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HomeMy WebLinkAboutC07-328 Idea Integration Corp.4 r • integration TM This Enterprise Professional Services Agreement (hereinafter "Agreement") is entered into as of this 30th day of October, 2007 by and between Idea Integration Corp. (hereinafter "Company"), and Eagle County, Colorado (hereinafter "Client"). 1. Scope of Services and Change Orders. a) Company shall provide to Client services of the type and at the locations and pricing as agreed to and incorporated herein in writing (hereinafter, the "Services"), signed by duly authorized officials of the parties and attached hereto in the form of Exhibit A. The Statement of Work ("SOW") will include: (a) a description of the work product to be delivered, including specified deliverables; (b) the performance schedule; and (c) the payment schedule. The terms of this Agreement shall prevail over and govern to the extent of any conflicting or inconsistent terms or conditions in any SOW or other writing or arrangement between the parties. b) Either party may request a change in services or Deliverables (defined in Section llb) by submitting to the other a formal change order reasonably detailing the scope of such change. The form of the change order shall be substantially in the form of Exhibit B hereto. Client may accept or reject a change requested by Company in Client's sole discretion; however, Client will work in good faith to approve all reasonable change orders submitted by Company. Company shall evaluate each change requested by Client and shall provide Client with an impact assessment which shall address all relevant factors, including, without limitation, the necessity for a change in price or delivery schedules or any other terms and conditions of this Agreement or any SOW. Prior to conducting such an impact assessment, Company shall provide to Client a written estimate of the cost thereof, based upon the cost to Company of time and materials in connection therewith. Upon receiving approval from Client, Company shall conduct the impact assessment. If Client agrees to make such changes in the Agreement Rev. 10.23.07 jmn ENTERPRISE PROFESSIONAL SERVICES AGREEMENT or such SOW, Company shall use reasonable efforts to effect the changes. All correspondence regarding changes shall be in writing. All approved change order requests shall be in writing and shall be considered as amendments to this Agreement or the applicable SOW. C) Company shall, in conjunction with Client, develop mutually acceptable acceptance criteria for each SOW hereunder. All acceptance criteria shall be promptly prepared at the inception of each SOW or major work units within a SOW. 2. Term. This Agreement shall continue in effect for an initial term of one (1) year and shall continue thereafter for successive renewal periods of one (1) year each, unless or until either party provides written notice of intent to terminate this Agreement at least sixty (60) days in advance of any such renewal period. Either party may terminate this Agreement at any time and for any reason or no reason upon written notice, specifying the date of termination, which date shall be not less than ten (10) days from the date of the notice. Company shall be entitled to payment with respect to invoiced services satisfactorily performed and expenses reasonably incurred up to the effective date of the termination. In the event Company files for bankruptcy or is declared bankrupt or dissolves, Client may declare in writing that this Agreement is terminated, and all rights of Company and obligations of Client, except for payment of accrued but unpaid fees and expenses, shall terminate immediately. 3. Payment and Invoicing. a) Company will invoice Client regularly according to the terms of the attached Statement(s) of Work. Unless otherwise stated in an attached SOW, Client will reimburse Company for all pre -approved travel expenses, including a pre -approved reasonable per diem for traveling consultants, related to performing on-site services for the Client. Client shall pay invoices upon receipt. b) Company reserves the right to adjust consultant billing rates at time of contract renewal to reflect changes in market conditions and cost of living; provided, however any such adjustment will be mutually agreed to in writing by both parties. On an annual basis, billing rate adjustments shall not exceed 6% plus or minus current billing rates, unless otherwise agreed to in writing by the parties. 