HomeMy WebLinkAbout465444 SPIRAE INC - CONTRACT - SOLE SOURCE - SPIRAE LLCP a g e 1 | 30
PROFESSIONAL SERVICES AGREEMENT
THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) made and entered
into the day and year set forth below, by and between THE CITY OF FORT COLLINS,
COLORADO, a municipal corporation, hereinafter referred to as the "City" and SPIRAE, LLC, a
limited liability company organized under the laws of the State of Delaware, hereinafter referred
to as the "Professional".
WITNESSETH:
In consideration of the mutual covenants and obligations herein expressed, it is agreed by
and between the parties hereto as follows:
1. Scope of Services. The Professional agrees to provide services in accordance with the
scope of services attached hereto as Exhibit A, incorporated herein by this reference.
Irrespective of references in Exhibit A to certain named third parties, the Professional shall
be solely responsible for performance of all duties hereunder.
2. Contract Period. This Agreement shall commence February 26, 2018 and shall continue in
full force and effect until December 31, 2019, unless sooner terminated as herein provided.
3. Early Termination by City. Notwithstanding the time periods contained herein, the City may
terminate this Agreement at any time without cause by providing written notice of termination
to the Professional. Such notice shall be delivered at least fifteen (15) days prior to the
termination date contained in said notice unless otherwise agreed in writing by the parties.
All notices provided under this Agreement shall be effective when mailed, postage prepaid
and sent to the following addresses:
Professional: City: Copy to:
Spirae, Inc.
Attn: Dr. Sunil Cherian
243 N. College Ave.
Fort Collins, CO 80524
City of Fort Collins
Attn: John Phelan
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 performance of the
Professional's obligations under and in accordance with this Agreement. Such payment
shall be the Professional's sole right and remedy for such termination.
4. Design, Project Indemnity and Insurance Responsibility. The Professional shall be
responsible for the professional quality of services and completion in accordance with the
timelines expressly set forth in this Agreement (including Exhibit A) 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 use
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commercially reasonable efforts to remedy and correct any errors, omissions, or other
deficiencies. The Professional shall pass through and transfer to the City all indemnification
the Professional receives from its subcontractor, Johnson Controls, Inc. (JCI), in accordance
with Colorado law, for 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 JCI’s
negligent performance of any of the services furnished under this Agreement. The
Professional shall maintain insurance in accordance with Exhibit C, attached hereto and
incorporated herein.
5. Disclaimer of Warranties. EXCEPT AS SET FORTH IN THIS AGREEMENT, EACH PARTY
HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, AND THE PROFESSIONAL SPECIFICALLY DISCLAIMS
ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT.
6. Limitation of Liability. IN NO EVENT WILL (a) EITHER PARTY BE LIABLE TO THE OTHER
OR TO ANY OTHER PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR
ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITVE
DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS
FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND (b) EITHER PARTY’S LIABILITY ARISING OUT
OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED
TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE,
EXCEED TWO (2) TIMES THE AGGREGATE AMOUNT DUE AND PAYABLE TO THE
PROFESSIONAL UNDER THIS AGREEMENT.
7. Compensation. In consideration of the services to be performed pursuant to this Agreement,
the City agrees to pay the Professional in accordance with Exhibit A. The progress payments
detailed in Exhibit A shall be based upon the Professional's City-verified progress in
completing the stated milestones. Final payment shall be made following acceptance of the
work by the City, which acceptance shall not be withheld or delayed if the work has been
performed in accordance with this Agreement. Upon final payment, all designs, plans,
reports, specifications, drawings, and other services rendered by the Professional (“City
Materials”) shall become the sole property of the City. Notwithstanding the foregoing, the
City Materials and the Instruments of Services (as defined below) shall not include any
software or related documentation, specifications, or designs, all of which shall be subject
to the Software License Agreement attached hereto as Exhibit B (the “License”).
8. License. Upon execution of this Agreement, the Professional grants to the City a non-
exclusive, non-transferable license to use any and all sketches, drawings, specifications,
designs, blueprints, data files, calculations, studies, analysis, renderings, models and other
deliverables (the “Instruments of Service”), in any form whatsoever and in any medium
expressed, solely to the extent incorporated in any service deliverables, including for the
purposes of constructing, using, maintaining, altering and adding to any project, provided
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that the City performs its obligations under the Agreement. The license granted hereunder
permits the City and third parties reasonably authorized by the City to reproduce and utilize
applicable portions of the Instruments of Service for use in performing services or
construction for the project. This license shall survive termination of the Agreement (except
in the event of the City’s default).
9. City Representative. The City will designate, prior to commencement of work, its project
representative who shall make, within the scope of his or her authority, all necessary and
proper decisions with reference to the project. All requests for contract interpretations,
change orders, and other clarification or instruction shall be directed to the City
representative.
10. Monthly Report. Commencing thirty (30) days after the date of execution of this Agreement
and every thirty (30) days thereafter, Professional is required to provide the City
Representative with a written report of the status of the work with respect to the Scope of
Services, Work Schedule, and other material information. Failure to provide any required
monthly report may, at the option of the City, suspend the processing of any partial payment
request until such a report is provided to the City. If the City makes a request for
modifications to any report, Professional shall use commercially reasonable efforts to
promptly make the modifications.
11. Independent Contractor. The services to be performed by Professional are those of an
independent contractor and not of an employee of the City of Fort Collins. The City shall not
be responsible for withholding any portion of Professional's compensation hereunder for the
payment of FICA, Workers' Compensation, other taxes or benefits or for any other purpose.
12. Subcontractors. The Professional may not subcontract any of the Work set forth in the
Exhibit A, Statement of Work, without the prior written consent of the City, which shall not
be unreasonably withheld. If any of the Work is subcontracted hereunder (with the consent
of the City), then the following provisions shall apply: (a) the subcontractor must be a
reputable, qualified firm with an established record of successful performance in its
respective trade performing identical or substantially similar work, (b) the subcontractor will
be required to comply with all applicable terms of this Agreement, (c) the subcontract will
not create any contractual relationship between any such subcontractor and the City, nor
will it obligate the City to pay or see to the payment of any subcontractor, and (d) the Work
of the subcontractor will be subject to inspection by the City to the same extent as the Work
of the Professional.
The Professional shall require all subcontractors performing Work hereunder to maintain
insurance coverage naming the City as an additional insured under this Agreement of the
type and with the limits specified within Exhibit “C”, 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).
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13. Personal Services. It is understood that the City enters into the Agreement based on the
special abilities of the Professional and that this Agreement shall be considered as an
agreement for personal services. Accordingly, the Professional shall neither assign any
responsibilities nor delegate any duties arising under the Agreement without the prior written
consent of the City.
14. Acceptance Not Waiver. The City's approval of drawings, designs, plans, specifications,
reports, and incidental work or materials furnished hereunder shall not in any way relieve
the Professional of responsibility under Section 4. The City's approval or acceptance of, or
payment for, any of the services shall not be construed to operate as a waiver of any rights
or benefits provided to the City under this Agreement.
15. Default. Each and every material term and condition hereof shall be deemed to be a material
element of this Agreement. In the event either party should fail or refuse to perform
according to the terms of this agreement, such party may be declared in default.
