HomeMy WebLinkAbout105347 ITRON INC - CONTRACT - RFP - 7328 DEMAND RESPONSE SOLUTIONAMENDMENT NUMBER 3
TO THE MASTER SERVICES AGREEMENT
FOR UTILITY SERVICE DEMAND RESPONSE SOLUTION SERVICES
BETWEEN
ITRON, INC. AND THE CITY OF FORT COLLINS
This Amendment Number 3 (“Amendment”) to the Master Services Agreement for Utility Service Demand
Response Solution Services dated December 18, 2013 (“Agreement”) is made by and between Itron, Inc.
(previously Comverge, Inc.) (“Contractor”) and the City of Fort Collins, Colorado (“City”), and is effective as of
the date last signed below (“Amendment Effective Date”).
WHEREAS, this Amendment is made with reference to the following facts and objectives:
1. Contractor and City entered into the Agreement whereby City purchased demand response solution services
from Contractor.
2. The parties recognize that on June 1, 2017, Itron Inc. acquired Comverge Inc. including all assets and
contracts.
3. Now, the parties wish to amend the Agreement for the purpose of adding additional services to the
Agreement.
NOW THEREFORE, in consideration of the mutual promises contained herein, Contractor and City hereby agree
as follows:
1. Applicability. The modifications contained in this Amendment shall apply only to products and services
delivered after the Amendment Effective Date; all terms and conditions of the Agreement shall remain in
full force and effect as to products and services delivered prior to the Amendment Effective Date.
2. Indemnification. Section 9.0 (“Indemnification”) is deleted in its entirety and replaced with:
9.0 Indemnification.
9.1 General Claims. Contractor agrees to defend City and City’s successors and assigns, officers, directors,
employees, representatives, and agents (“City Indemnitees”) from and against any and all third-party
claims, demands, suits, actions, causes of action, of any kind whatsoever (together a “Claim”), and
Contractor will indemnify and hold harmless City Indemnitees from and against all damages, losses, costs
and/or expenses (including legal fees and disbursements) awarded against City in any such Claim, or those
costs and damages agreed to by Contractor in a monetary settlement of such Claim, to the extent resulting
from damages to persons or real or tangible property, bodily injury or death caused by Contractor’s material
breach of the Agreement, negligence or intentional misconduct (including that of its employees, agents, and
contractors), including any defective product and/or installation on a customer premise resulting from
Contractor’s material breach of the Agreement, negligence or intentional misconduct, arising in connection
with this Agreement. This indemnity will survive termination and expiration of the Agreement.
9.2 Infringement Claims. Contractor shall defend the City Indemnitees from and against any and all Claims,
and Contractor will indemnify and hold harmless City Indemnitees from and against all damages, losses,
costs and/or expenses (including legal fees and disbursements) awarded against City in any such Claim, or
those costs and damages agreed to by Contractor in a monetary settlement of such Claim, to the extent
resulting from any allegation that any Contractor equipment constitutes a direct infringement, violation or
misappropriation of any such third party’s Intellectual Property rights. The foregoing does not apply to
third-party products that are not manufactured by Contractor, or to software licensed by third parties, unless
the third-party equipment or software is embedded in Contractor products or services.
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9.3 Conditions to Infringement Claim Defense. Contractor’s infringement defense obligations under
Section 12.2 are conditioned on City’s agreement that if the applicable product or service becomes, or in
Contractor’s opinion is likely to become, the subject of such a claim, Contractor will have the right, at
Contractor’s sole option and expense, either to procure the right for City to continue using the affected
product or service or to replace or modify the same so that it becomes non-infringing. Such replacements
or modifications will be functionally equivalent to the replaced product or service. If the foregoing
alternatives are not available on terms that are commercially reasonable in Contractor’s sole judgment,
Contractor shall have the right to require City to cease using the affected product or service in which case
Contractor will refund to City the lesser of 2.5X the price paid by City to Contractor for the affected
products or services or the replacement value of the affected product or service, as the case may be.