4. Relationship of Parties; Client Responsibilities. a) The parties agree that the relationship between them is that of independent contractor and that neither party shall have any authority to represent or bind the other and that neither party shall hold itself out or have any authority as an agent of the other for any purpose whatsoever. Nothing herein shall be construed as creating a principal and agent, joint venture, or any other type of relationship besides independent contractor between Client and Company. b) Company and Client shall each remain solely responsible for the payment of all wages and benefits for each of their own respective employees, and neither party shall be responsible for the withholding or payment of any payroll deductions or taxes, or the provision of workers' compensation or unemployment insurance coverage, for or on behalf of employees of the other party or for any payment or expense in respect of claims arising under the other party's employee benefit plans. As between Company and Client, Company shall remain specifically responsible for any applicable federal, state or local withholding or income taxes, paying Social Security taxes, and providing unemployment compensation and workers' compensation insurance or coverage for its employees and contractors providing services in accordance with this Agreement or any SOW. C) Client acknowledges and agrees that it must provide reasonable cooperation, including access to facilities and computer systems as well as availability of knowledgeable personnel, in order for Company to be able to perform the Services hereunder in a timely Rev. 10.23.07 jmn 2 and professional manner. If any delay in Company's timely completion of a Deliverable occurs as a result of failure or untimely performance by Client, including Client's contractors, of its obligations hereunder which prevents or delays the completion, in whole or in part, of the Services to be performed under any SOW executed under this Agreement (each such occurrence a "Client Delay"), Client agrees that it shall be responsible for any increase in cost or expense incurred by Company caused by a Client Delay and shall pay all costs in connection with such Client Delay. Company shall not incur any liability to Client as a result of any Client Delay. Upon learning of a Client Delay, Company shall promptly notify Client of such Client Delay. Notwithstanding the provisions of Section 2 concerning cure periods, if Client does not remedy the Client Delay within two (2) business days of its receipt of notice of such Client Delay by Company, then Company may elect to (i) perform such Services as Company may reasonably perform to remedy the Client Delay and shall charge Client for such Services at Company's standard time and material rates, or (ii) stop work under the applicable SOW, reassign personnel and bill Client for the Services performed to such date at the rate stated in the SOW or at Company's standard time and material rates if the SOW is for fixed price services. d) Client will review project progress with the designated Idea engagement representative on a regular basis to assure that reasonably acceptable progress is being made. If at any time reasonably acceptable progress is not being made, Client will notify Idea in writing so that appropriate actions can be undertaken. e) In the event the SOW provides for Company to host an evaluation, demonstration, pre -launch, or "beta" form of any Deliverables, or in the event Company may choose to provide such hosting duties to facilitate the Services or design, production, evaluation, or acceptance thereof, Company shall have no further or continuing duties to provide hosting services other than the duties set forth in the SOW, and Company's provision of such hosting services shall not be deemed to effect a waiver or agreement with respect thereto. 5. Non -Hire Covenants. a) Without Company's written consent, during the term of this Agreement and for one (1) year thereafter and except through Company, Client shall refrain from soliciting, hiring, diverting or accepting services or work from any person who at any time provided services through or on behalf of Company, except where the parties have otherwise agreed in writing or upon the payment of a fee to Company equal to two (2) years' annual compensation of the person in question. b) Without Client's explicit written consent during the term of this Agreement and for one (1) year thereafter, Company shall refrain from soliciting, hiring or in any way diverting the services of any employee of Client, the identity of which Company learned or discovered in the performance of services under this Agreement or any applicable Statement of Work. 6. Warranties. a) Company warrants and represents that the Services provided hereunder shall be delivered in a workmanlike manner and in keeping with the standards prevalent in the industry. Client warrants that any workplaces owned, leased or supervised by Client and to which Company employees or contractors are assigned shall be maintained free from any unreasonable hazards or defects and that Client will make available any safety equipment, training or materials provided to Client's own employees and contractors. b) Client shall promptly notify Company of a breach of the warranty stated above, and Company shall promptly investigate the matter, and if substantial evidence of a breach appears, then Company shall in its sole discretion either (i) remedy the defect complained of until the performance meets