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HomeMy WebLinkAboutC11-167 Performance Systems Development Master Service Agreement PERFORMANCE SYSTEMS 124 Brindley Street, Ithaca, NY 14850 • 607.277.6240 • www.psdconsulting.com PERFORMANCE SYSTEMS DEVELOPMENT, LLC MASTER SERVICES AGREEMENT This MASTER SERVICES AGREEMENT (this "Agreement ") is entered into on or as of the 13th day of May, 2011 (the "Effective Date ") by and between Performance Systems Development, LLC, and Eagle County, ( "County "). The parties hereto hereby agree that the complete agreement between such parties with respect the Services contemplated by this Service Agreement shall consist of this Service Agreement, the description of the Statement of Work set forth on Schedule A attached hereto and incorporated herein by reference (the "SOW ") and including the description of the "Fees and Terms" set forth in the SOW and the description of Service Level Agreement set forth on Schedule B attached hereto and incorporated herein by reference (the "SLA "). Capitalized terms used in this Service Agreement shall have the meanings assigned in this Service Agreement. 1. Services. During the term of the Agreement, PSD shall provide County with access to and use of certain software -as -a- service offering(s), including the software implementation, training and customization services as are more specifically described in Schedule A (SOW), as such Schedule may be amended by agreement of the parties (collectively, the "Services "). The Services shall be provided by PSD in accordance with the timeline, if any, set forth on such Schedule. County shall satisfy all of County's obligations, if any, set forth on such Schedule. 2. Pricing. In consideration for the Services contemplated by this Service Agreement, County shall pay PSD as described under "Fees and Terms" in the SOW. 3. Term. Subject to yearly budgeting and appropriation by the County Board of Commissioners and continued availability of grant funds to support this Agreement, this Agreement shall become effective on the Effective Date and shall terminate thirty -six (36) months thereafter, unless terminated earlier as provided for herein (the "Initial Term "). After the Initial Term, this Agreement shall remain in effect on a month -to -month basis indefinitely (each a "Renewal Term" and collectively the "Initial Term" and each "Renewal Term" shall be referred to hereinafter as the "Term ") until terminated by either party as provided herein. County shall remain liable for payment for services performed by PSD prior to the effective date of such termination. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations under this Agreement after, nor shall any payments be made to Contractor in respect of any period after, December 31st of any the calendar year during the Term of this Agreement, without an appropriation therefore by County in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29 -1 -101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 4. Service Levels. Attached hereto as Schedule B (SLA) are certain service level agreements related to the Services. 5. Administration of Services; Proprietary Rights. a. Administration of Services. To the extent required by PSD, County shall make a reasonable effort to provide PSD with a reasonable amount of secure space at County's facility to perform the Services. b. Proprietary Rights. County acknowledges that the Services and any written materials, user manuals and technical documentation that accompany the Services of that PSD generally provides to Costumers PSD Confidential — Managed Services Agreement Page 1 of 20 861257_4 of the Services (the "Documentation ") and any and all enhancements, modifications, additions or new releases of or to the Services or Documentation (collectively, the "Proprietary Materials ") contain confidential information of, are trade secrets of, and are proprietary to PSD or its licensors. Except as otherwise provided on Schedule A, PSD or its third party licensors own the Proprietary Materials and no right, title or interest of intellectual property or other proprietary rights in and to the Proprietary Materials made available under this Agreement, including but not limited to any software, processes, know -how, source code, source documentation, inventions, and ideas, included within the Services is transferred to County hereunder. PSD and any of its third party licensors retain all right, title and interests, including, without limitation, all copyright and other proprietary rights in and to the Proprietary Materials. County retains all right, title and interest to the data entered by County. c. Access Rights. In accordance with Schedule A, County shall have during the Term only a non- exclusive, non - transferable license to access remotely and use the Services and Documentation in accordance with the license granted in the SOW solely for County's internal business purposes and consistent with the terms and conditions of this Agreement. County agrees not to duplicate such Services or Documentation. County agrees not to assign, sublicense, transfer, lease, rent or share any license granted to County hereunder or otherwise misappropriate any of the intellectual property of PSD. To the extent that any third party software is included in or used by PSD in the performance of the Services, such software may be subject to a separate license agreement, if required by PSD. d. Additional Services. From time to time, County may request that PSD provide additional or amended Services not covered by Schedule A, and the parties hereto may, but are not required to, agree to a change order for Services either by amending in writing this Agreement and Schedule A or by entering into a new Agreement. Such change order, if executed, will specify the Services to be provided by PSD and terms for such Services, including, but not limited to, price terms. 6. Compensation. a. Payments. County shall compensate PSD for the Services in accordance with the terms and payment schedule set forth on Schedule A Fees and Terms. County shall make payments to PSD in accordance with such payment schedule and within thirty (30) days after receipt of an invoice from PSD showing the value of the Services completed. Such invoice shall also itemize any reimbursable expenses. County shall also pay, to the extent required by law, any sales, use, value - added, or other tax or charge imposed by any governmental entity upon the sale, use or receipt of the Services. All fees referred to in this Agreement are in United States dollars. PSD shall initiate start of work upon receipt of full amount of any payment designated as Due Upon Signing. b. Reasonable Expenses. Except as expressly set forth on a Service Agreement, PSD and County shall individually be responsible for their own expenses incurred in performing under this Agreement. c. Taxes. To the extent required to do so by law, County shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, national, state, or otherwise, however designated which are levied or imposed by reason of transactions contemplated by this Agreement, except those which arise as a result of income, including withholding taxes or similar deductions. Without limiting the foregoing, County shall promptly pay to PSD an amount equal to any such items actually paid, or required to be collected or paid by PSD. PSD Confidential — Managed Services Agreement Page 2 of 20 861257_4 d. Appropriation. County represents and warrants to