HomeMy WebLinkAboutresolution.council.142-19 RESOLUTION #142
(Series of 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT WITH HEXAWARE
TECHNOLOGIES LIMITED TO IMPLEMENT APCHA'S HOMETREK
AUTOMATION PROJECT
WHEREAS, there has been submitted to the City Council a Contract between
Aspen/Pitkin County Housing Authority (APCHA) and Hexaware for APCHA's
HomeTrek automation project a true and accurate copy of which is attached hereto as
Exhibit "A";
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves the contract with
Hexaware for the HomeTrek automation project for the Aspen/Pitkin County Housing
Authority, between APCHA and Hexaware, a copy of which is annexed hereto and
incorporated herein, and does hereby authorize the City Manager, Sara Ott, to execute
said agreement on behalf of the Aspen/Pitkin County Housing Authority and the City
of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 17th day of December 2019.
Torre, ayor
I, Linda Manning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council of
the City of Aspen, Colorado, at a meeting held, December 17, 2019.
c .r,-4
Nicole Henning, Ci Clerk
k►
CITY OF ASPEN STANDARD FORM OF AGREEMENT v 2009 CITY OF ASPEN
PROFESSIONAL SERVICES
City of Aspen Contract No.: ,019-50744-2.
AGREEMENT made as of 17°i day of December, in the year 2019
BETWEEN the City:
Contract Amount:
The City ol"Aspen
c/o Aspen Pitkin County I lousing Authority
130 South Galena Street Total: $678,535.00
Aspen, Colorado 8161 !
Phone: (970) 920-5079
If this Agreement requires the City to pay
And the Professional: an amount of money in excess of
$50,000.00 it shall not be deemed valid
1 Icxaware Technologics Limited until it has been approved by the City
Registered Office Address: Council of the City of Aspen.
Building# 152, City Council Approval:
Millennium Business Park, Sector- I11, `
Block, 'FIV Industrial Arc<<, Mahape, Date:
Navi Mumbai - 400710 Resolution No.:
For the Following Project:
Software for a housing information Eilanagcment system called i-fume"ureic
Exhibits appended and made a part of this Agreement:
Exhibit A: Scope oP Work.
Exhibit B: lee and Expense Schedule.
I?xhibit C: Requirements Matrix
Exhibit D: City of Aspen R111.
?,.xllibit F: Ilexaware Proposa!
i_?xhibit F: Cloud Securiiy Reduiremcnts
Agreement Professional Services Page 0
The City and Professional agree as set forth below.
1. Scope of Work. Professional shall perform in a competent and professional manner the
Statement of Work as set forth at Exhibit A attached hereto and by this reference incorporated
herein.
2. Completion: Standard of Performance. Professional is obligated to fulfill the full Scope
of Work included in this contract. Professional shall commence Work immediately upon receipt of
a written Notice to Proceed from the City and complete all phases of the Scope of Work as
expeditiously as is consistent with professional skill and care and the orderly progress of the Work
in a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be
completed no later than December 31,2020. Upon request of the City, Professional shall submit, for
the City's approval, a schedule for the performance of Professional's services which shall be
adjusted as required as the project proceeds, and which shall include allowances for periods of time
required by the City's project manager for review and approval of submissions and for approvals of
authorities having jurisdiction over the project. This schedule, when approved by the City, shall not,
except for reasonable cause,be exceeded by the Professional.
Except as may otherwise be provided in a Scope of Work, the City shall have the right to
promptly test and inspect whether each deliverable due under a Scope of Work (each, a
"Deliverable") conforms to the requirements of this Agreement and the applicable Scope of
Work ("Specifications") and Proposal in all material respects. If a Deliverable does not so
conform, the City must give Professional notice describing the non-conformity ("Rejection
Notice"). The City will provide such Notice within an agreed upon Test Period for each
deliverable, the time period of which will be jointly agreed to by the City and the Professional
for each deliverable. The City will in a timely manner collaborate with the Professional to
establish an Extension to the Test Period,should it be anticipated that the originally agreed to
Test Period will be insufficient for any reason. The Professional shall not unreasonably withhold
such an Extension of a Test Period. Should no Extension of the Test Period be requested by the
City within the originally agreed to Test Period or a subsequent Extension of the Test Period and
should no Reject Notice be received by the Professional from the City within the agreed upon
Test Period or a subsequent Extension Test Period, then the deliverable will be considered to be
accepted. A Request for Extension or a Rejection Notice shall be deemed to be delivered to the
Professional at the date and time it is emailed from the City to the Professional.
Upon receipt of a Rejection Notice, Professional will use commercially reasonable efforts to
cause the Deliverable to conform to the Specifications in all material respects.
The project timelines set forth in this Contract assume that the City and the Professional will
proceed with reasonable efforts to provide timely deliverables, and provide timely and
reasonable feedback, decision-making, access, resources and other such support as may be
needed to successfully complete the Scope of Work. Failure to provide such support, on the part
of either party, may impact the timing of the project.
Except as expressly set forth in this agreement, Professional disclaims all warranties, whether
express, implied or statutory. Professional will not be responsible for nonconformities arising
from inaccurate, inauthentic or incomplete data or information provided by or through the city,
or for failures or delays arising from lack of cooperation. Professional disclaims all
responsibility for the provision, use and functionality of third-party services, software and
products, including salesforce.com. Professional, as the prime contractor, warrants the quality
and functionality of its work, including configurations and customizations it performs as a part of
Agreement Professional Services Page 1
this contract, for a period of 3 months beyond full go-live of the system, defined as go-live of the
last phase of the project. Nothing in this paragraph shall be deemed to excuse Professional from
any liability or consequences due to negligence, from the requirements in Section 4, or from the
responsibility of any other section of this contract.