9.4 Exclusions to Infringement Claim Defense. Contractor shall have no obligation under this
Agreement to the extent any claim of infringement or misappropriation results from: (i) use of a product or
service, other than as permitted this Agreement or as intended by Contractor in accordance with
Contractor’s specifications or documentation, or as otherwise agreed to in a statement of work, if the
infringement would not have occurred but for such use; (ii) use of any product or service in combination
with any other product, equipment, software or data, unless otherwise stated in the applicable Contractor’s
specifications or documentation for the product, if the infringement would not have occurred but for such
combination; (iii) any use of any release of a software or any firmware other than the most current release
made available to City, (iv) any claim based on City’s use of a product after Contractor has informed City
of modifications or changes to the product required to avoid such claims and offered to implement those
modification or changes, if such claim would have been avoided or mitigated by the implementation of
Contractor’s suggestions, (v) any modification to a product made by a person other than Contractor or an
authorized representative of Contractor, or (vi) compliance by Contractor with the City’s specifications or
written instructions exclusively for the City; if the infringement would not have occurred but for such
specifications or written instructions. Contractor shall not be liable hereunder for enhanced or punitive
damages that could have been avoided or reduced by actions within the reasonable control of City.
9.5 Conditions to Defense. As a condition to Contractor’s defense obligations under this Agreement,
City will provide Contractor with prompt written notice of the Claim, permit Contractor to control the
defense, settlement, adjustment or compromise of the claim and provide Contractor with reasonable
assistance in connection with such defense; however, Contractor shall not consent to any judgment or
settlement of the foregoing, that creates an obligation on any City Indemnitee without first obtaining the
City’s prior written consent. City may employ counsel at its own expense to assist it with respect to any
such Claim.
9.6 THIRD PARTY CLAIM DISCLAIMER. THIS SECTION CONSTITUTES CONTRACTOR’S
SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS BROUGHT
AGAINST CITY.
3. System Security. Section 11.0 (“System Security”) is deleted in its entirety and replaced with:
11.0 System Security. In addition to other System Security requirements that are more specifically stated
in the Statement of Work (Exhibit B), Contractor agrees that all of its, or those of its subcontractors, policies,
procedures, personnel, products, and services used to design, build, code, configure, deliver, manage data,
integrate, test, deploy, and support the AMI solution and the MDMS shall substantially comply with
currently released and applicable security standard frameworks and controls, including but not limited to
those described in NIST SP 800-53 and FIPS 140-2 and as attested to by an independent auditor in an
SSAE-16 System and Organization Controls (SOC) 2 Type 2 Report as part of an annual audit. The System
Security components will include, not by way of limitation, media protection, access control, and personnel
security. By way of illustration, the personnel security component will require background checks, access
agreements, restricted access to the System, and identification procedures. The City will have the right to
audit compliance with the System Security requirements during normal business hours (8.am. to 5.pm. EST
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Monday – Friday, excluding holidays) upon reasonable written notice to Contractor and to require remedial
action which may include removal of Contractor or Subcontractor employees from the Project.
4. Warranty Equipment/Product and Services (Software excluded). Section 13.0 (“Warranty
Equipment/Product and Services (Software excluded)”) is deleted in its entirety and replaced with:
13.0 Warranty (Software excluded).
13.1 Equipment Warranty.
13.1.1 Limited Warranty. Contractor warrants to City that the Contractor equipment will be free from
defects in materials and workmanship and will conform to the applicable specifications for a period
of one (1) year from the date of shipment, unless otherwise stated in the attached warranty schedule
for Contractor equipment.
13.1.2 Repair or Replacement. Contractor reserves the option to repair or replace the Contractor
equipment after City has returned non-conforming Contractor equipment under warranty properly
packaged and prepaid to a repair facility designated by Contractor in accordance with Contractor’s
then current RMA procedures. Contractor’s warranty under this Section, does not include freight to
the Contractor designated facilities; however, it does include return freight to City’s location in the
event that the returned unit of Contractor equipment is determined to be faulty and under warranty.
Labor costs associated with removal or reinstallation of failed equipment at City location, after the
initial deployment of equipment, is not included in Contractor’s warranty under this Section.
13.1.3 Warranty on Repaired or Replaced Equipment. Repaired and replacement Contractor
equipment will be warranted for the longer of the remainder of the original warranty period set forth
above, or six (6) months from the date of repair or replacement.
13.1.4 Thermostat housing/case discoloration. Contractor acknowledges certain Contractor
equipment is subject to discoloration of the case. Contractor has determined such discoloration is
entirely cosmetic and not a safety hazard. Notwithstanding and for the avoidance of doubt, Section
9.0 (“Indemnification”) shall apply in the event of a third-party claim attributable to this issue,
provided the conditions of Section 9.0 (“Indemnification”) are met.
13.2 Services Warranty.
13.2.1 Express Warranty for Professional Services. The warranty period for services provided is one
(1) year beginning from the completion date of the services. Unless otherwise expressly provided in a
statement of work or other document expressly incorporated into the Agreement, as the sole and
exclusive warranties offered by Contractor in connection with this Section and each statement of work
under it, Contractor warrants to City that:
13.2.1.1 Services. Services will be provided in a timely, professional, and workmanlike manner, as
agreed upon in the applicable statement of work.
13.2.1.2 Contractor Personnel. Contractor personnel will have the requisite experience, skills,
knowledge, training and education to perform Services in a professional manner and in accordance
with this Amendment and applicable statement of work.
13.2.1.3 Remedies. As Contractor’s sole and exclusive liability and City’s sole and exclusive remedy
for any material noncompliance by Contractor with the warranties provided under this Section,
Contractor shall correct the noncompliance within a reasonable period of time under the
circumstances, consistent with City Service Standards, if City gives Contractor written notice (which
notice must describe the noncompliance in sufficient detail to enable Contractor to provide the required
corrective action) within the applicable warranty period. If Contractor, in its sole discretion, is unable
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to correct the noncompliance, its sole obligation will be to refund to City the amount paid for the
services and associated property damage costs incurred by the City.
13.3 WARRANTY EXCLUSIONS. THE WARRANTIES UNDER THIS AGREEMENT DO NOT
COVER PROBLEMS CAUSED BY EXTERNAL CAUSES, INCLUDING ACCIDENTS, ACTS OF
VANDALISM, ABUSE, MISUSE, UNKNOWN OR UNFORESEEN ELECTROMAGNETIC
DISTURBANCES ON THE NETWORK, PROBLEMS WITH ELECTRICAL POWER, OR WITH
THE QUALITY OF THE WATER, THE ENERGY OR THE NETWORK, ACTS OF GOD,
SERVICE (INCLUDING INSTALLATION OR DE-INSTALLATION) NOT PERFORMED OR
AUTHORIZED BY CONTRACTOR; USAGE NOT IN ACCORDANCE WITH PRODUCT
INSTRUCTIONS OR IN A CONFIGURATION NOT APPROVED BY CONTRACTOR; NORMAL
WEAR AND TEAR; AND PROBLEMS CAUSED BY USE OF PARTS AND COMPONENTS
THAT ARE NOT SUPPLIED BY CONTRACTOR. THE WARRANTY PROVIDED HEREIN
SHALL BE VOID IF THE EQUIPMENT IS MODIFIED IN A WAY NOT AUTHORIZED IN
WRITING BY CONTRACTOR.
13.4 DISCLAIMER OF WARRANTIES. WARRANTIES UNDER THIS AGREEMENT CONSTITUTE
AND EXPRESS THE ENTIRE STATEMENT OF THE PARTIES WITH RESPECT TO
WARRANTIES. THE PARTIES DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES,
CONDITIONS OR REPRESENTATIONS INCLUDING, WITHOUT LIMITATION, (I) IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (II)
WARRANTIES AGAINST INFRINGEMENT, AND (III) WARRANTIES ARISING FROM A
COURSE OF DEALING, USAGE OR TRADE PRACTICE. TO THE EXTENT ANY IMPLIED
WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO
THE LONGER OF THE EXPRESS WARRANTY PERIOD OR THE APPLICABLE STATUTE OF
LIMITATION UNDER THE GOVERNING LAW. THIS SECTION 13.4 (“DISCLAIMER OF
WARRANTIES”) IS NOT MEANT TO IMPAIR OR LIMIT THE PARTIES’ OBLIGATIONS OR
RIGHTS REGARDING INDEMNIFICATION PROVIDED IN SECTION 9
(“INDEMNIFICATION”).
