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HomeMy WebLinkAboutC14-079 Ektron, Inc. Master Consulting Agreement MASTER CONSULTING AGREEMENT BETWEEN EAGLE COUNTY, COLORADO and EKTRON, INC. This Master Consulting Agreement ("Agreement") dated as of this I day of '^ , 201 ', is between the County of Eagle, State of Colorado, a body corporate an politic, by and through its Board of County Commissioners ("County"), and Ektron Inc., a Delaware corporation with a principal place of business at 542 Amherst Street,Nashua,NH, 03063 ("Consultant"). WHEREAS, the County is in need of a company to provide the services outlined in Section 1.1 hereunder; and WHEREAS, Consultant has represented that it has the experience and knowledge in the subject matter necessary to carry out the services outlined in Section 1.1 hereunder; and WHEREAS, County wishes to hire Consultant to perform the tasks associated with such services outlined in Section 1.1 hereunder; and WHEREAS, County and Consultant intend by this Agreement to set forth the scope of the responsibilities of the Consultant in connection with the services and related terms and conditions to govern the relationship between Consultant and County in connection with the services. Agreement Therefore, based upon the representations by Consultant set forth in the foregoing recitals, for good and valuable consideration, including the promises set forth herein, the parties agree to the following: 1. Services Provided: 1.1 The Consultant will provide the consulting services as more particularly set forth in the attached Attachment "A," (hereinafter called "Consulting Services") incorporated herein by reference. The Consulting Services are generally described as providing information technology consulting and support. 1.2 It is anticipated or possible that County will utilize Consultant for other services on an as-needed basis. Any such additional services will be through a signed written amendment to this Master Consulting Agreement. Consultant shall not perform any I -V additional services without an executed amendment. Such amendment will set forth the scope of work for the additional services. Except as may be expressly altered by the amendment, all terms and conditions of this Master Consulting Agreement shall control. To the extent the terms and conditions of this Agreement may conflict with Attachment "A"the terms and conditions of this Agreement shall control. 1.3 The Consultant agrees that Consultant will not knowingly enter into any consulting arrangements with third parties that will conflict in any manner with the Consulting Services. 1.4 Consultant has given the County a proposal for performing the Services and represented that it has the expertise and personnel necessary to properly and timely perform the Services. 2. Term of Agreement 2.1 This Agreement shall commence on the Agreement date and, subject to the provisions of Section 2.2 hereof, shall continue in full force and effect for a period of 1 year commencing with the effective date of this Agreement. This Agreement may be extended beyond the time referred to in this Section 2.1 on terms and conditions as may be mutually agreed in writing between the parties hereto. 2.2 This Agreement may be terminated by either party for any other reason with thirty (30) days written notice, with or without cause, and without penalty whatsoever therefore. 2.3 In the event of any termination of this Agreement, Consultant shall be compensated for all incurred costs and hours of work then satisfactorily completed,plus approved expenses. 3. Independent Contractor: 3.1 With respect to the provision of the Consulting Services hereunder, Consultant acknowledges that Consultant is an independent contractor providing Consulting Services to the County. Nothing in this Agreement shall be deemed to make Consultant an agent, employee,partner or representative of County. 3.2 The Consultant shall not have the authority to, and will not make any commitments or enter into any agreement with any party on behalf of County without the written consent of the Board of County Commissioners. 3.3 The Consultant will 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. 2 3.4 The Consultant will maintain errors and omissions liability including cyber liability. The policy shall cover professional misconduct or lack of ordinary skill associated with performance of the Services. The policy shall provide coverage for risks arising from theft, dissemination and/or use of confidential information (including bank account, credit card account, personal information, such as name, address, social security numbers and the like) stored or transmitted in electronic form; network security access arising from unauthorized access to, use of or tampering with computer systems including hacker attacks and liability arising from the introduction of a computer virus into, or otherwise causing damage to, County or a third person's computer, computer system, network or similar computer related property and the data, software and programs thereon. 4. Remuneration: 4.1 For the Consulting Services provided hereunder, County shall pay to the Consultant at the rate of$195 per hour as set forth in Attachment "A." The Services and hours to be provided hereunder shall not exceed three thousand nine hundred ($3900) without an amendment in writing signed by both parties. Consultant will not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours unless specifically authorized to do so by County. In the event the Consultant's Services include reimbursable expenses, the County must approve such reimbursable expenses in advance and such expenses shall be billed at cost without mark up. Fees for any additional services will be as set forth in an executed addendum between the parties. Fees will be paid within thirty (30) days of receipt of a proper and accurate invoice from Consultant respecting Consulting Services. The invoice shall include a description of services performed. Upon request, Consultant shall provide County with such other supporting information as County may request. 4.2 County will not withhold any taxes from monies paid to the Consultant hereunder and Consultant agrees to be solely responsible for the accurate reporting and payment of any taxes related to payments made pursuant to the terms of this Agreement. 4.3 Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to the County nor shall any payment be made to the Consultant in excess of the amount for any work done without the written approval in accordance with a budget adopted by the Board in accordance with provisions of the Colorado Revised Statutes. Moreover, the parties agree that the County is a governmental entity and that all obligations beyond the current fiscal year are subject to funds being budgeted and appropriated. 5. Ownership of Documents: 3 All County-owned documents and documents created by Consultant specifically for the County that do not include any intellectual property of Consultant (including electronic files) which are obtained during or prepared, either partially or wholly, in the performance of the Services shall remain the property of the County and are to be delivered to County before final payment is made to Consultant or upon earlier termination of this Agreement. 6. WARRANTY OF SERVICES Consultant warrants that it will use reasonable efforts to perform the Consulting Services to be provided under this Agreement in a professional manner. However, County also acknowledges that Consultant is relying upon information and assistance furnished by County's representatives. As a result, the accuracy and results of said Services will be dependent upon the accuracy and completeness of the information and assistance furnished by County's employees. County understands and accepts that an error may exist or occur during the processing due to inaccurate data in County's existing files. County agrees that Consultant's sole responsibility is the transfer of existing data and that Consultant is not responsible for any errors that result from the transfer of inaccurate or incorrect data. THE SERVICES ARE PROVIDED WITHOUT ANY OTHER EXPRESS OR IMPLIED WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 7. Consultant's Professional Level of Care: Consultant shall be responsible for the completeness and accuracy of the Consulting Services,including all supporting data and other documents prepared or compiled in performance of the Services, and shall correct, at its sole expense, all significant errors and omissions therein. Consultant shall perform the Consulting Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to consultants, with respect to similar services, in this area at this time. 8. No Assignment: The parties to this Agreement recognize that the Consulting Services to be provided pursuant to this Agreement are professional in nature and that in entering into this Agreement County is relying upon the professional services and reputation of Consultant and its approved subcontractors. Neither Consultant nor County may assign its interest in this Agreement including the assignment of any rights, or delegations of any obligations provided therein without prior written consent of the other party. Such consent to assign shall not be unreasonably withheld by either party. Except as so provided, this Agreement shall be binding on and inure to the benefit of the parties hereto, and their respective successors and assigns, and shall 4 not be deemed to be for the benefit of or enforceable by any third party. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Agreement. Notwithstanding the foregoing, in the event of merger or acquisition of Consultant by a third party, Consultant may assign this Agreement upon sixty days' notice to County and without County's prior consent. 9. Notices: 9.1 Any notice and all written communications required under this Agreement shall be given in writing by personal delivery, facsimile or U.S. Mail to the other party at the following addresses: (a) Eagle County Innovation and Technology Director 500 Broadway PO Box 850 Eagle, CO 81631 Telephone: 970-328-3581 Facsimile: 970-328-3599 with a copy to: Eagle County Attorney's Office 500 Broadway PO Box 850 Eagle, CO 81631 (b) Ektron Inc. Attn: Senior Vice President&CFO 542 Amherst Street Nashua,NH 03063 9.2 Notices shall be deemed given on the date of delivery;on the date the facsimile is transmitted and confirmed received or, if transmitted after normal business hours, on the next business day after transmission,provided that a paper copy is mailed the same date; or three days after the date of deposit, first class postage prepaid, in an official depository of the U.S. Postal Service. 10. Jurisdiction and Confidentiality: 10.1 This Agreement shall be interpreted in accordance with the laws of the State of Colorado and the parties hereby agree to submit to the jurisdiction of the courts thereof. Venue shall be in the State of Colorado. 5 kl."(1)" 10.2 The Consultant and County acknowledge that, during the term of this Agreement and in the course of the Consultant rendering the Consulting Services, the Consultant and County may acquire knowledge of the business operations of the other party not generally known deemed confidential.The parties shall not disclose, use, publish or otherwise reveal, either directly or through another, to any person, firm or corporation, any such confidential knowledge or information and shall retain all knowledge and information which he has acquired as the result of this Agreement in trust in a fiduciary capacity for the sole benefit of the other party during the term of this Agreement, and for a period of five (5) years following termination of this Agreement. Any such information shall be considered confidential whether or not marked as confidential. The confidentiality obligations imposed by this Agreement with respect to any confidential information constituting any intellectual property, source code or trade secrets of Consultant shall continue in perpetuity and shall survive any termination or expiration of this Agreement. Notwithstanding the foregoing, disclosure shall not be precluded if (i) such disclosure is in response to a valid court order or other governmental body of the United States or any political subdivision thereof; (ii) is pursuant to the Colorado Records Act as the parties recognize that the County is subject to the Colorado Open Records Act and nothing herein shall preclude a release of information that is subject to the same; (iii) disclosure is necessary to establish rights to enforce obligations under this Agreement, but only to the extent that any disclosure is necessary for such purpose; or (iv) prior written consent to such disclosure has been received. 11. Miscellaneous: 11.1 This Agreement constitutes the entire Agreement between the parties related to its subject matter. It supersedes all prior proposals, agreements and understandings. 11.2 This Agreement does not and shall not be deemed to confer upon or grant to any third party any right enforceable at law or equity arising out of any term, covenant, or condition herein or the breach thereof. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. COUNTY OF EAGLE, STATE OF COLORADO,By and Through Its COUNTY MANAGER IIIP BY: ! _ ,■2•4 Keith Montag, ounty Manager 6 Ektron, Inc. Mirr By: • e .Rfo, LIt Print Name: CFO Title: 7 ��lll�l ( )1111LH l'[ VI Jill ktron Ektron Purchase Agreement A-00005486 ATTACHMENT A 1. SERVICES: Under this Agreement,Ektron will provide Consulting Services to Customer as described below.Such Consulting Services will be paid for on a Time and Materials basis at Ektrons'then-current rates,plus expenses. 2. DELIVERABLE(S}: Ektron will perform the following Services: Provide remote consultation services as requested by Eagle County to address configuration,setup and upgrades of the Eagle County Ektron CMS environment on a time and materials basis.All work will be approved via email by the County IT Operations Manager or IT Director before work commences on a specific request. Time and Materials are sold in Hourly Units, and Time and Materials means dedicated time with Ektron resources working with or without a client's resources towards the defined Service completion. Because this is a time and materials engagement there are no expectations of specific"timed"deliverables. 3. SPECIAL CONDITIONS: Billin • Hours will be billed in whole hours only. • Hourly rate:USD 195.00 for Remote Support. • Not to exceed 20 hours/USD 3,900.00 of Remote Professional Services. Travel Expenses • A written amendment executed by both parties is required before incurring any travel expenses. Expiration of Services • Customer has three(3)months from the date of signing this Agreement to use any purchased Hourly Services SERVICES SELECTED Quantity Description Unfit Price , 20 Hours Professional Services USD 195.00 USD 3,900.00 TOTAL SERVICES CHARGES: USD 3,900.00 .•Time&Materials shall be sold in whole hours only,at a minimum of four(4)hours. 4. SERVICES TERMS AND CONDITIONS: Customer has three (3) months from the date of signing this Agreement to use any purchased Hourly Services ("Services'). Services are non-transferable and non-refundable, and deemed complete within three (3) months from date of Customer's signature of this Agreement.In the event additional Hours are required,Ektron shall not perform any Services until a fully executed Change Order is received. 5. PAYMENT AND ASSOCIATED TERMS: A-00005486 Page 1 of 2 Ektron,Inc.Copyright©2013 Contracts To:orders@ektron.com >t ll ( ( )WI 111 1 ( 1 VI1JII ktron Ektron Purchase Agreement A-00005486 Travel expenses are not included in the above purchase price, and is outside the scope of this Agreement.A written amendment executed by both parties is required before incurring any travel expenses. All purchases made herein are governed by payment due to Ektron within thirty(30)days from the date of invoice. For Time and Materials Services, invoices shall be issued to the Customer on a monthly basis for all work performed in the previous month.Time sheets will be submitted to the Customer and the Customer shall be responsible for paying all invoices.All invoices shall be governed by the payment terms set forth herein. 6. CONTACT INFORMATION: BILLING CONTACT: Name:Jake Klearman Address:500 Broadway PO Box 850 Eagle,CO 81631 Telephone:(970)328-3595 Email:Jake.klearman@eaglecounty.us *Any notice pertaining to this Services Statement of Work shall be sent to the Contact listed by Customer herein. CUSTOMER: EKTRON,INC. Now- ature Signa t R019,2 8LCtL Name Name Title Title iV/y 6 - Zorn Date Date The above signatures indicate that you are authorized by your organizations to purchase the Service offerings covered in this Agreement. A-00005486 Page 2 of 2 Ektron,Inc.Copyright®2013 Contracts To:orderstWektron.com