Professional shall be fully responsible for all acts and omissions of its subcontractors to the same
extent that Professional is responsible for the acts and omissions of persons directly employed by it.
The final deliverables to be provided by Hexaware shall conform to the specifications described
in the Statement of Work. Where such deliverables are reported as not conforming to the
applicable specifications described in the Statement of Work, Hexaware shall correct all such
non-conformances that are reported to Hexaware within a period of 30 (thirty) days (unless a
different period is provided in the Statement of Work) after Hexaware's receipt of a Rejection
Notice associated with such deliverables.
3. Payment. In consideration of the work performed, City shall pay Professional for all work
performed. The fees for work performed by Professional shall not exceed those rates set forth in
Exhibit B appended hereto. Except as otherwise mutually agreed to by the parties the payments
made to Professional shall not initially exceed the amount set forth above. Professional shall submit,
in timely fashion, invoices for work performed. The City shall review such invoices and, if they are
considered incorrect or untimely, the City shall review the matter with Professional within ten days
from receipt of the Professional's bill.
Hexaware shall provide detailed invoices to City including hours and services provided by
resource role and major task. Invoices must include specific details such as: resources, hours
broken down by quarter of the hour, and a description for the work for each line item.
Approved invoices shall be paid NET30.
4. Disputed Fees
In the event that City disputes, in good faith, any charges on an invoice, it shall notify Hexaware
of such dispute within seven business days of the receipt of the respective invoice and the parties
shall resolve the dispute in good faith within fourteen (14) calendar days following City's notice
to Hexaware thereof. The City shall hold back payment on any disputed invoice until all issues
are fully resolved.
5. Fund Availability. Financial obligations of the City payable after the current fiscal year
are contingent upon funds for that purpose being appropriated, budgeted and otherwise made
available. If this Agreement contemplates the City utilizing state or federal funds to meet its
obligations herein, this Agreement shall be contingent upon the availability of those funds for
payment pursuant to the terms of this Agreement.
6. Non-Assignability. Both parties recognize that this Agreement is one for personal services
and cannot be transferred, assigned, or sublet by either party without prior written consent of the
other, except to its wholly owned subsidiaries. Sub-Contracting, if authorized, shall not relieve the
Professional of any of the responsibilities or obligations under this Agreement. Professional shall be
and remain solely responsible to the City for the acts, errors, omissions or neglect of any
subcontractors' officers, agents and employees., each of whom shall, for this purpose be deemed to
be an agent or employee of the Professional to the extent of the subcontract. The City shall not be
obligated to pay or be liable for payment of any sums due which may be due to any sub-contractor
Agreement Professional Services Page 2
Professional shall fully inform each of its permitted subcontractors hereunder of all of the
provisions and requirements of this Agreement relating to the work to be performed and/or the
services or materials to be furnished under such subcontract. Without limiting the generality of
the foregoing, Professional will not disclose any confidential information of the City to any third
party subcontractor unless and until such subcontractor has agreed in writing to protect the
confidentiality of such confidential information in a manner that is no less restrictive than that
required of Professional under this Agreement,and then only to the extent necessary for such
subcontractor to perform the services subcontracted to it.
7. Successors and Assigns. This Agreement and all of the covenants hereof shall inure to
the benefit of and be binding upon the City and the Professional respectively and their agents,
representatives, employee, successors, assigns and legal representatives. Neither the City nor the
Professional shall have the right to assign, transfer or sublet its interest or obligations hereunder
without the written consent of the other party.
8. Third Parties. This Agreement does not and shall not be deemed or construed to confer
upon or grant to any third party or parties, except to parties to whom Professional or City may
assign this Agreement in accordance with the specific written permission, any right to claim
damages or to bring any suit, action or other proceeding against either the City or Professional
because of any breach hereof or because of any of the terms, covenants, agreements or
conditions herein contained.
9. Termination of Professional Services. The Professional or the City may terminate the
Professional Services component of this Agreement, without specifying the reason therefor,by
giving notice of 60 days, in writing, addressed to the other party, specifying the effective date of the
termination;provided,however,that neither party will terminate this Agreement for breach without
first giving the other party 30 days to cure the breach. Upon termination of the Agreement the City
will compensate Professional for fees earned up to the effective date of termination. Breach includes
but may not be limited to negligence, major defects,or repeated moderate defects.
Upon any termination, all finished or unfinished deliverables specified in the Scope of Work (such
as documents,data, studies, surveys, drawings,maps,models,photographs, reports or other material
prepared by the Professional pursuant to this Agreement) shall become the property of the City.
