HomeMy WebLinkAbout470506 SUSANNE DURKIN-SCHINDLER - CONTRACT - AGREEMENT MISC - SUSANNE DURKIN-SCHINDLERProfessional Services Agreement – Work Order Type
MISC 2017 – Facilitator for Energy Benchmarking, Scoring & Transparency Ordinance Page 1 of 13
PROFESSIONAL SERVICES AGREEMENT
WORK ORDER TYPE
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 SUSANNE DURKIN-SCHINDLER, 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 Susanne Durkin-Schindler, 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 15, 2017, and shall continue in
full force and effect until August 14, 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/Notice. 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 address:
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Professional: City: Copy to:
Susanne Durkin-Schindler
Attn: Susanne Durkin-Schindler
1737 Norwood Lane
Fort Collins, CO 80525
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.
6. Design, Project Insurance 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 services to be performed pursuant to this Agreement,
the City agrees to pay the Professional on a time and reimbursable direct cost basis at a
rate of $115 per hour. At the election of the City, each Work Order may contain a
maximum fee, which shall be negotiated by the parties hereto for each such Work Order.
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
to the Work Order and upon approval of the Professional's direct 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.
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
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
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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. 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.
11. Subcontractors. The Professional may not subcontract any of the Work set forth in the
Exhibit B, 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 C, 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).
12. 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.
13. 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
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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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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
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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
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 Professional violates this
provision of this Agreement and the City terminates the Agreement for such breach.
19. Special Provisions. Special provisions or conditions relating to the services to be
performed pursuant to this Agreement are set forth in Exhibit D - Confidentiality, consisting
of one (1) page, attached hereto and incorporated herein by this reference.
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THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul
Purchasing Director
DATE:
ATTEST:
APPROVED AS TO FORM:
SUSANNE DURKIN-SCHINDLER
By:
Date:
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8/15/2017
Assistant City Attorney
8/16/2017
Chief Deputy City Clerk
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EXHIBIT A
WORK ORDER FORM
PURSUANT TO AN AGREEMENT BETWEEN
THE CITY OF FORT COLLINS
AND
DATED:
Work Order Number:
Purchase Order Number:
Project Title:
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 ___ (_)
pages are hereby accepted and incorporated
herein, by this reference, and Notice to
Proceed is hereby given.
PROFESSIONAL
By:_______________________________
Date:_____________________________
CITY OF FORT COLLINS
By:_________________________________
Project Manager
Date: ______________________________
By: _______________________________
Gerry Paul
Purchasing Director (over $60,000.00)
Date: ____________________________
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EXHIBIT B
STATEMENT OF WORK
1. Overview:
a. The City of Fort Collins seeks Professional Facilitator Services to guide an
Industry Represented working group reviewing how to implement an Energy
Benchmarking, Scoring and Transparency Ordinance within the City of Fort
Collins’ commercial and multi-family building sector.
b. The Building Energy Scoring Working Group (Citizen Working Group) will help
the City of Fort Collins create a pathway for commercial building owners and
operators: from Whole Building Energy data to Energy Efficiency actions that
reduce operational cost. The Building Energy Scoring Working Group will bring
together key stakeholders to evaluate building efficiency programs and policies,
including how to implement a Benchmarking, Scoring and Transparency program
laid out in the City of Fort Collins Climate Action Plan (CAP) goals related to
Energy.
c. The Building Energy Scoring Working Group will provide policy recommendations
to City Staff for all eligible properties to provide a transparent building energy
score by 2030 to help the City meet the following objectives and metrics:
Objectives:
Recommend essential services from Fort Collins Utilities required for effective
implementation of building energy scoring program.
Establish policy implementation parameters: timeline, building sector, sizes, etc.
Focus on larger commercial and multi-family buildings in short term with future
timeline for inclusion of smaller buildings and homes.
Metrics:
Building Energy Scoring program participation reaches 100% of eligible buildings by
2030
Meet and sustain Energy Policy Portfolio Efficiency targets
Reduction of energy use in eligible buildings a minimum of 3% by 2030
2. Background:
a. The City Energy Project empowers participating cities to implement locally
designed energy efficiency strategies and fosters peer-to-peer sharing of
knowledge and best practices. A major goal of the project’s two year outlook
includes bringing building energy performance data to the market through
Building Energy Scoring policy.
b. The City of Fort Collins Building Energy Scoring initiative intends to provide
whole building energy data to assist business owners to know how their buildings
compare with the national average.