PSD that an appropriation for the County to pay amounts due under and in compliance with this Agreement for 2011 has been made or provided in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29 -1 -101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 7. Warranty. a. Conformity to Specifications. PSD warrants that the Software will operate substantially in accordance with the Documentation. In the event that during this warranty period the Services do not operate in substantial conformity with the Documentation, County will so notify PSD as set forth in Schedule B (SLA) following the appearance of such defect and will transmit by email or acceptable media all data processed by the Services as reasonably requested by PSD in order to troubleshoot the reported nonconformity. PSD's sole and exclusive obligation in the event of a breach of the warranty made under this Section 7(a) shall be to provide the Service Credits, workarounds and fixes specified in Schedule B (SLA). b. Exclusions. EXCEPT AS EXPRESSLY STATED HEREIN, PSD MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED REGARDING THE FUNCTIONALITY OF ANY PRODUCTS OR SERVICES PROVIDED BY IT, THAT THE PRODUCTS OR SERVICES WILL OPERATE ERROR FREE, WITHOUT INTERRUPTION, OR IN COMBINATION WITH OTHER SOFTWARE (EXCEPT AS PERMITTED BY THE DOCUMENTATION), OR THAT ALL PROGRAM DEFECTS ARE CORRECTABLE. EXCEPT AS EXPRESSLY STATED IN ANY SERVICE AGREEMENT, PSD DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. 8. Indemnification. a. Indemnification by PSD. If the Services or any of the products provided by PSD are proven to infringe a United States patent or registered copyright or PSD determines that any of the Services or such products shall infringe such rights, or County is enjoined from using any of such products or materials, or any part of same, then PSD, at PSD's expense and sole option, shall (1) replace such infringing Services or products with non - infringing, equivalent and conforming services or products, (2) modify such infringing Services or products, so such Services or products become non - infringing, but continue to provide the same type and quality of performance and services, (3) procure the right for County to continue using such infringing Services or products, or (4) terminate this Agreement upon notice to County, in which case County shall be entitled to a refund of fees prepaid to PSD by County that relate to a period after termination with respect to use of the Services. This Section shall not apply to any services created by any third party or created by PSD to County's design or specifications. This Section shall also not apply to the extent the claim of infringement is caused by County's misuse, abuse or modification of any Services or products made available by PSD, or County's use of such Services or products in combination with any attachments, features, software or devices not supplied or approved by PSD. THIS SECTION STATES THE ENTIRE LIABILITY OF PSD AND THE EXCLUSIVE REMEDY OF COUNTY FOR INFRINGEMENTS OR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT, PATENT AND OTHER PROPRIETARY RIGHTS BY SERVICES OR ANY PRODUCTS OR MATERIALS. PSD Confidential — Managed Services Agreement Page 3 of 20 861257_4 9. Limitation of Liability. IN NO EVENT SHALL PSD OR ANY OF ITS SUPPLIERS OR AGENTS BE LIABLE TO COUNTY, ANY EMPLOYEE, AGENT OR CONTRACTOR OF COUNTY, OR ANY THIRD PARTY, FOR ANY LOSS OF USE, PROFITS, REVENUE, GOODWILL, BUSINESS, OR OTHER INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO ANY SERVICE AGREEMENT EVEN IF PSD HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. PSD'S LIABILITY TO COUNTY UNDER ANY SERVICE AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY COUNTY TO PSD PURSUANT TO SUCH SERVICE AGREEMENT FOR THE SERVICES DURING THE PRECEDING TWELVE (12) MONTHS. 10. Confidentiality. a. Confidential Information. "Confidential Information" of a party hereto shall be deemed to include all information, materials and data disclosed or supplied by such party ( "Disclosing Party ") to the other party hereto receiving such information ( "Receiving Party "), that Disclosing Party designates to be of a confidential nature. If disclosed in written or other tangible form or electronically, Confidential Information shall be marked by Disclosing Party as "Confidential ". If disclosed orally or visually, Confidential Information shall be identified as such by Disclosing Party at the time of disclosure and designated as "Confidential" in a written memorandum of such disclosure, summarizing the Confidential Information sufficiently for identification, to be delivered by Disclosing Party to Receiving Party within thirty (30) days of such disclosure. Except to the extent falling within an exclusion in Section 10(b), PSD agrees that any data of the County or participant in the Energy Smart Program ( "Program Participant ") that is input into the Software, is the "Confidential Information" of the County or the Program Participant. b. Exclusions. The following information shall not be considered Confidential Information hereunder: (1) information of Disclosing Party that is or becomes generally known within the relevant industry through no wrongful act or omission of Receiving Party or breach by Receiving Party of its obligations under any Service Agreement; (2) information which Receiving Party can establish and document by contemporaneous written proof was in the possession of or known by such party prior to its receipt of such information from Disclosing Party, without any obligation of confidentiality to Disclosing Party; (3) information that is rightfully disclosed to Receiving Party by a third party with no obligation of confidentiality to Disclosing Party; and (4) information which is independently developed by Receiving Party without use of or reference to Confidential Information of Disclosing Party, with Receiving Party bearing the burden of proving such independent development. c. Use of Confidential Information. Confidential Information of Disclosing Party or Program Participant may not be used by Receiving Party for any purpose except in the performance of Receiving Party's obligations on behalf of Disclosing Party under any Service Agreement and engaging in related discussions with Disclosing Party. Receiving Party shall maintain the confidentiality of all of Disclosing Party's Confidential Information disclosed to Receiving Party hereunder and shall not disclose such Confidential Information to any person or entity, except as provided in any Service Agreement. d. Disclosure of Confidential Information Required by State Law or Court or Regulatory Order. PSD recognizes that County is a governmental entity bound by the requirements and limitations of the Colorado Open Records Act (CORA) and to the extent that any Confidential Information made, maintained or kept by County is considered an open record under CORA, County may be statutorily required to allow public inspection. Notwithstanding the foregoing, County shall make all reasonable efforts to protect and Confidential Information provided and marked as such by PSD. To the extent Receiving Party is required to disclose PSD Confidential — Managed Services Agreement Page 4 of 20 861257 4 Confidential Information of Disclosing Party pursuant to any court or regulatory order, Receiving Party shall promptly notify Disclosing Party in writing of the existence, terms and circumstances surrounding such disclosure so that Disclosing Party may seek a protective