to the Software or Documentation,
including without limitation, new features or functionality relating thereto, or any
comments, questions, suggestions, or the like (“Feedback”), Touchstone is free to use
such Feedback irrespective of any other obligation or limitation between the Parties
governing such Feedback. Customer hereby grants to Touchstone on Customer’s behalf,
and on behalf of its employees, contractors and/or agents, a royalty-free, non-exclusive
license to use ideas, know-how, concepts, techniques, or other intellectual property rights
contained in the Feedback, for any purpose whatsoever.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 21 of 34
8) Confidentiality.
a) Confidential Information. In connection with this Addendum each party (as the
“Disclosing Party”) may disclose or make available Confidential Information to the other
party (as the “Receiving Party”). Subject to Section 8(b) (Exclusions), “Confidential
Information” means information in any form or medium (whether oral, written, electronic
or other) that the Disclosing Party considers confidential or proprietary, including
information consisting of or relating to the Disclosing Party’s technology, trade secrets,
know-how, business operations, plans, strategies, customers, and pricing, and information
with respect to which the Disclosing Party has contractual or other confidentiality
obligations, in each case when such information is marked, designated or otherwise
identified as “confidential.” Without limiting the foregoing, all Touchstone Platform and the
terms and existence of this Addendum are the Confidential Information of Touchstone.
Customer Data is Confidential Information. Resulting Data is not Confidential Information.
b) Exclusions. Confidential Information does not include information that the Receiving Party
can demonstrate by written or other documentary records: (a) was rightfully known to the
Receiving Party without restriction on use or disclosure prior to such information’s being
disclosed or made available to the Receiving Party in connection with this Addendum; (b)
was or becomes generally known by the public other than by the Receiving Party’s or any
of its Representatives’ noncompliance with this Addendum; (c) was or is received by the
Receiving Party on a non-confidential basis from a third party that was not or is not, at the
time of such receipt, under any obligation to maintain its confidentiality; or (d) the
Receiving Party can demonstrate by written or other documentary records was or is
independently developed by the Receiving Party without reference to or use of any
Confidential Information.
c) Protection of Confidential Information. As a condition to being provided with any
disclosure of or access to Confidential Information, the Receiving Party shall:
i) not access or use Confidential Information other than as necessary to exercise its
rights or perform its obligations under and in accordance with the Master Agreement
or this Addendum;
ii) except as may be permitted by and subject to its compliance with Section 8(c), not
disclose or permit access to Confidential Information other than to its Representatives
who: (i) need to know such Confidential Information for purposes of the Receiving
Party’s exercise of its rights or performance of its obligations under and in accordance
with this Addendum; (ii) have been informed of the confidential nature of the
Confidential Information and the Receiving Party’s obligations under this Section 8(c);
and (iii) are bound by confidentiality and restricted use obligations at least as protective
of the Confidential Information as the terms set forth in this Section 8(c);
iii) safeguard the Confidential Information from unauthorized use, access or disclosure
using at least the degree of care it uses to protect its own confidential information and
in no event less than a reasonable degree of care; and
iv) ensure its Representatives’ compliance with, and be responsible and liable for any of
its Representatives’ non-compliance with, the terms of this Section 8.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 22 of 34
d) Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled
by applicable Law to disclose any Confidential Information, then, to the extent permitted
by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure,
notify the Disclosing Party in writing of such requirement so that the Disclosing Party can
seek a protective order or other remedy or waive its rights under Section 8(c); and (b)
provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost
and expense, in opposing such disclosure or seeking a protective order or other limitations
on disclosure. If the Disclosing Party waives compliance or, after providing the notice and
assistance required under this Section 8(d), the Receiving Party remains required by Law
to disclose any Confidential Information, the Receiving Party shall disclose only that
portion of the Confidential Information that, on the advice of the Receiving Party’s legal
counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s
request, shall use commercially reasonable efforts to obtain assurances from the
applicable court or other presiding authority that such Confidential Information will be
afforded confidential treatment.