the warranty standard stated above, and/or (ii) refund or credit to client the fees attributable to the extent of the defective services. This provision states Company's sole liability for breach of the warranty stated in section a) above. Rev. 10.23.07 jmn 3 c) COMPANY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES WHATSOEVER NOT SPECIFICALLY STATED ABOVE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. d) EXCEPT AS PROVIDED IN SECTION 24 HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER WHATSOEVER FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES ON ACCOUNT OF LOST PROFITS, LOST DATA, LOSS OF USE OF DATA, OR LOST OPPORTUNITY, WHETHER OR NOT PLACED ON NOTICE OF ANY SUCH ALLEGED DAMAGES AND REGARDLESS OF THE FORM OF ACTION IN WHICH SUCH DAMAGES MAY BE SOUGHT. IN NO EVENT SHALL COMPANY BE LIABLE TO CLIENT HEREUNDER FOR ANY DAMAGES IN EXCESS OF THE FEES ACTUALLY PAID TO COMPANY BY CLIENT DURING THE IMMEDIATELY PRECEDING SIX (6) MONTH PERIOD UNDER THE STATEMENT OF WORK UNDER WHICH THE DAMAGES AROSE. THE FEES AND BILLINGS DUE UNDER THIS AGREEMENT ARE NOT CONSIDERED SPECIAL DAMAGES OR LOST PROFITS AND SHALL NOT BE LIMITED BY THESE PROVISIONS. 7. Compliance with Laws. a) The parties agree that they each will comply with all applicable federal, state or local laws and ordinances and that neither of them will discriminate against any employees or contractors of the other on the basis of race, color, religion, national origin, sex, age, disability, status as a disabled veteran or veteran of the Vietnam Era, or any other basis prohibited by law. b) Client agrees that it shall comply with all U.S. laws, rules and regulations governing the export of information technologies and shall not permit the export or re-export of information technologies in violation of any such provisions. C) THIS AGREEMENT WILL NOT BE GOVERNED OR INTERPRETED IN ANY WAY BY REFERRING TO ANY LAW BASED ON THE UNIFORM COMPUTER INFORMATION TRANSACTION ACT (UCITA), EVEN IF SUCH LAW IS ADOPTED BY ANY STATE. 8. Insurance. Company shall maintain insurance coverage as follows: a) Workers' Compensation insurance, for employees of Company, that meets or exceeds the statutory limits of the state(s) in which the services will be performed. b) Comprehensive General Liability insurance, with limits of at least One Million Dollars ($1,000,000) combined single limit for bodily injury, personal injury and property damage for each occurrence. c) Commercial Blanket Bond with limits of at least One Million Dollars ($1,000,000) for each occurrence. d) Employer's Liability insurance of at least Five Hundred Thousand Dollars ($500,000) per employee of Company. e) Errors and Omissions Liability insurance in an amount of not less than One Million Dollars ($1,000,000) for each occurrence. f) A combination of primary and excess/umbrella liability policies will be acceptable as a means to meet the limits specifically required herein. Company shall provide the Client with written evidence of the existence and maintenance of such insurance policies upon Client's request. If any of such insurance policies are to be modified or canceled during the term of this Agreement in a way which would materially reduce the coverage required hereunder, Company shall provide written notice to the Client at least thirty (30) days prior to such modification or cancellation. Rev. 10.23.07 jmn 4 9. Indemnification. a) Company will indemnify, defend and hold harmless Client from and against all claims, demands, suits and expenses (including reasonable attorneys' fees) brought by any person or party for damage to tangible personal property and bodily injury (including death) arising from the negligent or illegal act or omission of Company or any of its employees and contractors in the performance of services hereunder, except to the extent of the negligent or illegal act or omission of Client or its employees and contractors. b) Company shall also, at its expense, defend or settle any claim, action or allegation brought against Client that any Deliverable (as defined below) infringes any U.S. intellectual property right of any third party and shall pay any final judgments awarded or settlements entered into; provided that Client promptly notifies Company of any such claim, allows Company to control the defense of any actions arising out of any such claim and reasonably cooperates with Company in such defense. Notwithstanding the foregoing, Company shall not be responsible for or liable to Client for any infringement of a third party's intellectual or other property right arising out of: (i) Client's use of a Deliverable to perform any particular function if such use infringes a third party's U.S. patent separate from the method or means of Company's delivery of the Deliverable; (ii) Client's use of any third party software or equipment if such use violates or infringes any third party rights and the Deliverable by itself would not have infringed such third party rights, (iii) modifications, enhancements or