16. Remedies. In the event a party has been declared in default, such defaulting party shall be
allowed a period of thirty (30) days within which to cure or, if not possible to cure within such
period, demonstrate measures reasonably designed to promptly 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 seek specific
performance; or (c) avail himself of any other remedy at law or equity. If the non-defaulting
party commences legal or equitable actions against the defaulting party, the defaulting party
shall be liable to the non-defaulting party for the non-defaulting party's reasonable attorney
fees and costs incurred because of the default.
17. Binding Effect. This writing, together with the exhibits hereto, constitutes the entire
agreement between the parties and shall be binding upon said parties, their officers,
employees, agents and assigns and shall inure to the benefit of the respective survivors,
heirs, personal representatives, successors and assigns of said parties.
18. Law/Severability. The laws of the State of Colorado shall govern the construction,
interpretation, execution and enforcement of this Agreement. In the event any provision of
this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision of this
Agreement.
19. Prohibition Against 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
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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 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.
20. Appropriation. To the extent this Agreement or any provision in it constitutes a multiple fiscal
year debt or financial obligation of the City, it shall be subject to annual appropriation by City
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Council as required in Article V, Section 8(b) of the City Charter, City Code Section 8-186,
and Article X, Section 20 of the Colorado Constitution. Neither party shall have any
obligation to continue this Agreement in any fiscal year for which no such supporting
appropriation has been made.
21. Special Provisions. Special provisions or conditions relating to the services to be performed
pursuant to this Agreement are set forth in Exhibit D - Confidentiality, attached hereto and
incorporated herein by this reference.
THE CITY OF FORT COLLINS, COLORADO
By:
Gerry Paul
Purchasing Director
DATE:
ATTEST:
APPROVED AS TO FORM:
SPIRAE, LLC
By:
Sunil Cherian
CEO
Date:
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2/26/2018
Assistant City Attorney
3/6/2018
City Clerk
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EXHIBIT A
City of Fort Collins and Fort Collins Utilities
Energy Storage System Pilot Project
Scope of Work and Price
Supplier:
Spirae, LLC
Sub-supplier:
Johnson Controls, Inc.
Date: January 22, 2018
Prepared for: City of Fort Collins
Prepared by: Spirae and JCI
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1. Project Summary
Spirae and Johnson Controls (JCI) are pleased to supply a battery energy storage system and DER management
software for demonstrating the operations and benefits of energy storage for end-use facilities and for grid
operations. The proposed system will be installed at the Utilities Administration Building, 222 Laporte Ave., in
support of Fort Collins Utilities’ (FCU) Battery Energy Storage Pilot Program, the City’s Climate Action Plan, and
economic development objectives.
The total cost of the proposed project is $125,000 which includes the battery, battery installation support,
software license for DER management, engineering services for installation and commissioning, three
workshops and technical support for the term of the Agreement. Such technical support shall mean all services
as required to ensure the software functions as necessary to meet the requirements of the Agreement.
This project is aimed at demonstrating the operation and value of behind the meter (BTM) energy storage at
public sector, commercial, or industrial facilities and the benefits to grid operations through utility-directed
scheduling and dispatch of BTM energy storage systems. The proposed project is also aimed at demonstrating
some of the key technologies needed to offer renewables, storage, EVSC, and efficiency solutions to energy
consumers in Fort Collins in support of the City’s 80% GHG reduction plan.
JCI’s Distributed Energy Storage (JCI DES) will provide the storage unit and engineering services to support
installation and integration at the customer facility.
Spirae, a Fort Collins company developing Distributed Energy Resource (DER) management, microgrid, and
facility energy optimization related control technologies, will provide access to its Wave® Control platform to
manage, schedule and dispatch the JCI DSS from FCU’s desired operations location. Spirae will provide access
to the Wave Control software and engineering services to support the project.
1.1 Battery System: JCI Distributed Energy Storage
Johnson Controls will supply its 92 kWh, L1000 BU100-E Distributed Energy Storage solution. The solution will
consist of lithium ion batteries in a single rack, a 50 kW Power Conditioning System (PCS) integrating with the
building at 480 V AC, battery level controls, shipping and commissioning. JCI backs its DES solutions with its
service organization, ready to handle routine operations and maintenance and respond to any issues.
1.2 Spirae Wave Energy Storage Management
Spirae will provide access to its Wave Platform with Energy Storage Management Application, deployed “as a
service,” communicating remotely to the JCI DES, and with Wave Client application installed on specified FCU
operations workstations. License costs (setup, configuration, and monthly fees) are set forth herein. Spirae will
provide access to the Wave Control software for Fort Collins Utilities (FCU) to monitor and dispatch the JCI DES
at the demonstration site. FCU may execute test cases using the Wave software to dispatch storage
(charge/discharge) to support FCU grid operations.
1.3 Workshops
Spirae and JCI will conduct three workshops designed to inform all stakeholders about the capabilities and
opportunities of energy storage management and storage fleet operations. The objective of the workshops will
be to present and discuss technical and business opportunities related to energy storage management and
capture requirements for the demonstration period from a commonly understood baseline among project
stakeholders.
1.4 Engineering Services
JCI will provide engineering services to support installation and commission the battery system and Spirae will
provide the engineering services to install, configure, and commission the Wave software. Further, JCI and
Spirae will provide the engineering services to test and commission the complete system, followed by
customary technical support for the duration of the pilot project.
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2. Scope of Work
2.1 Spirae
Provide access to the Wave platform with the Energy Storage Management (ESM) application for the
demonstration period (the “Demonstration Period”).
For purposes of this Agreement, the Demonstration Period shall be 18 months from system
commissioning.
Integrate and demonstrate Wave software with DSS at InteGrid lab
Integrate and commission Wave software with DSS at customer facility (222 Laporte Ave.)
Provide engineering Services for:
o Wave configuration for facility operations, interfacing with ESS native control to provide
integrated functionality
o Wave configuration for grid-services operation by FCU
o Install Wave software for facility operations and grid-services operations
o Commission system (Wave software integration with DSS) at customer facility
o Training and support
Workshops – Spirae and JCI to host half to full day workshops on relevant topics designed to refine the
project objectives as detailed in Exhibit A-1 attached hereto. Workshops are planned in first six months
of project, wrapping up before commissioning and delivery of DSS. Proposed workshop topics are:
o Energy Storage System Characteristics and Operational Considerations
▪ Capabilities of Wave for integration with other manufacturers of battery storage
systems, both residential and commercial scale.
o Energy Storage for Grid Optimization: Peak Shifting, Demand Limiting, Renewables Balancing,
GHG Reduction, RE Hosting Capacity maximization
▪ Present major utility energy storage use cases, discuss FCU priorities, and finalize use
cases that FCU is interested in studying during demonstration period
▪ Based on workshop above, document Pilot Project Objectives, Methodology, Data
Collection requirements, and desired Analytics
o Data collection for evaluating grid opportunities and benefits
▪ Based on Workshop 2 outcome above, set up Wave to collect data automatically for
analysis to meet the project objectives. Data will be archived and submitted to FCU on a
mutually agreed schedule, but not less than twice a month during the Demonstration
Period.
o Workshop Notes:
▪ The workshops will be used to create the final project objectives, plans and deliverables
subject to mutual agreement.
▪ Personnel that will be involved in workshops and analytics from Spirae are:
• Dr. Holger Kley
• Dr. Andrew Merton
• Ms. Jackie Baum
• Dr. Sunil Cherian
▪ Personnel that will be involved in workshops and analytics from JCI are:
• Ms. Rowena Patawaran
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• Mr. Bill Schroeder
▪ For report compilation, data capture setup, and periodic data transfer to FCU, additional
personnel may be involved. Specific personnel will vary depending on Spirae’s delivery
commitments.
