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HomeMy WebLinkAboutC24-137 Community Wildfire Planning CenterAGREEMENT FOR SERVICES BETWEEN EAGLE COUNTY, COLORADO AND COMMUNITY WILDFIRE PLANNING CENTER THIS AGREEMENT (“Agreement”) is effective as of _________________ by and between Community Wildfire Planning Center, a 501(c)(3) nonprofit (hereinafter “CWPC” or “Contractor”) and Eagle County, Colorado, a body corporate and politic (hereinafter “County”). RECITALS WHEREAS, Contractor provides a wildfire home ignition zone assessment tool (including a mobile application, database and web portal) (‘REALFire’), set-up, training, support and related services for local governments, fire district staffs and their employees and contractors, as described in Paragraph 1 below (collectively, the “Services”); and WHEREAS, County desires to engage Contractor to provide such Services at County’s property 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 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 and Use. Contractor agrees to provide the Services described in this section and in Exhibit A which is attached hereto and incorporated herein by reference. The Services shall be performed in accordance with the provisions and conditions of this Agreement. County is solely responsible for obtaining, maintaining, installing and supporting all ‘Internet’ access, computer hardware, software, third-party applications, telecommunications capabilities, personal computers, mobile devices and other equipment, products and services needed for it and its authorized users to access and/or use the Services. County shall ensure that its network, systems, software and third-party applications comply with the relevant specifications provided by Contractor from time to time and shall provide Contractor with information and access as may be required by Contractor in order to provide the Services. While Contractor uses reasonable efforts to keep the Services accessible, the Services may be unavailable from time to time. County understands and agrees that there may be interruptions to the Services and/or access to County’s account due to circumstances both within Contractor’s control (e.g., routine maintenance) and outside of Contractor’s control. The Services may be modified, updated, suspended and/or discontinued at any time without notice and/or liability. In the event the Services are discontinued through no fault of the County, Contractor shall refund to County a pro rata portion of any prepaid fees for Services not yet provided. DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 3/25/2024 2 Eagle County Professional Services IT 5/14/23 a. Contractor agrees to furnish the Services in accordance with the schedule established in Exhibit A. If no completion date is specified in Exhibit A, 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 Exhibit A and the terms and conditions set forth in this Agreement, the terms and conditions set forth in this Agreement shall prevail. c. County shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Services that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (ii) facilitates illegal activity, and/or (iii) causes damage or injury to any person or property. “Virus” shall mean any thing or device (including without limitation any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device, prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise) and/or adversely affect the user experience, including worms, ‘Trojan’ horses, viruses and other similar things or devices. Notwithstanding anything herein to the contrary, Contractor reserves the right, without liability to the County, to disable or suspend the County’s access to the Services in the event (a) of any breach or anticipated breach of this Agreement, (b) County and/or its users access to and/or use of the Services disrupts or poses a security risk to the Services and/or any other County, may harm Contractor’s systems and/or any provider of any third- party services and/or may subject Contractor and/or any third-party to liability, (c) County and/or its authorized users are using the Services for fraudulent or illegal activities, and/or (d) Contractor’s continued provision of any of the Services to the County and/or its users is prohibited by applicable law. d. County is responsible for providing all County Content, criteria, and/or information and is responsible for the accuracy, quality, integrity and legality of such data and of the means by which authorized users access and use the County Content. County hereby grants Contractor a worldwide, non- exclusive right and license to reproduce, distribute and display the County Content as necessary to provide the Services. County represents and warrants that County owns all County Content or that County has permission from the rightful owner to use each of the elements of County Content; and that County has all rights necessary for Contractor to use the County Content in connection with the Services. County and its licensors retain title, all ownership rights, and all intellectual property, in and to the County Content and reserve all rights not expressly granted to Contractor hereunder. “County Content” means any elements of text, employee contact information, graphics, images, photos, designs, artwork, logos, trademarks, service marks, and other materials and/or content which