alterations of Deliverables not performed or approved in writing by Company; or (iv) Company's adherence to Client's specific instructions. Company makes no warranty whatsoever concerning, and shall bear no liability related to, any third party software, firmware, middleware, hardware or documentation. c) In the event any such infringement, claim, action or allegation is brought or threatened, Company may, at its sole option and expense: (i) procure for Client the right to continue use of the Deliverable or infringing part thereof; or (ii) modify or amend the Deliverable or infringing part thereof, or replace the Deliverable or infringing part thereof with other software having substantially the same or better capabilities; or (iii) if neither of the foregoing is commercially practicable, Company may terminate this Agreement with respect to the infringing part of the Deliverable and refund the monies paid by Client for the infringing part less any reasonable amount for use or damage. Company will then be released from any further obligation whatsoever to Client in connection with the infringing part of the Deliverable. d) Client will indemnify, defend and hold harmless Company from and against any claims, damages, suits or expenses (including reasonable attorneys' fees) in connection with: (i) actual or alleged violations of the Occupational Safety and Health Act or any similar state law governing work places owned, leased or supervised by Client and to which Company employees or contractors are assigned, except to the extent of any such violations arising from Company's own negligent or illegal act or omission, and (ii) any claims arising out of the matters described in subsection b)(i) through (iv) above. 10. Notices. Any and all notices, requests, demands and communications provided for by this Agreement shall be in writing and shall be effective when delivered in person or sent by facsimile with confirmation, and upon receipt via reputable overnight courier or U.S. Mail postage prepaid, with return receipt requested, as follows: To Company: Idea Integration Corp. Senior Vice Pres. & General Counsel 1 Independent Dr, 25"' Floor Jacksonville, FL 32202 To Client: Eagle County Innovation & Technology Dept. P.O. Box 850 Eagle, CO 81631 Attn: Scott Lingle Rev. 10.23.07 jmn 5 with a copy to: Eagle County Attorney's Office P.O. Box 850 Eagle, CO 81631 The parties may update or modify the addressees above by providing written notice of such as provided herein. 11. Confidentiality and Inventions. a) Company recognizes that Client is a governmental entity subject to open records laws and that the terms of this Agreement and its subject matter are subject to public disclosure. Notwithstanding the foregoing, the parties agree that the specific terms, conditions and rates set forth in this Agreement and in any Statement(s) of Work shall be maintained as confidential and not disclosed to any third party or competitor of either party. Company may publicly announce the existence of this Agreement and the general nature of the services provided hereunder. The parties may disclose the terms of this Agreement or any Statement(s) of Work and divulge any confidential information when necessary to comply with the legal order, subpoena, requirement or process of a governmental agency or court of competent jurisdiction, but shall endeavor to provide the other party with reasonable notice and an opportunity to secure any protective order or limit on disclosure at that party's own sole expense. b) Upon the payment in full of all fees and charges set forth in the applicable SOW, Client shall have ownership of the tangible materials, computer programs and related documentation produced by Company and specified in a SOW to be delivered to Client hereunder ("Deliverables"). Company also grants to Client a non-exclusive, perpetual, fully - paid -up, royalty free, worldwide license to use Company's intellectual property contained within the Deliverables, and to reproduce, modify, alter, revise, enhance, sublicense and sell the Deliverables and any enhancements, alterations and modifications thereto. Notwithstanding anything stated herein or elsewhere, the sole exceptions to the foregoing provisions concerning the Deliverables are as follows: The parties acknowledge that as the result of Company's performance under this Agreement, Company's knowledge and expertise, techniques, concepts, proprietary software, tools, processes, practices, methods and professional know-how (individually and collectively, "Pre -Existing Works") will be enhanced and that such enhancements shall be included in Company's Pre -Existing Works. Such enhancements may take the form of modifications or derivative works to Pre -Existing Works. Client acknowledges and agrees that all Company's Pre - Existing Works and enhancements to such Pre - Existing Works shall be the sole and exclusive property of Company. Nothing herein shall prevent Company from providing services for others using Company's Pre -Existing