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HomeMy WebLinkAboutC19-029 PROSCIDocuSign Envelope ID: 371A2860-4006-4EAC-AD26-C32EEF36717C PROFESSIONAL SERVICES AGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND PROSCI, Inc. THIS AGREEMENT ("Agreement") is effective as of 1/29/2019 by and between Prosci, Inc., a Colorado corporation (hereinafter "Contractor") and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, County desires to engage Contractor to deliver training and advisory services to Contractor's employees, as set forth in one or more Statement(s) of Work executed by both parties in accordance with the terms of this Agreement (each an "SOW"); and WHEREAS, Contractor will conduct multiple training sessions for the purpose of Change Management to various Elected Officials, Directors, and project leads (the "Project") on County property at the County administration building located at 500 Broadway, Eagle, Colorado (the "Property"); and WHEREAS, Contractor is authorized to do business in the State of Colorado and has the time, skill, expertise, and experience necessary to provide the Services as defined below in paragraph 1 (Services) hereof, and WHEREAS, this Agreement shall govern the relationship between Contractor and County in connection with the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Contractor and County agree as follows: 1. Services. Contractor agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the services described in a duly executed SOW setting forth the specific services to be performed, deliverables (if any) to be prepared and delivered, dates and deadlines for performance ("Services") and compensation therefor, which by reference to this Agreement in the SOW, will be deemed incorporated herein by such reference. No SOW will be effective until this Agreement and such SOW are duly executed by both parties. Each SOW will become part of this Agreement, effective on the latter of the effective date of this Agreement or the date specified on the SOW. The Services shall be performed in accordance with the provisions and conditions of this Agreement and the relevant SOW. a. Contractor agrees to furnish the Services in accordance with the schedule established in a SOW. If no completion date is specified in a SOW, then Contractor agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. By signing below Contractor represents that it has the expertise and personnel necessary to properly and timely perform the Services. b. In the event of any conflict or inconsistency between the terms and conditions set forth in a SOW and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. Contractor's Intellectual Property. DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C a. Contractor's Copyrights. i. Contractor owns all right, title, and interest to and in all Contractor materials, whether electronic or hard copy, including models, assessments, templates, toolkits, websites, webinars, podcasts, tutorials, training materials, course materials, and research, and all derivatives therefrom and updates thereto, including but not limited to the following works and all portions thereof (collectively, the "Contractor Materials"): • ADKAR: A model for change in business, government and our community book • Change Management: the people side of change book • Employees Survival Guide to Change book • Prosci Change Management Certification Program - a pictorial review book • Best Practices in Change Management report (all editions) • Change Management Toolkit (all editions) • Change Management Guide for Managers toolkit (all editions) • Change Portfolio Toolkit (all editions) • Prosci's Change Management Certification Course (all editions) • Prosci's Change Management Practitioner Course (all editions) • Prosci Change Management Program for Managers (all editions) • Prosci's Change Management Sponsor Program (all editions) • Prosci's Change Management Orientation for Employees (all editions) • Delivering Project Results: Change Management Workshop for Project Managers (all editions) • Facilitator Guides for all role -based programs • Prosci.com and change-management.com websites • Change Management Pilot Professional application • Change Management Practitioner's eToolkit application • Prosci ECM Boot Camp • Prosci ECM Roadmap • Prosci Change Management Maturity Model Audit • All tutorials, webinars, tools, applications, and other materials located at portal.prosci.com and any downloadable materials included therein ii. Without limiting the foregoing, from time to time Contractor may create and/or author additional materials and/or revise and update existing Contractor Materials, and, upon delivery to County, such materials shall also be considered "Contractor Materials." County understands and agrees that its ability to use such additional, new, and/or revised Contractor Materials made available to County, if any, will be subject to the terms of this Agreement. iii. County understands