10. Independent Contractor Status. It is expressly acknowledged and understood by the
parties that nothing contained in this agreement shall result in or be construed as establishing an
employment relationship. Professional shall be, and shall perform as, an independent Contractor
who agrees to use his or her best efforts to provide the said services on behalf of the City. No agent,
employee, or servant of Professional shall be, or shall be deemed to be, the employee, agent or
servant of the City. City is interested only in the results obtained under this contract. The manner
and means of conducting the work are under the sole control of Professional. None of the benefits
provided by City to its employees including, but not limited to, workers' compensation insurance
and unemployment insurance, are available from City to the employees, agents or servants of
Professional. Professional shall be solely and entirely responsible for its acts and for the acts of
Professional's agents, employees, servants and subcontractors during the performance of this
contract. Professional shall indemnify City against all liability and loss in connection with, and
shall assume full responsibility for payment of all federal, state and local taxes or contributions
imposed or required under unemployment insurance, social security and income tax law, with
Agreement Professional Services Page 3
respect to Professional and/or Professional's employees engaged in the performance of the services
agreed to herein.
11. Indemnification and Liability Limits. Professional agrees to indemnify and hold harmless
the City, its officers and employees from and against all liability, claims, and demands arising from
bodily injury, personal injury, sickness, disease, death, or tangible property loss or damage, to the
extent and for an amount represented by the degree or percentage such injury, loss, or damage is
caused in whole or in part by, or is claimed to be caused in whole or in part by, gross negligence or
willful misconduct of the Professional, any subcontractor of the Professional, or any officer,
employee, representative, or agent of the Professional or of any subcontractor of the Professional, or
which arises out of any workmen's compensation claim of any employee of the Professional or of
any employee of any subcontractor of the Professional. If it is determined by the final judgment of a
court of competent jurisdiction that such injury, loss, or damage was caused in whole or in part by
the act, omission, or other fault of the City, its officers, or its employees, the City shall reimburse
the Professional for the portion of the judgment attributable to such act, omission, or other fault of
the City, its officers,or employees.
Notwithstanding any provision in this Agreement to the contrary, to the fullest extent permitted by
applicable law, (a) in no event shall either party be liable under this Agreement for special,
consequential, incidental, indirect, punitive or exemplary damages, including any lost data, lost
profits or costs of procurement of substitute goods or services or downtime costs, regardless of
whether such damages are foreseeable or a party has been advised of the possibility of such
damages and notwithstanding any failure of the essential purpose of this Agreement; and (b)
professional's aggregate liability on all claims of any kind arising out of this Agreement, whether
based on contract, warranty, tort, strict liability or otherwise, shall in no event exceed the sum of all
fees paid during the twelve (12) months immediately preceding the date to which such claim arises,
irrespective of the nature of the claim which results in such liability and whether based on contract
or tort or any other theory of law to professional under the applicable SOW as of the date of the
cause of action; provided, however, that neither party's liability shall be limited with respect to
personal injury, tangible property damage or claims or losses premised on such parry's gross
negligence or willful misconduct.
City's Indemnification
To the extent allowed by law, City shall indemnify, defend and hold harmless the Professional and
its directors, officers, employees, agents, Affiliates and subsidiaries against and from all losses,
judgments, damages, claims, liabilities, costs or expenses (including without limitation, reasonable
attorneys' fees and expenses)that may at any time be incurred by any of them:
a) relating to bodily injury, death or real or tangible personal property damage (excluding
software, data and related documentation) resulting from City or City agents' willful
misconduct or gross negligence; and
b) in connection with infringement of any third-party rights caused by any of the
inputs/materials provided by City or breach of any other terms of this Agreement.
c) any breach of confidentiality provisions under this Agreement
12. Professional's Insurance.
Agreement Professional Services Page 4
(a) Professional agrees to procure and maintain, at its own expense, a policy or policies
of insurance sufficient to insure against all liability, claims, demands, and other obligations
of the Professional pursuant to Section 11 above. Such insurance shall be in addition to any
other insurance requirements imposed by this contract or by law. The Professional shall not
be relieved of any liability, claims, demands, or other obligations assumed pursuant to
Section 8 above by reason of its failure to procure or maintain insurance, or by reason of its
failure to procure or maintain insurance in sufficient amounts,duration, or types.
(b) Professional shall procure and maintain and shall cause any subcontractor of the
Professional to procure and maintain, the minimum insurance coverages listed below. Such
coverages shall be procured and maintained with reputed insurers/reinsurers. All coverages
shall be continuously maintained to cover all liability, claims, demands, and other
obligations of the Professional pursuant to Section 8 above. In the case of any claims-made
policy, the necessary retroactive dates and extended reporting periods shall be procured to
maintain such continuous coverage.
(i) Workers' Compensation insurance (only applicable for the service
performed in US)to cover obligations imposed by applicable laws for any employee
engaged in the performance of work under this contract, and Employers' Liability
insurance (only applicable for the service performed in US) with minimum limits of
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00) for each accident, FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) - policy limit, and FIVE
HUNDRED THOUSAND DOLLARS ($500,000.00) disease - each employee.
Evidence of qualified self-insured status may be substituted for the Workers'
Compensation requirements of this paragraph.
(ii) Commercial General Liability insurance with minimum combined single
limits of ONE MILLION DOLLARS ($1,000,000.00) each occurrence and ONE
MILLION DOLLARS ($1,000,000.00) aggregate. The policy shall be applicable to
all premises and operations. The policy shall include coverage for bodily injury,
broad form property damage (including completed operations), personal injury
(including coverage for contractual and employee acts), blanket contractual,
independent contractors, products, and completed operations. The policy shall
contain a severability of interests provision.