County provides in connection with any Services. County Content excludes any content available in the public domain; and any content owned or licensed by Contractor, whether in connection with providing Services or otherwise. Except to the extent due to the gross negligence or willful misconduct of Contractor, Contractor is not responsible for any unauthorized access to, alteration of, and/or the deletion, DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 3 Eagle County Professional Services IT 5/14/23 destruction, damage, loss and/or failure to store any County Content. County agrees that Contractor may contact County’s users directly to provide the Services. Notwithstanding anything herein to the contrary, Contractor may collect aggregated, anonymized data that cannot identify any person and that is derived from or created through the use of the Services by County and/or its users. e. County acknowledges and agrees that Contractor may use third-party service providers to host and provide the Services and store County Content and the protection of such data will be in accordance with such third party’s safeguards for the protection of the security, confidentiality, and integrity of County’s data. County is responsible for properly configuring and using the Services and taking appropriate steps to maintain security, protection and backup of any and all County Content. f. Intentionally omitted. g. Occasionally there may be information on the Services that contain typographical errors, inaccuracies, and/or omissions that may relate to services, information, and data. Contractor reserves the right to (i) correct any errors, inaccuracies, and/or omission and/or (ii) make changes to content, descriptions, service and/or other information without obligation to issue any notice of such changes, except as prohibited by law. Contractor also reserves the right to revise, suspend and/or terminate an event and/or promotion at any time without notice and without liability. h. Subject to Contractor’s receipt of the fees due hereunder for the Services and provided County and/or its users are using such Services in accordance with the terms and conditions set forth herein, Contractor hereby grants County the right to access and/or use the Services during the term of this Agreement solely for the County’s internal business operations and in accordance with the terms and conditions set forth herein. County acknowledges and agrees it will abide by Contractor’s privacy policy, as may be changed from time to time by Contractor in its sole and absolute discretion, and which such then- current version shall be incorporated herein by reference. The County shall reproduce and include any copyright and other proprietary notices included in the Services, or any such other materials on all copies, in whole or in part, made thereof. For avoidance of doubt, County is solely and exclusively responsible for obtaining, installing, maintaining, and supporting, at its sole expense, such hardware, software, access to required applications, telecommunications capabilities, and other technology (specifically including responsibility for providing appropriate personal computers, ‘Internet’ browser software, telecommunications lines, and a current account with an ‘Internet’ service provider) as are necessary for it and its authorized users to access and use the Services as described herein. County represents and warrants that it will, at all times, comply with all applicable local, state, federal, and foreign laws and it has the requisite legal and corporate power, right, and authority to enter into this Agreement. i. County will determine the access controls for its users (which access controls shall be implemented by Contractor), and County will be liable for activity occurring under County’s account, including without limitation compliance with the terms and conditions of this Agreement. County agrees to (i) maintain the accuracy and completeness of information provided to Contractor and agrees to provide any changes to Contractor within thirty (30) days after any such change, and (ii) use commercially reasonable efforts to prevent unauthorized access to, and/or use of the Services, and notify Contractor immediately of any such unauthorized access to and/or use of the Services. The right to access and/or use the Services is on a per-user basis and therefore Contractor will associate a unique identifier with each individual that has the right to access and/or use the Services and such unique identifier cannot be DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 4 Eagle County Professional Services IT 5/14/23 transferred or re-assigned to other individuals. County shall assign each individual user of the Services a unique email address, logon or ID. County may not permit any specific email address, logon or ID to be used by more than one individual. County is responsible for the management and administration of any email addresses, logons and IDs (and any associated passwords and access privileges) to or for the use of the Services, in accordance with this Agreement and subject to the approval of Contractor. County shall strictly maintain the confidentiality of all such email addresses, logons, IDs, and passwords, and County is solely responsible and liable for all transactions, activities, and other consequences resulting from the use and/or disclosure of such logons, IDs, and/or passwords. County shall promptly report to Contractor any breach of confidentiality with respect to such logons, IDs, passwords, or the Services, or any other problem with the Services, of which County becomes aware. In no event shall County allow the Services to be accessed and/or used by parties other than County and its authorized users. Contractor reserves the right to refuse use and/or access to such Services by any individual party other than County and its authorized users. County shall be liable for all acts and/or omissions of its authorized users that access and/or use the Services. j. During the term, Contractor will make available to County such updates, patches and bug fixes with respect to the Services as may, from time to time, be developed and made generally available by Contractor to its clients. Contractor will also provide support for the Services in accordance with its then- current support plan. Contractor reserves the right to modify and/or discontinue, temporarily and/or permanently, the Services and/or any features or portions thereof without prior notice. County agrees that Contractor will not be liable for any modification, suspension and/or discontinuance of the Services or any part thereof. k. Except as expressly permitted hereunder, County shall not, directly or indirectly, without the express, prior written consent of Contractor (i) use or permit the use of, reproduce and/or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, and/or transfer the Services and/or any portion thereof, and/or any of County’s rights thereto, (ii) merge any Services or any portion thereof with any other program and/or materials, (iii) reverse engineer, decompile, disassemble, extract, and/or otherwise derive and/or attempt to derive the source code of any Services and/or any other compiled software provided or made available by Contractor hereunder, (iv) adapt, translate, localize, port, or otherwise modify any Services and/or any other compiled software provided or made available by Contractor hereunder, (v) remove, obliterate, and/or cancel from view any copyright, trademark, and/or other proprietary and/or confidentiality notice and/or legend appearing on and/or in any materials provided or made available by Contractor hereunder, and/or fail to reproduce any such notice and/or legend on any copy made of any such materials, (vi) take any action that materially interrupts and/or interferes with, or that might reasonably have been expected to materially interrupt and/or interfere with, the Services, Contractor’s business operations and/or other clients, (vii) copy or imitate part or all of the design, layout and/or look and feel of the Services in any form or media and/or (viii) permit any other user, person and/or entity to engage in any of the foregoing conduct. In the event of County’s breach of Section, Contractor may terminate County’s account immediately without liability. l. County may establish an account through the Services. County’s account requires County to (i) indicate agreement to this Agreement, (ii) provide contact information, and (iii) submit any other form of authentication required during the enrollment process, as determined by Contractor in its sole and absolute discretion. County may have multiple authorized users as determined through the applicable Services level chosen. When initially registering an account, County may determine the DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 5 Eagle County Professional Services IT 5/14/23 administrative user authorized to control County’s account access and/or controls. County will ensure that its users of the Services abide by the terms and conditions of this Agreement and County acknowledges and agrees that it shall be fully liable for any breach of the terms set forth herein. The County will determine the access controls for its users and will be liable for activity occurring under County’s account, including without limitation compliance with the terms and conditions of this Agreement. 2. County’s Representative. The Emergency Management Department’s designee shall be Contractor’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 11 hereof, shall continue in full force and effect through the 31st day of December, 2023. 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 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, except as set forth herein, 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 shall not perform such additional services. 5. Compensation. County shall compensate Contractor for the performance of the Services in a sum computed and payable as set forth in Exhibit A. The performance of the Services under this Agreement shall not exceed $5,200.00 unless otherwise agreed by the parties in writing. 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. County shall reimburse Contractor for any out-of-pocket expenses reasonably incurred in connection with the performance of the Services and/or the delivery, installation, support and/or configuration of any Services at County’s location and/or facilities. Any out-of-pocket expenses to be incurred by Contractor and reimbursed by County shall be identified on Exhibit A. Out-of-pocket expenses will be reimbursed without any additional mark-up thereon and are included in the not to exceed contract amount set forth above. Out-of-pocket expenses shall not include any payment of salaries, bonuses or other compensation to personnel of Contractor. Contractor shall not be reimbursed for expenses that are not set forth on Exhibit A unless specifically approved in writing by County. b. Payment will be made for Services satisfactorily performed within thirty (30) days of receipt of a proper and accurate invoice from Contractor. All invoices shall include reasonable detail DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 6 Eagle County Professional Services IT 5/14/23 regarding the hours spent, tasks performed, who performed each task and such other detail as County may request. c. If, at any time during the term or after termination or expiration of this Agreement, County reasonably determines that any payment made by County to Contractor was improper because the Services for which payment was made were not performed as set forth in this Agreement, then County shall provide written notice of such determination to Contractor and the parties shall discuss and attempt to resolve the matter in good faith. Except as otherwise set forth herein, upon termination or expiration of this Agreement, unexpended funds advanced by County, if any, shall forthwith be returned to County. d. All fees due and payable under this Agreement are exclusive of applicable taxes, which will be added at the prevailing rate from time to time. County is responsible for all taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement except for taxes based on Contractor’s net income and/or payroll taxes. Contractor acknowledges that Colorado statute exempts from state and state-collected sales tax all sales to the United States government and the state of Colorado, its departments and institutions, and its political subdivisions (county and local governments, school districts and special districts) in their governmental capacities only. [§39-26-704.1, C.R.S.] e. In the event that fees are not paid on a timely basis, Contractor may, without liability to County, in addition to other available remedies, disable the password, account and access to all or part of the Services if any fees are not paid within ninety (90) days of such fees first becoming due and payable under this Agreement. In the event of the foregoing, Contractor shall not be obligated to provide any or all of the Services until such fees are paid in full. County acknowledges and agrees that Contractor shall not be in breach of this Agreement or liable for failure to perform in the event County fails to make payments when due hereunder. All fees due and payable by County to Contractor hereunder must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law. In the event fees are not paid on a timely basis, interest will be due and payable and calculated daily at a rate of 1.5% per month. f. If County receives an invoice which it reasonably believes, acting in good faith and with proper supporting evidence, specifies a charge which is not valid and properly due (“Disputed Charge”), then County shall notify Contractor in writing (“Dispute Notice”) within fifteen (15) days from the date such invoice is received to notify Contractor that it has a bona fide dispute in relation to the amount invoiced. For avoidance of doubt, disputed invoices do not relieve County of paying invoices in full on or before the date on which such payments are due. County shall specify reasonable details of the nature of the dispute in the Dispute Notice. The parties shall discuss the Disputed Charge within five (5) days of the date of the Dispute Notice. In the event the Disputed Charge is not resolved within such time period, then the matter shall be escalated to an executive officer of each party. Such executives shall initially discuss the Disputed Charge within five (5) days after receipt of notice and use commercially reasonable efforts to resolve the Disputed Charge within ten (10) days thereafter. If the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to a court of competent jurisdiction as set forth in Section 12. In the event Contractor does not receive a Dispute Notice within DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 7 Eagle County Professional Services IT 5/14/23 such fifteen (15) day period, then the relevant invoice shall be deemed to be correct and shall be paid in full in accordance with the terms and conditions of this Agreement. g. Notwithstanding anything to the contrary contained in this Agreement, County shall have no obligations to continue receiving Services under this Agreement and Contractor shall have no obligations to continue providing Services 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). 6. Third Party Service Providers. County agrees that Contractor may use third party service providers to provide the Services described herein. 7. 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. i. 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 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 $1,000,000 aggregate limits. iv. Professional Liability (Errors and Omissions) including Cyber Liability with prior acts coverage for all deliverables, Services and additional services required hereunder, in a form and with insurer or insurers satisfactory to County, with limits of liability of not less than $3,000,000 per claim and $3,000,000 in the aggregate. The insurance shall provide coverage for (i) liability arising from theft, dissemination and/or use of confidential information stored or transmitted in electronic form; (ii) Network Security Liability arising from unauthorized access to, use of or tampering with computer systems including hacker attacks, inability of an authorized third party to gain access to your Software or Services including denial of access or Services unless caused by a mechanical or electrical failure; (iii) 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. v. Crime Coverage shall include employee dishonesty, forgery or alteration and computer fraud. If Contractor is physically located on County premises, third party fidelity coverage extension shall apply. The policy shall include coverage for all directors, officers and employees of the Contractor. The bond or policy shall include coverage for extended theft and mysterious disappearance. The bond or policy shall not contain a condition requiring an arrest or conversion. Limits shall be a DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 8 Eagle County Professional Services IT 5/14/23 minimum of $1,000,000 per loss. 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. A certificate of insurance consistent with the foregoing requirements is attached hereto as Exhibit B. 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 hereof. 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. 8. Indemnification. 8.1 Indemnification by Contractor. Contractor agrees to indemnify, defend and hold harmless County, its members, trustees, employees, agents, officers, directors and officials, from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorney fees, arising out of and/or relating to any claim (“Claim”) that County’s use of the Services constitutes infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. Notwithstanding anything herein to the contrary, the indemnity in this Section 8.1, shall not apply (i) to a Claim arising from any modification of the Services by County or any third party, or from the use of the Services in a manner contrary to those specific business functions as expressly provided under this Agreement, to the extent such modification or use resulted in the Claim, (ii) if such Claim results from County’s use of the Services after notice of the alleged or actual infringement from Contractor or any appropriate authority, and/or (iii) in the event of any breach of County’s obligations under this Agreement, or the use of the Services other than in connection with this Agreement, or in a manner not reasonably contemplated by this Agreement. 8.2 Responsibility of the County. County shall be responsible for any losses, costs, damages, and expenses arising out of or related to (i) County’s acts and/or omissions, (ii) County’s breach of the terms and/or conditions of this Agreement, (iii) County’s failure to use the Services in accordance with the DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 9 Eagle County Professional Services IT 5/14/23 terms and conditions set forth herein, and/or (iv) the provision and/or utilization of any County Content or any portion thereof including but not limited to any claim that such County Content constitutes infringement, violation, trespass, contravention or breach of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. 8.3 Indemnification Procedure. The indemnified party shall (i) provide notice to the indemnifying party of any Claim immediately upon becoming aware of the same, (ii) provide the indemnifying party the sole right to conduct the defense of any claim or action, or the negotiation of any settlement, with respect to a Claim and not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express written instructions of the indemnifying party, and (iii) act in accordance with the reasonable instructions of the indemnifying party and give the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense including without prejudice to the generality of the foregoing the filing of all pleadings and other court processes and the provision of all relevant documents. The indemnified party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such claim. The indemnified party may reasonably participate in such defense, at its sole expense. 8.4 IP Claim. In the event of a Claim related to Contractor’s IP (as defined in Section 9) infringement indemnification obligations described herein, Contractor shall be entitled at its own expense and option to (i) procure the right for the County to continue utilizing the IP which is at issue, (ii) modify the IP to render the same non-infringing, or (iii) replace the IP with an equally suitable, functionally equivalent, compatible, non-infringing IP. If none of the foregoing is possible as determined by Contractor in its sole and absolute discretion, Contractor may terminate this Agreement without liability upon written notice to the County. This Section sets forth the County’s sole and exclusive remedy for any Claim related to Contractor’s IP infringement indemnification obligations described herein. 9. Ownership. Contractor retains all rights, title, interest and ownership of, any and all IP and proprietary rights with respect to the Services, and any other materials provided or made available to County by Contractor hereunder. “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights. Except for the rights expressly granted to County in this Agreement, all such Services and other materials that are provided or made available, and all work product that is developed, under this Agreement, all modifications, compilations, and derivative works thereof, and all intellectual property and proprietary rights pertaining thereto, are and shall remain the property of Contractor and its respective licensors (and to the extent any rights of ownership in any such materials, works, or rights might, for any reason, otherwise vest in County, County hereby assigns such ownership rights to Contractor). 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 transmitted via e-mail with confirmation of receipt. Either DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 10 Eagle County Professional Services IT 5/14/23 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: Eric Lovgren 500 Broadway Post Office Box 850 Eagle, CO 81631 Telephone: 970-328-8742 E-Mail: eric.lovgren@eaglecounty.us With a copy to: Eagle County Attorney 500 Broadway Post Office Box 850 Eagle, Co 81631 Telephone: 970-328-8685 E-Mail: atty@eaglecounty.us CONTRACTOR: Community Wildfire Planning Center Attention: Kelly Johnston 2943 West Riverwalk Circle Unit A Littleton, CO 80123 Telephone: 250-319-0494 E-Mail: kelly@communitywildfire.org 11. Termination. 11.1 Termination for Breach. If a party materially breaches this Agreement (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement upon written notice to the Defaulting Party. Termination of this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement, at law and/or in equity. 11.2 Termination for Convenience. Either party may terminate this Agreement for convenience upon at least thirty (30) days’ prior written notice to the other party. 11.3 Effect of Termination. (a) In the event that (i) Contractor terminates this Agreement pursuant to Section 11.2 (Termination for Convenience), or (ii) County terminates this Agreement pursuant to Section 11.1 (Termination for Breach), then upon termination, County will pay all outstanding fees, charges and expenses incurred through the effective date of termination, and Contractor shall refund to County a pro rata portion of any prepaid fees for Services not yet provided. DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 11 Eagle County Professional Services IT 5/14/23 (b) In the event that (i) County terminates this Agreement pursuant to Section 11.2 (Termination for Convenience), or (ii) Contractor terminates this Agreement pursuant to Section 11.1 (Termination for Breach), then upon termination, County will pay all outstanding fees, charges and expenses owed through the Term of this Agreement as if this Agreement had not been terminated. (c) Upon any termination of this Agreement, Contractor will work with County to ensure a smooth transition of Services to County or a third party as mutually agreed to by the parties at Contractor’s then- current rates. 12. 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. 13. 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. 14. Confidentiality. 14.1 Confidential Information. During the term of this Agreement, the parties may have access to certain information that is not generally known to others including any and all information relating to the party and its business including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage and/or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement (“Confidential Information”). The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party”. 14.2 Obligations. Receiving Party agrees not to use or disclose the Confidential Information, and may disclose the Confidential Information only as necessary and appropriate to perform its obligations hereunder and to receive the benefit of the Services in accordance with this Agreement to its officers, directors, employees, agents and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement. The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement. The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent and without such third party having a contractual obligation (consistent with this Article 6) to DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 12 Eagle County Professional Services IT 5/14/23 keep such Confidential Information confidential. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement. 14.3 Exclusions. Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; and/or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality. 14.4 Legal Requirements. If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a “Legal Requirement”), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement. 14.5 IP. The parties agree that ownership of any IP in any materials owned by the other party shall remain with that party, and nothing in this Agreement shall imply that any right or license in respect of such IP is being granted to the other party. 14.6 Disposition of Confidential Information on Termination or Expiration. Upon termination or expiration of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control. Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed. The obligations with respect to Confidential Information, as set forth in this Section 14, shall continue in force and effect for a period of five (5) years after termination or expiration of this Agreement or, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status is maintained. 14.7 Remedy. Each party acknowledges that a breach of this Section 14 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. This Section 14 shall survive the expiration or termination of this Agreement. DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 13 Eagle County Professional Services IT 5/14/23 15. Compliance with Protection Against Discrimination on the Basis of Disability. Contractor agrees to comply with all applicable laws, rules and regulations in connection with the Services, including those relating to those relating to discrimination on the basis of disability. 16. Other Contract Requirements. a. CONTRACTOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES AND MATERIALS ARE PROVIDED BY CONTRACTOR ON AN “AS-IS” BASIS. CWPC DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE SERVICES AND MATERIALS (INCLUDING, BUT NOT LIMITED TO, ANY DOCUMENTATION, REPORTS, ADVICE AND RECOMMENDATIONS, IN ANY FORM) PROVIDED BY CONTRACTOR IN CONNECTION WITH THIS AGREEMENT, ARE OR WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR CONTINUOUSLY AVAILABLE. CONTRACTOR DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE SERVICES AND MATERIALS WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR- FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. CONTRACTOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (A) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR (B) INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON. b. EXCEPT TO THE EXTENT PROHIBITED BY LAW, EACH PARTY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE FEES PAYABLE BY COUNTY TO CWPC FOR THE SERVICES PROVIDED HEREUNDER THAT GAVE RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND BUSINESS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. c. Notwithstanding anything herein to the contrary, neither party shall be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting, directly or indirectly, from acts of God, acts of war, terrorism, or civil insurrection, strikes, walkouts, or other organized labor interruptions, telecommunications or utility interruptions or failures, fire, explosions, floods, or other natural disasters, any similar cause or any third party beyond the reasonable control of such party, and any delay or failure of the other party to fulfill its obligations hereunder (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 14 Eagle County Professional Services IT 5/14/23 issue. Either party may terminate this Agreement by giving the other party written notice if the other party fails to perform those obligations for thirty (30) days due to such Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event shall never excuse the failure to make a payment due under this Agreement, except to the extent that the Force Majeure Event physically interferes with the delivery of the payment. The party whose performance is affected shall use commercially reasonable efforts to minimize the impact of such Force Majeure Event. d. Neither party shall, without the prior written approval of the other party, disclose the existence and/or any of the terms or conditions of this Agreement to any third party or issue any press release or make any other public announcement relating to this Agreement or the other party. Notwithstanding the foregoing, County hereby grants Contractor the right to use County’s name, trade name, trademark, logo, acronym, or other designation to identify County as Contractor’s customer in connection with brochures, advertising, promotional materials made available or otherwise published by Contractor, without the County’s prior consent. e. County acknowledges and agrees that the Services provided by Contractor are not exclusive to County and that Contractor may provide such Services to other entities. f. If either party brings legal action to enforce its rights under this Agreement, the prevailing party will be entitled to recover all fees, costs and expenses (including without limitation reasonable attorneys’ fees) incurred in connection with the action. g. 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. Contractor shall have no authority to bind County. h. Each party represents and warrants that at all times in the performance of this Agreement, it shall comply with any and all applicable laws, codes, rules and regulations. i. 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. j. This Agreement may be assigned by Contractor at any time and for any reason. This Agreement shall not be assigned, delegated or transferred by County without prior written consent from Contractor. k. 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. DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 15 Eagle County Professional Services IT 5/14/23 l. 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. m. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof. n. 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 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. o. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement. [REST OF PAGE INTENTIONALLY LEFT BLANK] DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 16 Eagle County Professional Services IT 5/14/23 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 B y: ______________________________ Jeff Shroll, County Manager CONTRACTOR Kelly Johnston, Operations Director By: _____________________________________ Print Name: ______________________________ Title: ____________________________________ DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 Operations Director Kelly Johnston 17 Eagle County Professional Services IT 5/14/23 EXHIBIT A SCOPE OF SERVICES, SCHEDULE, FEES Current (Existing) Services REALFIRE Basic • REALFire® Mobile Application • Wildfire Assessment Reports • Web Portal and Dashboard • Technical Support (one year) • Client logo and color palette match Training • 30 hour in-person training course • Up to 15 participants • Focus on HIZ concepts and program tools Annual Service Agreement • Online technical request ticketing system • Support for software problems, mobile device problems, web portal problems • Regular updates to address, bugs or fixes and align with iOS / Android operating system changes • Supports up to 15 users • Agreement starts after year one Integrated Online Homeowner Application Form • provides a link to an online homeowner application form that can be posted directly on a community’s owned and managed website. The link allows the information that is collected in the application to be automatically transferred to the REALFire® web portal, where it can be reviewed, edited and approved by the Local Program Coordinator. Integrated Scheduling System • links the online application with the ability to schedule onsite assessments, assign the scheduled assessment to a Wildfire Mitigation Specialist, notify the homeowner, and automatically populate the homeowner and property basic information in the assigned Mitigation Specialists mobile application. Homeowner Recognition • This provides a process and certificate of recognition for the homeowner to work towards as part of being recognition through their mitigation efforts. Homeowners will be recognized with the issuance of a certificate after successfully completing all mitigation recommendations as determined through a site inspection performed by qualified Wildfire Mitigation Specialist Additions to Existing Software Self-Reporting • Homeowner self-reporting portal added to Realfire.net database. Disclaimer • Application disclaimer acceptance to be added to the mobile app Multi-Family • Multi-address and email listing for multi-family properties. DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 18 Eagle County Professional Services IT 5/14/23 • Training Delivery. As part of CWPC’s Train-the-trainer program, Eagle County will conduct a program training for new assessors. No additional costs are incurred and no additional CWPC resources are required for this task. • Subscription Fee. CWPC will continue to support 12 users as part of the existing Subscription Fee which is valid through June 30, 2024. The Subscription Fee will be invoiced in the amount of $5,200 upon completion of set-up of additional services. DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 19 Eagle County Professional Services IT 5/14/23 EXHIBIT B INSURANCE CERTIFICATE DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258 03/12/2024 ALINK Insurance Services - Parker Branch 10851 S. Crossroads Drive, Unit A Parker, CO 80134 License #: 385592 Candace Hladek, CISR (303)752-6479 (303)752-6579 Candi@ALINK2ins.com 00020659-489085 11 Community Wildfire Planning Center 2943 W Riverwalk Cir. #a Littleton, CO 80123 Alliance of Nonprofits for Insurance 10023 A 2022-54920 04/01/2022 04/01/2023X X X 1,000,000 500,000 20,000 1,000,000 2,000,000 2,000,000 Liquor Liability 1,000,000 Alliance of Nonprofits for Insurance 10023 A 2022-54920 04/01/2022 04/01/2023 X X 1,000,000 Hiscox B MPL416364222 05/22/2022 05/22/2023Errors & Omissions E&O 1,000,000 Evidence of Insurance (CFH) Printed by CFH on 03/12/2024 at 11:58AM ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? INSR ADDL SUBR LTR INSD WVD DATE (MM/DD/YYYY) PRODUCER CONTACT NAME: FAXPHONE (A/C, No):(A/C, No, Ext): E-MAIL ADDRESS: INSURER A : INSURED INSURER B : INSURER C : INSURER D : INSURER E : INSURER F : POLICY NUMBER POLICY EFF POLICY EXPTYPE OF INSURANCE LIMITS(MM/DD/YYYY)(MM/DD/YYYY) AUTOMOBILE LIABILITY UMBRELLA LIAB EXCESS LIAB WORKERS COMPENSATION AND EMPLOYERS' LIABILITY DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) AUTHORIZED REPRESENTATIVE EACH OCCURRENCE $ DAMAGE TO RENTED CLAIMS-MADE OCCUR $PREMISES (Ea occurrence) MED EXP (Any one person)$ PERSONAL & ADV INJURY $ GEN'L AGGREGATE LIMIT APPLIES PER:GENERAL AGGREGATE $ PRO-POLICY LOC PRODUCTS - COMP/OP AGG $JECT OTHER:$ COMBINED SINGLE LIMIT $(Ea accident) ANY AUTO BODILY INJURY (Per person)$ OWNED SCHEDULED BODILY INJURY (Per accident)$AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $AUTOS ONLY AUTOS ONLY (Per accident) $ OCCUR EACH OCCURRENCE $ CLAIMS-MADE AGGREGATE $ DED RETENTION $$ PER OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ If yes, describe under E.L. DISEASE - POLICY LIMIT $DESCRIPTION OF OPERATIONS below INSURER(S) AFFORDING COVERAGE NAIC # COMMERCIAL GENERAL LIABILITY Y / N N / A (Mandatory in NH) SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. 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. 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). COVERAGES CERTIFICATE NUMBER:REVISION NUMBER: CERTIFICATE HOLDER CANCELLATION © 1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORDACORD 25 (2016/03) CERTIFICATE OF LIABILITY INSURANCE DocuSign Envelope ID: D31E0A92-B324-48F6-B669-AA13204BA258