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HomeMy WebLinkAboutELECTRIC POWER BOARD OF CHATTANOOGA - CONTRACT - AGREEMENT MISC - ELECTRIC POWER BOARD OF CHATTANOOGACONSULTING AGREEMENT This Professional Services Agreement (the “Agreement”) is made this 18th day of January, 2017, by and between the City of Fort Collins, a Colorado municipal corporation (hereinafter “Fort Collins”), and the Electric Power Board of Chattanooga, an independent Board of the City of Chattanooga, Tennessee (hereinafter “EPB”), collectively referred to as (“Parties”). WHEREAS, EPB is a Tennessee municipal electric system that has experience in engineering, designing, constructing, owning, improving, operating, and maintaining a fiber optic network used for both electric and communications purposes; and WHEREAS, Fort Collins wishes to design, construct, install, operate, and maintain a fiber optic network; and WHEREAS, Fort Collins desires to obtain and EPB wishes to provide consulting services to Fort Collins based upon EPB’s experience and expertise. NOW THEREFORE, in consideration of the mutual promises set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree to be legally bound as follows: 1. DESCRIPTION OF WORK. EPB shall provide consulting services as reasonably requested by Fort Collins. The consulting services will be described in Statements of Work separately agreed to and approved by the parties from time to time. Each Statement of Work for this project shall be approved in writing by both EPB and Fort Collins and shall be incorporated into this Agreement. A blank sample of a Statement of Work is attached hereto as Exhibit “A”. The term “Work” as used in this Agreement shall include the services and deliverables contained in any Work Order. 2. PAYMENT. EPB shall charge the following initial rates for all services rendered to Fort Collins hereunder: Vice President - $215 per hour Senior Technical Resource - $175 per hour Technical Resource - $105 per hour Other - $75 per hour EPB shall also charge for administrative and clerical work at a rate of $55 per hour. Fort Collins agrees to reimburse EPB for reasonable preapproved travel and other expenses associated with EPB’s work under this Agreement. EPB shall submit invoices to Fort Collins on a monthly basis, and Fort Collins agrees to pay all invoices within fifteen (15) days of receipt. 3. RELATIONSHIP OF THE PARTIES. a. The parties intend this Agreement to create an independent contractor relationship. EPB shall solely determine the conduct and control of the Work. EPB shall DocuSign Envelope ID: 22EBEF93-1D29-4DF9-BBF1-75D1818D0478 perform such work in accordance with currently approved methods and procedures for the services provided hereunder. EPB shall be free to contract to perform similar services for other persons. b. EPB and Fort Collins hereby certify that they are independent parties, acting as independent contractors and independent employers. Nothing herein shall be construed to create a partnership, joint venture, or agency relationship between EPB and Fort Collins, and no party shall have the authority to bind another party in any respect. 4. IDENTIFICATION AND PROTECTION OF CONFIDENTIAL INFORMATION. To the extent permitted by law, Fort Collins hereby agrees to safeguard any and all information that is disclosed and identified as proprietary or confidential in writing, including intellectual property and know-how that EPB submits or provides in connection with services EPB performs under this Agreement. Notwithstanding, EPB acknowledges Fort Collins 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. 5. RIGHTS IN INTELLECTUAL PROPERTY. All intellectual property belonging to EPB shall remain the sole and exclusive property of EPB, and nothing in this Agreement is intended to create any ownership rights in Fort Collins. EPB’s intellectual property (the “Intellectual Property”) shall include, without limitation, trade secrets, patentable inventions, trademarks, service marks, and copyrightable information. Any right of Fort Collins to use or practice the Intellectual Property will be granted only in a written license agreement granted by EPB to Fort Collins. 6. LICENSE. Upon execution of this Agreement, EPB grants to Fort Collins an irrevocable license to use any and all drawings, specifications, designs, analysis, reports, and other Work product and deliverables developed by EPB for Fort Collins under this Agreement. This license is for the sole benefit of Fort Collins and Fort Collins may not assign, sublicense, or sell any of the licensed material to a third party. 7. TERM. a. The initial term of this Agreement shall be for a period of twelve (12) months. After the initial term, the parties may extend this Agreement by mutual agreement in writing. b. Either party may terminate this Agreement at any time for any reason upon thirty (30) days’ written notice. c. In the event of termination, Fort Collins shall pay for all services EPB has performed and all disbursements EPB has made, as provided for in this Agreement, to the effective date of termination. d. The parties hereto acknowledge that no continuing relationship has existed or is contemplated to exist between the parties. DocuSign Envelope ID: 22EBEF93-1D29-4DF9-BBF1-75D1818D0478 8. FORCE MAJEURE. Neither party shall not be liable for any failure of performance under this Agreement due to causes beyond its control, including without limitation, acts of God, fire, flood or other catastrophe, adverse weather conditions, material or facility shortages or unavailability, lack of transportation, imposition of law, regulation, ordinance, restriction, governmental code or rules, national emergencies, insurrections, riots, wars, strikes, lock-outs, work stoppages or other labor difficulties, or unavailability of personnel due to business exigencies. 9. GOVERNING LAW. This Agreement shall be governed by and interpreted and enforced under the laws of the State of Colorado, without regard to conflicts of law provisions. 10. FORUM CHOICE. The parties hereby submits to the personal jurisdiction of the State courts located in Larimer County, Colorado and agrees that they shall be the exclusive venue for resolution of any disputes that may arise out of this Agreement. 11. HEADINGS. Headings provided in this Agreement are provided solely for the convenience of the parties and shall not in any manner affect the meaning or interpretation of this Agreement. 12. NOTICES. Any notices required or permitted to be provided hereunder shall be provided in writing, unless oral communication is expressly permitted or oral communication is appropriate because of exigencies of time, in which case such oral communication shall be confirmed in writing at the earliest possible time. All notices shall be delivered or mailed to the addresses set forth below or to such other address as the parties may from time to time designate in writing. All notices shall be delivered or mailed. If mailed, the notices shall be deemed given when deposited, postage prepaid, with the United States Postal Service. If delivered orally, a notice shall be deemed given when orally delivered, provided that it is promptly confirmed in writing. Notice Address for EPB Notice Address for Fort Collins Electric Power Board of Chattanooga City of Fort Collins Attn: Vice President, Fiber Optics Attention: Director of Purchasing Copy to: Legal Services Division Copy to: City Attorney P.O. Box 182255 P.O. Box 580 Chattanooga, TN 37422 Fort Collins, CO 80522 13. ENTIRE AGREEMENT. This Agreement constitutes the final, complete, and entire written agreement of the parties and supersedes all previous communications, representations, agreements, promises, statements, proposals, and specifications, whether written or oral, by or between the parties, except as expressly referenced and adopted herein. This Agreement may be modified only in writing signed by each of the parties to this Agreement. 14. NO WAIVER. No delay or failure of parties in exercising any right or power under this Agreement shall operate as a waiver of such right or power to prevent the future exercise of such right or power. DocuSign Envelope ID: 22EBEF93-1D29-4DF9-BBF1-75D1818D0478 15. NO THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement shall be construed as creating rights in third parties, and the parties hereby express their intent that this Agreement is not intended to benefit third parties in any manner. 16. EBT GOVERNMENT TORT LIABILITY. Nothing contained in this Agreement or in any certificate or policy of insurance or in any provision of indemnity shall be construed to constitute a waiver by EPB of any provision, substantive or procedural, of the Tennessee Governmental Tort Liability Act, as amended, Tenn. Code Ann. § 29-20-101, et seq., or of any other provision of federal, state, or local law affording EPB protection from or limitation of tort or other liability. 