9) Representations and Warranties.
a) Mutual Representations and Warranties. Each party represents and warrants to the other
party that:
i) it is duly organized, validly existing and in good standing as a corporation or other
entity under the Laws of the jurisdiction of its incorporation or other organization;
ii) it has the full right, power and authority to enter into and perform its obligations and
grant the rights, licenses, consents and authorizations it grants or is required to grant
under this Addendum;
iii) the execution of this Addendum by its representative whose signature is set forth at
the end of this Addendum has been duly authorized by all necessary corporate or
organizational action of such party; and
iv) when executed and delivered by both parties, this Addendum will constitute the legal,
valid and binding obligation of such party, enforceable against such party in
accordance with its terms.
b) Additional Touchstone Representations and Warranties. Touchstone represents and
warrants to Customer that Touchstone will perform the Services using personnel of
required skill, experience and qualifications and in a professional and workmanlike
manner, and that the Touchstone Systems will remain free of Harmful Code.
c) Additional Customer Representations and Warranties. Customer represents and warrants
to Touchstone that Customer owns or otherwise has and will have the necessary rights to
all Customer Data and all Third Party Data to permit Touchstone to conduct the Services.
d) DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH IN SECTION 9(a), SECTION 9(b) AND SECTION 9(c), ALL SERVICES AND
THE TOUCHSTONE PLATFORM ARE PROVIDED “AS-IS” AND TOUCHSTONE
HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHER, AND TOUCHSTONE SPECIFICALLY DISCLAIMS ALL
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 23 of 34
PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING
FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING
THE FOREGOING, TOUCHSTONE MAKES NO WARRANTY OF ANY KIND THAT THE
SERVICES OR TOUCHSTONE PLATFORM, OR ANY PRODUCTS OR RESULTS OF
THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S
REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED
RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER
SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. ALL
THIRD-PARTY MATERIALS ARE PROVIDED “AS-IS” AND ANY REPRESENTATION
OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY
BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE
THIRD-PARTY MATERIALS. IN NO EVENT WILL TOUCHSTONE HAVE ANY LIABILITY
FOR THE COMPLETENESS, ACCURACY, TIMELINESS OR RELIABILITY OF ANY
THIRD-PARTY DATA.
10) Indemnification.
a) Touchstone Indemnification. Touchstone shall defend Customer and its affiliates and their
respective officers, directors, and employees and, agents, successors and assigns (each,
a “Customer Indemnitee”) from and against any and all Losses incurred by such
Customer Indemnitee arising out of or relating to (i) any claim, suit, action or proceeding
(each, an “Action”) by a third party (other than an Affiliate of a Customer Indemnitee) to
the extent that such Losses arise from any allegation in such Action that the use of the
Hosted Service (excluding, for avoidance of doubt, Customer Data and Third Party Data)
infringes an Intellectual Property Right; (ii) negligence or willful misconduct by Touchstone
or any of its Representatives on behalf of Touchstone in connection with this Addendum.
The foregoing obligation does not apply to any Action or Losses arising out of or relating
to Losses arising from any modification of the Services or Touchstone Platform by any
party other than authorized representatives of Touchstone Benchmarking, LLC.
b) Customer Indemnification. OMITTED.
c) Indemnification Procedure. Each party shall promptly notify the other party in writing of
any Action for which such party believes it is entitled to be indemnified pursuant to Section
10(a) or Section 10(b), as the case may be. The party seeking indemnification (the
“Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s
sole cost and expense. The Indemnitor shall immediately take control of the defense and
investigation of such Action and shall employ counsel reasonably acceptable to the
Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense.
The Indemnitee’s failure to perform any obligations under this Section 10(c) will not
relieve the Indemnitor of its obligations under this Section 10 except to the extent that the
Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The
Indemnitee may participate in and observe the proceedings at its own cost and expense
with counsel of its own choosing.
d) Mitigation. If any aspect of the Hosted Services is, or in Touchstone’s opinion is likely to
be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual
Property Right, Touchstone may, at its option and sole cost and expense:
i) obtain the right for Customer to continue to use the Hosted Services materially as
contemplated by this Addendum;
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 24 of 34
ii) modify or replace the Hosted Services, in whole or in part, to seek to make the Hosted
Services non-infringing, while providing materially equivalent features and
functionality; or
iii) if neither of (a) or (b) are achieved despite reasonable efforts, by written notice to
Customer, terminate this Addendum, provided that, subject to Customer’s compliance
with its post-termination obligations set forth in this Addendum.
11) Limitations of Liability.
a) EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE IN
CONNECTION WITH THIS ADDENDUM OR ITS SUBJECT MATTER, UNDER ANY
LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED
OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES
OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE
FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b) CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF
EITHER PARTY IN CONNECTION WITH THIS ADDENDUM OR ITS SUBJECT
MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND
OTHERWISE, EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER
TO TOUCHSTONE IN THE PRIOR TWELVE (12) MONTHS. THE FOREGOING
LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR
OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12) Force Majeure.
a) No Breach or Default. In no event will either party be liable or responsible to the other
party, or be deemed to have defaulted under or breached this Addendum, for any failure
or delay in fulfilling or performing any term of this Addendum, (except for any payment
obligation), when and to the extent such failure or delay is caused by a Force Majeure
Event. Either party may terminate this Addendum if a Force Majeure Event affecting the
other party continues substantially uninterrupted for a period of thirty (30) days or more.
b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure
Event, the party affected by such failure or delay shall give prompt written notice to the
other party stating the period of time the occurrence is expected to continue and use
commercially reasonable efforts to end the failure or delay and minimize the effects of
such Force Majeure Event.
13) Miscellaneous.
a) Further Assurances. Upon a party’s reasonable request, the other party shall, at the
requesting party’s sole cost and expense, execute and deliver all such documents and
instruments, and take all such further actions, necessary to give full effect to this
Addendum.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 25 of 34
b) Relationship of the Parties. The relationship between the parties is that of independent
contractors. Nothing contained in this Addendum shall be construed as creating any
agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary
relationship between the parties, and neither party shall have authority to contract for or
bind the other party in any manner whatsoever.
c) Public Announcements. Neither party shall issue or release any announcement,
statement, press release or other publicity or marketing materials relating to this
Addendum or otherwise use the other party’s trademarks, service marks, trade names,
logos, domain names or other indicia of source, affiliation or sponsorship, in each case,
without the prior written consent of the other party, which consent shall not be
unreasonably withheld, conditioned or delayed, provided, however, that Touchstone may
include Customer’s name in its lists of Touchstone’s current or former customers of
Touchstone in promotional and marketing materials.
d) Notices. Unless otherwise provided for in the Master Agreement, all notices, requests,
consents, claims, demands, waivers and other communications under this Addendum
have binding legal effect only if in writing and addressed to a party as follows (or to such
other address or such other person that such party may designate from time to time in
accordance with this Section 13(d):
If to Touchstone:
Touchstone Benchmarking, LLC
Attn: Jon Dierking
jon.dierking@overlayconsulting.com
Address: 1635 Blake St., STE 200
Denver, CO 80202.
If to Customer:
Name: City of Fort Collins.
Attn: Kirk Longstein
Email: klongstein@fcgov.com
Address: 215 N Mason St.