▪ On average, Spirae expects a total of about 120hrs. of contribution from this team
during the course of the project. Average billing rate for personnel above is $250/hour.
In the spirit of advancing this collaboration, Spirae will contribute their time at a fixed
price of $10,000.
▪ Additionally, Spirae’s delivery team under Tim Leichtman and Nathan Howard will be
involved in Wave configuration, installation, and system commissioning. Specific
personnel will vary depending on Spirae’s delivery commitments. The services of this
team are included in the Wave pricing.
18-month Demonstration Period (assumed to be Jul 2018 – Dec 2019)
o Support FCU in the execution of specific tests for facility-services and grid-services
o Evaluate results
2.2 Johnson Controls DES
Supply Energy storage system: L1000 BU 100-E, with single rack of lithium ion energy storage.
Power Conversion System: PCS 50, 50 kW inverter, 480 V AC.
Local site support to install modules into the system.
Site support for system commissioning of battery, inverter, controls, and local site training.
Shipping to site
Standard delivery of the system will be roughly 16 weeks after receipt of order, though efforts will be
made to support InteGrid test as shown in delivery schedule in Section 4.
Warranty: Standard industry warranty for rack & cell is 3 years, and inverters are 2 years. JCI has
observed that the expected battery life even at hardest use is 6 to 8 years. JCI will directly offer the City
a warranty of 7 years for the rack and cell, and an inverter warranty of 10 years.
JCI Notes:
o JCI provides a Modbus integration that allows a 3rd party controller to integrate directly with the
Energy Storage System. This interface configuration is included and JCI staff will work with
Spirae for this integration. Modbus points will be provided to city staff at time of Factory
Acceptance Testing at Spirae facility.
o Please note that the energy storage system is a turn key provided unit, that can be operated
and viewed independently of Metasys and/or 3rd party controller (Spirae WAVE or other)
through a remote UI (web UI). See L1000 Product Bulletin pg 14 Remote Systems Monitoring for
web screen examples. Under this mode, the ESS controller has several standard applications to
address demand side management, frequency regulation, backup power, etc. that can be
deployed. The energy storage system is proposed with this standard application configuration
and can be operated as a standalone system.
o As an added feature of JCI’s energy storage systems, JCI has provided the capability to integrate
the ESS into Metasys BAS. JCI provides both a Modbus and BACnet standard interface that
allows Metasys to directly integrate with the Energy Storage System. JCI shall provide the
read/write points list on the BACNET and Open ADR interface to the Metasys NAE 55 installed
at 222 Laporte Ave. prior to the first workshop.
o Batteries to be installed indoors. For space requirements for balance of system components, JCI
will provide an inverter cutsheet.
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o The PCS50 is the inverter proposed for the installation.
o For information on suitable environmental conditions for the energy storage system, please
contact JCI directly.
o Temperature. Ideal operating temperature for the battery is 28 deg C to 32 deg C. Increasingly
warmer temperatures outside of this range will degrade battery life.
o Ventilation. No ventilation requirements.
o Fire Suppression requirements as dictated by local code.
o JCI will perform annual maintenance for the inverter and battery during the Demonstration
Period.
▪ Annual inverter and battery maintenance per Schedule 1 inverter maintenance and
L1000 DES Maintenance Manual included for the duration of the Demonstration Period.
▪ Beyond the Demonstration Period a separate annual service agreement for the battery
and inverter is offered at $1,260/yr, 3% escalation.
3. Delivery Schedule
Anticipated schedule is provided below with details to be finalized in discussions with City.
Workshops: One per month between Feb and May 2019
o ESS characteristics and operational considerations
o Facility optimization with storage
o Energy storage for grid services
o Outcome Goal: Stakeholder education and capture of specific project objectives, methodology,
data collection, and analysis requirements
DSS delivery to InteGrid lab: [March – April] 2018
Wave + Storage Demonstration at InteGrid lab: [April – May] 2018
Install DSS at FCU site (222 Laporte): [May – June] 2018. Note: This is conditional on Customer
(City/FCU) delivering or obtaining required approvals, physical site readiness, electrical wiring, and
network provisioning prior to equipment installation.
Wave Client installations: [May – June] 2018. Note: This is conditional on Customer (City/FCU)
delivering workstation for Wave Operations Client installation and network provisioning.
Complete System Commissioning (Wave and DSS): Jun 2018. Note: This is conditional on Customer
(City/FCU) providing appropriate technical support for electrical testing, network testing, and operations
testing for Customer-provided infrastructure.
Site Acceptance and User Training: Jun 2018
Operations demonstration and data collection: Jul 2018 – Dec 2019
Project Extension or Closeout per the term of the Agreement
4. Price
Pricing for the project including the 18-month demonstration period: $125,000
Payment terms: Payment will be made in accordance with the following milestones Net 30 days from
the date of the invoice
o Milestone 1: $38,333 Execution of the Agreement
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o Milestone 2: $38,333 Completion of the Workshops and Factory Acceptance Testing (integrated
DES, Wave operations at Spirae)
o Milestone 3: $38,334 Completion of Site Acceptance Testing and Commissioning
o Milestone 4: $10,000 Completion of Demonstration Period and associated deliverables
Standard warranty terms apply for the Wave software, as set forth in Exhibit B. Software support
included for duration of project as set forth in Exhibit B-2.
Spirae engineering services to configure, deploy and support Wave in accordance with Section 2.
JCI engineering services to work with customer supplied engineer(s) to configure DSS in accordance
with Section 2.
After the conclusion of the initial contract, FCU may opt to receive additional services for Spirae’s
standard fees or as otherwise mutually agreed by the parties.
Price breakdown for project shown below.
Work to commence upon receipt of Purchase Order.
# Item Sub-Item Supplier Unit Price # Units Extended Price Note
1 DSS (Battery) NA JCI $ 65,000 1 $ 65,000 50kW, 92 kWh, L1000 BU100-E, 480V
2 DSS Installation Support
2.1 Integration at InteGrid Lab Spirae, JCI No charge
2.2 Integration at Customer Facility Customer, JCI, Spirae $ 5,000 1 $ 10,000
Electrician for wiring and any construction
for installation to be provided by Customer.
Communications and networking to be
provided by Customer.
3 Wave software
Wave Client(s) Spirae
Workstation(s) to be provided by
Customer; 1 for system control, upto 3 for
system monitoring. Communications and
Networking to be provided by Customer.
Wave Server and ESM Application Spirae
Setup and Configuration Spirae
Training Spirae
Bundled Cost for 2 year
demonstration project Spirae $ 40,000 1 $ 40,000
Continuation of software licensing
and system expansion Spirae TBD
Spirae Wave pricing is based on monthly
fee for number of Sites, type of installation
(e.g., storage only, solar+storage,
solar+storage+EVSC,
solar+storage+EVSC+DG), number of
Applications (e.g., monitoring and control,
scheduling and dispatch, optimal dispatch
planning), and number of Users with
applicable volume discounts.