order or other appropriate remedy from the proper authority. Receiving Party agrees to cooperate with Disclosing Party in seeking such order or remedy. Receiving Party further agrees that if Receiving Party is required to disclose Confidential Information of Disclosing Party, Receiving Party shall furnish only that portion of Confidential Information that is legally required and shall exercise all reasonable efforts to obtain reliable, written assurances that confidential treatment shall be accorded Confidential Information. e. Return of Confidential Information. Receiving Party shall promptly return to Disclosing Party all correspondence, memoranda, papers, files, records and other tangible materials embodying Disclosing Party's Confidential Information or from which such information may be derived, including all copies, extracts or other reproductions thereof, when Receiving Party no longer needs such Confidential Information to accomplish the performance of Receiving Party's obligations on behalf of Disclosing Party under any Service Agreement or when Disclosing Party requests its return, whichever occurs first, or certify to Disclosing Party that all such materials have been destroyed if Disclosing Party requests such destruction. 11. Non - Solicitation. During the term of any Service Agreement, and for a period of twelve (12) months thereafter, County agrees not to, directly or indirectly, solicit, recruit or employ any employee of PSD without the prior written consent of PSD. 12. Equitable Relief. County recognizes and acknowledges that a breach of Section 10 or Section 11 hereof by County cannot reasonably or adequately be compensated in damages in an action at law and shall cause irreparable harm and significant injury and damage to PSD. By reason thereof, County agrees that, in addition to any other remedies it may have under any Service Agreement or otherwise, PSD shall be entitled to seek and obtain immediate preliminary, interim and permanent injunctive or other equitable relief to prevent or curtail any actual or threatened breach of such Sections. 13. Termination. a. By County. County may terminate this Agreement upon thirty (30) prior written notice to P Y( ) da s p Y PSD. PSD will have no obligation to refund any amounts paid by PSD under this Agreement upon such termination. Such termination will be effective thirty (30) days from the date PSD receives such notice. b. By PSD. PSD may terminate this Agreement if: (i) County fails to implement the Services or fails to cooperate with PSD's efforts to implement the Services within six (6) months of the Effective Date; or (ii) County fails to pay to PSD any payments hereunder when due, as contemplated by this Agreement. Any initial set -up fees paid to PSD are non - refundable in the event PSD terminates this Agreement under this Section 13(b). c. By Either Party. Either party may terminate this Agreement: (i) upon thirty (30) days prior written notice if the other party hereto materially breaches any term of the Agreement or otherwise fails to satisfy any promise or covenant made herein or in the Agreement, and further provided that such party shall fail to cure said breach or failure within such period; or (ii) immediately upon prior written notice to the other party hereto if a proceeding is brought by the other party hereto in any court or under supervision of any court- appointed officer under any federal or state bankruptcy, reorganization, rearrangement, insolvency or debt readjustment law, or if any such proceedings are instituted against the other party hereto and it fails to obtain dismissal of such proceeding within sixty (60) days after the same has been instituted; or (iii) immediately, if no PSD Confidential — Managed Services Agreement g �' Page 5 of 20 8612574 appropriation for the County to pay amounts due under and in compliance with this Agreement is made or provided in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, the Local Government Budget Law (C.R.S. 29 -1 -101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20) . d. Effect of Termination. Upon any termination or expiration of the Agreement, for whatever reason, each of the parties hereto shall immediately cease using any and all Confidential Information of the other party hereto or Program Participant related to such Service Agreement, unless specifically authorized, in writing by such other party, and shall promptly return to such other party any and all of such information in its possession, and shall not publish or reveal, use or divulge, directly or indirectly, any of such information unless specifically authorized, in writing, by such other party. Without limiting the generality of the foregoing, the obligation to promptly return Confidential Information shall include, but not be limited to, the obligation to promptly erase any and all of such Confidential Information, and all images, compilations, copies, summaries or abstracts of such information, from computer storage, systems and related storage devices, tools and servers. 14. Training, Consulting and Support. PSD will provide training and consulting services related to the Services as detailed in Schedule C and at PSD's then - current rates. County shall reimburse PSD for all reasonable preapproved expenses incurred by PSD for travel, lodging and meals when PSD is required to perform Services at locations other than PSD's offices. In addition, County will reimburse PSD for all reasonable preapproved expenses incurred for classroom guides and training materials used by PSD in providing training services, including shipping costs for such materials, and preapproved out -of pocket expenses associated with the provision of such services. PSD will render the services detailed in Schedule D in support of the Services. County may terminate Support at any time on thirty (30) days notice. County shall be entitled to a refund of all prepaid fees for Support that relate to periods after the effective date of Support termination. 15. Notices. All notices, demands and communications required or permitted in connection with each Service Agreement shall be in writing and shall be deemed effectively given in all respects upon personal delivery or, if mailed, by registered or certified mail, postage prepaid, return receipt requested, or by overnight courier, the receipt of which is confirmed, addressed to the party hereto at the address set forth in the first paragraph of such Service Agreement (or such other address for a party as shall hereafter be specified by like notice). Either party hereto may from time to time change its notification address by giving the other party hereto prior written notice of the new address and the effective date thereof. 16. Survival. The provisions of this Section and of the Sections entitled Warranties (Section 7), Indemnification (Section 8), Limitation of Liability (Section 9), Confidentiality (Section 10), Non - Solicitation (Section 11) and Equitable Relief (Sectionl2) shall survive any termination or expiration of any Service Agreement. 