Fort Collins, CO 80524
Notices sent in accordance with this Section 16(d) will be deemed effectively given: (a)
when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent
by a nationally recognized overnight courier, signature required; (c) [when sent, if by e-mail, (with
confirmation of transmission), if sent during the addressee’s normal business hours, and on the
next business day, if sent after the addressee’s normal business hours]; and (d) on three (3) days
after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
e) Interpretation. For purposes of this Addendum the words “include,” “includes” and
“including” are deemed to be followed by the words “without limitation”. The parties intend
this Addendum to be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting an instrument or causing any
instrument to be drafted. The exhibits, schedules, attachments and appendices referred
to herein are an integral part of this Addendum to the same extent as if they were set forth
verbatim herein.
f) Headings. The headings in this Addendum are for reference only and do not affect the
interpretation of this Addendum.
g) Assignment. Neither party may assign the rights under the Master Agreement without the
prior written consent of the other party, except that Contractor may assign the Master
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 26 of 34
Agreement to an entity that acquires all or substantially all of its business or assets of the
Contractor, whether through merger, reorganization or otherwise, without consent of
Customer. Any purported assignment, delegation or transfer in violation of this Section
15(h) is void.
h) No Third-party Beneficiaries. This Addendum is for the sole benefit of the parties hereto
and their respective permitted successors and permitted assigns and nothing herein,
express or implied, is intended to or shall confer upon any other Person any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason of this
Addendum.
i) Amendment and Modification; Waiver. No amendment to or modification of this
Addendum is effective unless it is in writing and signed by an authorized representative of
each party. No waiver by any party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and signed by the party so waiving. Except as otherwise set
forth in this Addendum, no failure to exercise, or delay in exercising, any rights, remedy,
power or privilege arising from this Addendum shall operate or be construed as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or of any other right, remedy,
power or privilege.
j) Severability. If any provision of this Addendum is invalid, illegal or unenforceable in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or
provision of this Addendum or invalidate or render unenforceable such term or provision
in any other jurisdiction. Upon such determination that any term or other provision is
invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify
this Addendum so as to effect the original intent of the parties as closely as possible in a
mutually acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the greatest extent possible.
k) Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may
have to a trial by jury in respect of any legal action arising out of or relating to this
Addendum or the transactions contemplated hereby.
l) Equitable Relief. Each party acknowledges and agrees that a breach or threatened
breach by such party of any of its obligations under Section 9 or, in the case of Customer,
Section 3(b) or Section 4(c), would cause the other party irreparable harm for which
monetary damages would not be an adequate remedy and agrees that, in the event of
such breach or threatened breach, the other party will be entitled to equitable relief,
including a restraining order, an injunction, specific performance and any other relief that
may be available from any court, without any requirement to post a bond or other security,
or to prove actual damages or that monetary damages are not an adequate remedy. Such
remedies are not exclusive and are in addition to all other remedies that may be available
at law, in equity or otherwise.
m) Counterparts. This Addendum may be executed in counterparts, each of which is deemed
an original, but all of which together are deemed to be one and the same Addendum. A
signed copy of this Addendum delivered by facsimile, e-mail or other means of electronic
transmission is deemed to have the same legal effect as delivery of an original signed
copy of this Addendum.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 27 of 34
SCHEDULE A
TOUCHSTONE SERVICE LEVEL COMMITMENT
1. Certain Definitions.
a. “Available” means the percentage of time that the Hosted Services are available
for access and use by Customer and its Authorized Users over the Internet and
operating in material accordance with the Documentation, but shall exclude
planned maintenance during a Scheduled Maintenance Period. “Availability” and
“Unavailable” have correlative meanings.
b. “Scheduled Maintenance Period” means the period from Sunday 2:00AM CST
to Sunday 6:00AM CST, or such period otherwise agreed to in writing by
Touchstone and Customer.
c. “Service Level Failure” means a material failure of the Hosted Services to meet
the Availability requirements set forth in this Service Level Agreement.
d. “Services Downtime” means an inability to access the Hosted Services other than
during the Scheduled Maintenance Period as verified by Touchstone.