and agrees that it may not reproduce, distribute, make derivative works from, translate, or otherwise copy the Contractor Materials except as expressly allowed by this Agreement and/or a fully -executed license agreement in effect between County and Contractor. County may not use the Contractor Materials to compete with Contractor by offering change management training and/or certification courses to a third party that use, include, or incorporate any Contractor Materials. iv. Except for those rights expressly granted in this Agreement and/or a fully -executed license agreement in effect between County and Contractor, County receives no right, title, or interest, expressed or implied, in any Contractor Materials. County understands and agrees that all Contractor Materials and any portion 2 Eagle County General Services Final 5/14 DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C thereof are subject to copyright protection. County agrees not to oppose, petition to cancel, attempt to invalidate, or otherwise challenge in any way the copyrightability of the Contractor Materials or Contractor's rights thereto. V. County employees who have attended and successfully completed certain Services ("Participant") may receive a license to use certain materials provided by Contractor during such Service. Such Participant who receives such license shall use the materials in accordance with the terms of this Agreement and the license. For clarification purposes only, such license may be granted to the Participant, in Contractor's sole discretion, and shall remain with such Participant; this Agreement does not grant to County any such license. b. Contractor's Trademark Rights. i. County agrees and acknowledges that Contractor owns the following trademarks, service marks, and/or trade dress (collectively, and together with any additional trademarks, service marks, and/or trade dress that Contractor currently owns or later acquires, the "Contractor Trademarks"): • PROSCI® • ADKAR® • AWARENESS DESIRE KNOWLEDGE ABILITY REINFORCEMENT® • PREPARING FOR CHANGE, MANAGING CHANGE, REINFORCING CHANGE® • PEOPLE.CHANGE.RESULTS.TM • CHANGE MANAGEMENT LEARNING CENTERTM • PCT TRIANGLE DESIGNTM • PCT ANALYZER DESIGNTM • The Prosci Red Ribbon DesignTM • The Red, Purple, White, and Black color combinationTM • CHANGE MANAGEMENT PILOTTM • CHANGE MANAGEMENT PILOT PROFESSIONALTM ii. County acknowledges and agrees that Contractor is the sole and exclusive owner of all right, title, and interest in and to the Contractor Trademarks. County, by this Agreement or by its use of the Contractor Trademarks, acquires no right, title, or interest in or to the Contractor Trademarks or the goodwill associated therewith. All goodwill created or developed as a result of the use of the Contractor Trademarks by County will inure solely in Contractor. iii. County may use the Contractor Trademarks solely in connection with the internal marketing of the Services and the deployment of Contractor's change management methodology within the County. Any such use must expressly identify Contractor as the owner of the mark or marks. County understands and agrees that it may not use the Contractor Trademarks for any other purpose, including but not limited to external advertising or marketing, without express written consent from Contractor. iv. County will not revise, alter, translate, or otherwise modify the Contractor Trademarks, including the ® and/or TM notices, without prior written permission from Contractor. County will not combine the Contractor Trademarks with any other marks, terms, slogans, designs, and/or symbols. V. County agrees not to oppose, petition to cancel, attempt to invalidate, or otherwise challenge in any way the validity of the Contractor Trademarks or Contractor's exclusive rights thereto. Except for the rights expressly granted herein, nothing in this Agreement expressly or implicitly grants County the right to use any Contractor Trademarks in any other manner. 3 Eagle County General Services Final 5/14 DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C C. The parties agree that a breach of paragraph 2 (Contractor's Intellectual Property) by County may result in irreparable injury to Contractor for which there is no adequate remedy at law. Therefore, in the event of any breach or threatened breach of such obligations, Contractor will be entitled to seek equitable relief in addition to its other available legal remedies. 3. County's Representative. The Human Resources Department's designee shall be Contractor's contact with respect to this Agreement and performance of the Services. 4. Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the provisions of paragraph 14 (Termination) hereof, shall continue in full force and effect through the 31St day of December, 2019. 