(iii) Comprehensive Automobile Liability insurance (only applicable for the
service performed in US) with minimum combined single limits for bodily injury
and property damage of not less than ONE MILLION DOLLARS ($1,000,000.00)
each occurrence and ONE MILLION DOLLARS ($1,000,000.00) aggregate with
respect to each Professional's owned, hired and non-owned vehicles assigned to or
used in performance of the Scope of Work. The policy shall contain a severability of
interests provision. If the Professional has no owned automobiles, the requirements
of this Section shall be met by each employee of the Professional providing services
to the City under this contract.
(iv) Professional Liability insurance with the minimum limits of ONE MILLION
DOLLARS ($1,000,000) each claim and ONE MILLION DOLLARS ($1,000,000)
aggregate.
Agreement Professional Services Page 5
(c) The policy or policies required above (except for Workers Compensation, Employer's
Liability and Professional Liability) shall be endorsed to include the City and the City's
officers and employees as additional insureds. Every policy required above shall be primary
insurance, and any insurance carried by the City, its officers or employees, or carried by or
provided through any insurance pool of the City, shall be excess and not contributory
insurance to that provided by Professional. No additional insured endorsement to the policy
required above shall contain any exclusion for bodily injury or property damage arising
from completed operations. The Professional shall be solely responsible for any deductible
losses under any policy required above.
(d) The certificate of insurance provided to the City shall be completed by the Professional's
insurance agent as evidence that policies providing the required coverages, conditions, and
minimum limits are in full force and effect, that the Professional confirm that the coverages
afforded under the policies shall not be canceled, terminated or materially changed until at
least thirty(30) days prior written notice has been given to the City.
(e) Failure on the part of the Professional to procure or maintain policies providing the
required coverages, conditions, and minimum limits shall constitute a material breach of
contract upon which after providing 15 days prior notice to Professional, City may at its
discretion procure or renew any such policy or any extended reporting period thereto and
may pay any and all premiums in connection therewith, and all monies so paid by City shall
be repaid by Professional to City upon demand, or City may offset the cost of the premiums
against monies due to Professional from City.
(f) The parties hereto understand and agree that City is relying on, and does not waive or
intend to waive by any provision of this contract, the monetary limitations (presently
$350,000.00 per person and $990,000 per occurrence) or any other rights, immunities, and
protections provided by the Colorado Governmental Immunity Act, Section 24-10-101 et
seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or its
employees.
13. City's Insurance. The parties hereto understand that the City is a member of the Colorado
Intergovernmental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Proper-
ty/Casualty Pool. Copies of the CIRSA policies and manual are kept at the City of Aspen Risk
Management Department and are available to Professional for inspection during normal business
hours. City makes no representations whatsoever with respect to specific coverages offered by
CIRSA. City shall provide Professional reasonable notice of any changes in its membership or
participation in CIRSA.
14. Completeness of Agreement. It is expressly agreed that this agreement contains the entire
undertaking of the parties relevant to the subject matter thereof and there are no verbal or written
representations, agreements, warranties or promises pertaining to the project matter thereof not
expressly incorporated in this writing.
If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not
affect or impair the validity, legality or enforceability of any other provision.
15. Waiver. The waiver by the City of any term, covenant, or condition hereof shall not
operate as a waiver of any subsequent breach of the same or any other term. No term, covenant, or
Agreement Professional Services Page 6
condition of this Agreement can be waived except by the written consent of the City, and
forbearance or indulgence by the City in any regard whatsoever shall not constitute a waiver of any
term, covenant, or condition to be performed by Professional to which the same may apply and,
until complete performance by Professional of said term, covenant or condition, the City shall be
entitled to invoke any remedy available to it under this Agreement or by law despite any such
forbearance or indulgence.
16. Integration and Modification
This written Agreement along with the Statement of Work in the Professional's Proposal, and the
Request for Proposals shall constitute the contract between the parties and supersedes or
incorporates any prior written and oral agreements of the parties. In addition, Professional
understands that no City official or employee, other than the City Council acting as a body at a
council meeting, has authority to enter into an Agreement or to modify the terms of the
Agreement on behalf of the City.
The parties acknowledge and understand that there are no conditions or limitations to this
understanding except those as contained herein at the time of the execution hereof and that after
execution no alteration, change or modification shall be made except upon a writing signed by the
parties.
Modifications to the Statement of Work shall be mutually agreed upon in writing between the
parties and will be governed by the terms and conditions of this Agreement. Changes in scope will
include modifications to the Statement of Work and any applicable milestone payments, with the
exception of clarifications of the details of the scope, or substantially equal substitutions.
Professional shall not be obligated to provide the work required by a change in the statement of
work until such time as a change order is agreed to in writing by both the Professional and the City.
Any work outside the scope of the agreement and done so prior to the mutual agreement in writing
of a change order is done at the Professional's sole expense. Minor changes associated with the
finalization and clarification of requirements as occurs during the design phase of the project will
not result in additional expense to the City, nor will substantially equal substitutions.
17. Notice. Any written notices as called for herein may be hand delivered or mailed by certified
mail return receipt requested to the respective persons and/or addresses listed herein:
Hexaware Technologies Limited City of Aspen
Attn: Ayesha Nair Attn: Mike Kosdrosky, Exec. Dir. APCHA
Address 130 S. Galena Street
Building# 152, Aspen, CO 81611
Millennium Business Park, Sector-111, ` mike.kosdrosky@cityofaspen.com
A' Block, TTC Industrial Area, Mahape
Navi Mumbai -400710
Email: ayeshan@hexaware.com
18. Illeizal Aliens—CRS 8-17.5-101 & 24-76.5-101.
(a) Purpose. During the 2006 Colorado legislative session, the Legislature passed
House Bills 06-1343 (subsequently amended by HB 07-1073) and 06-1023 that added
new statutes relating to the employment of and contracting with illegal aliens. These new
Agreement Professional Services Page 7
laws prohibit all state agencies and political subdivisions, including the City of Aspen,
from knowingly hiring an illegal alien to perform work under a contract, or to knowingly
contract with a subcontractor who knowingly hires with an illegal alien to perform work
under the contract. The new laws also require that all contracts for services include
certain specific language as set forth in the statutes. The following terms and conditions
have been designed to comply with the requirements of this new law.
(b) Definitions. The following terms are defined in the new law and by this reference
are incorporated herein and in any contract for services entered into with the City of
Aspen.
"Basic Pilot Program" means the basic pilot employment verification program
created in Public Law 208, 104th Congress, as amended, and expanded in Public
Law 156, 108th Congress, as amended, that is administered by the United States
Department of Homeland Security.
"Public Contract for Services"means this Agreement.
"Services" means the furnishing of labor, time, or effort by a Contractor or a
subcontractor not involving the delivery of a specific end product other than
reports that are merely incidental to the required performance.
(c) By signing this document, Professional certifies and represents that at this time:
(i) Professional shall confirm the employment eligibility of all employees who
are newly hired for employment in the United States; and
(ii) Professional has participated or attempted to participate in the Basic Pilot
Program in order to verify that new employees are not illegal aliens.
(d) Professional hereby confirms that:
(i) Professional shall not knowingly employ or contract new employees
without confirming the employment eligibility of all such employees hired for
employment in the United States under the Public Contract for Services.
(ii) Professional shall not enter into a contract with a subcontractor that fails to
confirm to the Professional that the subcontractor shall not knowingly hire new
employees without confirming their employment eligibility for employment in the
United States under the Public Contract for Services.
(iii) Professional has verified or has attempted to verify through participation
in the Federal Basic Pilot Program that Professional does not employ any new
employees who are not eligible for employment in the United States; and if
Professional has not been accepted into the Federal Basic Pilot Program prior to
entering into the Public Contract for Services, Professional shall forthwith apply
to participate in the Federal Basic Pilot Program and shall in writing verify such
application within five (5) days of the date of the Public Contract. Professional
shall continue to apply to participate in the Federal Basic Pilot Program and shall
in writing verify same every three (3) calendar months thereafter, until
Professional is accepted or the public contract for services has been completed,
Agreement Professional Services Page 8
whichever is earlier. The requirements of this section shall not be required or
effective if the Federal Basic Pilot Program is discontinued.
(iv) Professional shall not use the Basic Pilot Program procedures to undertake
pre-employment screening of job applicants while the Public Contract for
Services is being performed.
(v) If Professional obtains actual knowledge that a subcontractor performing
work under the Public Contract for Services knowingly employs or contracts with
a new employee who is an illegal alien, Professional shall:
(1) Notify such subcontractor and the City of Aspen within three days
that Professional has actual knowledge that the subcontractor has newly
employed or contracted with an illegal alien; and
(2) Terminate the subcontract with the subcontractor if within three
days of receiving the notice required pursuant to this section the
subcontractor does not cease employing or contracting with the new
employee who is an illegal alien; except that Professional shall not
terminate the Public Contract for Services with the subcontractor if during
such three days the subcontractor provides information to establish that the
subcontractor has not knowingly employed or contracted with an illegal
alien.
(vi) Professional shall comply with any reasonable request by the Colorado
Department of Labor and Employment made in the course of an investigation that
the Colorado Department of Labor and Employment undertakes or is undertaking
pursuant to the authority established in Subsection 8-17.5-102 (5), C.R.S.
(vii) If Professional violates any provision of the Public Contract for Services
pertaining to the duties imposed by Subsection 8-17.5-102, C.R.S. the City of
Aspen may terminate the Public Contract for Services. If the Public Contract for
Services is so terminated, Contractor shall be liable for actual and consequential
damages to the City of Aspen arising out of Professional's violation of Subsection
8-17.5-102, C.R.S.
19. Confidentiality. Certain information furnished or disclosed by Professional or the City
(the "Disclosing Party") to the other (the "Receiving Party") in connection with the performance
of their respective obligations under this Agreement may contain or reflect confidential
information with respect to the disclosing party. "Confidential Information" means all
information disclosed by the Disclosing Party to the Receiving Party under this Agreement that
is clearly marked or otherwise clearly designated as "confidential" or that is or should reasonably
be understood by the Receiving Party to be confidential. The Disclosing Party's Confidential
Information shall not include any information that: (i) is or becomes part of the public domain
through no act or omission of the other party; (ii) the Receiving Party can demonstrate was in its
lawful possession prior to the disclosure and had not been obtained by it either directly or
indirectly from the Disclosing Party; (iii) the Receiving Party can demonstrate was
independently developed by the Receiving Party without access to the party's Confidential
Information; or (iv) the Receiving Party can demonstrate was received from a third party without
Agreement Professional Services Page 9
breach of any confidentiality obligation. To the extent permitted by public disclosure laws, the
Receiving Party agrees, for the Term and 3 years thereafter, to hold the Disclosing Party's
Confidential Information in strict confidence, not to disclose such Confidential Information to
third parties not authorized by the Disclosing Party to receive such Confidential Information, and
not to use such Confidential Information for any purpose except to perform its obligations under
this Agreement. The foregoing prohibition on disclosure of Confidential Information shall not
apply to the extent Confidential Information is required to be disclosed by the Receiving Party as
a matter of law or by order of a court, provided that: (i) the Receiving Party uses reasonable
efforts to provide the Disclosing Party with prior notice of such obligation to disclose to allow
the Disclosing Party to obtaining a protective order from such disclosure; and (ii) the Receiving
Party only discloses that portion of Confidential Information which it reasonably believes, based
on the advice of counsel, is required to be disclosed.
20. Technical Support and Personnel
(a) Representative: Hexaware and City shall each appoint appropriate representatives to deal
with operational services and transitions as may be necessary for the purpose of implementing
this Agreement.
(b) Personnel. Hexaware shall recruit and maintain personnel (i) adequately trained and skilled
to perform its obligations under this Agreement and (ii) possessing at least such training,
knowledge and experience as is regarded as industry standard in the provision of the tasks to
which they are assigned. The City shall have the opportunity to interview onshore (U.S. based)
personnel to determine fit with the project and team. The City reserves the right to request new
personnel at any point during the project at Hexaware's expense. Hexaware shall bear the cost to
train and/or familiarize new personnel regardless of the circumstances for having to do so.
(c) Rotation Policy: It is agreed by the parties that on completion of 17 months term on a project,
Hexaware may replace any of its personnel (whether offshore (India) or Nearshore (Mexico) or
Onsite (other than India or Mexico) for such personnel's professional development and growth,
without affecting the services rendered by such personnel. Hexaware shall ensure that such
personnel is replaced by another personnel of equivalent skills and capabilities at their expense.
Any such removal shall be effective after thirty (30) days' notice by Hexaware to City.
Hexaware shall assign a suitable replacement resource to perform the services within thirty days
prior to such replacement to provide a smooth knowledge transfer.. The City shall not bear the
cost for bringing new personnel on or up to speed on the project.
(d) City shall have the right to request and receive different staffing for any reason, or should it
become apparent that the communication skills of the staff, as evidenced by misunderstandings
or miscommunication of requirements and information, or by excessive errors in the setup of the
system. Hexaware shall assign a suitable replacement resource to perform the services within
two weeks of the request for change in personnel with the City's approval. Hexaware shall incur
the cost for training and/or familiarizing new personnel.
21. Phases of the Statement of Work
If the City has imposed life cycle definitions that should be referred to here.
Each phase of the contract along with the deliverables and the duration/delivery date for the
respective phase shall be clearly defined in the Statement of Work.
Agreement Professional Services Page 10
22. Mode of Delivery
Softcopy
23. Acceptance Criteria
Acceptance criteria are the specific results expected of the delivered system and include the
business functions described in the final scope of work, and are intended to assure the software,
after implementation, satisfies the technical requirements on usability, performance,
compatibility and security. These criteria will be used by the City to guide its decision-making
regarding whether to reject deliverables but may not be the only basis upon which rejection
occurs.The acceptance criteria include, but are not limited to:
• For any service failures related to severity 1 and 2 and as identified in each respective
SOW
• Successful (error-free) execution of all functional test cases developed for acceptance
testing
• Successful (defect-free) completion of all agreed-upon requirements in the SOW
• System response times that are within Salesforce and other third-party system parameters,
such that time out or other errors are avoided and significant delays in processing do not
otherwise occur
• Successful passing of system security tests, as initiated by or requested by the City.
• Successful passing of tests related to individual user permissions and security.
• System stability, as reflected by consistent performance and results over time, and
robustness to Salesforce updates
• Development should be completed in sandbox developer orgs. A Full Sandbox should be
used as a staging environment. Overall test class coverage of the Full Sandbox and the
Production org must meet 90% code coverage. All developer orgs will be deployed into
the Full Sandbox prior to deployment into Production. A Production deployment of new
functionality will not be made until the Full Sandbox reaches a 90% code coverage.
"Customer agrees to notify Hexaware of its acceptance and/or rejection of the
deliverables/services within ten (10) business days or any other time period as may be agreed in
the respective SOW from the date of the delivery/services provided, failing which the same shall
be deemed accepted by the Customer." In the event the Customer is unable to provide acceptance
or rejection within 10 days, the Customer can extend the deliverable review time by informing
Hexaware in writing within the 10 day period that more time is needed.
24. Professional's Responsibilities
• To appoint suitable Project Manager(s) and team of consultants as required for the
project.
• To adhere to the time schedules, quality expectations and budget specified.
• To obtain necessary sign-off/acceptances from the City.
• To report the ongoing status of the project to the City.
• To define standards and procedures to be used
• To effectively communicate requirements and standards to the technical team
• To assure the technical team accurately and efficiently codes/customizes the system
Agreement Professional Services Page 1 1
• To assure that solutions meet performance and other requirements of the Salesforce
product and any other product used in development
• To assure that deliverables are ready for user testing prior to sending them to the City
• To resolve bugs and issues in a timely manner, per the parameters of Section 2 of this
agreement
• To maintain historic versions (where applicable)
• To deliver a fully functional reliable system that meets the Acceptance Criteria in Section
23
25. City's Responsibilities
• To identify and depute suitable person(s) for coordination with Hexaware.
• To provide information to Hexaware pertaining to City organization, procedures, existing
system wherever applicable.
• To provide necessary Tools/Facilities to Hexaware where mutually agreed upon.
• To inform Hexaware immediately about any factors possibly affecting the scope of the
project or its successful implementation.
• To protect Hexaware proprietary information if applicable
• To prepare the acceptance plan and perform acceptance testing
• To communicate testing success or rejection in a timely manner, per the parameters of
Section 2 of this agreement
26. Joint Responsibilities
• To conduct joint reviews of the project at the mutually agreed stages.
• To co-operate and ensure timely, free flow of information
• Additional joint responsibilities as specified in the SOW, particularly with respect to
communication and project management
27. Ownership of Work Product& Intellectual Property Rights.
Hexaware IPRs
Hexaware will retain all rights in Hexaware Intellectual Property Rights (IPR)s. Hexaware will
obtain the prior written approval of City for using Hexaware IPRs in the performance of the
Services. Upon introduction of any Hexaware IPRs in providing the Services, Hexaware will
grant City rights of access to, and use of, Hexaware IPRs during the performance of the Services
solely as necessary for reviewing the results of the Services, at terms and conditions as mutually
agreed. At the expiration or upon any whole or partial termination of this Agreement, Hexaware
will provide City, solely in connection with City's use of the deliverables resulting from the
Services, a perpetual, irrevocable, fully paid-up, non-exclusive license to use, Hexaware IPRs
and to sublicense such rights to other entities solely for the purpose of providing services to City,
and to the extent the same is incorporated in the final deliverables. For the sake of clarity, parties
agree that at all times Hexaware IPR)'s shall remain embodied in the final deliverables and will
not be used on a stand-alone basis. Any Hexaware IPRs incorporated into the deliverables are
provided on an as-is basis and Hexaware disclaims all warranties (including warranties of
support) in respect thereof. If City requests support for the Hexaware IPRs and Hexaware, in its
sole discretion, agrees to provide such support, then the Parties will mutually agree on applicable
terms for Hexaware's support of such Hexaware IPRs after completion of the Services. Should a
Agreement Professional Services Page 12
Hexaware IPR fail and should Hexaware neglect to provide support for it's failed IPR, then
Hexaware releases the City from the requirements of this section and agrees that the City may
contract with any other vendor to seek to remedy the failure in the malfunctioning IPR.
Third Party IPRs
Hexaware will obtain the prior written approval of City for using any Third Party IPRs in the
performance of the Services. Prior to introducing any Third Party IPRs in providing the
Services, Hexaware will ensure that City has the right to purchase ongoing maintenance and
support for such Third Party IPRs on commercially reasonable terms; provided, however, that
Hexaware's obligation set forth in (i) shall be one of commercially reasonable efforts if and only
if the Third Party IPRs are generally commercially available. To the extent that Hexaware is
unable to fulfill such obligations, Hexaware shall notify City in writing of its inability to grant
City such a license and of the cost and viability of other Third Party IPRs that can perform the
requisite functions and with respect to which Hexaware has the ability to grant such a license.
Hexaware shall not be liable for any claims of infringement in cases of Third Party IPRs.
Rights in Developed Works.
Works developed by Hexaware or its subcontractors exclusively for City under this Agreement
will be considered "works made for hire" for City (each of such Works a "Developed Work").
Such Developed Works shall, subject to any rights that the Hexaware may have in Hexaware
IPRs or other third parties may have in Third Party IPRs, belong exclusively to City with City
having the sole right to obtain, hold and renew, in its own name and/or for its own benefit, any
domestic and foreign intellectual property rights in such Developed Works (including patents,
copyrights, registrations, and other appropriate intellectual property or other protections),
excluding any pre-existing Hexaware Intellectual Property Rights (IPR)s. . Hexaware may use
such Developed Works solely to provide the Services during the Term.
To the extent that exclusive title and/or ownership rights in the Developed Works may not
originally vest in City as contemplated by the foregoing (e.g., may not be deemed works made
for hire), Hexaware shall, subject to the rights of Hexaware, irrevocably assign, transfer and
convey to City or its designees all right, title, interest and ownership therein and subject to
receipt of all or any pending payments / dues / expenses under this Agreement.. Hexaware and
its employees and agents shall give City or its designees, all reasonable assistance and execute all
documents necessary to assist or enable City or its designees to file and prosecute applications
for, and to acquire, maintain and enforce, all patents, trademarks and copyrights with respect to
such Developed Works, perfect, preserve, register or record their rights in any such Developed
Works. All costs and expenses related to such transfer/assignment and execution of the copyright
in City's name shall be borne by the City.
Cit.. IPRs
City shall have the absolute and exclusive proprietary rights to all of City IPRs. Hexaware
acknowledges that any and all of City IPRs is and shall remain the property of City and shall not
during or at any time after the expiry or termination of this Agreement in any way question or
dispute the ownership or any such rights.
Hexaware will use City IPRs only with the consent of City during the performance of the
Services. Upon completion or earlier termination of the Services, Hexaware shall forthwith
discontinue such use, without receipt of compensation for such discontinuation.
Agreement Professional Services Page 13
Hexaware shall not during or after the expiry or termination of this Agreement, without the prior
written consent of City, use or adopt any name, trade name, trading style or commercial
designation that includes or is similar to or may be mistaken for the whole or any part of any
trade mark, trade name, logo, trading style or commercial designation of City.