Works, and the mental impressions gained from performing Services hereunder, so long as such services do not infringe upon Client's exclusive right to the customized elements of the Deliverables or disclose confidential Information of the Client's in breach of this Agreement. c) Company shall not obtain any ownership or use rights in Client information or other materials furnished to Company hereunder by virtue of their inclusion, in any form, in a Deliverable hereunder. Client shall not obtain any rights to third party intellectual property not specifically referenced in a SOW. 12. Export Compliance. The parties agree to comply with U.S. export control laws, regulations, and requirements. Client shall provide prior written notice to Company in the event that any of Client's software or technology is subject to U.S. export controls prior to commencement of work under this Agreement. In the absence of notice from Client, Company shall presume that the software and technology of Client are not subject to U.S. export controls. Any party breaching this provision shall indemnify, defend, and hold the other party hereunder harmless from and against any and all claims, demands, actions, suits, proceedings, losses, damages, penalties, obligations, liabilities, costs, and expenses (including, without limitation, reasonable attorney's fees and costs) arising directly or indirectly from a breach of this provision. Rev. 10.23.07 jmn 6 13. Force Maieure. Neither party shall be liable to the other party for any delays, inability to perform or interruption of service due to acts or events beyond such party's reasonable control, including, without limitations, acts of God, inclement weather, war, civil unrest, strikes, loss or interruption of computer systems, telecommunications breakdowns and transportation delays. In such case, the time for performance shall be excused and extended by one (1) day for each day such condition continues. If the condition continues for ten (10) days within any fifteen (15) day period, then either party may terminate this Agreement and the services immediately, and any payment shall be due for services rendered to date, including pro rata payment to the date of termination for services rendered under a fixed fee arrangement. Failure or lack of payment by Client for services rendered to date shall not be excused under this provision. 14. Authority. Each party represents and warrants to the other party that it has all necessary power and authority to enter into and perform this Agreement in accordance with the terms hereof. 15. Assignment. Neither party shall assign any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not unreasonably be withheld. The only exception is that this Agreement may unilaterally be assigned by either party to an affiliate, successor or assign in a change of corporate control that does not materially affect the duties of the other party hereunder. This Agreement is entered into solely for the benefit of the parties hereto, and nothing in this Agreement whether express or implied is intended to confer any rights or remedies on any other person or party other than the parties hereto and their respective successors and assigns. 16. Waivers. No waiver of any provision of this Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted, and any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or further waiver. 17. Severability. Each provision herein shall be separate and independent from any other, and a breach of any provision shall in no way or manner discharge or relieve the performance of any other provision, covenant or agreement. 18. Survival. The parties' obligations under this Agreement which by their nature continue beyond termination, cancellation or expiration of this Agreement, shall survive termination, cancellation or expiration of this Agreement. 19. Headings. Caption and article headings contained in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope or intent of this Agreement nor the intent of any provision hereof. 20. Governing Law. This Agreement shall be governed by the laws of the state where the services are performed. Venue will be exclusive in Eagle County, Colorado. 21. Entire Agreement. This Agreement and the attachments and exhibits hereto represent the entire Agreement between the parties and supersede any prior understandings or Agreements whether written or oral between the parties respecting the subject matter herein. This Agreement may only be amended in a writing specifically referencing this provision and executed by both parties. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and assigns, subject to the limitations contained herein. The unenforceability, invalidity or illegality of any provision of this Rev. 10.23.07 jmn 7 Agreement shall not render any other provision unenforceable and shall be subject to reformation to the extent possible to best express the original intent of the parties. 