5. Extension or Modification. This Agreement may be extended for up to three additional one year terms upon written agreement of the parties. Any amendments or modifications shall be in writing signed by both parties. No additional services or work performed by Contractor shall be the basis for additional compensation unless and until Contractor has obtained written authorization and acknowledgement by County for such additional services in accordance with County's internal policies. Accordingly, no course of conduct or dealings between the parties, nor verbal change orders, express or implied acceptance of alterations or additions to the Services, and no claim that County has been unjustly enriched by any additional services, whether or not there is in fact any such unjust enrichment, shall be the basis of any increase in the compensation payable hereunder. In the event that written authorization and acknowledgment by County for such additional services is not timely executed and issued in strict accordance with this Agreement, Contractor's rights with respect to such additional services shall be deemed waived and such failure shall result in non-payment for such additional services or work performed. 6. Compensation. County shall compensate Contractor for the performance of the Services in a sum computed and payable as set forth in a SOW. The performance of the Services under this Agreement shall not exceed $40,000 without a duly executed amendment to this Agreement. Contractor shall not be entitled to bill at overtime and/or double time rates for work done outside of normal business hours unless specifically authorized in writing by County. a. Payment will be made for Services performed within thirty (30) days of receipt of a proper and accurate invoice from Contractor, except with respect to those amounts that are subject to a Good Faith Dispute. All invoices shall include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may reasonably request. Invoices will include Contractor's fees, material costs, shipping expenses, travel and lodging expenses, and other expenses and/or fees as indicated in the SOW, together with appropriate receipts. b. "Good Faith Dispute" means a good faith dispute by County of certain amounts invoiced under this Agreement; provided that a "Good Faith Dispute" will be deemed to exist only if. (i) County has given written notice of the dispute to Contractor promptly after receiving the invoice; and (ii) the notice explains County's position in detail. A Good Faith Dispute will not exist as to an invoice in its entirety merely because certain charges or fees have been disputed, but may exist to an invoice in its entirety if all amounts on such invoices are subject to a Good Faith Dispute. Where a Good Faith Dispute exists on a portion of an invoice, County agrees to pay the remainder of the invoice upon the terms in paragraph 6.a. Both parties agree to use commercially reasonable efforts to resolve a Good Faith Dispute within thirty (30) calendar days of the written notice of a Good Faith Dispute. If no mutually acceptable resolution can be found within thirty (30) calendar days, the dispute will be subject to paragraph 15 (Venue, Jurisdiction, and Applicable Law). 4 Eagle County General Services Final 5/14 DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C C. All rates are exclusive of any sales, use, value added, excise, or other similar taxes that may be imposed by federal, state, or local governments, which are County's responsibility. County will not withhold any taxes from monies paid to the Contractor hereunder and Contractor 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. d. The Project dates set forth in a particular SOW are considered finalized upon mutual execution of that SOW. Cancellation or date changes made to a SOW by County between sixty (60) and forty-five (45) calendar days from the start of the Project will be subject to payment for the direct costs to Contractor arising from the necessary cancellation of prearranged travel and lodging that cannot be cancelled without penalty. Cancellation or date changes made to a SOW between forty-five (45) and thirty (30) calendar days are billed at fifty percent (50%) of total program costs and the direct costs to Contractor arising from the necessary cancellation of prearranged travel and lodging that cannot be cancelled without penalty. Cancellation or date changes to a SOW within thirty (30) calendar days are billed at one -hundred percent (100%) of total Project costs and the direct costs to Contractor arising from the necessary cancellation of prearranged travel and lodging that cannot be cancelled without penalty. In the event that the Services in a SOW are cancelled, only product costs are refundable. e. 