17. FORT COLLINS GOVERNMENTAL IMMUNITY ACT. Nothing contained in this Agreement or in any certificate or policy of insurance or in any provision of indemnity shall be construed to constitute a waiver by Fort Collins of any provision, substantive or procedural, of the Colorado Governmental Immunity Act, as amended, C.R.S. §§ 24-10-101, et seq., or of any other provision of federal, state, or local law affording Fort Collins protection from or limitation of tort or other liability. 18. NO GIFTS. Neither Fort Collins nor its employees shall offer any gifts, favors, tips, gratuities, or any other item of service of value to any employee, director, or officer of EPB. 19. SEVERABILITY. If all or any portion of any provision of this Agreement shall be held to be invalid, illegal or unenforceable in any respect under the laws of Colorado or another jurisdiction, then such invalidity, illegality or unenforceability shall not affect any other provision hereof or thereof, and such provision shall be limited and construed in such jurisdiction as if such invalid, illegal or unenforceable provision or portion thereof were not contained herein or therein. 20. NON-SOLICITATION. During the term of this Agreement and for a period of twelve months after its termination or expiration, neither party shall hire or solicit for employment any employee of the other party without such party’s express written consent. 21. LIMITATION OF LIABILITY.NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY, NEITHER PARTY WILL NOT BE LIABLE TO ANY PARTY FOR (I) ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR LOSSES, INCLUDING LOSS OF DATA, LOSS OF REVENUE OR PROFITS, CLAIMS BY USERS AND THIRD PARTIES, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS WHETHER ARISING FROM BREACH OF WARRANTY OR CONDITION, BASED ON CONTRACT, TORT, RELIANCE, FUNDAMENTAL BREACH, STATUTE, OR ANY OTHER THEORY, AND EVEN IF THE PARTY WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER PARTY SHALL BE LIABLE TO ANY PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, CIVIL LIABILITY, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (A) ANY AMOUNTS IN EXCESS OF THE AGGREGATE AMOUNTS PAID TO EPB FOR SERVICES GIVING RISE TO SUCH LIABILITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM; (B) ANY FAILURE OR DELAY DUE TO FORCE MAJEURE; OR (C) ANY ALLOCATION OF RESOURCES BY EITHER PARTY AMONG ITS CUSTOMERS. EPB EXPRESSLY DISCLAIMS ANY LIABLITY FOR ANY DocuSign Envelope ID: 22EBEF93-1D29-4DF9-BBF1-75D1818D0478 AMOUNTS NOT AUTHORIZED BY THE TENNESSEE GOVERNMENTAL TORT LIABILITY ACT. FORT COLLINS EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY AMOUNT NOT AUTHORIZED BY THE STATE OF COLORADO GOVERNENTAL IMMUNITY ACT. By its signature below, each party indicates its acceptance of this Agreement as of the Effective Date. ELECTRIC POWER BOARD OF CHATTANOOGA CITY OF FORT COLLINS By: By: Print Name: Print Name: Gerry Paul Title: Title: Director of Purchasing ATTEST: APPROVED AS TO FORM: DocuSign Envelope ID: 22EBEF93-1D29-4DF9-BBF1-75D1818D0478 Assistant City Attorney VP - EPB New Products Katherine Espeseth City Clerk EXHIBIT A STATEMENT OF WORK PURSUANT TO A CONSULTING AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND THE ELECTRIC POWER BOARD OF CHATTANOOGA AGREEMENT DATED: January 18, 2017 Work Order Number: Purchase Order Number: Project Title: Commencement Date: Completion Date: Maximum Fee: (time and reimbursable direct costs): Project Description: Scope of Services: EPB agrees to perform the Work identified above and on the attached forms in accordance with the terms and conditions contained herein and in the Consulting Agreement between the parties. In the event of a conflict between or ambiguity in the terms of the Consulting Agreement and this Statement of Work (including the attached forms) the Consulting Agreement shall control. The attached forms consisting of ___ (_) pages are hereby accepted and incorporated herein, by this reference, and Notice to Proceed is hereby given. ELECTRIC POWER BOARD OF CHATTANOOGA By:_______________________________ Date:_____________________________ CITY OF FORT COLLINS By:_________________________________ Project Manager Date: ______________________________ By: _______________________________ Gerry Paul Purchasing Director (over $60,000.00) Date: ____________________________ DocuSign Envelope ID: 22EBEF93-1D29-4DF9-BBF1-75D1818D0478