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506424 EXCERGY CORPORATION - CONTRACT - SOLE SOURCE - EXCERGY CORPORATION (2)
Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 1 of 36 PROFESSIONAL SERVICES AGREEMENT WORK ORDER 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 EXCERGY CORPORATION, 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 any project Work Orders for the Paleon Data Analytics project issued by the City. A blank sample of a work order is attached hereto as Exhibit "A", consisting of one (1) page and is incorporated herein by this reference. A general scope of services is attached hereto as Exhibit “B”, consisting of three (3) pages and is incorporated herein by this reference. The City reserves the right to independently bid any project rather than issuing a Work Order to the Professional for the same pursuant to this Agreement. Irrespective of references in Exhibit A to certain named third parties, the Professional shall be solely responsible for performance of all duties hereunder. The term “Work” as used in this Agreement shall include the services and deliverables contained in Exhibit A and any Work Orders issued by the City. 2. The Work Schedule. The services to be performed pursuant to this Agreement shall be performed in accordance with the Work Schedule stated on each Work Order. 3. Time of Commencement and Completion of Services. The services to be performed pursuant to this Agreement shall be initiated as specified on each Work Order. Time is of the essence. Any extensions of any time limit must be agreed upon in writing by the parties hereto. 4. Contract Period. This Agreement shall commence August 14, 2017, and shall continue in full force and effect until August 13, 2018, unless sooner terminated as herein provided. In addition, at the option of the City, the Agreement may be extended for additional one year periods not to exceed four (4) additional one year periods. 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. 5. 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. DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 2 of 36 All notices provided under this Agreement shall be effective when mailed, postage prepaid and sent to the following addresses: Professional: City: Copy to: Excergy Corporation Attn: Kyle Peart 3773 Cherry Creek North Drive Denver, CO 80209 City of Fort Collins Attn: Adam Bromley 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. 6. 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 D, consisting of one (1) page, attached hereto and incorporated herein. 7. Compensation. In consideration of the services to be performed pursuant to this Agreement, the City agrees to pay Professional on a time and reimbursable direct cost basis as set forth in each Work Order and 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 of reimbursable direct costs 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 reimbursable direct costs. 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. 8. 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 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 3 of 36 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. 9. City Representative. The City will designate, prior to commencement of the 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. 10. 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. 11. Monthly Report. Commencing thirty (30) days after the date of execution of this Agreement and every thirty (30) days thereafter, the 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. 12. Independent Contractor. The services to be performed by the 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 the Professional's compensation hereunder for the payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose. 13. 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 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 4 of 36 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 “D”, 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). 14. Personal Services. It is understood that the City enters into this 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 responsibilities nor delegate any duties arising under this Agreement without the prior written consent of the City. 15. 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. 16. 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. 17. 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. 18. 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. 19. 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 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 5 of 36 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. 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 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 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 6 of 36 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 “E“ - Confidentiality, consisting of three (3) pages, and Exhibit “F” – Sample Reports, consisting of twenty-two (22) pages, attached hereto and incorporated herein by this reference. DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 7 of 36 THE CITY OF FORT COLLINS, COLORADO By: Gerry Paul Purchasing Director DATE: ATTEST: APPROVED AS TO FORM: EXCERGY CORPORATION By: Printed: Title: CORPORATE PRESIDENT OR VICE PRESIDENT Date: DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 James A. Ketchledge CEO & President 8/23/2017 Assistant City Attorney 8/23/2017 Chief Deputy City Clerk Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 8 of 36 EXHIBIT A WORK ORDER FORM PURSUANT TO AN AGREEMENT BETWEEN THE CITY OF FORT COLLINS AND EXCERGY CORPORATION DATED: August 1, 2017 Work Order Number: Purchase Order Number: Project Title: Original Bid/RFP Project