17. Relationship of the Parties. This Agreement shall not create, nor shall be represented by either party hereto to create, a partnership, joint venture, employer- employee, master - servant, principal- agent, or other relationship whatsoever between the parties hereto. At all times during the term of this Agreement PSD shall maintain workman's compensation and unemployment insurance as required by law; commercial auto coverage, commercial general liability and errors and omissions insurance each with limits of not less than $1,000,000 per occurrence. PSD Confidential — Managed Services Agreement Page 6 of 20 861257_4 18. Assignment. County may not assign this Agreement without the prior written consent of PSD. Any assignment in violation of this Agreement shall be null and void and of no force and effect. For all purposes under this Agreement, any merger, consolidation, spin -off, acquisition of, or change -in- control involving County will be deemed an assignment. The Agreement shall benefit and be binding upon the parties hereto and their respective successors and assigns. 19. Restricted Rights. Any software acquired with United States Government funds or intended for use within or for any United States federal agency are provided with "Restricted Rights" as defined in DFARS 252.227 -7013, Rights in Technical Data and Computer Software and FAR 52.227 -14, Rights in Data - General, including Alternate III, as applicable. PSD must be notified in advance of any license grants to United States federal governmental entities. County acknowledges that none of the Services licensed for use in any nuclear, aviation, mass transit or medical application or in any other inherently dangerous applications. 20. Foreign Trade Restrictions. The parties acknowledge that certain information, software technology, accompanying documentation and technical information may be subject to United States export control laws. County shall not directly or indirectly export or re -export the Services or products in violation of the Export Administration Regulations of the U.S. Department of Commerce. 21. Force Majeure. Neither party hereto shall be deemed in default of the Agreement to the extent that performance of its obligations (other than an obligation of payment) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, civil disturbance, terrorism, acts or omissions of suppliers and other third parties, act of government, strikes, unavailability of material, facilities, telecommunications services or supplies or any other cause beyond the reasonable control of such party (each, a "Force Majeure Event "). 22. Modification or Waiver. The parties hereto may, by mutual agreement, amend any provision of any Service Agreement, and any party hereto may grant consent or waive any right to which it is entitled under any Service Agreement or any condition to its obligations under the Agreement, provided that each such amendment, consent or waiver shall be in writing. 23. Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of Colorado and the federal laws of the United States of America. The parties hereto consent to submit to the jurisdiction of the Courts of the State of Colorado for any actions, suits or proceedings arising out of or relating to the Agreement and agree that venue for any such action shall be in the appropriate court located in Colorado 24. Severability. In the event that any provision of the Agreement, or any word, phrase, clause, sentence or other provision thereof, should be held to be unenforceable or invalid for any reason, such provision or portion thereof shall be modified or deleted in such a manner so as to make such Service Agreement as modified legal and enforceable to the fullest extent permitted under applicable laws. 25. Entire Agreement. The Agreement (including the schedules thereto) constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, purchase orders, understandings and negotiations, whether oral or written, between the parties hereto with respect to such subject matter. 26. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. PSD Confidential — Managed Services Agreement Page 7 of 20 861257_4 SCHEDULE A MANAGED SERVICES STATEMENT OF WORK (SOW) 1. Term. Subject to yearly budgeting and appropriation by the Board of County Commissioners and the continued availability of grant funds, the term of this SOW is thirty-six (36) months, effective from the date of signing. If the term of a particular service described in this SOW expressly extends beyond thirty-six (36) months, then the term of this SOW shall continue, with respect to such service only, for the term specified for such service. 2. Geographic Usage Rights. Customer shall have the right to use the system for the support of the Energy Smart Program in Colorado, covering Gunnison, Pitkin, and Eagle counties. The geographical usage may be amended to cover expanded territory. Any associated fees with expansion of the program are to be negotiated, but will be based on PSD's prevailing rates at the time of negotiation. 3. Managed Services Program. Subject to the payment of the compensation set forth in this Agreement, PSD hereby grants to Customer, and Customer hereby accepts, a non - exclusive, non - transferable, enterprise -wide right to access remotely and use, subject to any use limitations specified herein, the PSD proprietary software and software provided by third parties that is hosted by PSD (collectively referred to as "Software ") that is listed herein. PSD will provide Eagle County with remote access and use to the following Software for use by all Energy Smart Program staff, qualified home energy analyst contractors, and customers of the Energy Smart Program: A. Surveyor — Surveyor is PSD's field audit tool for collecting and uploading data from home audits. Surveyor integrates natively with the Compass data -hub. B. Green Energy Compass — Compass is PSD's core services engine for managing workflow and data analysis for single - family home audits and retrofits. The annual license fee provides the Energy Smart Program staff, qualified home energy analyst contractors and customers of the Energy Smart Program, the unlimited Right to use the Compass Suite, which includes the Compass data -hub and Surveyor. C. Energy Program Management — PSD's tool that allows program managers to compile and report on individual jobs, aggregate job performance, marketing campaigns, and energy savings related to home energy retrofits. This dedicated customer resource management interface provides a configurable pipeline and reporting dashboard. D. Public Web Portal — PSD's tool to provide homeowners with available information about their home, including benchmarking of energy use, recommendations, and qualified service providers. Contractor enrollment will also be supported by the portal. 