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 31 of any year, without an appropriation therefor by County in accordance with a budget adopted by the Board of County Commissioners in compliance with 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. Subcontractors. Contractor acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Contractor. Contractor shall not enter into any subcontractor agreements for the performance of any of the Services or additional services without County's prior written consent, which may be withheld in County's sole discretion. County shall have the right in its reasonable discretion to approve all personnel assigned to the subject Project during the performance of this Agreement and no personnel to whom County has an objection, in its reasonable discretion, shall be assigned to the Project. Contractor shall require each subcontractor, as approved by County and to the extent of the Services to be performed by the subcontractor, to be bound to Contractor by the terms of this Agreement, and to assume toward Contractor all the obligations and responsibilities which Contractor, by this Agreement, assumes toward County. County shall have the right (but not the obligation) to enforce the provisions of this Agreement against any subcontractor hired by Contractor and Contractor shall cooperate in such process. The Contractor shall be responsible for the acts and omissions of its agents, employees and subcontractors. 8. Insurance. Contractor agrees to provide and maintain at Contractor's sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. Workers' Compensation insurance as required by law. ii. Auto coverage with limits of liability not less than $1,000,000 each accident combined bodily injury and property damage liability insurance, including coverage for hired and non -owned vehicles. iii. Commercial General Liability coverage to include premises and operations, personal/advertising injury, products/completed operations, broad form property damage with limits of liability not less than $1,000,000 per occurrence and $1,000,000 aggregate limits. 5 Eagle County General Services Final 5/14 DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C b. Other Requirements. i. The automobile and commercial general liability coverage shall be endorsed to include Eagle County, its associated or affiliated entities, its successors and assigns, elected officials, employees, agents and volunteers as additional insureds. Upon execution of this Agreement, Prosci will provide to County a certificate of insurance. ii. Contractor's certificates of insurance shall include subcontractors, if any as additional insureds under its policies or Contractor shall furnish to County separate certificates and endorsements for each subcontractor. iii. The insurance provisions of this Agreement shall survive expiration or termination for a period of three (3) years. iv. The parties hereto understand and agree that the County is relying on, and does not waive or intend to waive by any provision of this Agreement, the monetary limitations or rights, immunities and protections provided by the Colorado Governmental Immunity Act, as from time to time amended, or otherwise available to County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers. V. Contractor is not entitled to workers' compensation benefits except as provided by the Contractor, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Contractor or some other entity. The Contractor is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 9. Confidentiality. a. Contractor understands and agrees that County may disclose information and materials to Contractor's personnel during the course of the Services, including for example, information relating to County's projects or customers (the "County Confidential Information"). County agrees to mark all written confidential materials with the legend COUNTY CONFIDENTIAL or other similar legend. Additionally, Contractor will consider information relayed to Contractor's personnel orally or verbally as County Confidential Information provided (i) County identifies information as being confidential at the time of disclosure and (ii) within ten (10) business days thereafter the disclosure is summarized in tangible form and appropriately labeled as being confidential. Specifically, if a SOW includes any Contractor Services that require participants to bring a live project to the training session, all information regarding any such project will be considered County Confidential Information by Contractor. County will use reasonable care to disclose only the minimum amount of County Confidential Information reasonably necessary for Contractor to perform the Services. b. Notwithstanding paragraph 9.a. and paragraph 9.c., County Confidential Information will not include and Contractor shall not have obligations with respect to: (i) information, data or materials which are developed by Contractor independently without use of or reference to County's Confidential Information; (ii) information published or disclosed by County to others without a restriction on its use and disclosure; and/or (iii) information lawfully obtained by Contractor from other sources which Contractor reasonably believes lawfully came to possess it. C. County Confidential Information will be held in confidence by Contractor, using the same standard of care as it uses to protect its own Confidential Information, but in no event less than a reasonable standard 6 Eagle County General Services Final 5/14 DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C of care and will not be used or disclosed for any purpose other than performing under or receiving the benefits of this Agreement, or otherwise enforcing its rights. d. Contractor will not disclose County Confidential Information except: (i) to its employees and agents, including but not limited to personnel performing the Services, to whom disclosure is necessary for performing under or receiving the benefits of this Agreement, who have been notified of the confidential nature of the Confidential Information and who have agreed to maintain the Confidential Information in a manner consistent with Contractor's obligations hereunder; or (ii) as required by law, regulation, or court order. Contractor will advise such personnel having access to County Confidential Information of the confidential and proprietary nature thereof and the requirements of this section. If Contractor learns of any unauthorized use or disclosure of County Confidential Information by any Personnel, former personnel, employee, or its agents, Contractor will promptly advise County in writing. Upon County's request, Contractor will destroy, delete, or surrender to County all County Confidential Information. f. Nothing in this Agreement prevents or prohibits Contractor from offering or rendering its Services to any other third party. 10. Indemnification. Contractor agrees to indemnify and hold harmless County and any of its officers, agents and employees against any losses, claims, damages or liabilities for which County may become subject to insofar as any such losses, claims, damages or liabilities that arise out of any bodily injury to any person or damages to any property of a third party or death arising from the negligent acts or omissions or willful misconduct of Contractor or its employees or subcontractors. The foregoing indemnification is contingent upon County providing reasonably prompt written notice of any claim to Contractor and permitting Contractor to maintain sole control of the defense of the claim. If County wishes to participate in the claim, it will be at County's cost and expense. This indemnification shall not apply to claims against the County to the extent that County is liable for such claims without regard to the involvement of the Contractor. County shall be responsible for the negligent acts and omissions of County, its affiliated entities, successors or assigns, its elected officials, employees, agents and volunteers with respect to its obligations under this Agreement or otherwise in connection to receiving Contractor's services. This paragraph shall survive expiration or termination hereof. 11. Limitation of Liability. a. Except as otherwise provided in Section 18(f), Contractor will not be liable for any indirect, incidental, special, or consequential damages (e.g., loss or interruption of business), whatsoever associated with, arising out of, or connected with this Agreement or the use or misuse of any materials provided by Contractor and Contractor's total and aggregate liability for any damages under any provision of this Agreement is in any case limited to the amounts actually paid or owed by County to Contractor for the Services, including travel costs and expenses, provided, however, nothing contained in this Paragraph I I (a) shall limit Contractor's obligation to indemnify pursuant to paragraph 10 (Indemnification). b. County will not be liable for any indirect, incidental, special, or consequential damages (e.g., loss or interruption of business) whatsoever associated with, arising out of, or connected with this Agreement and County's total and aggregate liability for any damages under any provision of this Agreement is in any case limited to amounts actually paid or owed by County to Contractor, including travel costs and expenses, provided, however, 7 Eagle County General Services Final 5/14 DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C the foregoing shall not apply with respect to any damages, or liability arising out of, or resulting from a breach of, paragraph 2 (Contractor's Intellectual Property). 12. Ownership of Documents. All documents (including electronic files) and materials (collectively, the "Works") that are (a) obtained during, purchased and prepared by Contractor specifically for County and (b) are expressly identified as "Works" or "Work Product" in a SOW are and shall remain the property of the County and are to be delivered to County before final payment is made to Contractor or upon earlier termination of this Agreement. For the avoidance of all doubt, only those Works that are expressly identified as "Works" or "Work Product" in a SOW shall be considered "Works"; in the event that there are no "Works" or "Work Product" expressly identified in a SOW, then the materials delivered by Contractor shall not be considered "Works" and shall remain the sole and exclusive property of Contractor. 13. Notice. Any notice required by this Agreement shall be deemed properly delivered when (a) personally delivered, or (b) when mailed in the United States mail, first class postage prepaid, or (c) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (d) when sent via facsimile so long as the sending party can provide facsimile machine or other confirmation showing the date, time and receiving facsimile number for the transmission, or (e) when transmitted via e-mail with confirmation of receipt. Either party may change its address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. COUNTY: Eagle County, Colorado Attention: Angelo Fernandez 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8796 Facsimile: 970-328-8799 E -Mail: angelo.femandez@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 Facsimile: 970-328-8699 E -Mail: atty@eaglecounty.us CONTRACTOR: Legal Department 5042 Technology Pkwy., Suite 500 Fort Collins, CO 80528 E -Mail: notices@prosci.com Telephone: 970-203-9332 14. Termination. 8 Eagle County General Services Final 5/14 DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C a. Either County or Contractor may terminate this Agreement, in whole or in part, at any time and for any reason, with or without cause with sixty (60) calendar days' prior written notice to the other party, and County may terminate any SOW by Contractor with seven (7) calendar days' written notice. Cancellation of any SOW by County is subject to the cancellation fees described in paragraph 6.d. b. Either Contractor or County may terminate this Agreement or the Services set forth in a SOW at any time upon material breach of this Agreement by the other party which is not cured within ten (10) business days after receipt of written notice of the breach. In the event of an uncured material breach by County of paragraph 2 (Contractor's Intellectual Property), County will cease all use of the Contractor Trademarks and Contractor Materials immediately upon termination of this Agreement. C. Upon termination of this Agreement, Contractor shall promptly provide County with all Works as defined in paragraph 12 (Ownership of Documents) hereof, and shall return all County owned materials and documents. County shall pay Contractor for Services performed to the date of termination and such other amounts owing under this Agreement. In the event of termination or expiration, the parties reserve all other available remedies at law or in equity. d. The provisions of paragraph 2 (Contractor's Intellectual Property), paragraph 6 (Compensation), paragraph 9 (Confidentiality), paragraph 10 (Indemnification), paragraph 11 (Limitation of Liability), paragraph 13 (Notice), paragraph 14.b., paragraph 14.d., paragraph 15 (Venue, Jurisdiction, and Applicable Law), and paragraphs 17.i. — 171. will survive termination of this Agreement. 15. Venue, Jurisdiction and Applicable Law. Any and all claims, disputes or controversies related to this Agreement, or breach thereof, shall be litigated in the District Court for Eagle, Colorado or in the U.S. Federal District Court for the District of Colorado, which shall be the sole and exclusive forums for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. 16. Execution by Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The parties approve the use of electronic signatures for execution of this Agreement. Only the following two forms of electronic signatures shall be permitted to bind the parties to this Agreement: (i) Electronic or facsimile delivery of a fully executed copy of the signature page; (ii) the image of the signature of an authorized signer inserted onto PDF format documents. All documents must be properly notarized, if applicable. All use of electronic signatures shall be governed by the Uniform Electronic Transactions Act, C.R.S. 24-71.3-101 to 121. 17. Other Contract Requirements and Representations. a. Contractor shall perform the Services in a skillful, professional and competent manner and in accordance with the standard of care, skill and diligence applicable to contractors performing similar services. Contractor represents and warrants that it has the expertise and personnel trained to properly perform the Services for which such personnel are responsible. Contractor shall provide appropriate supervision to its employees to ensure the Services are performed in accordance with this Agreement. Further, Contractor shall perform the Services to conform with the specifications set forth in a SOW. In the event that any Services do not conform to the foregoing criteria, Contractor will make commercially reasonable efforts, upon written notice from the County and at no expense to County, to correct any deficiencies which prevent(ed) such Services from conforming to the criteria. 9 Eagle County General Services Final 5/14 DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C b. Contractor and County represent, warrant and agree (i) to comply with all laws, rules, and regulations, whether local, state or federal, in connection with its performance under this Agreement and the Services set forth in a SOW, and (ii) that execution and performance of this Agreement and performance of the Services set forth in a SOW do not conflict with or violate any commitment, agreement, or understanding it has, or will have, to or with any other person or entity. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE CONTRACTOR MATERIALS AND SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY CONTRACTOR, ITS AGENTS, PERSONNEL OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, SATISFACTION, FITNESS FOR PARTICULAR PURPOSE OR NONINFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED. d. Contractor agrees to work in an expeditious manner, within the sound exercise of its judgment and professional standards, in the performance of this Agreement. Time is of the essence with respect to this Agreement. e. Neither party shall be in default or incur any costs or penalty for any delay in its performance (other than payment requirements) resulting from causes beyond its control and where not reasonably foreseeable and preventable on the date of signing this Agreement (each a "Force Majeure Event"); provided, however, that the non-performing party gives the other party notice as soon as practicably possible after becoming aware of the occurrence of a Force Majeure Event. The delayed party's time for performance will be deemed to be extended for a period equal to the duration of the conditions beyond its control. Conditions beyond a party's reasonable control include, but are not limited to, natural disasters, acts of government after the date of the Agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war and epidemics. In the event either party's performance is delayed for more than thirty (30) calendar days in the aggregate as a result of a Force Majeure Event, either party may terminate this Agreement (including any attachments affected by such force majeure condition) upon notice to the party claiming the Force Majeure Event. f. This Agreement constitutes an agreement for performance of the Services by Contractor as an independent contractor and not as an employee of County. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master -servant, partnership, joint venture or any other relationship between County and Contractor except that of independent contractor. Neither party shall have the authority to bind the other party. g. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all other agreements or understanding between the parties with respect thereto. h. Contractor shall not assign any portion of this Agreement without the prior written consent of the County. Any attempt to assign this Agreement without such consent shall be void. Notwithstanding the foregoing, Contractor may assign this Agreement, which consent is hereby granted by the County, in the case of a sale or transfer of all or substantially all of its business or assets. i. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted assigns and successors in interest. Enforcement of this Agreement and all rights and obligations hereunder are reserved solely for the parties, and not to any third party. 10 Eagle County General Services Final 5/14 DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C j. No failure or delay by either party in the exercise of any right hereunder shall constitute a waiver thereof. No waiver of any breach shall be deemed a waiver of any preceding or succeeding breach. k. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. 1. The signatories to this Agreement aver to their knowledge no employee of the County has any personal or beneficial interest whatsoever in the Services or Property described in this Agreement. To the best of its knowledge, the Contractor has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and Contractor shall not employ any person having such known interests. 18. Prohibitions on Government Contracts. As used in this paragraph 18, the term undocumented individual will refer to those individuals from foreign countries not legally within the United States as set forth in C.R.S. 8-17.5-101, et. seq. If Contractor has any employees or subcontractors, Contractor shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Contractor certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Contractor will participate in the E -verify Program or other Department of Labor and Employment program ("Department Program") in order to confirm the eligibility of all employees who are newly hired for employment to perform Services under this Agreement. a. Contractor shall not: Knowingly employ or contract with an undocumented individual to perform Services under this Agreement; or ii. Enter into a subcontract that fails to certify to Contractor that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. b. Contractor has confirmed the employment eligibility of all employees who are newly hired for employment to perform Services under this Agreement through participation in the E -Verify Program or Department Program, as administered by the United States Department of Homeland Security. Information on applying for the E -verify program can be found at: https://www.uscis.gov/e-verify C. Contractor shall not use either the E -verify program or other Department Program procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed. d. If Contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an undocumented individual, Contractor shall be required to: i. Notify the subcontractor and County within three (3) days that Contractor has actual knowledge that the subcontractor is employing or contracting with an undocumented individual; 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 11 Eagle County General Services Final 5/14 DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C contracting with the undocumented individual; except that Contractor shall not terminate the contract with the subcontractor if during such three (3) days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an undocumented individual. e. Contractor 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 established in C.R.S. 8-17.5-102(5). f. If Contractor violates these prohibitions, County may terminate the Agreement for breach of contract. If the Agreement is so terminated specifically for breach of this provision of this Agreement, Contractor shall be liable for actual and consequential damages to County as required by law. g. County will notify the Colorado Secretary of State if Contractor violates this provision of this Agreement and County terminates the Agreement for such breach. [REST OF PAGE INTENTIONALL Y LEFT BLANK] 12 Eagle County General Services Final 5/14 DocuSign Envelope ID: 37lA2860-4006-4EAC-AD26-C32EEF36717C IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its COUNTY MANAGER Docuftned by: By: J'-11 SId,Va Jeff Shro , gi IK*4&ger Prosci, Inc.: Print Name: Gregory Henning Title: Senior Counsel January 22, 2019 13 Eagle County General Services Final 5114 DocuSign Envelope ID: 37lA2860-4OC6-4EAC-AD26-C32EEF36717C ACORO0 CERTIFICATE OF LIABILITY INSURANCE �.� 4/1/2019 DATE(MMIDDYYYY) 1 1/29/2019 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Lockton Companies 8110 E. Union Avenue Suite 700 Denver CO 80237 CONTACT PHONE FAX A/C No . E-MAIL ADDRESS: INSURERS) AFFORDING COVERAGE NAIC R (303) 414-6000 INSURER A: Sentinel Insurance Company,Ltd. 11000 INSURER B: Hartford Casualty Insurance Company 29424 4/1/2019 INSURED CM Holdings, Inc. 1403637 Prosci, Inc. INSURER C: Philadelphia Indemnity Insurance Co. 18058 5042 Technology Parkway, Suite 500 Fort Collins, CO 80528 INSURER D: INSURER E GEN'L AGGREGATE LIMIT APPLIES PER: POLICY JECOT LOC OTHER: INSURER F: COVERAGES CERTIFICATE NUMBER: 15856542 REVISION NUMBER: XXXXXXX THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILTR TYPE OF INSURANCE IVSD WVD SUER POLICY NUMBER EFF MWDD/YYYY POLICY EXP MM DD YPOLICY LIMITS $ X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE � OCCUR Y N 34SBAZN8344 4/1/2018 4/1/2019 EACH OCCURRENCE $ 1,000,000 TO RNTED PRA MISES EaEoccurrrence$ 1 000 000 MED EXP (Any one person) $ 10,000 PERSONAL 8 ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY JECOT LOC OTHER: GENERAL AGGREGATE $ 2,000,000 PRODUCTS -COMP/OP AGG $ 2,000,000 $ B AUTOMOBILE X LIABILITY ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS ONLY AUTS ONLY Y N 34SBAZN8344 4/1/2018 4/1/2019 COMBINED SINGLE LIMIT $ Ea accident 1,000,000 BODILY INJURY (Per person) $ XXXXXXX BODILY INJURY (Per accident) $ )CX' )MX PROPERTY rn) $ �X�XX emdAUTOS $XXXXXXX B X UMBRELLALIAB EXCESS LIAB OCCUR CLAIMS -MADE N N 34RHUXR6765 4/1/2018 4/1/2019 EACH OCCURRENCE $ 9,000,000 AGGREGATE $ 9,000,000 DED T_x] RETENTION$ 10,000 $ XXXXXXX A WORKERS COMPENSATION AND EMPLOYERS'LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVEE.L. OFFICERIMEMBER EXCLUDED? FN (Mandatory in NH) If describe under DESCRIPTION OF OPERATIONS below N I A N 34WECAA0515 4/1/2018 4/1/2019 X SPER UTE ER EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 C Professional Liab Claims Made N N PHSD1233336 4!1/2018 4/1/2019 Each Claim $5,000,000 pp $5,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space Is required) Certificate Holder is included as Additional Insured as respects General and Automobile Liability if required by written contract. u rzm I IrlliH 1 C nULUCIN L.ANL LLLA I IUN 15856542 County of Eagle SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 500 Broadway THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Eagle CO 81631 ACCORDANCE WITH THE POLICY PROVISIONS. ACORD 25 (2016/03) AUTHORIZED REPRESENTATIVE --- Co71F'Y: The ACORD name and logo are registered marks of ACORD TION. 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