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i. By better understanding a building’s energy use, the City of Fort Collins
hopes to help local businesses identify opportunities to improve their
energy and financial performance.
ii. To assist building owners and managers understand their performance
relative to their peers, Fort Collins Utilities is collaborating with
commercial property managers to collect energy use intensity using the
Environmental Protection Agency’s Portfolio Manager.
iii. From energy use data, a business can create a plan to improve the
energy efficiency of their property over the course of the building’s life.
The City can provide technical assistance, rebates, and incentives that
will help participating business make the most out of their energy use and
plan for future improvements.
3. Scope:
a. Facilitator shall work with the City of Fort Collins staff to clearly define the scope
and purpose of the public engagement process.
City staff will inform decision criteria and expectations for accepting
recommendations generated from Citizen Working Group meetings.
b. Facilitator shall provide a framework for implementing the Citizen Working Group
process including agenda planning best practices and tactics to reach the
desired outcome prior to each Group meeting. The City recognizes that the
context may change; stakeholders may challenge the purpose of the process,
question the scope of the objectives or the methodology or require more
information, time or their own resources to co-design the process. The overriding
consideration of the Citizen Working Group is retaining and developing
meaningful engagement with identified stakeholders within the performance
period.
c. Facilitator and City staff shall identify major milestones and priorities to reach a
diverse population of stakeholders who will be impacted by Energy
Benchmarking, Scoring and Transparency Ordinance.
d. Facilitator shall work with City staff to develop a governance plan for the Citizen
Working Group including a consultative decision making process. The group
does not function on consensus rather intends to determine differences of
opinions. The differences in opinions will be presented to City Council in addition
to the group’s recommendations.
e. Facilitator shall develop innovative and collaborative approaches to ensure
meaningful participation from the Citizen Working Group throughout the period of
performance.
f. Facilitator shall establish a feedback loop with the City staff to review progress on
the Citizen Working Group’s recommendations. The Group will develop defined
policy recommendations for City Staff review.
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4. City Staff will create content and provide to the professional facilitator to lead
Stakeholder Work Sessions. Topics may include the following content created by the
City:
i. Overview and Launch of Stakeholder Process
ii. Benchmarking, Building Energy Scoring and Reporting
iii. What Buildings are Included
iv. How the Information will be collected, shared and used
v. Strategies to Achieve Savings
vi. Implementation and Phasing
vii. Supporting Programs, Finance, and Training Needs
viii. Policy framework recommendations
ix. Letters of commitment and support for program implementation
x. The Final Workshop; including next steps for the City to consider
xi. Additional meetings as needed
5. Deliverables:
a. Facilitation of Citizen Working Group meetings not to exceed one (1) per month;
one hundred twenty (120) minute sessions per meeting within the period of
performance defined. The Facilitator shall provide a fee for service in the event
that additional Citizen Working Group meetings are required. A not to exceed
limit will be defined by the City prior to the first Citizen Working Group meeting.
b. Facilitator shall help the Citizen Working Group develop defined policy
recommendations for City staff to implement Fort Collins Energy Benchmarking,
Scoring and Transparency Ordinance; including a pathway from benchmarking
data to energy efficiency actions. Defined policy recommendations shall be
provided to City staff after the last Citizen Working Group meeting and prior to
Council involvement.
c. Facilitator shall help City staff design a Working Group survey prior to the end of
the performance period. The impact survey shall consider following:
i. The outcomes of the engagement process intended to achieve are met
including the purpose, objectives and decision criteria defined by City
staff.
ii. Decisions reflect the diversity of views of the Citizen Working Group and
opinions provided from public comment during the twelve-month
timeframe.
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EXHIBIT C
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. In accordance with Exhibit
C-1 exception attached hereto and incorporated herein.
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.
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No new insurance required
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EXHIBIT C-1
CERTIFICATE OF EXEMPTION FROM STATUTORY WORKERS’
COMPENSATION LAW AND ACKNOWLEDGEMENT OF RISK/HOLD
HARMLESS AGREEMENT
The Professional certify to the City of Fort Collins, Colorado (the “City”) that the
aforementioned business has no employees as defined by the Workers’ Compensation Act of
Colorado, C.R.S. §§ 8-40-101, et seq., (the “Act”) other than those owners, members, partners,
directors or other principals that have elected to be exempt from Workers’ Compensation
coverage in accordance with Colorado law.