4. Program Management Services. To effectively deliver the Services described in this Agreement, PSD and Energy Smart will each assign a Program Manager for the length of the engagement. The Program Managers will be the single points of contact at PSD and Energy Smart for the day -to -day operation of this project. The Program Managers will promptly after the execution of this Agreement meet and in good faith discuss and agree upon the various ways in which the Services will be overseen including, without limitation, frequency of meetings and calls, issue resolution, review of service reports and discussion of service /scope changes. These and other project management decisions and directives will be documented in the PSD implementation Plan. PSD Confidential — Managed Services Agreement Page 9 of 20 861257_4 5. Implementation Responsibilities — Eagle County and PSD. The following are descriptions tasks and duties to support successful implementation, and division of duties between PSD and Eagle County. Any failure by Eagle County to fulfill any of its obligations hereunder will relieve PSD of any of its implementation responsibilities related to such failure. Any failure by PSD to fulfill any of its obligations hereunder will cause a delay in the scheduled deliverables and related payments by Eagle County. A. Project Management — Implementation of PSD products and services will be managed through weekly meetings, monthly summary reports, and online project management tools as provided by PSD. PSD will provide a dedicated project manager who will manage the timeline and budget. Eagle County will provide a single point of contact for project management and communication. B. Product Testing - PSD will provide a Test Case Template for use by Eagle County, and will lead and manage the unit and integration testing process. Eagle County will provide test cases at the request of PSD and provide management of the acceptance testing process. C. Requirements Gathering — Eagle County will work with PSD to create use cases for the development of customization design effort scoping. D. Training — PSD will provide the training curriculum and trainer and Eagle County will provide the location and logistics support for the on -site training, E. Customer Support — PSD will provide an 8 hours per day x 5 days per week customer support service desk, online FAQ and email support as requested. Eagle County's designated program manager will guide support services inquiries. 6. Implementation and Payment Schedule Outlined below is a 100 day timeline for implementation of PSD's Compass and Surveyor tools, including all agreed upon initial customizations, for use by the Energy Smart Program. Eagle County will make all reasonable efforts to assist PSD in completing the milestones listed below. PSD agrees to discount hourly customization fees only by 50% for any milestone not completed by whichever milestone date is being impacted. Payment Due on contract signing: • License: $20,000 • Set up Fee: $10,000 Within 45 days of signing the contract, PSD agrees to deliver: • Implementation Project Plan • Release Surveyor to Energy Smart • With Energy Smart's cooperation, complete the Vision Description • Initial customization for Web Portal. PSD will build a branded web portal, which uses the content management system Drupal. The homeowner portal will be implemented based upon the standard PSD template. Eagle County will be fully responsible for all content and graphics on the portal site. The program web sites will be implemented using a standard set of features for lead tracking, home owner self - assessment, profile management, contractor inquiries and feedback, job status dashboard, and integration with Salesforce.com (SF.com) and the job tracking system. • Initial customization of integration for one utility. PSD will provide integration between the Compass system and the utility associated with the Energy Smart Program for the extraction of customer utility data for upload into the Compass System. The format of the utility data exchange will be dependent on the method agreed with the utility company. • Any other customization activities for the portal and utility customizations, as described above, will be deemed outside the original scope agreed in this SOW and will be charged at the standard customization hourly rate. PSD Confidential — Managed Services Agreement Page 10 of 20 861257 4 • Complete the database for customer intake • Begin work on the Compass user interface Within 60 days of signing the contract, PSD agrees to: • Release Surveyor to Energy Smart Program contractors • Conduct training for Energy Smart Program staff and contractors on Surveyor tool • With Energy Smart's cooperation, review and amend where necessary the final Implementation Plan • With Energy Smart's cooperation, complete the templates for residential reports Payment due on delivery of Beta System (90 -days timeframe): • Customization installment for utility integration: $9,000 • Customization fee for web portal design: $9,000 • Any other customization fees over and above quoted fees and scope Within 90 days of signing the contract, PSD agrees to: • Complete Compass user interface work • Complete utility integration • Complete web portal • Open beta testing of Compass tool to Energy Smart Program staff • Train Energy Smart Program staff on PSD's Salesforce configuration Within 100 days of signing the contract, PSD agrees to: • Finalize and release Compass tool with agreed upon customizations Payment due on final release of Compass tool: • Minimum transaction fee: $3,000 One Time Monthly Milestone Deliverable Due Date Annual Fees Fees Fees Contract Signing Liscence Fee Contract Signing $ 20,000.00 Setup Fee (server, Iogins, access) Contract Signing $ 10,000.00 Implementation, 45 Day Draft Implementation Plan 45 Days Release Surveyor to ESP Release Database to ESP Implementation, 60 Day Final Implementation Plan 60 days Release Surveyor to ESP contractors Provide Surveyor Training for ESP Provide template for Customer Reports Implementation, 90 Day Release Compass User Interface 90 days Provide Compass beta testing with staff Provide Salesforce Training to ESP Release Utility Integration (1 utility only) $ 9,000.00 Release web portal $ 9,000.00 Implementation, 100 Day Release of Compass Tool for Public Use 100 Days Monthly Transaction Charge (advance payment) $ 3,000.00 MontlyTransaction Charge (per job, see Transaction Fees table) TBD Annual Maintenance $ 2,700.00 PSD Confidential — Managed Services Agreement Page 11 of 20 861257_4 7. Fees and Terms 7 -1 All monthly transaction charges are payable on the first day of the month following when the charges have been incurred. All other invoices shall be paid in accordance with the provisions of the Service Agreement. 7 -2 Department of Energy (DOE) - The Energy Smart Program's primary funding source is the US Department of Energy through the Better Buildings (BB) grant portion of the Energy Efficiency and Conservation Block Grant (EECBG) program. A strategic outcome of this program is to ensure that its grantees collect reliable, usable data based upon DOE guidelines. PSD agrees to work with the Eagle County to both identify and produce solutions for enhanced data sharing, reporting, and methodology requests from the DOE. Time incurred by PSD as a result of these requests will be evaluated by both PSD and Eagle County for reimbursement on an individual basis. 8. Assumptions Setup Services include the following: • One two -day project design meeting, for project leads from PSD and Energy Smart Program to discuss needs, requirements, and customization processes, and best practices. • Setup and creation of one Compass Platform instance, with Energy Smart Program user accounts. • Two custom reports for the Energy Smart Program. The types of initial reports can be defined by Energy Smart. DOE reporting for better buildings is a pre - defined report and will be provided at no additional charge. • External User Interface "look" to match Energy Smart Program look and feel. • Initial benchmarking buildings populated to each database. The Annual License includes the following: • System hosting. • One Salesforce.com license (to support CRM functions).* • Project Management. • Service Desk support, including 5x8 program management service line. • One in person training. • Twelve webinar trainings. Transaction Fee, Description • There will be a minimum transaction fee of $3,000 invoiced initially when the system is operational. The transaction fee will be held by PSD as a credit, and will be applied to retrofit jobs that are completed through the Compass system according to the table of fees below. Once the minimum fee has been reached then the per transaction fee, as set out in the table below, will start to be applied to subsequent completed jobs. • A transaction is logged upon a "job completion ", described by PSD as "submission of proposal of a work scope ". PSD Confidential — Managed Services Agreement Page 12 of 20 861257_4 Transaction Table Installation Type No Loan Loan Single Family Aati Small Commercial/ Multi < 10,000 sq. ft. $10 50 Small/Med Commercial/Multi 10,000 - 20,000 sq. ft. $30 $100 Medium Commercial/Multi > 20,000 sq. ft. $50 $150 Customization and Maintenance will be included in this SOW as follows: • Utility data integration for one utility (as set out in pricing above). For multiple utilities the level and complexity of the requirements will be assessed in calculating the customization fees. PSD can provide discounted customization fees for multiple utilities integration where appropriate. • Customer Web Portal (as set out in pricing above) for the Energy Smart Program. • Maintenance of customizations (as set out in pricing above). All customization labor efforts are provided on time and materials basis (at a rate of $150/hour). Customization items cited in the price quote are estimates and should be construed as an initial not -to- exceed budget. Any costs in excess of the budget will be negotiated on a per effort basis. Maintenance is provided at 20% per year recurring on the base cost incurred of any customization effort. Training under this SOW will be provided as follows: • One in- person full -day classroom software training session for up to 12 students, at the site of the user's choice. • PSD will consult with Eagle County to agree a limit to the travel expense to be paid for the on -site training. • A standard monthly software training webinar. Additional software trainings may be scheduled as needed or requested by the Energy Smart Program. If the Energy Smart Program does request additional on -site trainings PSD will make them available at $2,300 (excluding travel expense, which will be assessed by PSD and Eagle County at time of scheduling training) per on -site session. The Energy Smart Program may also request additional ad hoc webinar trainings which PSD can provide at $500 per half -day session. PSD Confidential — Managed Services Agreement Page 13 of 20 861257_4 SCHEDULE B SERVICE LEVEL AGREEMENT 1. Introduction This Service Level Agreement ( "SLA ") contains a set of minimum performance standards which if not met will trigger the predetermined improvement process between County and PSD. Under specific conditions, as detailed in this SLA, County has the right to claim Service Credits. 2. Uptime. a. Generally During each month of the term of this agreement, PSD shall use commercially reasonable efforts to make sure that the Software is Available 99% on a 24/7 basis, with the exception of either planned or emergency maintenance. For purposes of this Schedule, "Availability" or "Uptime" (and their correlative meanings) means the amount of time that the Software was actually available for use by County on a 24/7 basis , excluding (i) any periods of routing maintenance or scheduled downtime, (ii) "Excusable Downtime" (as defined in Section 2(b) of this Schedule and (iii) any period that the Software is not Available and with respect to which the County has not notified PSD within forty -eight (48) hours of its occurrence. b. Excusable Downtime. Excusable Downtime is any interruption or circumstance that negatively affects Availability that is not under direct control of PSD or its sub - contractors, including without limitation interruptions related to: (i) commercial power or telecommunications failures; (ii) PSD or its third -party providers being refused or delayed entry to a County site after adhering to all agreed processes; (iii) activities under the direct control of County or its sub - contractors that are incomplete or completed in such a manner that they cause the Services to be unavailable for use or prevent PSD from effecting repairs; (iv) damage to or tampering (i.e. not permitted or directed by PSD) with any PSD equipment at County sites, where the building is owned and access is controlled by County, and caused by a party other than PSD or its third -party providers; and (v) other causes outside of the direct control of PSD. c. Credits. If the Software is not Available for 99% of the time specified in Section 2(a), County will be eligible for a credit for the pro -rata portion of the monthly transaction fee for that day up to a maximum of the charge for that month. This amount to be credited will be calculated as 1/30 of the aggregate monthly transaction fee for that month and will applied against the next month's charges, if any. Notwithstanding the foregoing, no credit will be given if County does not notify PSD of the Unscheduled Downtime within forty -eight (48) hours of its occurrence. PSD shall have no obligation to refund any earned credits that are not used by the County. The foregoing credits as the sole and complete remedy of the County for any failure of PSD to achieve the Availability specified in Section 2(a) of this Schedule. PSD Confidential — Managed Services Agreement Page 14 of 20 8612574 SCHEDULE C PROFESSIONAL SERVICES This Schedule sets forth the additional terms and conditions under which PSD will provide professional services in connection with the solution provided pursuant to this Agreement. 1. PERFORMANCE OF SERVICES. written change order setting forth the changes to the Deliverables and any modifications to the delivery (a) Statements of Work. Each professional dates, payment terms and agreed pricing. services project PSD undertakes shall be described in a SOW setting forth the agreed upon specifications, (b) Changes to Non - functional Elements. project schedules, delivery dates, Deliverables, County acknowledges that certain non - functional or pricing and payment terms. "Deliverables" shall aesthetic elements of the Deliverables such as screen mean the items to be delivered to County in displays and user interface design can vary greatly connection with services performed by PSD, such as without impact on the functional or performance consulting reports, on -site training, Services specifications. PSD will incorporate any integration work or Services modifications, but does nonfunctional or aesthetic elements specified in the not include the Services licensed hereunder. Both SOW into the Deliverables, and will work together parties shall execute each SOW and each is with County in the design of such nonfunctional or incorporated herein by this reference. The terms of aesthetic elements. If County wants to change the this Agreement will control over any conflicting nonfunctional or aesthetic elements of any terms in a SOW. Deliverable which meets the functional and performance specifications and otherwise complies (b) Delivery and Cooperation. PSD will with the Statements of Work, then County agrees to provide the Deliverables according to the agreed compensate PSD at a mutually agreed price set forth delivery schedule set forth in the applicable SOW. in a change order or at PSD's then current hourly County acknowledges that County's cooperation is rates for any additional time required to make the essential to the timely performance of PSD's nonfunctional or aesthetic elements of the services. County will, to the extent required in Deliverables satisfactory. connection with the performance of PSD's services: (i) provide PSD with any necessary County materials; (ii) provide PSD with any necessary access to County's personnel, facilities or data; (iii) cause the appropriate personnel to cooperate with PSD as required for PSD to provide the services, including responding promptly to questions or issues; and (iv) make any payments when due. County's delay or failure to do so shall excuse any resulting failure by PSD to meet the delivery schedules set forth in the SOW. If County fails to do any of the foregoing, both parties will cooperate in good faith to develop a revised written delivery schedule and written SOW or change the order signed by both parties with new pricing. 2. CHANGES TO DELIVERABLES. (a) Changes to Project Scope. County may request changes to the scope of a SOW. PSD will use commercially reasonable efforts to accommodate requested scope changes, subject to this Section. Any scope changes shall be subject to mutual agreement and shall be set forth in a new SOW or a PSD Confidential — Managed Services Agreement Page 15 of 20 861257_4 SCHEDULE D SUPPORT This Schedule sets forth the additional terms and conditions under which PSD will provide customer support and maintenance services in connection with the Services licensed to County pursuant to this Agreement. Customer Support Contact Information: PSD Web Site: (Note: Follow the instructions for submitting a technical issue or question to PSD.) Telephone Number: Email: The contact information above is current as of the date of this Agreement. PSD reserves the right to change any contact information from time to time upon notice to the Designated Contacts. PSD Confidential — Managed Services Agreement Page 16 of 20 861257_4 PERFORMANCE SYSTEMS 124 Brindley Street, Ithaca, NY 14850 • 607.277.6240 • www.psdconsulting.com 1. ADDITIONAL DEFINITIONS. configuration requirements for the proper use and operation of the Services as set forth in the (a) "Designated Contacts" means the Documentation. individuals designated by County and agreed to by PSD who are authorized to contact (j) "Support Term" means any period PSD's customer support staff and who will during which County is entitled to receive coordinate all of County's Error submissions support hereunder, including any renewals or and support requests. extensions thereof. (b) "Error" shall mean a reproducible 2. SUPPORT SERVICES. defect in the Services when operated on a Supported Environment, which causes the (a) Standard Support Provided. During Services not to operate substantially in each Support Term, PSD will provide the accordance with the Documentation. following support, subject to the procedures and limitations described herein: (i) clarifying (c) "Error Correction" means a and assisting in the operation of the features modification or patch that brings the Services and functions of the Services; (ii) clarifying into substantial conformance with the the Documentation; (iii) assisting in Documentation, or a procedure, routine or identifying and verifying the causes of other information that enables County to avoid suspected Errors; and (iv) providing Error the practical adverse effect of an Error. Corrections. Such support will be provided for the Primary Instance and Secondary (d) "Instance" means one or more PSD web Instance. During each support term, County application servers. will have access to PSD's online Service desk ( "the Service desk "), a dedicated call -in (e) "Maintenance Release" means an number will be provided at Project Kick -Off. update to an existing version of the Services The Service desk provides County with access containing Error Corrections or minor to online learning, knowledge documentation, functionality enhancements. A Maintenance and tools that enable County to enhance Release is designated as a numbered service County's knowledge of the Services. pack for the current version, with no change in the version number. (b) Supported Environment and Operations. PSD will supervise, control and (f) "New Version Release" means a new manage the Services including, but not limited version of the Services containing new to: (i) providing, maintaining and assuring features or enhancements to functionality. A proper configuration of the Supported New Version Release is designated by an Environment; (ii) following industry standard increase in the version number. e.g. from 2.5 procedures for the security of data, accuracy of to 2.6 or 3.0. "New Version Release" only input and output, and back -up plans, including includes releases of the Services in a language restart and recovery in the event of hardware included in County's License Configuration. or Services error or malfunction; and (iii) maintaining a procedure external to the (g) "Primary Instance" means an Instance Services for reconstruction of lost or altered in County's production environment files, data and programs. containing County's live training records. (c) Self Help Support Resources. County (h) "Secondary Instance" means an Instance agrees that the users of the Services will first in County's testing environment used for attempt to answer any questions or resolve any testing or staging of County's data. issues with respect to the operation of the Services by using the following self help (i) "Supported Environment" means a resources: (i) the Service desk and (ii) PSD's hardware, operating system and database Compass website. platform meeting the minimum system PSD Confidential — Managed Services Agreement Page 17 of 20 861257_4 PERFORMANCE SYSTEMS 124 Brindley Street, Ithaca, NY 14850 • 607.277.6240 www.psdconsulting.com (d) Contacting Customer Support. If include support in connection with or County is unable to resolve an issue or correcting Errors arising out of or related to question with respect to the Services using the any third party component that is used in self help resources described above, the conjunction with the Services. PSD may, but Designated Contacts may contact a customer is not required to, provide Error Corrections support representative to receive support using for such Errors at PSD's then current time and one of the methods described below. PSD will materials rates. Support does not include provide support only in English and only to problems or errors in modifications to the the Designated Contacts. Any communication Services PSD provides as a Deliverable between the Designated Contacts and a pursuant to Schedule C. Deliverables are customer support representative must be in provided with a warranty as set forth in English. PSD will not provide support to end Section 7 of this Agreement. PSD is not users of the Services or to any person other responsible for restoring lost data or damage to than the Designated Contacts. County's data base that result from County's actions. If County desires to purchase upgrade (e) Error Correction. When County reports services or other professional services from an Error to PSD, County should include a PSD outside the scope of the support in this detailed description of the Error. When PSD Schedule D, then PSD will provide such receives notice of an Error, PSD will create a professional services to County for a charge as tracking ticket to be included in all set forth in a mutually agreed SOW pursuant correspondence between County and PSD to Schedule C. related to the Error and after PSD's e-mail acknowledgement described in Section 2(c) 3. COUNTY'S RESPONSIBILITIES. PSD