13.5 Third-Party Equipment. If applicable, Contractor will identify third-party equipment and
provide the City with a copy of all applicable third-party terms that will pass-through to the
City, including but not limited to any available warranty schedule, indemnification,
etc. NOTWITHSTANDING THE FOREGOING, CONTRACTOR IS NOT THE
MANUFACTURER OF THIRD-PARTY EQUIPMENT AND MAKES NO REPRESENTATIONS
OR WARRANTIES WHATSOEVER, DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED, AS
TO THE SUITABILITY, DURABILITY, FITNESS FOR USE, MERCHANTABILITY,
CONDITION, QUALITY, PERFORMANCE OR NON-INFRINGEMENT OF THE THIRD-PARTY
EQUIPMENT. WITH RESPECT TO CONTRACTOR, CITY PURCHASES THIRD PARTY
EQUIPMENT ''AS IS.'' Contractor shall act as the City’s liaison with such third-party equipment
providers in regards to the third-party equipment warranties and will make commercially
reasonable efforts to assist the City in enforcing those warranties.
5. Insurance. Exhibit E is hereby deleted in its entirety and Section 17.0 (“Insurance”) is deleted in its entirety
and replaced with:
17.0 Insurance. During the term of this Agreement, Contractor will maintain the following minimum levels
of insurance (i) workers’ compensation insurance for Contractor employees equal to applicable statutory
limits and an employer’s liability policy in an amount not less than $1,000,000.00; (ii) an occurrence form
commercial general liability policy or policies in an amount not less than $1,000,000 per occurrence and
$2,000,000.00 aggregate; (iii) an automobile liability policy or policies in an amount not less than
$1,000,000.00 combined single limit; and (iv) a professional liability policy or policies insuring against
liability for errors and omissions covering professional activities contemplated under this Agreement in an
amount not less than $1,000,000.00. Contractor will provide the City with Certificates of Insurance
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evidencing the coverage described in this Section. The Commercial General Liability policies shall include
City as an additional insured. A thirty (30) day notice of cancellation shall be provided to the City for the
for the Commercial General Liability, Auto Liability, and Workers Compensation policies in accordance
with policy provisions. The Contractor shall require all subcontractors performing work hereunder to
maintain the minimum levels of insurance stated above naming the City as an additional insured under this
Agreement for Commercial General Liability and Auto Liability insurance.
6. Limitation of Liability. Section 30.0 (“Limitation of Liability”) is added as follows:
30.0 Limitation of Liability.
30.1 NO CONSEQUENTIAL DAMAGES. NEITHER PARTY WILL BE LIABLE HEREUNDER FOR
CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR
SAVINGS) FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE,
EVEN IF THE PARTY WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE
DAMAGES, EXCEPT THAT THE FOREGOING WILL NOT RESTRICT A PARTY’S ABILITY TO
RECOVER ACTUAL DAMAGES FOR BREACH OF THIS AGREEMENT, INCLUDING THE COSTS
OF OBTAINING REPLACEMENT SERVICES AND DELIVERABLES COMPLYING WITH THE
TERMS OF THIS AGREEMENT.
30.2 LIMITATION. EXCEPT IN THE EVENT OF NEGLIGENCE OR INTENTIONAL MISCONDUCT,
IN NO EVENT SHALL CONTRACTOR’S LIABILITY FOR DAMAGES EXCEED FIVE TIMES (5X)
THE FEES PAID BY THE CITY TO CONTRACTOR FOR THE SERVICES OR DELIVERABLES IN
THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF ANY CLAIM. THIS LIMITATION
APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE.
7. Except as set forth in this Amendment, all the provisions of the Agreement shall remain unchanged and in
full force and effect.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized
representatives.
The City of Fort Collins Itron, Inc.
By
By
Name
Name
Title
Title
Date
Date
[Signature Page to Master Services Agreement for Utility Service Demand Response Solution Services Amendment
Number 3]
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Director, Finance
Julie Schmidt
12/22/2017