Number & Name: SS 2017 – Paleon Data Analytics Commencement Date: Completion Date: Maximum Fee: (time and reimbursable direct costs): Project Description: Scope of Services: The Professional agrees to perform the services identified above and on the attached forms in accordance with the terms and conditions contained herein and in the Professional Services Agreement between the parties. In the event of a conflict between or ambiguity in the terms of the Professional Services Agreement and this Work Order (including the attached forms) the Professional Services Agreement shall control. The attached forms consisting of ( ) page(s) are hereby accepted and incorporated herein, by this reference, and Notice to Proceed is hereby given. PROFESSIONAL By:_______________________________ Date:_____________________________ CITY OF FORT COLLINS Submitted By: _________________________ Project Manager Date: _________________________ Reviewed by: _________________________ Senior Utility Engineer Date: _________________________ Approved by: _________________________ Water Engineering & Field Services Operations Manager Date: ________________________ Approved by: _________________________ Utilities General Manager (over $1,000,000) Date: ________________________ Approved by: _________________________ Purchasing Director (if over $60,000) Date: _______________________ DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 9 of 36 EXHIBIT B GENERAL SCOPE OF SERVICES Excergy Corporation (supported by Paleon Solutions, Inc.), is developing a solution to better utilize advanced metering infrastructure (AMI) data to support utility decision-making for operations, asset management, energy efficiency, and customer engagement. The solution is titled Paleon Data Analytics (PDA). Excergy employed a portion of the PDA functionality under a previous Agreement with the City, enabling the parties to realize mutual benefits associated with continued use and further collaborative development of the full PDA functionality. At this point, the parties desire to formalize their collaboration to further develop the PDA as a commercial tool to manage and analyze municipal utility data. Professional’s Responsibilities 1. Professional agrees to provide the City access and use Paleon Data Analytics (PDA) software and support services. 2. Professional will support a PDA application for the City providing: (a) Report(s) providing metrics on AMI System Performance, and (b) Access to the Data Warehouse (via Microsoft Excel) to a core City user group for purposes of data analytics. 3. Professional will provide ongoing monthly support for the terms of this agreement. Support activities include the following: (a) Defect fixes for issues with the existing software (b) Questions on existing software (c) User access setup (d) Add/remove users/emails from report distributions (e) Monitoring system is loading data and creating expected reports (f) Re-running daily jobs/loading data based on timing delays (or other reasons) and re- running associated reports – provided these activities to do not result in total support time being more than 8 hours for that specific month. (g) Small modifications to the reports/cubes – provided these activities do not result in total support time being more than 8 hours for that specific month. 4. Activities beyond the scope of Support (defined in Section 3 above) would include the below listed items. Any new work beyond the scope of Support will require a new Work Order. (a) Enhancements (changes to reports, new reports, changes to OLAP cube, changes to data or data format loading, etc.) (b) Performance tuning above and beyond existing levels Database archive/deletion of historic data – for example if Ft Collins wishes to purge data older than a certain period, this would be beyond scope. Database backup/failover solutions outside of solutions currently in place (just SQL Server backups running weekly or AWS server images taken) Training on solution from an architecture or development perspective DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 10 of 36 Changes to system to accommodate changes in AMI/MDM vendor data or delivery of data from vendors, for example, if Ft Collins would like another data source to be added beyond the current feeds coming from AMI and MDM (such as another utilities’ AMI feed of data, or a feed from Water SCADA etc.) (c) Database backup/failover solutions outside of solutions currently in place (just SQL Server backups running weekly or AWS server images taken) (d) Training on solution from an architecture or development perspective (e) Changes to system to accommodate changes in AMI/MDM vendor data or delivery of data from vendors (f) Other enhancements not currently conceived. Professional will invoice support hours as charged on a monthly basis based on the hourly rates provided below. Monthly support is estimated to be 8 hours, with an authorized annual total of 96 hours per year for the items listed in Section 3 above. Authorization for additional services, as identified in this Section 3, will be documented by an executed Work Order, quote and related Purchase Order. The support goal will be to respond to issues with PDA within 24 hours with initial communications and/or discovery of the issue, and provide its best estimate on an estimated time to resolve the issue. 5. Core functionality and reporting as described below will be provided and maintained: (a) AMI Metrics Reporting (as exists today) including the following reports, which are attached to emails send daily (unless otherwise indicated). i. Daily Performance Metering (Prod_AMI_Performance.pdf) – Overall performance of the AMI in terms of read delivery ii. Weekly Performance Metrics (Prod_AMI_Performance_Weekly_Total.pdf) – same as the report above providing a view for the whole week, including an aggregate view of the metrics for the week (Note: only sent once a week) iii. Meters not Reporting – (Meters_not_reporting.xls) – Meters which have not reported since their installation iv. Meters not Reporting for 4 days (Meters _Not_Reporting_4_days.xls) – Meters that have not reported in the last 4 days (but have reported at least once since installation v. Rejected Reads (Rejected Reads_All.xls) – includes any Interval or Register that has a timestamp more recent that the file date (i.e a "Future" Read), or any read that is four days older than the newest reads in the same AMRDEF file Ii.e a "Past" Read vi. Meters Requiring Replacement (Meters_requireing_replacemnet.xls) Meters that reported alarms yesterday that typically relate to a meter issue that would require replacement of the meter itself. DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 11 of 36 (b) Transformer Reporting (as exists today) - includes a list of Transformers connected to Meters that have more than 1 Voltage Alarm for 3 or more of the last 5 days, and also a list of those reporting alarms yesterday and their individual meters. (c) Spatial Display (as exists today) – See Exhibit F, Samples Reports City Responsibilities 1. The City shall assume ownership and cost of the related services for the existing Amazon Account used for the Paleon Data Analytics (PDA) software including server hosting and SQL licensing. 2. The City shall assume costs, licensing and all related responsibility for ESRI Licensing as required for this PDA service. 3. Subject to City policies and the City’s sole discretion, the parties may engage in certain PDA market place communications according to the following guidelines; all presentations, publications, website content and other materials shall be subject to the City’s prior review and written approval: (a) References – The City will respond to a reasonable number of reference verifications. (b) Presentations – The City will participate in shared presentations concerning the PDA with Professional. Such presentations will not endorse the PDA, but may state or display the solution name on at least one slide, (for example an “Architecture” or “Technology component” slide). This would be used to only state that the City has the platform used to support the topic of discussion. (c) Publications – The City, in conjunction with Professional, will participate in requests from Utility Publications on how (for example) Smart Grid Analytics has been used and select use cases. (d) Website – Product website may list City as a customer and include a brief description of services provided to the City. 4. Notwithstanding the foregoing, City policies generally prohibit the City from endorsing or recommending any commercial products or services; however, the City may discuss its experience, its use and functionality of the PDA. Further it is understood that the City’s discussion of its experience, its use and functionality of the PDA is of value to Professional in this Agreement. (a) License Excergy hereby grants the City a license to use, directly or indirectly, the PDA for the benefit of Utility Operations Services, including upgrades, enhancements and any derivative product (the “License”) in perpetuity provided the City pays for all the 3rd party infrastructure and licensing costs (which include all Amazon Web Service hosting costs, Microsoft licensing and Esri licensing cost)s as well as the ongoing Excergy support costs. Excergy represents and warrants it is an author and/or legal distributor of the PDA, and has secured appropriate legal rights to grant the City the license described herein. DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 12 of 36 EXHIBIT C COMPENSATION Costs for Licensing and services as provided under this agreement shall be: License fee: A one-time non-refundable license fee of $20,000 shall be paid at contract execution. $20,000 one-time fee Work up to 8 hours per month is authorized as part of this contract at the below stated hourly rates. Additional hours over 8 on any given month must be authorized via email authorization from the City’s Project Manager and will be invoiced at the following rates. Base services: Services as required to maintain levels as initially provided, specifically as described in items B. 1, 2 and 3 above will be provided based on the following hourly rates. The rates are firm for each year of the contract, with the increase occurring on the renewal date of the agreement. 2017: $220 per hour 2018: $227 per hour 2019: $233 per hour 2020: $240 per hour 2021: $248 per hour 2022: $255 per hour City Requested Enhanced Functionality and Customization Services: Enhanced Functionality and Customization as can be provided by Excergy will be provided based on the following hourly rates. The rates are firm for each year of the contract, with the increase occurring on the renewal date of the agreement. 