On behalf of said business and its officers, agents, insurers, heirs, legal representatives,
successors and assigns (collectively the “Business”), I warrant that I have full authority to
execute this Exhibit on behalf of the Business. I warrant I understand the requirements of the
Act with respect to providing Workers’ Compensation coverage for any employees of the
Business. If the Business’s status changes in such a manner that requires Workers’
Compensation Insurance, the Business shall provide the City with a Certificate of Insurance
evidencing proof of Workers’ Compensation Insurance coverage and Employer’s Liability
Insurance coverage as required by the Agreement. The Business shall provide such
Certificate of Insurance prior to the employees’ start of work for the City.
On behalf of the Business, I acknowledge the Business may be contracting to engage in
activities that involve a risk of personal injury, that the Business is capable of performing the
activities, and that the Business shall take all necessary precautions to prevent injury. The
Business does hereby waive, release and forever discharge and hold harmless the City, its
officers, employees, agents and insurers from any and all liability, damages, claims, causes of
action and demands with respect to any bodily injury, personal injury, illness, or death that
may result from the performance of the Agreement, either in law or equity, whether caused by
the negligence or breach of contract of the City its officers, employees, agents and insurers or
otherwise. The Business also understands that the City, its officers, employees, agents and
insurers do not assume any responsibility for, or obligation to, provide the Business with
financial assistance or other assistance, including but not limited to medical, health, or
disability insurance in the event of any bodily injury, personal injury, illness or death The
Business agrees to defend, indemnify, and hold harmless the City from any and all such
claims.
As an independent contractor, the Business acknowledges that neither the Business nor any
person employed by or serving the Business is entitled to workers’ compensation benefits
from the City. The Business hereby waives any rights or claims to workers’ compensation
benefits from the City, and agrees to indemnify and hold the City harmless against any claims
for such benefits by any officer, director, owner, employee, or servant of the Business or any
other person claiming through the Business. By signing this Certificate, the Business
acknowledges that it is responsible and liable for all work-related injuries, and further requests
the City waive its requirement for evidence of Workers’ Compensation Insurance.
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EXHIBIT D
CONFIDENTIALITY
IN CONNECTION WITH SERVICES provided to the City of Fort Collins (the “City”) pursuant to
this Agreement (the “Agreement”), the Professional hereby acknowledges that it has been
informed that the City has established policies and procedures with regard to the handling of
confidential information and other sensitive materials.
In consideration of access to certain information, data and material (hereinafter individually and
collectively, regardless of nature, referred to as “information”) that are the property of and/or
relate to the City or its employees, customers or suppliers, which access is related to the
performance of services that the Professional has agreed to perform, the Professional hereby
acknowledges and agrees as follows:
That information that has or will come into its possession or knowledge in connection with the
performance of services for the City may be confidential and/or proprietary. The Professional
agrees to treat as confidential (a) all information that is owned by the City, or that relates to the
business of the City, or that is used by the City in carrying on business, and (b) all information
that is proprietary to a third party (including but not limited to customers and suppliers of the
City). The Professional shall not disclose any such information to any person not having a
legitimate need-to-know for purposes authorized by the City. Further, the Professional shall not
use such information to obtain any economic or other benefit for itself, or any third party, except
as specifically authorized by the City.
The foregoing to the contrary notwithstanding, the Professional understands that it shall have no
obligation under this Agreement with respect to information and material that (a) becomes
generally known to the public by publication or some means other than a breach of duty of this
Agreement, or (b) is required by law, regulation or court order to be disclosed, provided that the
request for such disclosure is proper and the disclosure does not exceed that which is required.
In the event of any disclosure under (b) above, the Professional shall furnish a copy of this
Agreement to anyone to whom it is required to make such disclosure and shall promptly advise
the City in writing of each such disclosure.
In the event that the Professional ceases to perform services for the City, or the City so requests
for any reason, the Professional shall promptly return to the City any and all information
described hereinabove, including all copies, notes and/or summaries (handwritten or
mechanically produced) thereof, in its possession or control or as to which it otherwise has
access.
The Professional understands and agrees that the City’s remedies at law for a breach of the
Professional’s obligations under this Confidentiality Agreement may be inadequate and that the
City shall, in the event of any such breach, be entitled to seek equitable relief (including without
limitation preliminary and permanent injunctive relief and specific performance) in addition to all
other remedies provided hereunder or available at law.
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