4 Workshops Half- to one-day topical workshops
Energy Storage System
Characteristics and Operational
Considerations JCI, Spirae
Facility Optimization with Energy
Storage: Tariff, Demand, Solar, EV
Charging, Resiliency Spirae, JCI
Energy Storage for Grid
Optimization: Peak Shifting,
Demand Limiting, Renewables
Balancing, GHG Reduction, RE
Hosting Capacity maximization Spirae
Pilot Project Objectives,
Methodology, Data Collection,
and Analytics Spirae, JCI
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4.1 Wave Continuation Pricing
Pricing for continuing the use of Wave Energy Storage
Management System after demonstration period
Wave headend and operations Client
Wave monthly subscription (for up to 100 assets)
$ 1,625
Monthly adder for next 100 assets
$ 600
Wave Asset Gateway (per node)
Setup and configuration fee (one time for each new asset)
$ 500
Monthly adder for next 10 assets (beyond initial asset)
$ 100
Assets include but are not limited to a unique controllable load, distributed energy resource, or
aggregated group of such resources. This specifically includes water heaters, EV charging
stations, residential or commercial compressors, pumps, residential or commercial battery
systems. Additional one-time integration charges may apply per asset type depending on their
characteristics (e.g., make, model, communications, configurability, standardization, etc.), to be
determined upon selection of assets.
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EXHIBIT A-1
FORT COLLINS UTILITIES DISTRIBUTED BATTERY STORAGE PILOT GOALS
To explore the value that Fort Collins Utilities can realize from integrating distributed battery storage, this
technology demonstration seeks to accomplish the following goals:
• Install commercial-scale battery system at a city-owned facility to represent and operate the battery
from the perspective of a private property owner
o Connect that battery with the building automation system
o Commission the battery management system to optimize storage and use of electricity
generated by on-site solar PV array
• Install residential-scale battery system(s)
o Attempt to gain experience of installation and commissioning of systems from multiple vendors
o Identify available control schemes and limits to operation
• Use remote monitoring and control platform(s) to:
o Connect to battery management systems or cloud-based interface(s) for residential and
commercial battery installations
o Retrieve available information from these distributed resources
o Explore capabilities of remote control of distributed resources
o Develop analysis of the benefits of distributed battery storage to Utilities, the customer, and
regionally (PRPA)
Scope of testing
Remote monitoring and control platform functions to test:
• Monitor remote battery systems – individually and as group(s) - for:
o online/offline status
o charging status (charging/discharging/ “coasting”)
o total state of charge
o total charge available for discharge by Utility –might be similar to SOC or another rule might limit it
o performance during tests considering different applications
• Control remote battery systems
o Exercise demand response events to shift available load
o Control snapback effect by limiting timing of charge from grid
o Revise “default” operating mode for individual systems
o Demonstrate optimal price arbitrage operation
▪ Based on utility wholesale price inputs
▪ Based on retail customer’s rate
• Demonstrate ability to perform tests with a variety of battery manufacturer / model equipment options
• Demonstrate available reporting options for Utilities’ assessment of energy impacts, actual management
capabilities compared to forecasted response
DocuSign Envelope ID: E33C5C17-C488-4F50-9293-007076F8576A
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EXHIBIT B
SOFTWARE LICENSE AND HARDWARE PURCHASE AGREEMENT
This SOFTWARE LICENSE AND HARDWARE PURCHASE AGREEMENT (this “License”) is made on February 26, 2018 (the
“Effective Date") by and between Spirae, LLC, a limited liability company organized under the laws of the State of Delaware, U.S.A.,
and having its principal place of business at 243 N. College Avenue, Fort Collins, CO 80524-2404 ("Spirae"), and The City of Fort
Collins, a Colorado municipal corporation ("Company").
Whereas, Company desires to license the Software (as defined below) and purchase the Hardware (as defined below); and
Whereas, Spirae is willing to grant such license to the Software and sell such Hardware under the terms and conditions set forth
herein.
The parties mutually agree as follows:
I. Definitions
“CPU” shall mean one central processing unit.
“Hardware” shall mean the hardware and equipment
specified on an Order form as being purchased by Company
from Spirae.
“Software” shall mean the object code version of the software
specified on an Order Form (as defined in Section 3.1 below),
the Specifications (as defined in Section 5.2 below), and any
Repairs, Minor Releases, and Major Releases (each as
defined in Exhibit B-2) to such software hereinafter furnished
to Company by Spirae.
II. Orders
Licensee shall submit order forms for Software and/or
Hardware to Licensee from time to time on a form similar to the
form attached hereto as Exhibit B-1 (each an “Order Form”).
All Order Forms are subject to acceptance by Spirae. Each
Order Form, when accepted by Spirae, shall be a firm
commitment to license Software and purchase and sell
Hardware, and Order Forms may not be cancelled or amended
by Company without Spirae’s consent.
III. License Grant For Software
3.1 Subject to Company’s compliance with the terms and
conditions of this License, including, without limitation, the
timely payment of all fees and other charges payable to Spirae
under this License, Spirae hereby grants Company a non-
exclusive, non-transferable, non-assignable license to use the
Software solely (i) for Company’s own internal business
operations, (ii) by the number of CPUs for which the Company
has paid and that are set forth on the applicable Order Form,
and (iii) for the duration specified in the applicable Order Form.
3.2 Company shall not (i) lease, rent, loan, license or
sublicense the Software to third parties, (ii) use the Software to
provide service bureau, time sharing, outsourcing, data
processing or other services to third parties, or (iii) otherwise
permit the use of or access to the Software by or for the benefit
of any third party.
IV. Hardware Purchases
4.1 Title to the Hardware shall remain with Spirae until
the Hardware is paid in full by Company, at which time title to
the Hardware shall transfer to Company.
V. Deliverables
5.1 Software. Spirae will deliver to Company the Software
and Hardware in accordance with the quantity and delivery
schedule specified on the applicable Order Form.
5.2 Specifications. Specifications concerning the operation
of the Software are set forth on Exhibit B-3 (“Specifications”).
5.3 Restrictions. Company will not: (i) copy, modify,
improve, revise or create derivative works based on the
Software or Hardware, (ii) assign, sell, pledge, charge,
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VII. Payment Terms
7.1 Payment Terms. Company shall pay all fees within thirty
(30) days from the date of Spirae’s invoice for project
milestones achieved according to terms in the Scope of Work
above. All payments shall be made in United States dollars.
Company acknowledges that Spirae shall have the right to
determine Company’s credit limit from time to time and/or
establish different payment terms at Spirae’s discretion.
Company shall assume responsibility for any fees assessed or
charged by any bank or financial institution involved in the
remuneration by Company for any fees due to Spirae
hereunder. All fees payable hereunder are exclusive of any
national, state or local sales, use, value added or other taxes,
customs duties, or similar tariffs and fees which Spirae or
Company may be required to pay or collect in connection with
this License (collectively, “Taxes”). Company agrees to pay
such Taxes and indemnify Spirae for any claim related to such
Taxes, except with respect to taxes assessed on Spirae’s net
income. Company shall be solely responsible for and shall pay
all costs for shipping, transportation, loading, freight,
forwarding, handling, storage and insurance incurred in the
performance of this License.
7.2 Late Payment. Without prejudice to any other remedy,
including the right to terminate this License, in the event any
charge is not paid when due, Spirae may, at its discretion,
suspend its performance and the license granted under this
License until Spirae receives all amounts due.