22. Budgeting and Appropriation. Funds equal to or in excess of the contract amount will be budgeted and appropriated for any project or services described in any Agreement or SOW entered into hereunder. Notwithstanding anything to the contrary contained in this Agreement or any SOW entered into hereunder, no charges shall be made to Client nor shall any payment be made to Company in excess of the above amounts for any work done without the written approval of Client in accordance with a budget adopted by the Board of County Commissioners in accordance with the provisions of the Colorado Revised Statutes. The parties recognize that the Client is a governmental entity and that all financial obligations beyond a current fiscal year are subject to funds being budgeted and appropriated. 23. Provision Mandated by Colorado Revised Statutes § 8-17.5-102: Prohibitions on Public Contract for Services. a) Company shall not knowingly employ or contract with an illegal alien to perform work under this Agreement; or enter into a contract with a subcontractor that fails to certify to the contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this Agreement. b) Company shall confirm or attempt to confirm through participation in the Basic Pilot Verification program, as administered by the United States Department of Homeland Security, that Company does not employ any illegal aliens. If Company is not accepted into the Basic Pilot Verification Program prior to entering into this Agreement, Company shall apply to participate in the Program every three months until the Company is accepted or the services provided under this Agreement have been completed, whichever is earlier. Information on applying for the Basic Pilot Verification Program can be found at: https://www.vis- dhs.com\employyerregistration. C) Company shall not use the Basic Pilot Verification Program procedures to undertake pre- employment screening of job applicants while services under this Agreement are being performed. d) If Company obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, Company shall be required to: i) Notify the subcontractor and the Client within three days that Company has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and ii) Terminate the subcontract with the subcontractor if within three days of receiving the notice required pursuant to subparagraph (i) of the paragraph (d) the subcontractor does not stop employing or contracting with the illegal alien; except that Company 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) Company shall comply with any reasonable request by the Department of Labor and Employment made in the course of an investigation that the department is undertaking pursuant to its authority. f) If Company violates these prohibitions; the County may terminate the contract for a breach of the contract. If the contract is terminated specifically for breach of this prohibition on public contracts for services provision, Company shall be liable to the Client for actual damages and for consequential damages, as provided by Colorado law. IN WITNESS WHEREOF, the parties have hereunto set their hands with effect as of the date first above written. EAGLE O Y, BOARD OF COMMISSIONERS By: Print Name/Title: Am M. Menconi, Chariman Date: Rev. 10.23.07 jmn 8 E INT I CORP. B Print Name/Title: 5p 6 v' V p Date: ) 01 �2-007 EXHIBIT A: FORM OF STATEMENT OF WORK This Statement of Work No. is submitted , 200_ by Idea Integration Corp., ("Company") to [Client Name] ("Client") pursuant to the Enterprise Professional Services Agreement dated , 200_ between Company and Client (the "Agreement"). I. SCOPE OF WORK. II. COMPENSATION. III. NOTICES. All notices and invoices to Client in connection with the services performed under this Statement of Work shall be sent to: IV. WORK PLAN, DELIVERABLES, AND ACCEPTANCE. V. PROJECT COST ESTIMATE AND BUDGET. k/� ' ea)l'i 1 0JI10 VII. ASSUMPTIONS. VIII. CHANGE MANAGEMENT. IX. PROJECT MANAGERS. Idea Integration: Client: IN WITNESS WHEREOF, the undersigned have caused this Statement of Work No. to be executed by their duly authorized representatives with effect as of the date of the last signature below. [CLIENT NAME] By: Print Name/Title: Date: Rev. 10.23.07 jmn 9 IDEA INTEGRATION CORP. By: Print Name/Title: Date: 1:►:ial 1.1k FORM OF CHANGE ORDER This is Change Order No. to Statement of Work No. issued pursuant to that certain Enterprise Professional Services Agreement by and between Idea Integration Corp., ("Company") and [Client Name] ("Client") dated as of [Date of Agreement]. I. Changes in Services or Deliverables. [Identify the specific changes in the Services, Deliverables, time for completion, testing or acceptance criteria, etc.J II. Change in Fees or Charges. [Identify the specific changes in the fees or charges arising out of the changes set forth in Section I above. ] IN WITNESS WHEREOF, the parties have executed this Change Order effective as of the [Day of Week] day of [Month], [Year]. [CLIENT NAME] By: Print Name/Title: Date: Rev. 10.23.07 jmn H IDEA INTEGRATION CORP. Print Name/Title: Date: