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Home My WebLink AboutC21-351 CodecraftDocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN EAGLE COUNTY, COLORADO AND MODERN CODECRAFT, LLC THIS AGREEMENT ("Agreement") is effective as of 1012112021 by and between Modern Codecraft, LLC a Colorado Limited Liability Company (hereinafter "Consultant" or "Contractor") and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, County required design and support services regarding the Coordinated Information Hub Project (the "Project") and WHEREAS, Consultant 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 hereof; and WHEREAS, this Agreement shall govern the relationship between Consultant and County in connection with the Services. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the following promises Consultant and County agree as follows: 1. Services or Work. Consultant agrees to diligently provide all services, labor, personnel and materials necessary to perform and complete the services described in the scope of work ("SOW") set forth in Exhibit A ("Services or Work") and referenced in Section 5 or Exhibit B ("RFP") which are attached hereto and incorporated herein by reference. The Services shall be performed in accordance with the provisions and conditions of this Agreement. a. Consultant agrees to furnish the Services in accordance with the schedule established in Exhibit A, then Consultant agrees to furnish the Services in a timely and expeditious manner consistent with the applicable standard of care. By signing below Consultant represents that it has the expertise and personnel necessary to properly and timely perform the Services in accordance with Exhibit A. b. In the event of any conflict or inconsistency between the terms and conditions set forth in Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail unless the SOW expressly provides otherwise with reference to the conflicting provision of this Agreement. C. County shall provide Consultant with such resources, information, software access, decision -making and assistance as Consultant may reasonably request in connection with the performance DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 of the Services. County acknowledges and agrees that Consultant's ability to successfully perform the Services in a timely manner is contingent upon its receipt from County of such information, resources, software access, decision -making and assistance. Consultant shall have no liability for deficiencies in the Services resulting from the acts or omissions of County, its agents or employees. 2. County's Representative. The IT Department's designee shall be Consultant's contact with respect to this Agreement and performance of the Services. 3. Term of the Agreement. This Agreement shall commence upon the date first written above, and subject to the provisions of paragraph 12 hereof, shall continue in full force and effect for one year after the execution of this contract. Furthermore, this contract may be renewed for subsequent periods of up to one year upon written agreement by both parties. 4. 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 Consultant shall be the basis for additional compensation unless and until Consultant has obtained written authorization and acknowledgement by County for such additional services in the form of an amendment to this contract as presented in Exhibit B. 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, (a) Consultant'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 and (b) Consultant shall not be obligated to provide any such additional services even if requested by County. 5. Compensation. County shall compensate Consultant for the performance of the Services in a sum computed and payable as set forth in Exhibit A. The performance of the Services under milestones one through 4 as set forth in Exhibit A shall not exceed $36,000. Consultant 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 in accordance with this Agreement including Exhibit A to the reasonable satisfaction of County within thirty (30) days of receipt of a proper and accurate invoice from Consultant. All invoices shall include detail regarding the hours spent, tasks performed, who performed each task and such other detail as County may reasonably request. b. County shall reimburse Consultant for those out-of-pocket expenses incurred by Consultant that are identified on Exhibit A. Any other out-of-pocket expenses to be incurred by Consultant and reimbursed by County shall be approved by County in writing. Out-of-pocket expenses will be reimbursed without any additional mark-up thereon and are included in the not to exceed contract 2 Eagle County Prof Services Final 5/14 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 amount set forth above. Out-of-pocket expenses shall not include any payment of salaries, bonuses or other compensation to personnel of Consultant. Consultant shall not be reimbursed for expenses that are not set forth on Exhibit A unless specifically approved in writing by County. C. If, at any time during the term or after termination or expiration of this Agreement, there is a dispute or difference of any kind whatsoever that arises between County and Consultant in connection with, relating to or arising out of this Agreement, including the interpretation, performance, non-performance, payment or termination hereof, or if the County reasonably determines that any payment made by County to Consultant was improper because the Services for which payment was made were not performed as set forth in this Agreement (a "Dispute") then, upon written notice by a party to the other party of any such Dispute, the parties shall use good faith efforts to attempt to settle such Dispute in the first instance by mutual discussions. If such Dispute cannot be settled within thirty (30) calendar days by mutual discussions, the Dispute shall be settled by in accordance with Section 13. Upon termination or expiration of this Agreement, pre -paid but unearned and unexpended funds advanced by County for Services not provided, if any, shall forthwith be returned to County. d. 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. 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 Consultant 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). 6. Sub -consultants. Consultant acknowledges that County has entered into this Agreement in reliance upon the particular reputation and expertise of Consultant. Consultant shall not enter into any sub -consultant 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. The County hereby approves of the sub -consultants identified in the Scope of Work. 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. Consultant shall require each sub -consultant, as approved by County and to the extent of the Services to be performed by the sub -consultant, to be bound to Consultant by the terms of an agreement consistent with this Agreement, and to assume toward Consultant all the obligations and responsibilities which Consultant, by this Agreement, assumes toward County. County shall have the right (but not the obligation) to enforce the provisions of this Agreement against any sub -consultant hired by Consultant and Consultant shall cooperate in such process. The Consultant shall be responsible for the acts and omissions of its agents, employees and sub -consultants or sub -contractors. 3 Eagle County Prof Services Final 5114 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 7. Insurance. Consultant agrees to provide and maintain at Consultant's sole cost and expense, the following insurance coverage with limits of liability not less than those stated below: a. Types of Insurance. W rkers' 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 owned, 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 $2,000,000 aggregate limits. iv. Professional liability insurance with prior acts coverage for all Services required hereunder, in a form and with an insurer or insurers satisfactory to County, with limits of liability of not less than $1,000,000 per claim and $2,000,000 in the aggregate. In the event the professional liability insurance is on a claims -made basis, Consultant warrants that any retroactive date under the policy shall precede the effective date of this Agreement. Continuous coverage will be maintained during any applicable statute of limitations for the Services and Project. b. Other Requirements. 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. ii. Consultant's certificates of insurance shall include sub -consultants as additional insureds under its policies or Consultant shall furnish to County separate certificates and endorsements for each sub -consultant. All coverage(s) for sub -consultants shall be subject to the same minimum requirements identified above. Consultant and sub -consultants, if any, shall maintain the foregoing coverage in effect until the Services are completed. In addition, all such policies shall be kept in force by Consultant and its sub -consultants until the applicable statute of limitations for the Project and the Services has expired. iii. Insurance shall be placed with insurers duly licensed or authorized to do business in the State of Colorado and with an "A.M. Best" rating of not less than A-VII. iv. Consultant's insurance coverage shall be primary and non-contributory with respect to all other available sources. Consultant's policy shall contain a waiver of subrogation against Eagle County. 4 Eagle County Prof Services Final 5114 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 V. Consultant shall provide thirty (30) days' notice of cancellation to County in the event of cancellation of coverage. vi. All insurers must be licensed or approved to do business within the State of Colorado and all policies must be written on a per occurrence basis unless otherwise provided herein. vii. Consultant's certificate of insurance evidencing all required coverage(s) is attached hereto as Exhibit C. Upon request, Consultant shall provide a copy of the actual insurance policy and/or required endorsements required under this Agreement within five (5) business days of a written request from County. viii. Consultant shall advise County in the event the general aggregate or other aggregate limits are reduced below the required per occurrence limit. Consultant, at its own expense, will reinstate the aggregate limits to comply with the minimum limits and, upon written request shall furnish County a new certificate of insurance showing such coverage. ix. If Consultant fails to secure and maintain the insurance required by this Agreement and provide satisfactory evidence thereof to County with 5 business days after a written request, County shall be entitled to immediately terminate this Agreement upon written notice. X. The insurance provisions of this Agreement which expressly state they survive termination of this Agreement until the applicable statute of limitations for the Project and the Services has expired shall survive expiration or termination hereof for such period of time. xi. 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. xii. Consultant is not entitled to workers' compensation benefits except as provided by the Consultant, nor to unemployment insurance benefits unless unemployment compensation coverage is provided by Consultant or some other entity. The Consultant is obligated to pay all federal and state income tax on any moneys paid pursuant to this Agreement. 8. Indemnification. The Consultant shall indemnify and hold harmless County, and any of its officers, agents and employees ("Indemnitees") against any losses, claims, damages or liabilities for which County may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, any claim, action or suit against an Indemnitee brought by a third parry to the extent based upon (a) injury to or death of persons or loss of or damage to tangible property caused by Consultant or any of its sub -consultants hereunder, (b) an allegation that any Deliverable created by Consultant infringes upon or misappropriates the intellectual property rights of the third party, (c) Consultant's material breach of this Agreement, or (d) any negligence or willful misconduct by 5 Eagle County Prof Services Final 5/14 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 Consultant or any of its sub -consultants hereunder (each, a "Claim") and Consultant shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with investigating or defending any such Claim. In the event of any such Claim for which an Indemnitee is or may be entitled to indemnification hereunder, County shall notify Consultant promptly in writing of such Claim for which it seeks indemnification. Consultant shall reimburse County for reasonable attorney fees and costs, legal and other expenses incurred by County in connection with defending any such Claim. The obligations under this Section shall not apply to any claims by third parties against the County (i) to the extent caused by County or that County is liable to such third party for such claims without regard to the involvement of the Consultant or (ii) to the extent based on Deliverables created by Consultant in accordance with County's specifications or instructions. This paragraph shall survive expiration or termination hereof. 9. Ownership of Documents and Code. a. All Documents (defined below) prepared by Consultant for County in connection with the Services shall become property of County. Consultant shall execute written assignments to County of all rights (including common law, statutory, and other rights, including copyrights) to such Documents as County shall from time to time request. For purposes of this paragraph, the term "Documents" shall mean and include all reports, plans, studies, tape or other electronic recordings, drawings, sketches, estimates, data sheets, maps and work sheets produced, or prepared by or for Consultant (including any employee or subconsultant) for County in connection with the performance of the Services and any additional services under this Agreement. Consultant will retain ownership of all software code that it develops and builds. b. All Deliverables, excluding Documents and OSS (defined below) are sole and exclusive property of Consultant ("Consultant Property") and are Consultant's confidential information. Consultant will be deemed to have irrevocably granted to County a worldwide, perpetual, non-exclusive, non -transferable, non-sublicensable and royalty -free license and right to use, reproduce, display and modify such Deliverable for its routine business purposes. Notwithstanding the foregoing, Deliverables may contain open -source software (OSS) the rights to which are subject to the license under which Consultant accessed and used such OSS. Consultant will (a) identify in the SOW, upon request, all OSS to be included in the Deliverables and (b) not include in the Deliverables any OSS subject to a license that undermines or conflicts with County's rights to use the Deliverables under this Section 9. All rights not expressly granted by Consultant in this Agreement are reserved by Consultant. To the extent not prohibited by applicable law, County shall hold all in strict confidence, not to disclose such Consultant Property to third parties not authorized by Consultant to receive Consultant Property, and not to use such Consultant Property for any purpose except as expressly permitted under this Agreement. 10. Notice. Any notice required by this Agreement shall be deemed properly delivered when (i) personally delivered, or (ii) when mailed in the United States mail, first class postage prepaid, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below, or (iv) 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 (v) when transmitted via e-mail with confirmation of receipt. Either party may change its 6 Eagle County Prof Services Final 5/14 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 address for purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. COUNTY: Eagle County IT Department Attn: Scott Lingle 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-3 5 81 Facsimile: 970-328-3 539 E-Mail: scott.lingle@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 141G YUl"lr1,04 Modern Codecraft Attn: Josh Morris 11705 Pleasant Hill Longmont, CO 80504 Telephone: 720-984-4545 E-Mail: josh.morris@modemcodecraft.com 11. Coordination. Consultant acknowledges that the development and processing of the Services for the Project may require close coordination between various consultants and contractors. Consultant shall coordinate the Services required hereunder with the other consultants and contractors that are identified by County to Consultant from time to time, and Consultant shall immediately notify such other consultants or contractors, in writing, of any changes or revisions to Consultant's work product that might affect the work of others providing services for the Project and concurrently provide County with a copy of such notification. Consultant shall not knowingly cause other consultants or contractors extra work without obtaining prior written approval from County. If such prior approval is not obtained, Consultant shall be subject to any offset for the costs of such extra work. 12. Termination. Either party may terminate this Agreement in whole or in part at any time and for any reason, without cause, and without penalty therefore by providing thirty (30) calendar days' prior Eagle County Prof Services Final 5/14 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 written notice to the other parry. Upon termination of this Agreement for any reason, Consultant shall promptly provide County with all Documents as defined in paragraph 9 hereof, in such format as County shall direct and shall return all County owned materials and documents and County shall pay Consultant for all Services performed in accordance with the SOW to the reasonable satisfaction of County to the date of termination. If County terminates this Agreement or a SOW without cause pursuant to this Section and the uncompleted SOW includes milestone pricing, County shall pay Consultant a pro -rated amount of the fees for the Services performed for the applicable milestone in progress in accordance with the SOW to the date of termination. 13. 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 County, Colorado, which shall be the sole and exclusive forum for such litigation. This Agreement shall be construed and interpreted under and shall be governed by the laws of the State of Colorado. In the event of any Dispute, the designated representatives of Consultant and County shall promptly confer and exert their good faith efforts to reach a reasonable and equitable resolution of such Dispute. If such representatives are unable to resolve such Dispute within 5 business days, the Dispute shall be referred promptly to the responsible senior management of each party for resolution. Neither party shall seek any other means of resolving any Dispute until both parties' responsible senior management have had at least 5 business days to resolve the Dispute. If the parties are unable to resolve the Dispute in accordance with the foregoing procedure, then either party may, at any time, may seek its remedies in accordance with this Section 13. 14. 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. 15. Standard of Performance. (a) Acceptance. Except as may otherwise be provided in a SOW, County shall have the right to promptly (and in any event within 10 business days of receipt) test and inspect whether each deliverable specified under a SOW (each, a "Deliverable") conforms to the requirements of this Agreement and the applicable SOW ("Specifications") in all material respects (the "Test Period"). If a Deliverable does not so conform, County must give Consultant notice describing the non -conformity ("Rejection Notice") within the Test Period, or else the Deliverable will be deemed to be accepted by County. Upon receipt of a Rejection Notice, Consultant will, as Consultant's sole obligation and County's sole and exclusive remedy, use commercially reasonable efforts to cause the Deliverable to conform to the Specifications in all material respects, or, if such remedy is commercially impracticable as determined by Consultant in its reasonable discretion, refund County a pro rata portion of fees paid for the non -conforming Deliverable based on the extent of the defect. 8 Eagle County Prof Services Final 5/14 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 (b) Warranty. Consultant warrants that the Services will be performed in a workmanlike and professional manner by individuals who have skill and experience commensurate with the requirements of the Services, and that the Deliverables will conform to the Specifications in all material respects. Consultant will, as its sole obligation and County's sole and exclusive remedy for any breach of the warranty set forth in this clause 3, and provided that County notifies Consultant in writing of the breach (specifying the breach in reasonable detail) within 30 calendar days following County's acceptance of the Deliverable as described above, use commercially reasonable efforts at its own cost to cause the Deliverable to conform to the Specifications in all material respects, or, if such remedy is commercially impracticable as determined by Consultant in its reasonable discretion, refund County a pro rata portion of fees paid for the non -conforming Deliverable based on the extent of the defect. (c) Consultant shall be responsible for the completeness and accuracy of the Services, including all supporting data or other documents supplied by Consultant in performance of the Services, and shall correct, at its sole expense, all significant errors and omissions therein. The fact that the County has accepted or approved the Services shall not relieve Consultant of any of its responsibilities. Consultant 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. (d) Exclusions. The parties acknowledge that certain Deliverables, including custom software and website development, will by their nature and through no fault of the developer, involve collaboration, reconfiguration, subjective preferences, testing and/or bug -fixing in the course of completion and improvement. As a result, in the case of time and materials engagements the parties agree that any corrective work performed by Consultant with respect to Deliverables of such a nature will be performed by Consultant at the standard time and materials rates listed in the applicable SOW. (e) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE 15, CONSULTANT DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY. CONSULTANT WILL NOT BE RESPONSIBLE FOR NONCONFORMITIES ARISING FROM INACCURATE, INAUTHENTIC OR INCOMPLETE DATA OR INFORMATION PROVIDED BY COUNTY, OR FOR FAILURES OR DELAYS ARISING FROM LACK OF COOPERATION OF COUNTY. ADDITIONALLY, CONSULTANT DISCLAIMS ANY AND ALL RESPONSIBILITY FOR THE PROVISION, USE AND FUNCTIONALITY OF THIRD -PARTY SERVICES, SOFTWARE AND PRODUCTS. 16. Other Contract Requirements. a. This Agreement constitutes an agreement for performance of the Services by Consultant 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 Consultant except that of independent contractor. Consultant shall have no authority to bind County. 9 Eagle County Prof Services Final 5/14 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 b. Consultant represents and warrants that at all times in the performance of the Services, Consultant shall comply with any and all applicable laws, codes, rules and regulations. C. 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. d. Consultant shall not assign any portion of this Agreement without the prior written consent of the County; except that Consultant may assign this Agreement without consent to a parent, affiliate, or subsidiary, or to a successor, whether by way of merger, sale of all or substantially all of its assets or otherwise. Any attempt to assign this Agreement in violation of this Agreement shall be void. e. 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. f. 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. g. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. h Consultant shall maintain for a minimum of three years, adequate financial and other records related to this Agreement for reporting to County. Consultant shall be subject to financial audit by federal, state or county auditors or their designees. Consultant authorizes such audits and inspections of records related to this Agreement during normal business hours, upon 48 hours' notice to Consultant. Consultant shall fully cooperate during such audit or inspections. 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. The Consultant has no beneficial interest, direct or indirect, that would conflict in any manner or degree with the performance of the Services and Consultant shall not employ any person having such known interests. j. The Consultant, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (i) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (ii) to the extent applicable shall comply with C.R.S. 24-76.5-103 prior to the effective date of this Agreement. k. Neither party shall be liable for any breach of this Agreement or any SOW, other than any default in payment obligations, for any delay or failure of performance resulting from any cause beyond 10 Eagle County Prof Services Final 5/14 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 such party's reasonable control, including but not limited to, acts or omissions of County, the weather, civil disturbances, network delays or failures, acts of civil or military authorities, or acts of God. 17. Prohibitions on Government Contracts. As used in this Section 4617, 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 Consultant has any employees or subcontractors, Consultant shall comply with C.R.S. 8-17.5-101, et. seq., and this Agreement. By execution of this Agreement, Consultant certifies that it does not knowingly employ or contract with an undocumented individual who will perform under this Agreement and that Consultant 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. Consultant 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 Consultant that the subcontractor shall not knowingly employ or contract with an undocumented individual to perform work under the public contract for services. b. Consultant 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.ciov/e-veri C. Consultant 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 Consultant obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an undocumented individual, Consultant shall be required to: i. Notify the subcontractor and County within three (3) days that Consultant 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 contracting with the undocumented individual; except that Consultant shall not terminate 11 Eagle County Prof Services Final 5/14 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 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. Consultant 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 Consultant 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, Consultant shall be liable for actual and consequential damages to County as required by law. g. County will notify the Colorado Secretary of State if Consultant violates this provision of this Agreement and County terminates the Agreement for such breach. 18. Notwithstanding any provision in this Agreement to the contrary, to the fullest extent permitted by applicable law: (a) in no event shall either party be liable under this Agreement for special, consequential, incidental, indirect, punitive or exemplary damages, including any lost data, lost profits or costs of procurement of substitute goods or services or downtime costs, regardless of whether such damages are foreseeable or a party has been advised of the possibility of such damages and notwithstanding any failure of the essential purpose of this Agreement; and (b) Consultant's aggregate liability on all claims of any kind arising out of this Agreement, whether based on contract, warranty, tort, strict liability or otherwise, shall in no event exceed the limits of liability of Consultant's insurance coverage as required by this Agreement, or, if no coverage is applicable or available, the sum of all fees paid or payable to Consultant under the applicable SOW as of the date of the cause of action; provided, however, that the foregoing limitations of liability shall not apply to liability for personal injury, gross negligence, or willful misconduct. [REST OF PAGE INTENTIONALL Y LEFT BLANK] 12 Eagle County Prof Services Final 5/14 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 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 DocuuSigned by: By: .�� S�rbu' Jeff Shro1, MMthager CONSULTANT: By: [;DocuSigned by: sL AI m-s D2F0 0AMD4452... Print Name: joshMorris Title: CEO, Managing Member 13 Eagle County Prof Services Final 5/14 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 Exhibit A Scope of Work for Software Support Services for Eagle County Supported Products The services contemplated for this Scope of Work are providing ongoing support as set forth in this Scope of Work for the following products: • Transit Hub • Eagle County Public Website • CBOE • Airport Gate Scheduler Support Costs - $36,000 annually Support services will be provided by Modern Codecraft at an amount set forth above. Support costs will occur on an annual basis invoiced to Eagle County on the effective date of the contract. This amount may be adjusted no more than once per year by written request by either party providing notice to the other and duly authorized in writing by both parties. • Modern Codecraft has granted permanent rights and administrative access to the Supported Products to Eagle County. • Using said provided administrative access, Eagle County personnel will maintain the information and configuration within the Supported Products and all of their ancillary components. • Eagle County will provide Tier One support answering all initial inquiries from users pertaining to the user experience and the information contained in the Supported Products and all of their ancillary components. • Modern Codecraft Support services include but are limited to functionality guidance, direction regarding application and or assistance with Eagle County's configuration efforts, and general troubleshooting needs. Support services do not include any coding changes, regardless of whether they relate to functionality needs, bug fixes, security, or Google API changes, which would be provided either (1) under a separate scope of work agreed to by the parties or (2) in accordance with the provisions of Other Services described below. • In order to support Eagle County's response to Tier One inquiries, Modern Codecraft will provide Tier Two support to Eagle County Monday through Friday between the hours of 9:00 AM and 5:00 PM, excluding Modern Codecraft holidays as follows: Christmas Eve through New Year's Day, Independence Day, Labor Day, week of Thanksgiving. 14 Eagle County Prof Services Final 5114 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 o Eagle County shall promptly notify Service Provider of Errors or other support request issues by either (1) sending a message to the Google Chat room provided by Modern Codecraft to Eagle County or (2) e-mailing support at support@moderncodecraft.com. ■ For issues that cause critical service disruption or degradation and which require correction to achieve full System functionality, Eagle County may elect to call the Modern Codecraft office at 720-984-4545. o For Transit Hub. Eaale Countv Public Website. and Airport Gate Scheduler ■ M dern Codecraft shall acknowledge receipt of such notification (by e-mail, chat, or phone) within 8 normal business hours. ■ M dern Codecraft shall use reasonable commercial efforts to begin responding to Errors reported to it by Eagle County within 12 normal business hours. o For CBOE ■ For the standard working days of the year excluding the last week of June through the first week of August (non-CBOE hearing season), Modern Codecraft's support response turnaround will be the same as detailed above for Transit Hub, Eagle County Public Website, and Airport Gate Scheduler. ■ For the standard working days of the year limited to the last week of June through the first week of August (CBOE hearing season), Modern Codecraft's support response turnaround will be as follows: • Email/Chat Support o Available during normal business hours. o Acknowledge any issue reported within 2 business hours, will begin working the issue within 4 business hours. • Phone Support o Direct phone access for system critical issues Other Services — provided on an hourly basis Modern Codecraft will provide design changes and structural changes materially changing the Supported Products and all of their ancillary components at the request of Eagle County on an ad hoc basis at a cost of one hundred fifty dollars ($150) per hour. If Modern Codecraft performs services for bug fixes or enhancements at Eagle County's request and direction, Eagle County shall pay for such services at a cost of one hundred fifty dollars ($150) per hour. 15 Eagle County Prof Services Final 5114 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 EXHIBIT B FIRST AMENDMENT TO AGREEMENT BETWEEN EAGLE COUNTY, COLORADO AND MODERN CODECRAFT. LLC THIS FIRST AMENDMENT ("First Amendment") is effective as of the day of , 20 by and between Modern Codecraft, LLC a Colorado Limited Liability Company (hereinafter "Consultant" or "Contractor") and Eagle County, Colorado, a body corporate and politic (hereinafter "County"). RECITALS WHEREAS, County and Consultant entered into an agreement dated the day of , 20 , for certain Services (the "Original Agreement"); and WHEREAS, the Original Agreement contemplated that the Consultant would perform certain duties with compensation in an amount not to exceed $ ; and WHEREAS, County and Consultant desire by this First Amendment to expand the scope of Services and compensation as set forth in the Original Agreement. FIRST AMENDMENT NOW THEREFORE, in consideration of the foregoing and the mutual rights and obligations as set forth below, the parties agree as follows: 1. The Original Agreement shall be amended to include additional Services as described in Exhibit 1, which is attached hereto and incorporated herein by reference. 2. The compensation for the additional Services set forth in Exhibit 1 shall not exceed $ or a total maximum compensation under the Original Agreement and this First Amendment of $ Capitalized terms in this First Amendment will have the same meaning as in the Original Agreement. To the extent that the terms and provisions of the First Amendment conflict with, modify or supplement portions of the Original Agreement, the terms and provisions contained in this First Amendment shall govern and control the rights and obligations of the parties. 4. Except as expressly altered, modified and changed in this First Amendment, all terms and provisions of the Original Agreement shall remain in full force and effect, and are hereby ratified and confirmed in all respects as of the date hereof. This First Amendment shall be binding on the parties hereto, their heirs, executors, successors, and assigns. 16 Eagle County Prof Services Final 5/14 DocuSign Envelope ID: OD188CAE-FE86-48F5-ADOD-8F6F29116359 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Original Agreement the day and year first above written. [insert appropriate Eagle County signature block; template located on Econet] CONSULTANT By: Print Name: Title: 17 Eagle County Prof Services Final 5/14