2. In the event of Services Downtime, Customer shall be entitled to credits from Touchstone
against amounts owed by Customer (“Service Credits”) as follows:
a. If the total Availability of the Hosted Services in a calendar month is less than
99.99% but at least 98.0%, Touchstone will issue a credit to Customer in the
amount equaling to 5% of that calendar month’s charges for the Hosted Services.
b. If the total Availability of the Hosted Services in a calendar month is less than
98.0% but at least 95%, Touchstone will issue a credit to Customer in the amount
equaling to 20% of that calendar month’s charges for the Hosted Services.
c. If the total Availability of the Hosted Services provided by Touchstone in a calendar
month is less than 95.0% but at least 90%, a credit for services will be issued to
the Customer in the amount equaling to 30% of that month’s charges.
In addition to the foregoing, if the total Availability of the Hosted Services provided
by Touchstone in two consecutive calendar months is less than 90%, such
Availability shall be deemed to be a material breach giving rise to a right of
Customer to terminate this Agreement.
3. The Hosted Services will not be considered Unavailable if the impaired ability of Customer
or its Authorized Users to access or use the Hosted Services is due, in whole or in part,
to any: (a) access to or use of the Hosted Services by Customer or any Authorized User,
or using Customer’s or an Authorized User’s Access Credentials, that does not comply
with this Agreement and the Documentation; (b) Customer Failure; (c) Customer’s or its
Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption,
outage or other problem with any software, hardware, system, network, facility or other
matter not supplied by Touchstone pursuant to this Agreement; (f) disabling, suspension
or termination of the Services as permitted by the Agreement.
4. Touchstone has no obligation to issue any Service Credit unless Customer reports the
Service Level Failure to Touchstone promptly on becoming aware of it.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 28 of 34
SCHEDULE B
SUPPORT SERVICES
I. Touchstone’s standard support services include the following:
Function Standard Support Offering
New User Setup Included
New User Web Training Included
Configuration Changes (within
original project scope)
Included
Email Support Included; unlimited
Incident Limit Unlimited
Phone Support Included during business hours, 9:00AM –
5:00 PM Mountain time
Incident Acknowledgement Within 24 hours
Resolution Estimate Severity Level 1: as quickly as possible, with
updates every 6 hours
Severity Level 2: As quickly as possible,
with daily updates
Severity Level 3: Correction with a
maintenance release of the software
Severity Level 4 or 5: None, unless
escalated.
II. A Touchstone customer service representative (“CSR”) will perform the following steps
once the incident is reported by Customer:
A. Support Procedures:
1) Obtain an adequate description of the issue, including requests for screen
shots or system logs from the person reporting the issue or making the
support request (the “Requestor”).
2) Provide a solution (if known) to the Requestor and close the incident.
Requestor will receive an email confirmation.
3) If the incident is not so closed, assign a severity level and problem type that
is appropriate for the Customer’s business needs and Customer’s support
terms. If the incident is a Severity 1 or 2 as determined below, the CSR will
work with the Requestor until the issue is resolved or until it is determined
that an error in the Hosted Services exists.
4) If issue is not known, attempt to recreate the problem in a test environment
and Requestor will receive an estimate of the resolution time via email.
5) Attempt to provide an acceptable work around, if available, to the
Requestor
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 29 of 34
6) If no resolution is available, record the suspected error for development or
second level to analyze, as appropriate.
7) Once resolution is made available from development or second level
support, test resolution.
8) If resolution test is successful, correction will be provided to the Requestor.
9) Once resolution is implemented, email confirmation of the resolution is sent
to the Requestor.
10) Issue is closed.
B. Problem Type:
1) Bug - documented instance when the Hosted Services do not produce the
proper results, or a function works differently than stated in Documentation.
A severity level will be logged and appropriate action taken.
3) User Error or Training - The Authorized User was improperly using the
Hosted Services for the desired results.
2) Feature Request - A new feature or function desired by Requestor that
currently is not delivered within the Hosted Services.
C. Severity Levels:
1) Severity 1 - Unable to use the Hosted Services. Hosted Services crash
and/or machine hangs.
2) Severity 2 – Hosted Services are severely restricted due to a defect
encountered for which there is no acceptable circumvention. Hosted
Services do not function properly; there is an impediment to business use.