VIII. Warranty
8.1 Limited Warranty. Spirae warrants that the Software shall
perform substantially in accordance with the Specifications for
a period of 18 months from system commissioning (the
“Warranty Period”). Company’s sole and exclusive remedy and
Spirae’s sole and exclusive obligation in the event of any
breach of such warranty shall arise solely within the Warranty
Period and shall be, at Spirae’s option, to: (i) in accordance
with the terms and conditions set forth in Exhibit B-2, correct
any defects reported to Spirae prior to the end of the Warranty
Period that are necessary to make the Software perform
substantially in accordance with the Specifications; (ii) in
accordance with the terms and conditions set forth in Exhibit
B-2, replace the Software with software that performs
substantially in accordance with the Specifications and
complete any installation and / or commissioning for such
software; or (iii) issue a credit for the purchase price actually
paid by Company for the Software.
8.2 Manufacturer Warranty. To the extent permitted by the
Manufacturer Warranty (as defined below), Spirae shall
transfer to Company any warranty applying to the Hardware
provided by any third party manufacturer of the Hardware with
the Hardware on the same terms as offered by such
manufacturer (the “Manufacturer Warranty”). Company shall
be solely responsible for resolving directly with the third party
manufacturer any issues that arise under the Manufacturer
Warranty.
8.3 Limitation and Exclusions. EXCEPT AS PROVIDED IN
SECTION 8.1, SPIRAE PROVIDES NO
REPRESENTATIONS OR WARRANTIES, WHETHER
EXPRESS, IMPLIED OR STATUTORY, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
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Company the right to continue using the Software, (ii) replace
or modify the Software so that it becomes non-infringing, or (iii)
immediately terminate Company’s license to use the Software,
in which case Company will destroy the Software and Spirae
will refund to Company the fees paid with respect to the
Software, as depreciated or amortized by an equal annual
amount over three years from the delivery date of such
Software.
12.3 Limitation. Notwithstanding the foregoing, Spirae has no
liability for, and Company shall hold harmless Spirae for any
losses, damages, liabilities, costs and expenses arising out of
or in connection with, any Claim arising from: (i) the
combination, operation, or use of Software with any hardware
or software not supplied by Spirae, (ii) the alteration or
modification of any Software by any party other than Spirae,
(iii) Spirae’s compliance with Company’s designs,
specifications, or instructions, (iv) Company’s use of the
Software after Spirae has informed Company of modifications
or changes in the Software required to avoid a Claim, or (v) use
of the Software in a manner contrary to the License.
12.4 Exclusive Remedy. THIS ARTICLE 12 STATES THE
ENTIRE OBLIGATION OF SPIRAE, AND THE EXCLUSIVE
REMEDY OF COMPANY, IN RESPECT OF ANY
INFRINGEMENT OR ALLEGED INFRINGEMENT OF THE
SOFTWARE OR ANY INTELLECTUAL PROPERTY OR
PROPRIETARY RIGHTS.
XIII. Limitations of Liability
13.1 Limitation of Liability. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, NEITHER PARTY
SHALL BE LIABLE, WHETHER IN CONTRACT,
WARRANTY, TORT (INCLUDING NEGLIGENCE,
WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT
LIABILITY, STRICT LIABILITY OR OTHER LEGAL THEORY
FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
RELATING TO ITS PERFORMANCE OR FAILURE TO
PERFORM PURSUANT TO THIS LICENSE, EVEN IF
INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.
UNDER NO CIRCUMSTANCES SHALL SPIRAE’S
MAXIMUM LIABILITY TO COMPANY OR ANY THIRD
PARTY IN CONECTION WITH THIS LICENSE EXCEED
TWO (2) TIMES THE AMOUNT DUE AND PAYABLE BY
COMPANY TO SPIRAE UNDER THE ORDER FORM GIVING
RISE TO THE LIABILITY. THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY REMEDY.
XIV. Term and Termination
14.1 Term. This License shall continue until terminated as
provided herein.
14.2 Termination for Default. Upon material breach of any
obligations under this License by either party, the other party
may terminate this License, including all rights and licenses
granted herein, on the thirtieth (30th) day after written notice to
the party in breach. Such termination shall become effective
unless the defaulting party shall cure all aspects of the breach
and so notify the terminating party of the cure in writing within
said thirty (30) day period.
14.3 Company's Obligation Upon Termination. In the
event this License is terminated, Company shall, on the
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18.2 Compliance and Severability. Spirae and Company
each agree that it will perform its obligations under this License
in accordance with all applicable laws, rules and regulations
now or hereafter in effect. If any term or provision of the
License shall be found to be illegal or unenforceable herein,
this License shall remain in full force and effect and such term
or provision shall be stricken and replaced with a substantially
similar term that is legal and enforceable.
18.3 Governing Law. This License shall be governed by
and construed in accordance with the laws of the State of
Colorado, U.S.A., without regard to any body of law controlling
conflicts of law. All actions under this License shall be brought
in a court of competent subject matter jurisdiction in the State
of Colorado and both parties agree to accept the personal
jurisdiction of such court. Both parties expressly agree that the
provisions of the United Nations Convention on Contracts for
the International Sale of Goods and the Uniform Computer
Information Transaction Act shall not apply to this License
(including any attachments) or any part hereof. The English
language version of this License prevails when interpreting this
License.
18.4 Entire Agreement. This License, including all Exhibits
hereto, which are hereby incorporated by reference, and the
rest of this Agreement represents the entire agreement
between the parties relating to its subject matter and
supersedes all prior representations, discussions, negotiations
and agreements, whether written or oral. In the event that any
provision of any purchase order or receipt issued by Company
is inconsistent with the provisions of this Agreement, then the
terms and conditions of this Agreement will prevail. No
amendment to this Agreement shall be effective unless it is in
writing, dated subsequent hereto, refers explicitly to this
Agreement and is signed on behalf of Company and Spirae by
their duly authorized representatives.
18.5 Paragraph Headings. The paragraph headings
contained herein are for reference only and shall not be
construed as substantive parts of this License.
18.6 Waiver. No waiver will be implied from conduct or failure
to enforce rights. No waiver will be effective unless in writing
signed on behalf of the party against whom the waiver is
asserted.
18.7 Relationship of the Parties. The parties to this License
are independent contractors. There is no relationship of
agency, partnership, joint venture, employment or franchise
between the parties. Neither party has the authority to bind the
other or incur any obligation on its behalf.
IN WITNESS WHEREOF, the parties hereto have caused this License to be executed by their respective duly authorized representatives. All copies
of this License, signed by both parties, shall be deemed originals.
The City of Fort Collins Spirae, LLC
Signature: Signature: _
By: Gerry Paul By: Sunil Cherian
Title: Purchasing Director Title: CEO
Date: February 26, 2018 Date: February 26, 2018
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EXHIBIT B-1
Form of Order Form
This Order Form (this “Order Form”) is by and between Spirae, LLC (“Spirae”) and The City of Fort Collins (“Company”). This Order
Form is incorporated into and made a part of that certain Software License and Hardware Purchase Agreement (the “Agreement”)
dated February 26, 2018 by and between the parties. Capitalized terms not otherwise defined in this Order Form will have the
meanings ascribed to them in the Agreement. To the extent there is a conflict between the terms of the Agreement and this Order
Form, the terms of the Agreement shall control, except where the terms of this Order Form expressly contradict the Agreement by
reference to the provision that is unavailing.
1.0 Software and Hardware
Qty
Product
Description
1 Spirae Wave Wave Platform with Energy Storage Management Application
2.0 Specifications. Wave Platform with Energy Storage Management Application, deployed “as a service,” communicating remotely
to the JCI DES, and with Wave Client application installed on specified FCU operations workstation.
3.0 Delivery Information
Company Name City of Fort Collins
Company Street Address 222 Laporte Ave.
State, City, Zip Code Colorado, Fort Collins, 80522
Country USA
Contact Person John Phelan
Phone Number 970-416-2539
E-mail Address jphelan@fcgov.com
4.0 Software License and Hardware Purchase Fees
Qty
Product
License or
Purchase Fee
License Duration
No. of Licensed CPUs
Subtotal Fees
1 Wave Platform with Energy Storage
Management Application
$40,000 Demo period (18
months from system
commissioning)
N/A (Delivered “as a
service”)
$40,000
Total Fees Due $40,000
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5.0 Software Support and Maintenance Services Fees
IN WITNESS WHEREOF, the parties hereto have caused this Order Form to be executed by their respective duly authorized
representatives. All copies of this Order Form, signed by both parties, shall be deemed originals.
City of Fort Collins Spirae, LLC
Signature: Signature:
By: Gerry Paul By: Sunil Cherian
Title: Purchasing Director Title: CEO
Date: February 26, 2018 Date: February 26, 2018
Qty
Product
Annual
Service Fee
No. of Licensed
CPUs
Subtotal Fees
Wave Platform with Energy
Storage Management Application
Included in purchase fee for
demo period (18 months)
N/A $0
Total Fees Due $0
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EXHIBIT B-2
SOFTWARE SUPPORT AND MAINTENANCE SERVICES
Services will be provided to Company during the Demonstration Period and, thereafter, solely to the extent such Services are
purchased under and paid for by Company pursuant to an Order Form.
1.0 Definitions.
“Acknowledgement” shall mean Spirae’s contact to Company where Spirae confirms receipt of Company’s initial Error report.
The Acknowledgement may be given as an automatic e-mail reply.
“Error” shall mean any mistake, problem, defect, malfunction or deficiency which causes an incorrect or inadequate functioning
or non-functioning of the Software in material deviation from the Specifications set forth under the applicable Order Form.
“Error Category” shall mean the severity class of each Error identified within the Software as classified in Section 2.1.4 herein.
“Help Desk Support” shall mean training and help desk support, available by email and phone.
“Major Release” shall mean an enhanced version of the Software, which shall generally be designated by a new version number
changed from the prior number to the left of the decimal point (e.g., Version 2.3 to Version 3.0).
“Minor Release” shall mean a version of the Software, which shall generally be designated by a new version number changed
from the prior number only to the right of the decimal point (e.g., Version 2.2 to Version 2.3).
“Repair” shall mean to patch, reprogram, or replace the Software so as to eliminate the Error(s), including without limitation a
work-around or patch which temporarily eliminates the symptoms of a particular Error(s).
"Response Time" shall mean the timeframe within which Spirae shall use commercially reasonable efforts to diagnose and
commence Repair of Errors that have been identified by Company.
2.0 Services.
2.1 Error Correction.
2.1.1 If Company identifies an Error during the term of this License, Company shall notify Spirae of the Error in accordance
with Section 2.1.3 of this Exhibit and Spirae will use commercially reasonable efforts to Acknowledge, respond, diagnose
and commence Repair of the Error as set forth in Table 1 below.
2.1.2 Spirae shall furnish Repairs in the form of either a Software temporary fix and/or a workaround. A Repair shall restore
the Software to be compliant in all material respects with the applicable Specifications.
2.1.3 Company shall contact Spirae by telephone, e-mail or any other way as agreed by the Parties and inform Spirae regarding
the Errors in the Software, followed by a written Error report form.
2.1.4 Error Classification.
Spirae will use commercially reasonable efforts to respond to Company’s Error notifications within the Response Times
identified in Table 1 below. Reported Errors will be classified by Spirae into one of the following categories:
Severity Level One
The Error is classified as Severity Level One if any of the following occur: (i) the Software cannot run; or (ii) a critical
function in the Software is inoperative causing significant impact to Company’s business operations and no work-around
is available.
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Severity Level Two
The Error is classified as Severity Level Two if any of the following occur: (i) a material but non-critical function in the
Software is inoperative or the overall performance of the Software is materially impaired, in each case causing a material
impact to the Company’s business operations; or (ii) a critical function in the Software is inoperative that would cause a
significant impact to Company’s business operations but a temporary work-around is available.
Severity Level Three
The Error is classified as Severity Level Three if the Software is not performing substantially in accordance with the
Specifications but does not materially impact the Company’s business operations.
Severity Level Four
The Error is classified as Severity Level Four if the Error does not involve the actual operation of the Software (e.g., errors
or omissions in documentation).
2.1.5 Timescales for Error Correction
Spirae will use commercially reasonable efforts to manage the resolution process for Errors falling into the above Error
Categories in accordance within the timescales as set forth in Table 1 below.
2.2 On-Site Service. At any time Company may request Spirae to provide a system expert to its premises in order to resolve
an Error, or to provide additional technical support urgently needed. In that case, Company will be charged at Spirae’s
current hourly rate, including the time spent traveling to and from Spirae’s location, plus actual and reasonable pre-approved
travel expenses. The availability of on-site service will be at Spirae’s option.
2.3 Help Desk Support. In addition to the Services provided hereunder, Spirae will provide Company with forty (40) hours of
Help Desk Support each Service Period.
3.0 Support.
3.1 Spirae supports the then current Major Release version of the Software plus one Major Release version back (e.g., if the
then current Major Release is version 3.X then Spirae will support that Software version plus version 2.X and support for
Software version 1.X will cease). Services for unsupported releases may be provided by Spirae under a separate time and
materials arrangement between Company and Spirae.
3.2 If the Error is categorized as Severity Level One or Two, Spirae will attempt to issue a temporary modification or work-
around. If a temporary modification is not possible, and the problem is not resolved in the later version, Spirae will provide
a Software correction or expedite its next scheduled maintenance release of the Software.
3.3 If the Error is categorized as Severity Level Three, Spirae will attempt to issue a temporary modification or work-around. If
a temporary modification is not possible, and the problem is not resolved in the latest version, Spirae shall use reasonable
commercial effort to provide the solution as either a Software correction or as part of a maintenance release of the Software.
3.4 If the Error is categorized as a Severity Level Four, Spirae will correct the Error in its next update.
4.0 Software Updates.
4.1 Minor Releases. During any applicable Service Period, Spirae may provide periodic Minor Release.
4.2 Form of Minor Releases. Spirae reserves the sole right to provide any particular Minor Releases in connection with the
Services in one of three forms depending on the nature, size, scope and impact. The three forms are:
i. Field Service Bulletins. Written advisory form; may have suggested modifications to the Software in written form.
ii. Software Modifications. Machine-readable modifications to the Software with revision levels clearly identified.
iii. New Software Modules. Machine-readable portions of the Software versions with revision levels clearly
identified.
4.3 Major Releases. Major Releases are not provided to Company under the terms of this Exhibit. Major Releases may be
subject to additional Software license fee(s) and governed by this License and the Order Form under which such Major
Releases are licensed.
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5.0 Period of Service and Obsolesce. Service is provided for the Demonstration Period. During any renewal Service Period,
Spirae will provide the Service to Company on an annual fee basis, which is subject to an increase as mutually agreed for any
renewal Service Period. Company agrees to pay the agreed upon annual fee(s) as provided on the Spirae invoice. The Service
shall renew in individual Service Periods of twelve (12) month increments subject to mutual agreement.
In the event that Company wishes to reinstate coverage at a later date after a previous non-renewal, the Service may be renewed
at Spirae’s then-current rates for such Service and under the then-applicable terms, plus a reinstatement fee for the period of
lapse, equal to the sum of the number of months of lapsed Service multiplied by one-twelfth of Spirae’s then-current annual rate
for Services.
Notwithstanding the above, Spirae reserves the right to terminate the Service for any particular Software with six (6) months prior
written notice to Company; provided that Spirae shall refund to Company the balance of any unused prepaid Services fees.
6.0 License Grants to Updates. Company’s license to any Repairs or Minor Releases provided hereunder shall be governed by
the terms of this License. (Repairs and Minor Releases shall be included in the definition of “Software”.)
7.0 Limitations. If Spirae is requested to correct an Error and such Error is found to be caused by Company’s negligence,
modification by Company, Company supplied data, operator Error or misuse, or any other cause not inherent in the Software,
Company agrees to pay for such support services on a time and materials basis and any travel expenses incurred for any on-
site Error correction or diagnostics at Spirae’s then-current rates.
This Service does not include installation or re-installation of the Software, on-site support, application design, and other
consulting services or any support requested outside of the hours of 9am-5pm (MT) Monday through Friday, excluding major
holidays.
The Company understands and accepts the risks that failure to implement all changes as designated in the Software correction
notices may render it impossible to implement changes subsequently provided by Spirae.
Failure by the Company to provide reasonably necessary data to recreate the problem or to recreate any alleged Error shall
relieve Spirae of its obligation to correct that Error.
Relocation of Software is Company’s responsibility. Relocation may result in additional support services charges and modified
Service response times. Support of Software moved to another country is subject to availability.
Company is responsible for removing any products not eligible for support services to allow Spirae to perform the Services. If
Services are made more difficult because of such product(s), Spirae will charge Company for the extra work at Spirae’s standard
rates.
Support does not cover any damage or failure caused by:
1) use of non-Spirae media, supplies and other products; or
2) site conditions that do not conform to Spirae’s site specifications; or
3) neglect, improper use, fire or water damage, electrical disturbances, transportation by Company, modification by people
other than Spirae employees or subcontractors, or other causes beyond Spirae’s reasonable control.
Company is responsible for maintaining a procedure external to the Software to reconstruct lost or altered Company files, data
or programs. Company will have a representative present when Spirae provides Services at Company’s site. Company will notify
Spirae if Software is being used in an environment that poses a potential health or safety hazard to Spirae employees or
subcontractors; Spirae may require Company to maintain such Software under Spirae supervision and may postpone Service
until such hazard is remedied.
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TABLE 1
ERROR RESPONSE TIMES
Severity
Level
Target Acknowledgement Time Target Response Time
One 2 Hours 1 Business Day
Two 8 Hours 3 Business Days
Three 3 Business Days 15 Business Days
Four 5 Business Days 30 Business Days
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Exhibit B-3
SPECIFICATIONS
concerning the operation of the Software
• The Wave software shall have two major components: i) Spirae hosted Wave Server
modules and ii) Customer installed Wave Client modules.
• Wave server modules will connect to distributed resources at various locations (JCI
DES at 222 Laporte Ave. for this project).
• Wave Client modules will allow users to log in and operate their system.
• Wave Applications deployed for Fort Collins Utilities Distributed Battery Storage
Pilot Project will allow users to:
o Log in and access the system over SSL secured connection
o Visualize system health and operations summary
o Visualize deployed system with one-line view and/or list-view
o Drill-down into individual assets (JCI-DES) and monitor their status and
operation
o Carry out specific battery operations manually (e.g., charge or discharge
the battery)
o Reserve Assets and schedule them for dispatch
o Review “system” capabilities (e.g., renewables firming) and schedule them
for dispatch (where applicable)
o Monitor alarms (asset level and system level)
o Maintain operations logs that can be manually exported for offline analysis
• Many of the features of Wave will not be deployed for the FCU Distributed Battery
Pilot project (since only one battery is available for the project and initial project
scope is limited), additional features can be demonstrated at the InteGrid Lab
and/or in simulation, including:
o Grouping of assets and scheduling and dispatch of groups
o Background State of Charge Management
o Net Energy Firming
o Online analytics
o Economic microgrid operations
o Wave Dispatch Optimizer
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EXHIBIT C
INSURANCE REQUIREMENTS
1. The Professional will procure the insurance coverage designated hereinafter and pay all
costs for procuring such insurance. 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.”
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.
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EXHIBIT D
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 may include 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 and the City shall treat as Confidential Information all
Software, whether or not bearing a mark of confidentiality, 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 recognize the purpose of
this project is to create a public demonstration (however, the Software shall in no event be
disclosed or provided to or used by the public). 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,
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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.
Neither party shall 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.
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. Subject to paragraph 5, neither party shall disclose Confidential Information to any person,
directly or indirectly, nor use it in any way, except as required or authorized in writing by the
Disclosing Party.
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.
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 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:
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• 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
• 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 takes measures to address 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 agreed by the
parties in writing.
11. If Professional materially breaches this Agreement and does not cure such breach or
demonstrate measures reasonably designed to cure the breach within 30 days after
receiving notice thereof from the City, 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 reasonably 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 request after
completion of engagement, whether it be via termination, completion or otherwise.
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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. The Receiving Party agrees that the Disclosing Party does not have an adequate
remedy at law for breach of this Agreement and therefore, the Receiving Party 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.
14. The parties acknowledge this project is intended as a public demonstration and as such
each may make public disclosures about the project. The City may disclose that Wave
software is being used for the project including public demonstrations of the pilot system.
Further, the parties hereto agree the Agreement and exhibits hereto are subject to public
disclosure. Spirae and Johnson Controls shall obtain the City’s written approval prior to
utilizing the City’s logo and/or prior to initiating any press releases, articles, public
presentations, etc. in connection with the project. The City will collaborate with Spirea and
Johnson Controls as reasonably requested and with adequate notice to conduct
demonstrations on-site at the City for Spirae and Johnson Controls purposes as City
resources permit.
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effective date of termination, immediately discontinue the use
of the Software and any and all portions thereof. Within five (5)
days after the effective date of termination, Company shall
deliver to Spirae or to Spirae’s authorized representative, all
copies of the Software and all related materials. At Spirae's
option, all copies of Software and related materials may be
destroyed by Company, who shall then provide Spirae with
written certification and compliance with this provision.
14.4 Unpaid Amounts. Immediately upon termination, any
earned but unpaid sum(s) shall become immediately due and
payable by Company to Spirae.
14.5 Survival of Obligation. All payment obligations and the
following Sections and Articles shall survive any termination of
this License: Sections 8.2, 14.3, and 14.5 and Articles X
(Rights of Spirae), XI (Confidentiality), XII (Indemnification
Against Infringement), XIII (Limitations of Liability), and XVIII
(General Provisions).
XV. Assignment and Change of Ownership
15.1 Assignment. This License may not be assigned by
either party without the express written consent of the other
party. Any assignment, transfer or delegation of rights or
obligations by operation of law or due to any change in the
control of either party, including but not limited to, a change of
ownership, change of voting rights, or a change of the majority
stockholder, shall be deemed an “assignment” for purposes of
this Section 15.1.