will provide a response within twenty - four hours after the error is reported to PSD. (a) Assistance in Providing Support. Thereafter, PSD will use commercially County will provide reasonable assistance to reasonable efforts to provide an Error PSD in determining and resolving Errors Correction. An Error Correction may require County reports. Error determination activities multiple contacts and off -line research. may include performing network traces, capturing error messages, collecting (f) Exclusions from Support Program. PSD configuration information and other similar is not responsible or liable for causes external activities to allow PSD to reproduce the Error. to the Services, including but not limited to: Resolution activities may include access to (i) County's use of the Services with any County's personnel and /or remote access to Services or hardware other than the Supported the Supported Environment. County agrees to Environment; (ii) problems resulting from use allow PSD to modify its configuration as part of the Services in a manner not permitted of PSD's Error determination and resolution pursuant to County's license; (iii) activities. County is responsible for modifications, alterations, or additions to the performing activities to implement Error Services by parties other than PSD (including Corrections PSD provides and for responding without limitation, modifications, alterations, in a timely manner to requests for information or additions to the Services made by County); by PSD's customer support staff. Error or (iv) damage from any source other than Corrections may include changing, installing PSD including but not limited to water, or reinstalling new or existing versions of web humidity, fire, power surges, computer browser Services or new components, or viruses, and accidents ( "Excluded Services "). modifying processes. Any information Any maintenance or services required to fix County provides PSD in connection with the the Excluded Services will be billed to County support process that County designates as on a time - and - materials basis in accordance confidential will be used only to resolve with PSD's then current rates. Such services reported Errors, will not be disclosed to shall be set forth on a mutually agreed upon anyone other than PSD's personnel involved SOW and provided to County pursuant to in resolving the Error. As part of PSD's Error Schedule C. This support program does not resolution process, information County PSD Confidential — Managed Services Agreement Page 18 of 20 861257_4 PERFORMANCE SYSTEMS 124 Brindley Street, Ithaca, NY 14850 • 607.277.6240 • www.psdconsulting.com provides to PSD may be made available to agreed fee as a Deliverable pursuant to PSD's employees in foreign countries, unless Schedule C. County notifies PSD otherwise in writing when providing PSD with such information. 6. SUPPORT AND MAINTENANCE FEES. Annual support fees for any Support (c) Designation of Support Contacts. Term are set forth in the SOW. County will be County will designate up to the number of invoiced for the support fees for the initial individuals as the Designated Contacts for Support Term upon execution of this receiving support hereunder and notify Agreement and, subject to Section 7 below, for customer support of the Designated Contacts. any renewal Support Term upon expiration of County may change the Designated Contacts the then current Support Term. Fees for by notifying customer support, but may not additional services not included in support or have more than the number of Designated expenses incurred will be invoiced monthly at Contacts set forth above at any one time. Each the end of the month in which such services Designated Contact may not be changed more are provided or expenses incurred. than once in a thirty (30) day period.] 7. TERM, RENEWAL AND (d) Training. County is responsible for TERMINATION. proper training of the Designated Contacts and all other appropriate personnel in the operation (a) Initial Support Term and Renewal. and use of the Services and the Supported The initial Support Term shall begin on the Environment. Effective Date and shall run for an initial Support Term of one (1) year. On expiration 4. NEW RELEASES OF THE SERVICES. of the then current Support Term, a new Support Term shall automatically begin for a (a) Maintenance Releases Provided with consecutive twelve (12) month period; Support. PSD will provide to County any provided that (i) County has not given PSD Maintenance Releases and New Version notice that County does not wish to extend the Releases that PSD makes generally available Support Term for an additional twelve (12) to end users who have purchased support months at least thirty (30) days prior to the end during the Support Term at no additional of the current term; (ii) County pays the then charge. Any Maintenance Releases or New current support fee for the additional twelve Version Releases are part of the Services and (12) month Support Term and any optional subject to the terms and conditions of this services PSD is then providing; and (iii) PSD Agreement. The designation of a Services still offers support for the Services. PSD will release as a Maintenance Release or a New provide County with written notice of the Version Release will be made by PSD in upcoming expiration date, which shall include PSD's reasonable discretion. notice of any price increase for the upcoming Support Term, if applicable. (b) Migration of Customizations and /or Modifications. If County has customized (b) Termination of Support. Either and /or modified Services, support does not party may terminate the support of the include migrating County's customizations Services upon forty -five (45) days prior and /or modifications to any Maintenance written notice to the other party of a material Release or New Version Release, unless breach by the other party of its obligations set otherwise provided under the SOW pursuant forth in this Schedule D, if the breach is not to which PSD provided such customizations cured within that forty-five (45) day period. If and/or modifications. Any services to be PSD terminates support as a result of County's provided in connection with the migration of uncured breach, PSD will retain any support customizations and/or modifications to fees paid. If County terminates support as a Maintenance Releases or New Version result of PSD's uncured breach, PSD's sole . Releases will be provided for a mutually and exclusive obligation will be to promptly refund that portion of the support fee actually PSD Confidential — Managed Services Agreement Page 19 of 20 861257_4 PERFORMANCE SYSTEMS 124 Brindley Street, Ithaca, NY 14850 • 607.277.6240 www.psdconsulting.com paid by County that is proportional to the percentage of the Support Term remaining at the time termination is effective. (c) Reinstatement of Support. If County terminates or elects not to renew support, County can reinstate support if PSD still offers support for the Services and if County pays a fee equal to (i) the support fees for the period when County did not receive support and (ii) the support fee for the current Support Term PSD Confidential — Managed Services Agreement Page 20 of 20 861257_4 ACCEPTED AND AGREED: Performance Systems ■ - - 4pment, LLC: COUN : 1 By: 4 i By: M -gum. �r Name: N' e c I L. Name: --ION "SI'V i / Title: C 0 Title: l,M 'it All4i Date: 5)& AO )) Date: AAM1 A 9-011 PSD Confidential — Managed Services Agreement Page 8 of 20 8612574