3) Severity 3 - Able to proceed with limited function which is not crucial to
business use. Either the defect is serious, but an acceptable circumvention
exists, or the defect is not serious, although no circumvention exists.
Hosted Services do not function properly, but there is a known work
around, or no impediment to the business function.
4) Severity 4 - No immediate impact to business use or defects that are non-
reproducible, but should be documented.
5) Severity 5 - Error due to Authorized User’s lack of knowledge or invalid use
of the Hosted Services.
D. Support Actions taken:
1) Severity 1 - Immediate assignment of development staff to diagnose and
correct the problem. The fix will be tested and a new program template is
created in order to replace the design of the defunct application code. Any
agents necessary to correct data corruption will be included in the new
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 30 of 34
program template, and instructions provided on the correction procedure.
The CSR will schedule the implementation of the resolution with the
Customer contact.
2) Severity 2 – If the CSR is unable to solve the incident or answer the request
within the resolution estimate time per Customer’s support terms, the
incident is sent to the Product Development Manager and assigned to the
appropriate development staff or second level support. The fix will be
tested and a new program template created in order to replace the design
of the defunct application code if necessary. Any agents necessary to
correct data corruption will be included in the new program template, and
instructions provided on the correction procedure. The CSR will schedule
the implementation of the resolution with the Customer contact.
3) Severity 3 - The CSR should be able to provide an acceptable work around
to the issue recorded and the issue resolved to the Customer’s satisfaction.
4) Severity 4 - The CSR should be able to provide an acceptable work around.
If further action is required, such as minor changes to the program, the
issue will be logged for the development staff, and placed in a queue for
implementation in a designated future release of the Hosted Services.
5) Severity 5 - The CSR should be able to provide an answer and the issue is
logged, but not assigned to Development.
Customer shall not be charged for system failures.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 31 of 34
EXHIBIT E
INSURANCE REQUIREMENTS
1. The Professional will provide, from insurance companies acceptable to the City, the
insurance coverage designated hereinafter and pay all costs. Before commencing Work
under this bid, the Professional shall furnish the City with certificates of insurance
showing the type, amount, class of operations covered, effective dates and date of
expiration of policies, and containing substantially the following statement:
“The insurance evidenced by this Certificate will not reduce coverage or limits and
will not be cancelled, except after thirty (30) days written notice has been received
by the City of Fort Collins.”
In case of the breach of any provision of the Insurance Requirements, the City, at its
option, may take out and maintain, at the expense of the Professional, such insurance
as the City may deem proper and may deduct the cost of such insurance from any
monies which may be due or become due the Professional under this Agreement. The
City, its officers, agents and employees shall be named as additional insureds on the
Professional 's general liability and automobile liability insurance policies for any claims
arising out of Work performed under this Agreement.
2. Insurance coverages shall be as follows:
A. Workers' Compensation & Employer's Liability. The Professional shall maintain
during the life of this Agreement for all of the Professional's employees engaged in
Work performed under this agreement:
1. Workers' Compensation insurance with statutory limits as required by
Colorado law.
2. Employer's Liability insurance with limits of $100,000 per accident,
$500,000 disease aggregate, and $100,000 disease each employee.
B. Commercial General & Vehicle Liability. The Professional shall maintain during the
life of this Agreement such commercial general liability and automobile liability
insurance as will provide coverage for damage claims of personal injury, including
accidental death, as well as for claims for property damage, which may arise
directly or indirectly from the performance of Work under this Agreement.
Coverage for property damage shall be on a "broad form" basis. The amount of
insurance for each coverage, Commercial General and Vehicle, shall not be less
than $1,000,000 combined single limits for bodily injury and property damage.
In the event any Work is performed by a subcontractor, the Professional shall be
responsible for any liability directly or indirectly arising out of the Work performed
under this Agreement by a subcontractor, which liability is not covered by the
subcontractor's insurance.
C. Errors & Omissions. The Professional shall maintain errors and omissions
insurance in the amount of $1,000,000.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 32 of 34
EXHIBIT F
CONFIDENTIALITY
IN CONNECTION WITH THE SERVICES to be provided by Professional under this
Agreement, the parties agree to comply with reasonable policies and procedures with regard to
the exchange and handling of confidential information and other sensitive materials between the
parties, as set forth below.
1. Definitions.
For purposes of this Agreement, the party who owns the confidential information and is
disclosing same shall be referenced as the “Disclosing Party.” The party receiving the
Disclosing Party’s confidential information shall be referenced as the “Receiving Party.”
2. Confidential Information.
Confidential Information controlled by this Agreement refers to information which is not
public and/or is proprietary and includes by way of example, but without limitation, City
customer information, utility data, service billing records, customer equipment information,
location information, network security system, business plans, formulae, processes,
intellectual property, trade secrets, designs, photographs, plans, drawings, schematics,
methods, specifications, samples, reports, mechanical and electronic design drawings,
customer lists, financial information, studies, findings, inventions, and ideas.
To the extent practical, Confidential Information shall be marked “Confidential” or
“Proprietary.” Nevertheless, Professional shall treat as Confidential Information all customer
identifiable information in any form, whether or not bearing a mark of confidentiality or
otherwise requested by the City, including but not limited to account, address, billing,
consumption, contact and other customer data. In the case of disclosure in non-
documentary form of non-customer identifiable information, made orally or by visual
inspection, the Disclosing Party shall have the right, or, if requested by the Receiving Party,
the obligation to confirm in writing the fact and general nature of each disclosure within a
reasonable time after it is made in order that it is treated as Confidential Information. Any
information disclosed to the other party prior to the execution of this Agreement and related
to the services for which Professional has been engaged shall be considered in the same
manner and be subject to the same treatment as the information disclosed after the
execution of this Agreement with regard to protecting it as Confidential Information.
3. Use of Confidential Information.
Receiving Party hereby agrees that it shall use the Confidential Information solely for the
purpose of performing its obligations under this Agreement and not in any way detrimental
to Disclosing Party. Receiving Party agrees to use the same degree of care Receiving Party
uses with respect to its own proprietary or confidential information, which in any event shall
result in a reasonable standard of care to prevent unauthorized use or disclosure of the
Confidential Information. Except as otherwise provided herein, Receiving Party shall keep
confidential and not disclose the Confidential Information. The City and Professional shall
cause each of their directors, officers, employees, agents, representatives, and
subcontractors to become familiar with, and abide by, the terms of this section, which shall
survive this Agreement as an on-going obligation of the Parties.
Professional shall not use such information to obtain any economic or other benefit for itself,
or any third party, other than in the performance of obligations under this Agreement.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 33 of 34
4. Exclusions from Definition.
The term “Confidential Information” as used herein does not include any data or information
which is already known to the Receiving Party or which before being divulged by the
Disclosing Party (1) was generally known to the public through no wrongful act of the
Receiving Party; (2) has been rightfully received by the Receiving Party from a third party
without restriction on disclosure and without, to the knowledge of the Receiving Party, a
breach of an obligation of confidentiality; (3) has been approved for release by a written
authorization by the other party hereto; or (4) has been disclosed pursuant to a requirement
of a governmental agency or by operation of law.
5. Required Disclosure.
If the Receiving Party is required (by interrogatories, requests for information or documents,
subpoena, civil investigative demand or similar process, or by federal, state, or local law,
including without limitation, the Colorado Open Records Act) to disclose any Confidential
Information, the Parties agree the Receiving Party will provide the Disclosing Party with
prompt notice of such request, so the Disclosing Party may seek an appropriate protective
order or waive the Receiving Party’s compliance with this Agreement.
The Receiving Party shall furnish a copy of this Agreement with any disclosure.