2017: $220 per hour 2018: $227 per hour 2019: $233 per hour 2020: $240 per hour 2021: $248 per hour 2022: $255 per hour DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 13 of 36 EXHIBIT D 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: 96C46CD6-07A9-4720-B145-9050E6515E51 No new insurance required Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 14 of 36 EXHIBIT E 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: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 15 of 36 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: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 16 of 36 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: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 17 of 36 EXHIBIT F SAMPLE REPORTS DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 18 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 19 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 20 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 21 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 22 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 23 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 24 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 25 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 26 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 27 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 28 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 29 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 30 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 31 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 32 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 33 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 34 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 35 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 Professional Services Agreement – Work Order Type SS 2017 – Paleon Data Analytics Page 36 of 36 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INSURER(S) AFFORDING COVERAGE INSURER F : INSURER E : INSURER D : INSURER C : INSURER B : INSURER A : NAIC # NAME: CONTACT (A/C, No): FAX E-MAIL ADDRESS: PRODUCER (A/C, No, Ext): PHONE INSURED COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. OTHER: (Per accident) (Ea accident) $ $ N / A SUBR WVD ADDL INSD THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. $ $ $ PROPERTY DAMAGE $ BODILY INJURY (Per accident) BODILY INJURY (Per person) COMBINED SINGLE LIMIT AUTOS AUTOS AUTOS NON-OWNED HIRED AUTOS ALL OWNED SCHEDULED ANY AUTO AUTOMOBILE LIABILITY Y / N WORKERS COMPENSATION AND EMPLOYERS' LIABILITY The ACORD name and logo are registered marks of ACORD CERTIFICATE HOLDER © 1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25 (2014/01) AUTHORIZED REPRESENTATIVE CANCELLATION CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) JECT LOC PRO- POLICY GEN'L AGGREGATE LIMIT APPLIES PER: CLAIMS-MADE OCCUR COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence) $ DAMAGE TO RENTED EACH OCCURRENCE $ MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGG $ DED RETENTION $ CLAIMS-MADE OCCUR $ AGGREGATE $ UMBRELLA LIAB EACH OCCURRENCE $ EXCESS LIAB DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) INSR LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF (MM/DD/YYYY) POLICY EXP (MM/DD/YYYY) LIMITS PER STATUTE OTH- ER E.L. EACH ACCIDENT E.L. DISEASE - EA EMPLOYEE E.L. DISEASE - POLICY LIMIT $ $ $ ANY PROPRIETOR/PARTNER/EXECUTIVE If yes, describe under DESCRIPTION OF OPERATIONS below (Mandatory in NH) OFFICER/MEMBER EXCLUDED? WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED HIRED AUTOS NON-OWNED AUTOS AUTOS AUTOS COMBINED SINGLE LIMIT BODILY INJURY (Per person) DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 BODILY INJURY (Per accident) PROPERTY DAMAGE $ $ $ $ THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSD ADDL WVD SUBR N / A $ $ (Ea accident) (Per accident) OTHER: THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: INSURED PHONE (A/C, No, Ext): PRODUCER ADDRESS: E-MAIL FAX (A/C, No): CONTACT NAME: NAIC # INSURER A : INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : INSURER(S) AFFORDING COVERAGE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. INS025 (201401) 8/8/2017 SelectSolutions Insurance Services 1350 Carlback Avenue Suite 100 Walnut Creek CA 94596 Cheryl Andersen (866)500-6359 (925)951-0077 cheryla@selectsolutionsins.com Excergy Corporation 3773 E Cherry Creek North Dr Ste575 Denver CO 80209 Sentinel Insurance Company, Ltd. 11000 Scottsdale Insurance Company 41297 17/18BOP & 16/17D&OMaster A X X X X 57SBAID2750 6/9/2017 6/9/2018 2,000,000 1,000,000 10,000 2,000,000 4,000,000 4,000,000 EPLI 10,000 A X X 57SBAID2750 6/9/2017 6/9/2018 2,000,000 A X X X 10,000 57SBAID2750 6/9/2017 6/9/2018 1,000,000 1,000,000 B Directors & Officers EKI3199894 9/16/2016 9/16/2017 Occurence $2,000,000 Aggregate $3,000,000 City of Fort Collins, its agents, officers, and employees are included as additional insured on General Liability policy. L Trevino/NIHDA1 City of Fort Collins 700 Wood St. Fort Collins, CO 80521 DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51 OFFICER/MEMBER EXCLUDED? (Mandatory in NH) DESCRIPTION OF OPERATIONS below If yes, describe under ANY PROPRIETOR/PARTNER/EXECUTIVE $ $ $ E.L. DISEASE - POLICY LIMIT E.L. DISEASE - EA EMPLOYEE E.L. EACH ACCIDENT ER OTH- STATUTE PER (MM/DD/YYYY) LIMITS POLICY EXP (MM/DD/YYYY) POLICY EFF LTR TYPE OF INSURANCE POLICY NUMBER INSR DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) EXCESS LIAB UMBRELLA LIAB EACH OCCURRENCE $ AGGREGATE $ $ OCCUR CLAIMS-MADE DED RETENTION $ PRODUCTS - COMP/OP AGG $ GENERAL AGGREGATE $ PERSONAL & ADV INJURY $ MED EXP (Any one person) $ EACH OCCURRENCE $ DAMAGE TO RENTED PREMISES (Ea occurrence) $ COMMERCIAL GENERAL LIABILITY CLAIMS-MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LOC CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) CANCELLATION AUTHORIZED REPRESENTATIVE ACORD 25 (2014/01) © 1988-2014 ACORD CORPORATION. All rights reserved. CERTIFICATE HOLDER The ACORD name and logo are registered marks of ACORD CONIFER Hiscox Insurance Company Inc UDC-1500537-EO-16 10/07/2016 New York, NY 10022 32nd Floor 520 Madison Avenue Excergy Corporation Professional Liability (888) 202-3007 25457 Red Cloud Dr Hiscox Inc 10/07/2017 City of Fort Collins 700 Wood Street Fort Collins, CO 80521 80433 Y CO contact@hiscox.com 08/23/2016 $ 1,000,000 $ 1,000,000 Each Claim: Aggregate: 10200 A DocuSign Envelope ID: 96C46CD6-07A9-4720-B145-9050E6515E51