506333 Exhibit A - Sample Agreement.docx

MASTER SERVICES AGREEMENT

This Master Services Agreement (“Agreement”) is made and entered into between the CITY AND COUNTY OF DENVER, acting by and through its BOARD OF WATER COMMISSIONERS (“Denver Water”), and Verify the correct legal name of the Consultant and insert here having a place of business at (“Consultant”) (Denver Water and Consultant sometimes are individually each referred to as a “Party”, and collectively referred to herein as the “Parties”). This Agreement shall become effective on the date it is fully signed by Denver Water (“Effective Date”).

RECITALS

WHEREAS, Consultant submitted to Denver Water a proposal dated (the “Consultant Proposal”) and represented to Denver Water that it had the expertise, personnel, services, and skills required to meet the requirements of Denver Water.

WHEREAS, Denver Water, in reliance on the information set forth in the Consultant Proposal, other information provided by Consultant and subsequent discussions, has selected Consultant over other Consultants to provide the Services and/or Deliverables (later defined herein) described in this Agreement.

WHEREAS, Denver Water and Consultant want to specify the terms and conditions under which Consultant shall provide the Services and/or Deliverables to Denver Water.

NOW, THEREFORE, in consideration of the agreements, representations, warranties, promises and covenants contained herein, and other good and valuable consideration, the receipt, sufficiency and adequacy of which are hereby acknowledged, the Parties, intending to be legally bound, agree to the foregoing and as follows:

ARTICLE 1—GENERAL

1.1. Overview of Agreement. This Agreement represents the terms and conditions under which Consultant shall provide the mutually agreed to Services and/or Deliverables to Denver Water.

1.2. Definitions. Capitalized terms used in this Agreement, including in any Schedules, Exhibits, Attachments and/or other documents attached to or otherwise made a part of this Agreement, shall have the meanings ascribed to them in Schedule 1.2 (Definitions) or within the main body of this Agreement. SOW-specific definitions, if any, shall be included in the applicable Statement of Work; otherwise, such terms shall have the meaning ascribed to them in Schedule 1.2 or the main body of this Agreement. All defined terms include the plural as well as the singular.

1.3. Conflicts in Interpretation.

1.3.1. General Rules. The following order of precedence shall be followed in resolving any inconsistencies between the terms of this Agreement and the terms of any Schedules, Exhibits, Attachments and/or other documents attached hereto: (a) first, the terms contained in the body of this Agreement shall control; (b) second, the terms of the Schedules, Exhibits, Attachments and/or other documents attached to this Agreement (excluding Schedules, Exhibits, Attachments, and/or other documents that constitute or are part of a Statement of Work), provided that no order of precedence shall be applied among such Schedules, Exhibits, Attachments, and/or other documents; (c) third, the terms of any Statements of Work, including all Schedules, Exhibits, Attachments, and/or other documents thereto; (d) fourth, the terms of any purchase order signed and issued by an authorized representative of Denver Water, including all Schedules, Exhibits, Attachments, and/or other documents thereto; (e) fifth, the Consultant Proposal; and (f) sixth, the Documentation (excluding Consultant Proposal).

1.3.2. Exception for Statements of Work. Unless the Parties specify in the applicable Statement of Work that a particular provision of the Statement of Work is to supersede a provision of this Agreement, in which case the superseding Statement of Work provisions shall be applicable only to such Statement of Work and shall be effective for such Statement of Work only if such provision expressly references the applicable Section of this Agreement that is to be modified and clearly states that such provision supersedes the conflicting or inconsistent provision in this Agreement, any attempt to alter or amend the terms and conditions contained in this Agreement through conflicting or inconsistent terms in a Statement of Work or any other document shall be void and of no force and effect.

1.4. References to Consultant. As used in this Agreement, references to “Consultant” also shall apply to Consultant Affiliates, subcontractors, and Consultant Personnel in accordance with the following: (a) references to Consultant shall mean at all times that Consultant is responsible for ensuring and causing the compliance of Consultant Affiliates, subcontractors, and Consultant Personnel with the terms and conditions of this Agreement; (b) with regard to complying with the terms and conditions of this Agreement, references to Consultant include Consultant Affiliates and subcontractors to the extent that such Consultant Affiliates and/or subcontractors are providing the Services and/or Deliverables to Denver Water as permitted by this Agreement; and (c) with regard to complying with the terms and conditions of this Agreement, references to Consultant include the applicable Consultant Personnel who are providing the Services and/or Deliverables. Notwithstanding the foregoing, under no circumstances shall Consultant Affiliates and subcontractors and Consultant Personnel be eligible for or exercise, use, or enjoy any rights or benefits of Consultant under the terms and conditions of this Agreement unless otherwise explicitly stated in the applicable term or condition of this Agreement.

ARTICLE 2—STATEMENT(S) OF WORK

1.

2.

2.1. Statements of Work. Consultant shall provide Services and/or Deliverables to Denver Water pursuant to one (1) or more Statements of Work that include the following contents: (a) a detailed description of the Services, including (i) identification of all milestone events, (ii) identification of all critical path milestones (“Critical Path Milestones”) and the commencement and completion times for such Critical Path Milestones, (iii) a detailed description of all activities to be performed by Consultant and Denver Water, (iv) the number of Consultant personnel-hours required to perform each task and Critical Path Milestone, (v) a detailed description of all activities, if any, to be performed by Third Parties, (vi) the dates and locations of scheduled status meetings, pursuant to Section 2.5, and (vii) commencement and completion times or any critical tasks related to or in connection with the Services; (b) the pricing of such Services and payment schedule; (c) the Deliverables (if any) to be generated by or provided in connection with such Services; (d) the benchmarks or levels against which the quality, completeness, timeliness, and accuracy of the Services will be and the metrics used to measure Consultant’s performance of the Services (“Service Levels”); (e) personnel designated to perform the Services; and (f) a transition/implementation schedule detailing how the Services will be transitioned from the current provider of the Services, if any, to Consultant. Denver Water shall not be responsible to pay for any Services and/or Deliverables under this Agreement unless such Services and/or Deliverables are the subject of a written Statement of Work or a duly authorized Change Order. The Statement of Work applicable to this Agreement is attached and incorporated into to this Agreement as Exhibit 1 (“Statement(s) of Work” or “SOW”).

2.2. Consultant’s Responsibilities for Equipment and Labor. Consultant will furnish and pay for all labor, materials, services, tools, software, equipment, and other resources (including, without limitation, computer resources) necessary to perform the Services, except as otherwise expressly specified in a Statement of Work.

2.3. Change Order Procedures.

2.4. Change Request. If either Party believes that a minor scope change or a minor change in the implementation processes, procedures, standards, Service Levels, or time frames is necessary or desirable, such Party shall submit a written change request to the other Party (a “Change Request”). All other changes not specifically listed in the preceding sentence shall be made via a formal amendment to this Agreement. Consultant represents to Denver Water that it has factored into Consultant’s fee adequate contingencies for de minimis change orders. Accordingly, if Change Requests are made, they will be presumed not to impact the fees under this Agreement; provided, however, that if the Change Request consists of other than a de minimis deviation from the scope of the SOW, Consultant shall provide Denver Water with written notification of such other deviation within five (5) business days after receipt of the Change Request.

2.4.1. Change Response. In the event of a Denver Water-initiated Change Request, within five (5) business days of Consultant’s receipt of such Change Request, Consultant shall provide to Denver Water a written statement describing in detail: (a) the impact on any Denver Water System performance, if any, and the modifications to Denver Water System that will be required as a result of the Change Request including changes in Services and/or Deliverables; (b) the effect of the Change Request on the applicable SOW plans and tasks including any impact on any Critical Path Milestone dates; and (c) an estimate of the cost to implement each Change Request (collectively, the “Change Response”). If Consultant submits a Change Request to Denver Water, such Change Request shall include the information required for a Change Response. Denver Water shall accept or reject any Change Response or Consultant-initiated Change Request, as applicable, within five (5) business days after receipt of same from Consultant.

2.4.2. Change Order. If the Parties agree on a Change Order or Denver Water accepts a Change Response or a Consultant-initiated Change Request, all in a writing executed by the representatives of the Consultant and Denver Water and Denver Water’s Office of General Counsel, such Change Order or Change Response, together with Denver Water’s Change Request, or such Consultant-initiated Change Request, shall be deemed to be a “Change Order” and shall become part of this Agreement and the applicable Statement of Work. If Denver Water rejects Consultant’s Change Response or Consultant-initiated Change Request, Consultant shall proceed to fulfill its obligations under this Agreement and the applicable Statement of Work.

2.5. Status Meetings and Reports. On the dates and at the locations specified in the SOW, and in any event no less than monthly, the Consultant SOW Manager and other Key Personnel, Denver Water SOW Manager, other appropriate representatives of the Parties and any necessary Third Parties shall meet at a Denver Water-designated site or by telephone conference, as determined by Denver Water, to discuss the status of each SOW, the development or implementation of any individual tasks within each SOW and any difficulties or issues that may exist, including personnel issues and any proposed changes to any Critical Path Milestones and/or changes to any date or other item set forth in the applicable SOW. The Parties acknowledge that any change of a Critical Path Milestone date shall require a mutually agreed-upon Change Order. Consultant shall keep minutes of all status meetings and Consultant shall issue copies of the minutes to all meeting attendees after each meeting. Such meeting minutes shall include a detailed summary of the following to the extent it was discussed during the status meeting: (a) the accomplishments and difficulties encountered during the prior reporting period; (b) suggestions and proposed actions for dealing with and resolving any identified difficulties and the anticipated results during the next reporting period; (c) a consolidated log of all outstanding SOW-related problems identified by Denver Water and Consultant that remain to be resolved; and (d) if applicable, identification of any Denver Water or Third Party delays or other circumstances that Consultant claims have impacted or will impact its ability to meet any Critical Path Milestone. Denver Water shall have the right to assume that Consultant does not know of any problems, difficulties and/or issues that may have an adverse impact on the SOW (whether from a timing, cost or performance standpoint) unless Consultant specifically identifies such problems, difficulties or issues in its written SOW Status Reports.

2.6. References to Denver Water Responsibilities. References to Denver Water’s responsibilities under this Agreement and/or a Statement of Work (other than Denver Water’s obligation to pay for the Services and/or Deliverables in accordance with this Agreement), are intended solely for purposes of identifying what is not Consultant’s responsibility and will not under any circumstance constitute grounds for a claim that Denver Water has breached the applicable Statement of Work or this Agreement.

2.7. Time of the Essence. Provider acknowledges and agrees that time is of the essence with respect to its obligations under this Agreement and that prompt and timely performance of all such obligations, including all timetables and other requirements of this Agreement and each Service Order, is strictly required.

ARTICLE 3—SERVICES

1.

2.

3.

3.1. Types of Services. As mutually agreed by the Parties and set forth in one or more Statement(s) of Work attached and incorporated into this Agreement as Exhibit(s) 1, Consultant shall provide professional or other services that may be requested by Denver Water, including consulting, design and build, implementation, hosting, integration, testing, development, custom programming, conversion, training, support, maintenance, cloud hosting and support services to Denver Water (individually or collectively, the “Services”).

3.2. General Criteria for the Performance of Services. Consultant shall perform the Services in a manner that shall: (a) avoid any adverse impact on the business, operations, financial condition and/or prospects of Denver Water; and (b) not degrade the services then being received by Denver Water from other Third Parties or provided internally by Denver Water. Consultant shall identify and resolve any problems that may impede or delay the timely completion of each task in the SOW that is Consultant’s responsibility and shall use its best efforts to assist Denver Water with the resolution of any problems that may impede or delay the timely completion of each task in the SOW that is Denver Water’s responsibility.

3.3. Compatibility and Interoperability. As part of the Services, Consultant shall ensure that all Denver Water Systems shall be successfully integrated, interfaced, and compatible with the Services and Deliverables and that adequate and appropriate (as determined by Denver Water) architectural functions and structural integration exists between and among Denver Water Systems and the Services and Deliverables such that the Services and Deliverables have the capability to communicate, execute programs, or transfer data seamlessly. Further, Consultant shall use commercially best efforts to ensure that the Services and/or Deliverables shall not adversely affect Denver Water Systems, whether as to functionality, speed, service levels, interconnectivity, reliability, availability, performance, response times, or similar measures. The requirements of this Section 3.3 shall be referred to as the “Interoperability Requirements”.

3.4. Service Levels.

3.4.1. Service Level Commitment and Reporting. Consultant commits to provide the Services in accordance with the “Services Levels” set forth in one or more applicable Statement(s) of Work attached and incorporated into this Agreement. Consultant shall provide monthly reports to Denver Water regarding its performance relative to the Service Levels. If Consultant fails to meet a Service Level in a month, Consultant shall: (a) report that failure to Denver Water, unless such failure has already been reported by Denver Water; (b) promptly investigate the causes of the problem; (c) prepare a report identifying the causes and the methods to be used by Consultant to correct the problem and prevent a recurrence; (d) take commercially reasonable actions necessary to correct the problem and begin meeting the Service Levels as soon as practicable; (e) advise Denver Water of the status of the remedial efforts being undertaken with respect to such problem; and (f) if requested by Denver Water due to the nature of the problem or its recurrence, make available for meetings and consultation with Denver Water those personnel within Consultant who are the recognized experts with respect to the problem. Consultant shall utilize the necessary measurement and monitoring tools and procedures to measure and report Consultant’s performance of the Services against the applicable Service Levels to Denver Water on a monthly basis. Such measurement and monitoring shall permit reporting at a level of detail sufficient to verify compliance with the Service Levels and shall be subject to audit by Denver Water in accordance with this Agreement.

3.4.2. Service Level Credits. Consultant recognizes that its failure to meet the Service Levels may have a material adverse impact on the business and operations of Denver Water and that the damage from Consultant’s failure to meet a Service Level cannot be precisely determined. Accordingly, in the event that Consultant fails to meet a Service Level, then, in addition to any other remedies available to Denver Water under this Agreement, in equity, or at law, Denver Water shall recover the corresponding “Service Level Credit” specified in the applicable Statement(s) of Work as liquidated damages and not a penalty. Furthermore, if a Service Level falls below % in any given month, Denver Water may declare the Consultant in default and terminate this Agreement. If Denver Water terminates the Agreement as a result of the Consultant’s default hereunder, in addition to any other remedies available to Denver Water under this Agreement, in equity, or at law, Consultant shall (a) issue Denver Water a pro-rated refund of all pre-paid fees within thirty (30) days of the receipt of the notice of termination; and (b) pay Denver Water’s deconversion costs in the amount not to exceed insert amount within thirty (30) days of the invoice date. Consultant shall not be required to pay Service Level credits and shall not be in default hereunder to the extent that failure to meet Service Levels is caused solely: (a) by the actions of Denver Water; or (b) circumstances that constitute a Force Majeure Event.

3.5. Included Services. If any services, functions, or responsibilities not specifically described in this Agreement and/or the applicable Statement of Work are an inherent, necessary, or customary part of the Services or are required for proper performance or provision of the Services in accordance with this Agreement and/or the applicable Statement of Work, such as updates or bug fixes, they shall be deemed to be included within the scope of the Services to be delivered for the fees charged under this Agreement, as if such services, functions, or responsibilities were specifically described in this Agreement, unless such services, functions, or responsibilities are expressly excluded in this Agreement or designated in a writing approved by Denver Water to be the responsibility of Denver Water. Except as otherwise agreed in writing by the Parties as a Denver Water responsibility, Consultant shall procure or otherwise provide, at Consultant’s cost and expense, all Consultant Personnel with the hardware, software, network facilities, and the other materials, resources, and items required to provide the Services and otherwise perform its obligations under this Agreement.

ARTICLE 4—SOFTWARE

4.

4.1. License Grant. Subject to the provisions of this Agreement, Consultant grants Denver Water a non-exclusive, non-transferable, worldwide right, limited to the Term defined in the applicable SOW, to authorize users within Denver Water’s organization to (a) access and use the Services, Documentation, and any Software and hosting environment that Consultant makes available for use by Denver Water as part of the Services; and (b) display and print Documentation for Denver Water’s own internal business purposes for the duration of the Term of this Agreement.

4.2. Restrictions. Denver Water shall not (a) sell, rent, lease, sublicense, or knowingly make the any Intellectual Property of the Consultant and any Documentation, to the extent the foregoing do not include Creations, (“Materials”) available to any Third Party except as expressly authorized by this Agreement; (b) modify or create any derivative works of the Materials; (c) reverse engineer, decompile, decrypt, disassemble the Materials; and (d) remove or modify any proprietary markings or restrictive legends placed on any Materials.

4.3. Reserved for additional OGC approved Software License & M&S terms

4.4. Delivery [and Installation].

4.4.1. Delivery [and Installation]. Within [NUMBER] Business Days after the Effective Date, Consultant shall deliver and install the Software in accordance with the specifications set forth in Exhibit B.

4.4.2. Risk of Loss. Risk of loss of any tangible media on which any Software is delivered will not pass to Denver Water unless and until Denver Water’s Acceptance of such Software in accordance with this Agreement.

4.4.3. Documentation. Consultant shall provide Denver Water with complete and accurate Documentation for all Software prior to or concurrently with its delivery. The Documentation will include all technical and functional specifications and other such information as may be reasonably necessary for the effective installation, testing[, and] use[, support and maintenance] of the Software in the operating environment, including the effective configuration, integration, and systems administration of the Software, and the operation and the performance of all its functions. Licensor shall provide all Documentation in both hard copy and electronic form, in such formats and media as are set forth in Exhibit [X], or as Licensee may otherwise [reasonably] request [in writing].

ARTICLE 5—PERSONNEL

5.

5.1. Minimum Personnel Requirements. All Consultant Personnel shall have experience, training, and expertise sufficient to perform Consultant’s obligations under this Agreement, including Consultant’s obligations with respect to the Specifications, Performance Standards, Interoperability Requirements, and/or Service Levels. All costs and expenses associated with equipping, training, and retaining Consultant Personnel and other staff is included within the fees. Denver Water shall not be required to pay for Services provided by any Consultant Personnel who does not possess the represented levels of experience and expertise.

5.2. Consultant SOW Manager. Each Statement of Work shall designate the Consultant SOW manager (“Consultant SOW Manager”) and any Key Personnel for that SOW. The Consultant SOW Manager shall: (a) act as a liaison between Consultant and Denver Water for all matters related to this Agreement and the applicable Statement of Work; (b) manage the relationship with Denver Water and will be Denver Water’s primary point of contact for all questions and issues relating to the SOW; (c) provide such information and data as is reasonably necessary to enable Denver Water to perform its duties, responsibilities or obligations hereunder; and (d) have overall responsibility for ensuring Consultant’s performance of its responsibilities and obligations as set forth in this Agreement and in the applicable SOW.

5.3. Removal of Consultant Personnel by Denver Water. Denver Water shall have the right to require Consultant to replace the Consultant SOW Manager and other Consultant Personnel whom Denver Water deems to be unfit or otherwise unsatisfactory to perform Consultant’s duties, responsibilities or obligations hereunder. Without limiting the foregoing, during the forty-eight (48) hour period immediately following Denver Water’s notice to Consultant of such request for replacement, designated representatives from each Party shall meet to discuss the request and any alternative solutions. Race, gender, age, religion, national origin, and other legally discriminatory characteristics shall not be valid grounds for any such request by Denver Water.

5.4. Removal/Reassignment by Consultant. Consultant shall not remove or temporarily reassign the Consultant SOW Manager or other Key Personnel: (a) without providing at least ten (10) days prior written notice to Denver Water; and (b) until such time as the Parties have agreed to the replacement personnel. If Consultant replaces or reassigns the Consultant SOW Manager or other Key Personnel as permitted hereunder, the proposed replacement personnel shall possess the experience and training as required under Section 5.1. At no time shall there be a vacancy or gap in the position of Consultant SOW Manager or other Key Personnel unless otherwise agreed to by the Parties in writing. Denver Water may withhold an amount equal to fifty percent (50%) of all monies due and to become due to Consultant under this Agreement until the position of Consultant SOW Manager or other Key Personnel is filled by a qualified employee, as approved by Denver Water. Consultant shall not charge Denver Water for the costs associated with educating any individuals replacing the Consultant SOW Manager or other Key Personnel (e.g., costs resulting from a replaced Consultant SOW Manager educating a new Consultant SOW Manager). Provided the replaced individual remains in the employ of Consultant, such individual shall continue to be available by telephone to answer any SOW-related questions.

5.5. Effect of Change in Personnel. Either Party’s request for removal or reassignment of personnel shall not excuse Consultant from meeting any Critical Path Milestones.

5.6. Approval of Subcontractors. Consultant shall obtain Denver Water’s written consent, which Denver Water may withhold in its sole discretion, before entering into agreements with or otherwise engaging any subcontractors who may supply any part of the Deliverables and/or Services to Denver Water. At Denver Water’s request, Consultant shall provide information regarding the subcontractors’ qualifications and a listing of the subcontractors’ key personnel including, if requested by Denver Water, resumes of proposed Consultant Personnel. Consultant shall remain directly responsible to Denver Water for its subcontractors and shall indemnify Denver Water for the actions or omissions of its subcontractors under the terms and conditions specified in Article 11 (Indemnification). All subcontractors and their representatives, agents and employees must sign a Confidentiality and Nondisclosure Agreement, in materially the form set forth in Exhibit 2 (Nondisclosure Terms and Conditions), prior to and as a condition of becoming an authorized subcontractor, and shall be subject to the provisions of this Agreement applicable to Consultant Personnel, including but not limited to removal pursuant to Section 5.3 and all Sections providing for Denver Water’s audit rights.

5.7. Computer and Telecommunications Security. Consultant acknowledges that he, she, or an employee, subcontractor, or agent of the Consultant may have access to and use of Denver Water’s computer or telecommunication resources to fulfill the terms of this Agreement. Consultant agrees that he, she or any of the Consultant’s employees or agents who use such resources will abide by Denver Water’s policies and guidelines governing the use of these resources and will comply with the provisions of Appendix 1, entitled "Use of Denver Water Board Computer and Telecommunications Resources,” attached and incorporated.

5.8. Responsibility for Consultant Personnel.

5.8.1. The Parties intend to create an independent contractor relationship and nothing in this Agreement shall operate or be construed as making Denver Water and Consultant partners, joint venturers, principals, joint employers, agents, or employees of or with the other. No Consultant Personnel retained by Consultant to perform work on Denver Water’s behalf or for Denver Water hereunder shall be deemed to be an officer, director, employee, agent, Affiliate, contractor, or subcontractor of Denver Water for any purpose.

5.8.2. Consultant, not Denver Water, has the right, power, authority, and duty to supervise and direct the activities of the Consultant Personnel and to compensate such Consultant Personnel for any work performed by them on the behalf of or for Denver Water pursuant to this Agreement. Consultant, and not Denver Water, shall be responsible and therefore solely liable for all acts and omissions of Consultant Personnel, including acts or omissions constituting negligence, gross negligence, willful misconduct, and/or fraud.

5.8.3. Consultant and Consultant Personnel, agents, and subcontractors shall in no way represent themselves to third parties as agents or employees of Denver Water in performance of the Services.

5.8.4. Consultant acknowledges that it is not entitled to unemployment insurance or workers’ compensation benefits as a result of performance of the Services for Denver Water.

5.8.5. The Consultant acknowledges that it is obligated and solely liable to pay and/or withhold, if applicable, on behalf of Consultant Personnel federal and state income taxes, payroll taxes, unemployment insurance, social security, disability benefits, FICA taxes, and workers’ compensation payments and premiums applicable to this Agreement or the Services. The Consultant shall indemnify Denver Water for any liability resulting from noncompliance with the Consultant’s obligations under this Section.

5.9. Screening of Consultant Personnel.

WORK INVOLVING SECURITY CONCERNS

Before assigning an employee or agent to perform duties under this Agreement that require the employee or agent to work under circumstances presenting security concerns or to have access to Denver Water’s sensitive information, proprietary computer programs, software or servers, Consultant shall ensure that no more than one (1) year prior to the assignment it performed a background check on such employee or agent, including a review of criminal history, and determined that the employee or agent does not pose a risk to persons or property. Consultant shall retain documents evidencing such background check and Consultant’s determination of no risk for the duration of this Agreement, and for three years thereafter. Consultant’s determination should be based on guidance provided by the U.S. Equal Employment Opportunity Commission regarding the use of arrest and conviction history in employment decisions, which requires a weighing of (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense, conduct or the employee’s completion of any sentence given as a result of the offense, and (3) the nature of the job held or sought. Background checks must include a Colorado Bureau of Investigation (CBI) Criminal History Check, and, if the employee or agent has lived outside the State of Colorado or the United States during the last five (5) years, a criminal history check from each state or country of residence. For employees or agents who will have access to Denver Water’s financial records and/or accounting processes, including purchasing, payables, receivables, and treasury or cash management, Consultant shall also conduct a credit history check on the employee or agent and shall verify that the employee or agent does not pose a risk to Denver Water. Consultant shall retain documents evidencing such verification for the duration of this Agreement, and for three years thereafter. Denver Water reserves the right to audit Consultant’s compliance with requirements of this paragraph at any time during the term of this Agreement.

5.10. Denver Water Personnel. Denver Water shall provide personnel to perform its obligations under this Agreement and any Statement of Work, including a SOW manager for each SOW (“Denver Water SOW Manager”), who shall act as a liaison between Consultant and Denver Water, coordinate Denver Water resources, coordinate Denver Water personnel and have overall responsibility for meeting Denver Water’s responsibilities and obligations.

ARTICLE 6—TESTING PROCESS

6.

6.1. Test Plan. Consultant shall be responsible for testing of the Services and/or Deliverables, or components thereof, as applicable, in accordance with a test plan to be mutually developed and agreed to by the Parties in writing (“Test Plan”), which Test Plan will incorporate testing methodologies to confirm that the Services and/or Deliverables operate in accordance with the applicable Documentation, Specifications, Service Levels, Interoperability Requirements, and Performance Standards. The Test Plan will be developed in accordance with the time frame specified in the applicable SOW, and the date to complete development of the Test Plan shall, unless otherwise agreed to by the Parties, be a Critical Path Milestone. In addition to the above, each Test Plan shall describe the exact scope, methodologies, and procedures (including expected performance results) for testing the Services and/or Deliverables. When approved by Denver Water in writing, the Test Plan will be attached to the applicable Statement of Work.

6.2. User Acceptance Testing. User acceptance testing for the Services and/or Deliverables (“UAT”) shall commence on the date specified in the applicable SOW. If any Defects in the Services and/or Deliverables are discovered as a result of UAT, Consultant shall promptly correct such Defects. When all Defects identified during UAT have been corrected, Denver Water shall give Consultant written notice thereof and the Services and/or Deliverables shall thereafter be ready for Production Testing.

6.3. Production Testing. Following successful completion of all User Acceptance Testing, Denver Water shall have the period specified for Production Testing in the applicable Statement of Work, but in no event shall such period be less than thirty (30) business days, (“Production Testing Period”) to test the Services and/or Deliverables, or components thereof, under actual, everyday operating conditions to assess whether such Services and/or Deliverables, or components thereof, operate in accordance with the applicable Documentation, Specifications, Service Levels, and Performance Standards (“Production Testing”). In the event any Defects in the Services and/or Deliverables, or components thereof, are discovered during the Production Testing Period, Denver Water shall report such Defects to Consultant, and Consultant shall promptly correct all Defects in the Services and/or Deliverables. Upon Consultant’s receipt of notice from Denver Water of any Defects, the Production Testing Period (but not Denver Water’s use of the Services and/or Deliverables, or components thereof) shall be suspended temporarily and shall recommence upon Consultant’s receipt of written notice from Denver Water that such Defects have been corrected; provided, however, that Denver Water shall in no event have less than fifteen (15) days to verify any correction provided by Consultant. Subject to the terms of Section 6.5, such process shall repeat as often as necessary until all Defects have been corrected. Successful Production Testing shall occur when all Defects in the Services and/or Deliverables have been corrected to Denver Water’s satisfaction and the Services and/or Deliverables have been operating without experiencing any Defects for at least (10) consecutive days.

6.4. Acceptance. “Acceptance” for the applicable Services and/or Deliverables shall occur only when: (a) Consultant has corrected, to Denver Water’s satisfaction, all Defects identified by the Parties during testing; (b) Consultant has provided to Denver Water all Services and/or Deliverables required to be provided to Denver Water pursuant to the applicable Statement of Work, and each of the Parties has completed all tasks required to be completed by such Party that are identified by the Parties as a pre-condition to Denver Water’s acceptance; and (c) Denver Water notifies Consultant in writing that all testing for the Services and/or Deliverables, or components thereof, as applicable, has been completed successfully in accordance with the terms of this Section 6.4 and the applicable Statement of Work and that the requirements of subsections (a) and (b) above have been satisfied to Denver Water’s satisfaction. With respect to Statements of Work involving more than one phase or rollout, the testing and acceptance process may be conducted on a per-phase/rollout basis, with final Acceptance occurring only upon successful completion and Acceptance of each phase/rollout, as mutually agreed by the Parties, set forth in the applicable Statement of Work, and set forth in writing by Denver Water serving as notification of Denver Water’s final Acceptance. Nothing else, including Denver Water’s use of the Services and/or Deliverables, or any components thereof, in a live, operational environment, shall constitute Acceptance (under applicable state contract law, the Uniform Commercial Code (UCC) or the Uniform Computer Information Transactions Act (UCITA), as adopted by Colorado) of any portion of the Services and/or Deliverables, and/or the applicable Statement of Work.

6.5. Failure to Achieve Acceptance. In the event Acceptance is not achieved within ninety (90) days following commencement of Production Testing, Denver Water shall have the right to declare an Event of Default and seek the rights and remedies available to it under Article 9 (Term and Termination) of this Agreement. Without limiting the foregoing, the Parties hereby acknowledge and agree that, upon the occurrence of such event with respect to the Statement of Work, Denver Water may elect to terminate this Agreement without any liability to the Consultant and the Consultant shall fully refund any and all fees, expenses, and amounts paid to Consultant in connection with or related to the applicable Statement of Work within fourteen (14) days of such termination.

6.6. Post-Acceptance Correction of Defects. Consultant shall correct any Defects in the Services and/or Deliverables, or any components thereof, remaining to be corrected following Acceptance under the applicable Statement of Work.

ARTICLE 7—REPRESENTATIONS AND WARRANTIES

7.

7.1. Deliverables Functionality and Performance. Consultant represents and warrants to Denver Water that the Deliverables provided under this Agreement shall: (a) conform to and perform in accordance with the functionality and specifications set forth the applicable Statement of Work(s), Documentation, Specifications, Service Levels and Performance Standards; (b) for the period of time specified in the applicable Statement of Work or, if no time frame for a warranty is specified therein, one (1) year from the date of Acceptance (the “Warranty Period”) operate without Defect in accordance with the applicable Documentation, Specifications, Service Levels, Interoperability Requirements and Performance Standards; and (c) shall be updated, maintained, and/or corrected as needed to meet (a) and (b). Consultant further represents and warrants that Deliverables shall perform in accordance with the purposes for which the Deliverables were designed and intended to be used by Denver Water (as such intended use is generally described in the Consultant Proposal and in the applicable Statement of Work), it being acknowledged and agreed that Denver Water selected Consultant to provide the Deliverables based, in part, on Consultant’s representations that the Deliverables are capable of meeting Denver Water’s needs. Consultant shall correct, at no additional cost or expense to Denver Water, any failure of the applicable Deliverables to operate in accordance with the warranties set forth above. If additional software, equipment and/or services are required to remedy the failure, Consultant shall provide to Denver Water, at no additional cost or expense to Denver Water, the additional software, equipment and/or services required for the Deliverables to operate in accordance with the warranties set forth above. In the event Consultant is unable to correct such failure within thirty (30) days after receiving notice thereof, an Event of Default shall be deemed to have occurred. This warranty shall survive the expiration or termination of this Agreement for the applicable Warranty Period. Furthermore, Consultant represents that all Deliverables provided under this Agreement are original or a license to the same has been obtained for Denver Water as required in this Agreement, will perform for the purpose intended, and, if software, contain no malware or undisclosed means of access. This Warranty shall survive the expiration or termination of this Agreement.

7.2. Ability to Perform the Services. Consultant represents and warrants to Denver Water that Consultant has the skills, resources, and expertise to provide and shall provide all Services in accordance with the terms and conditions of this Agreement. Without limiting the generality of the foregoing, Consultant represents and warrants to Denver Water that: (a) all Services provided under this Agreement shall be provided in a timely, professional, and workmanlike manner consistent with the highest industry standards of quality and integrity; provided, however, that where this Agreement specifies a particular standard or criteria for performance, this warranty is not intended to and does not diminish that standard or criteria for performance; and (b) other than the applicable fees set forth in Article 8 (Price and Payment), no additional cost or expense shall be required of Denver Water in order for Consultant to be able to provide the Services as required under this Agreement.

7.3. Intellectual Property. Consultant further represents and warrants to Denver Water that the Services and/or Deliverables and Denver Water’s use of the Services and/or Deliverables does not and shall not infringe upon any Intellectual Property Rights of any Third Party, and there is currently no actual or threatened suit against Consultant by any Third Party based on an alleged violation of such Intellectual Property Rights. This warranty shall survive the expiration or termination of this Agreement.

7.4. Disabling Code. Consultant represents and warrants to Denver Water that the Deliverables do not contain and will not receive from Consultant’s data transmission via modem or any other Consultant medium any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design that would erase data or programming or otherwise cause the Deliverables to become inoperable or incapable of being used in the full manner for which it was designed and created (collectively, a “Disabling Code”). In the event a Disabling Code is identified, Consultant shall take all steps necessary, at no additional cost or expense to Denver Water, to: (a) restore and/or reconstruct any and all Confidential Information and data lost by Denver Water as a result of such Disabling Code; (b) furnish to Denver Water a new copy of the Deliverables without the presence of Disabling Codes; and (c) install and implement such new copy of the Deliverables. This warranty shall survive any expiration or termination of this Agreement until Denver Water discontinues its use of the applicable Deliverables.

7.5. Open Source. Unless otherwise agreed by the Parties in writing, Consultant represents and warrants to Denver Water that the Deliverables provided pursuant to this Agreement shall not contain any “Open Source”. For purposes of this Agreement, “Open Source” means any software code that: (a) contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software, shareware (e.g., Linux), or similar licensing or distribution models; and (b) is subject to any agreement with terms requiring that such software code be (i) disclosed or distributed in Source Code or Object Code form, (ii) licensed for the purpose of making derivative works, and/or (iii) redistributable. Open Source includes, but is not limited to, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (A) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (B) the Artistic License (e.g., PERL); (C) the Mozilla Public License(s); (D) the Netscape Public License; (E) the Berkeley software design (BSD) license including Free BSD or BSD-style license; (F) the Sun Community Source License (SCSL); (G) an Open Source Foundation License (e.g., CDE and Motif UNIX user interfaces); (H) the Apache Server license; and (I) any licenses listed at http://www.opensource.org/licenses.

7.6. Information Furnished to Denver Water. Consultant represents and warrants to Denver Water that all written information (including financial information) furnished to Denver Water prior to the Effective Date by or on behalf of Consultant in connection with this Agreement, including in the Consultant Proposal, and all the information made a part of this Agreement is true, accurate and complete, and contains no untrue statement of a material fact or omits any material fact necessary to make such information not misleading.

7.7. Third Party Warranties and Indemnities. For any Third Party software provided by Consultant to Denver Water, Consultant hereby assigns to Denver Water all end-user warranties and indemnities relating to such Third Party software. To the extent that Consultant is not permitted to assign any of such end-user warranties and indemnities through to Denver Water, Consultant shall enforce such warranties and indemnities on behalf of Denver Water to the extent Consultant is permitted to do so under the terms of the applicable Third Party agreements. The Consultant obligations set forth in this Section 7.7 are in addition to and not in lieu of Consultant’s warranty and indemnification obligations, responsibilities and liabilities with regard to such Third Party software under this Article 7 (Representation and Warranties) and Article 11 (Indemnification) and Article 12 (Insurance). This warranty shall survive the expiration or termination of this Agreement.

7.8. Warranty Disclaimer. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EACH PARTY’S ONLY WARRANTIES AND NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WILL APPLY. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, CONSULTANT SPECIFICALLY EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

ARTICLE 8—PRICE AND PAYMENTS

8.

8.1. Total Charges. Consultant’s charges for the Services shall all be set forth in this Article 8 and/or in the applicable Statement of Work. Such charges are the total charges for the Services, and no other fees, costs, or expenses may be charged to Denver Water. Consultant has not received and will not receive any other compensation in connection with this Agreement. Consultant warrants that it has not paid or promised to pay any compensation to anyone in order to obtain this Agreement.

8.2. Time and Method of Payment. All amounts payable under this Agreement shall be payable in U.S. Dollars. Denver Water shall pay all net undisputed amounts due to Consultant under this Agreement within thirty (30) days of Denver Water’s receipt of Consultant’s invoice. Denver Water may delay payment until it can verify the accuracy of the invoice, obtain releases or waivers with respect to Services covered in the invoice (and with respect to Colo. Rev. Stat. Article 26 of Title 38 if applicable), or resolve a dispute with the Consultant regarding an invoice. Denver Water will not issue payments unless Consultant has current insurance coverage in accordance with this Agreement. Consultant shall submit invoices following completion of each Critical Path Milestone OR on a monthly basis (but not until the last day of each month during which Services and/or Deliverables were delivered).

8.3. Fees. The rates for all Services rendered and/or Deliverables provided by Consultant to Denver Water shall be payable as set forth herein and/or in the applicable Statement of Work. The applicable Statement of Work and each invoice submitted pursuant to this agreement shall detail the following: (a) the Services performed (e.g., each activity, task and/or Critical Path Milestone); (b) the identity of the Consultant Personnel performing the Services; (c) the number of hours and corresponding fees attributable to each such person’s performance of the Services for the pay period; and (d) such other information as reasonable requested by Denver Water. Consultant must submit documentation supporting the charges in the invoice, which must be consistent with this Agreement, and must include the contract number of this Agreement on each invoice. The Parties agree that payments to Consultant for Services shall be invoiced as follows:

SELECT ONE OR MORE OF THE APPLICABLE CHOICES BELOW AND DELETE THE REST.

CHOICE 1 – if the Consultant is to be paid based on hourly/time-and-materials basis.

8.3.1. Time-and-Materials Services. All Services and/or Deliverables identified in a Statement of Work to be paid on a time-and-materials basis shall be invoiced in accordance with the terms set forth in this Article 8. The applicable Statement of Work shall identify no less than three (3) Critical Path Milestones.