15.2 Binding Effect. Subject to the limitations hereinabove
expressed, this License will inure to the benefit of and be
binding upon the parties, their successors, administrators,
personal representatives, guardians, heirs and assigns.
XVI. Export Controls
In exercising its rights under this License, Company agrees to
comply strictly and fully with all export controls imposed on the
Software or Hardware by any country or organization of nations
within whose jurisdiction Company operates or does business
and with all applicable international, national, regional and
local laws, including without limitation all relevant commodity
control laws and regulations of the territory in performing its
duties hereunder in any transactions involving the Software or
Hardware.
XVII. Notices
All notices shall be sent to the following addresses, or to such
other address as one party notifies the other of in writing:
If to Company:
City of Fort Collins
215 N. Mason
PO Box 580
Fort Collins, CO 80522
Attn: Purchasing Director
If to Spirae:
Spirae, LLC
243 N. College Avenue
Fort Collins, CO 80524-2404
Attn: Contract Administration
All notices required under this License shall be deemed given
when sent by fax with subsequent confirmation or mailed by
certified mail, return receipt, postage prepaid or courier service
or the equivalent.
XVIII. General Provisions
18.1 Force Majeure. Neither party shall be responsible for
delays or failures in performance resulting from acts beyond
the reasonable control of such party. Such acts shall include
but not be limited to acts of God, labor conflicts, acts of war or
civil disruption, governmental regulations imposed after the
fact, public utility failures, industry wide shortages of labor or
material, or natural disasters.
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MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NONINFRINGEMENT. WITHOUT IN ANY
WAY LIMITING THE GENERALITY OF THE FOREGOING,
SPIRAE MAKES NO WARRANTY OR REPRESENTATION
THAT THE SOFTWARE OR HARDWARE IS ERROR FREE
OR THAT THE SOFTWARE OR HARDWARE WILL
OPERATE WITHOUT INTERRUPTION. SPIRAE DOES NOT
WARRANT THAT SOFTWARE OR HARDWARE WILL
OPERATE WITH ANY OTHER SOFTWARE OR
HARDWARE OR MEET REQUIREMENTS OF COMPANY.
IX. Software Support and Maintenance Services
At no additional cost to Company, Spirae shall provide
Company with Spirae’s Software support and maintenance
services (the “Services”) for the Warranty Period in accordance
with the terms and conditions set forth in Exhibit B-2.
Thereafter, Company may purchase Services pursuant to the
fees and terms and conditions regarding such Services set
forth on the applicable Order Form and in Exhibit B-2. Spirae’s
sole and exclusive obligation, and Company’s sole and
exclusive remedy for any problems with the Software occurring
during any Service Period (as defined in Exhibit B-2) shall be
limited to the remedies specified in Exhibit B-2.
X. Rights of Spirae
10.1 Other Products. Nothing in this License shall prohibit
Spirae in any manner from using, developing, marketing,
licensing, or otherwise disposing of the Software , or concepts
embodied in the Software or Hardware, anywhere in the world;
nor shall anything herein be construed to grant to Company
any rights in or to any other present or future products of Spirae
whether or not similar to the Software or Hardware.
10.2 Proprietary Rights. All rights in and to the Software and
Hardware and any other proprietary property of Spirae not
expressly granted by Spirae herein are retained by Spirae.
Spirae grants no rights to Company, or to any third party by
virtue of this License, whether by implication, estoppel or
otherwise, except those rights expressly granted to Company
and set forth herein.
10.3 Preservation of Notices. Spirae shall retain title and
copyrights to the Software and related materials that are
provided by Spirae to Company. Appropriate copyright notices
shall be placed on the materials supplied by Spirae and shall
be embedded in the Software, and such notices shall be
retained and reproduced on full or partial copies held or made
by Company. Company agrees to reproduce and include all
notices, including but not limited to, any proprietary notices,
copyright notices, and restricted rights legends, appearing on
the Software.
XI. Confidentiality
11.1 Confidentiality. The parties expressly acknowledge and
agree that the Software and any additional items identified by
a disclosing party to the receiving party as confidential or
secret or with words of similar import (collectively, and as more
particularly described in Exhibit D, “Confidential Information”)
are subject to Exhibit D of the Agreement
XII. Indemnification Against Infringement
12.1 Indemnity. Spirae shall have the obligation and right to
defend any claim, action, suit or proceeding (each a “Claim”)
brought against Company to the extent it alleges that any
Software infringes a U.S. copyright existing as of the Effective
Date or a U.S. patent issued as of the Effective Date. Spirae
shall indemnify Company against any final judgment entered
in respect of such a Claim by a court of competent jurisdiction
and against any settlements arising out of such a Claim.
Spirae’s obligations to defend a Claim and indemnify Company
are contingent upon: (i) Company notifying Spirae promptly in
writing of the Claim or threat thereof, (ii) Company giving
Spirae full and exclusive authority for the conduct of the
defense and settlement of the Claim and any subsequent
appeal, and (iii) Company giving Spirae all information and
assistance reasonably requested by Spirae in connection with
the conduct of the defense and settlement of the Claim and any
subsequent appeal.
12.2 Remedies. If a Claim has been made, or in Spirae’s
opinion is likely to be commenced, Company agrees to permit
Spirae, at its option and expense, either to: (i) procure for
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encumber, transfer or otherwise dispose of or deal with its
license to the Software any third party, whether voluntarily or
by the operation of law or otherwise, without the prior written
approval of Spirae; (iii) use the Software or Hardware for any
unlawful purpose, or (iv) except as expressly permitted by
applicable law, translate, reverse engineer, disassemble or
decompile the Software or Hardware without Spirae’s prior
written consent. To the extent Company is expressly permitted
under applicable law to translate, reverse engineer,
disassemble or decompile the Software or Hardware,
Company will provide Spirae in advance thereof with
reasonably detailed information regarding any such intended
translation, reverse engineering, disassembly or
decompilation.
VI. Delivery
6.1 Delivery will be F.O.B. City of Fort Collins, 222 Laporte
Ave., Fort Collins, CO 80524. Spirae will select the carrier.
Risk of loss or damage will pass to Company upon tender of
delivery to Company.
6.2 All delivery dates are estimated and any failure by Spirae
to deliver in accordance with such dates shall not constitute a
breach or repudiation by Spirae. Spirae shall not be liable for
any costs or damages incurred by Company by reason of any
delay in shipment. In the event delivery is delayed without
fault of Spirae, Company shall submit payment for Hardware
as set forth herein and bear all costs and expenses incurred by
Spirae in connection with such delay, including without
limitation storage and transportation costs.
6.3 Company shall conduct any incoming inspection tests on
the Hardware within thirty (30) days of system installation. In
the event of any shortage, damage or discrepancy in or to a
shipment of Hardware, Company shall promptly give notice
thereof to Spirae and shall furnish such written evidence or
other documentation as Spirae may deem appropriate. If
Company shall fail to timely give Spirae such written notice as
provided hereunder, Company shall be deemed to have
accepted the Hardware and shall pay for the Hardware in
accordance herewith.
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Workshop for defining storage pilot. Pricing
is for workshop only. Additional scope
during project duration, if any, TBD.
Bundled cost for 4 workshops $ 10,000 1 $ 10,000 Max 4 days
5 Analytics
Facility costs and benefits Spirae
Grid opportunities and benefits Spirae
Bundled cost for 2 rounds of
analysis Spirae $ - 1 $ -
Total $ 125,000
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