6. Notwithstanding paragraph 5, Professional shall not disclose Confidential Information to any
person, directly or indirectly, nor use it in any way, except as required or authorized in
writing by the City.
7. Red Flags Rules.
Professional must implement reasonable policies and procedures to detect, prevent and
mitigate the risk of identity theft in compliance with the Identity Theft Red Flags Rules found
at 16 Code of Federal Regulations part 681. Further, Professional must take appropriate
steps to mitigate identity theft if it occurs with one or more of the City’s covered accounts
and must as expeditiously as possible notify the City in writing of significant breeches of
security or Red Flags to the City.
8. Data Protection and Data Security.
In addition to the requirements of paragraph 7, Professional shall have in place information
security safeguards designed to conform to or exceed industry best practices regarding the
protection of the confidentiality, integrity and availability of utility and customer information
and shall have written agreements requiring any subcontractor to meet those standards.
These information security safeguards (the “Information Security Program”) shall be
materially consistent with, or more stringent than, the safeguards described in this Exhibit.
a) Professional’s information security safeguards shall address the following elements:
• Data Storage, Backups and Disposal
• Logical Access Control (e.g., Role-Based)
• Information Classification and Handling
• Secure Data Transfer (SFTP and Data Transfer Specification)
• Secure Web Communications
• Network and Security Monitoring
• Application Development Security
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739
Official Purchasing Document
Last updated 10/2017
Professional Services Agreement
MISC 2020 – Overlay, LLC Page 34 of 34
• Application Security Controls and Procedures (User Authentication, Security
Controls, and Security Procedures, Policies and Logging)
• Incident Response
• Vulnerability Assessments
• Hosted Services
• Personnel Security
b) Subcontractors. Professional may use subcontractors, though such activity shall not
release or absolve Professional from the obligation to satisfy all conditions of this
Agreement, including the data security measures described in this Exhibit, and to require
a substantially similar level of data security, appropriate to the types of services provided
and Customer Data received, for any subcontractor Professional may use. Accordingly,
any release of data, confidential information, or failure to protect information under this
Agreement by a subcontractor or affiliated party shall be attributed to Professional and
may be considered to be a material breach of this Agreement.
9. Confidential Information is not to be stored on any local workstation, laptop, or media such
as CD/DVD, USB drives, external hard drives or other similar portable devices unless the
Professional can ensure security for the Confidential Information so stored. Work stations or
laptops to be used in the Work will be required to have personal firewalls on each, as well as
have current, active anti-virus definitions.
10. The Agreement not to disclose Confidential Information as set forth in this Exhibit shall apply
during the term of the Work and at any time thereafter unless specifically authorized by the
City in writing.
11. If Professional breaches this Agreement, in the City’s sole discretion, the City may
immediately terminate this Agreement and withdraw Professional’s right to access
Confidential Information.
12. Notwithstanding any other provision of this Agreement, all material, i.e., various physical
forms of media in which Confidential Information is contained, including but not limited to
writings, drawings, tapes, diskettes, prototypes or products, shall remain the sole property of
the Disclosing Party and, upon request, shall be promptly returned, together with all copies
thereof to the Disclosing Party. Upon such return of physical records, all digital and
electronic data shall also be deleted in a non-restorable way by which it is no longer
available to the Receiving Party. Written verification of the deletion (including date of
deletion) is to be provided to the Disclosing Party within ten (10) days after completion of
engagement, whether it be via termination, completion or otherwise.
13. Professional acknowledges that the City may, based upon the representations made in this
Agreement, disclose security information that is critical to the continued success of the City’s
business. Accordingly, Professional agrees that the City does not have an adequate remedy
at law for breach of this Agreement and therefore, the City shall be entitled, as a non-
exclusive remedy, and in addition to an action for damages, to seek and obtain an injunction
or decree of specific performance or any other remedy, from a court of competent
jurisdiction to enjoin or remedy any violation of this Agreement.
DocuSign Envelope ID: DB618264-9EAF-4C44-BD68-CCE253DEC739