Hexaware will grant a duly authorized representative of City upon reasonable prior notice, a
right to enter any of Hexaware's premises for the purposes of verifying that the provisions of this
Agreement (including in particular compliance with this Article are being complied with.
Residual Knowledge
Nothing contained in this Agreement shall restrict either party from the use of any general ideas,
concepts, know-how, methodologies, processes, technologies, algorithms or techniques retained
in the unaided mental impressions of such party's personnel relating to the Services which either
party, individually or jointly, develops or discloses under this Agreement ("Residual
Knowledge"); provided, however, that in doing so such party does not (a) infringe the
intellectual property rights of the other party or third parties who have licensed or provided
materials to the other party, or(b) breach its confidentiality obligations under this Agreement.
28. Network Access, Software & Tools
Professional represents that its security measures do, and will at all times, comply with the
security requirements per Exhibit F. Professional represents that its security measures do, and
will at all times, comply with the security requirements as outlined in Exhibit C (the
requirements) and with Section 29 below, and with industry-standard and up to date security
tools, technologies and procedures, to protect the City's network, software and tools. At its
discretion, the City may require additional specific security measures to protect its network
access, software and tools. Hexaware agrees to comply with all such provisions in the course of
its work.
29. Data Protection
The City of Aspen, 130 S Galena, Aspen, CO hereinafter to be referred to as"Controller";
and
Hexaware Technologies Limited
Registered Office Address:
Building# 152,
Millennium Business Park, Sector-III, `
A' Block, TTC Industrial Area, Mahape,
Navi Mumbai-400710
and its affiliates, hereinafter referred to as "Processor";
Controller and the Processor are hereinafter jointly referred to as the "Parties" and individually
as the "Party". The Professional (the Processor) warrants that the hosted solution proposed
herein includes security best practices that will protect the privacy of the City's data.
Agreement Professional Services Page 14
The purpose of this Data Protection section is to describe the work to be carried out by the
Processor in relation with the Agreement. This Data Protection forms an integral part of the
Agreement hereof and shall be deemed to take effect from the Effective Date and shall continue
in full force and effect until the termination of the Agreement. It is hereby agreed as follows:
Definitions
Terms defined in this agreement between Controller and Processor shall have the same meaning.
In addition, the definitions below apply in this Data Protection Section are:
GDPR: Is a regulation with the intent to strengthen and unify data protection
for individuals within the European Union (EU), Which replaces the
Data Protection Directive (95/46/EC) from 25th May 2018
Personal Data: means personal data as defined in the GDPR that the Processor
processes on behalf of Controller in connection with the Agreement.
Unless otherwise specified, all references to the GDPR shall be
understood to be references to the applicable local equivalent which
implements said reference into local law. If there is a discrepancy
between GDPR and Colorado State Statutes on personally
identifiable information(PII) (also called Personal Data in this
agreement),the Colorado statute takes precedence
Subject and Term
The purpose of this Data Protection is to describe the work to be carried out by the Processor in
relation with the Agreement. This Data Protection forms an integral part of the Agreement hereof
and shall be deemed to take effect from the Effective Date and shall continue in full force and
effect until the termination of the Agreement.
Statement of Work
The purpose for the collection, processing and use of the Personal Data from Controller is to
provide the services as described in the Agreement, which forms an integral part hereof. The
accessing and processing of the Personal Data will take place from any one or more
Development Centers of the Processor that are located in India, Mexico, US and EU to carry out
activities as per this agreement with adequate security controls. Any data transfer to a third
country or country other than the United States, requires the prior approval of the Controller.
The processing of the Personal Data by the Processor shall take place only to the extent that
Controller has instructed the Processor to do so in relation with the Agreement. The Processor
processes the Personal Data on behalf of Controller. Modifications to the processing of Personal
Data under the Agreement are subject to mutual agreement. The Processor shall not use the
Personal Data for any other purpose.
Types of Data
The Controller has defined that the following data categories, including but not limited to those
listed below, will be collected, processed and used by the Processor under this agreement
Agreement Professional Services Page 15
Addition and/or deletion will be made by the Parties as and when required and mutually agreed
to
❑ Name, Title, Personal Mailing Address
Personal Physical Address
❑ Professional, commercial or business addresses
Business Mailing Address
Business Physical Address
❑ Date/Year/Birth Date
❑ Telephone Number
❑ Email Address
❑ Photo
❑ Financial information
❑ Employment information
❑ Income and Federal, State and Local tax information
❑ Social security number
❑ Employer Identification Information
❑ Contract data(contractual relationship,product and/or contractual interests)
❑ Customer history,compliance and payment data
❑ information about race,ethnic origin, or gender)
❑ Vehicle license plate
Categories of Data Subjects
The Controller has defined the following data subject categories, including but not limited to
those below, from whom the Personal Data as defined above will be collected, processed and
used by the Processor under this agreement, addition and/or deletion will be made by the Parties
as and when required.
❑ Prospective Customers
❑ Customers (Primarily tenants and owners of affordable properties)
❑ Employers
❑ Property owners
❑ Property managers
❑ External companies (such as real estate brokers and closing companies)
❑ Other Contact persons
❑ Employees of external companies
❑ Suppliers/Contractors
Technical and Organizational measures based on the EU General Data Protection
Regulation
The Processor documents the implementation of the technical and organizational measures in
accordance with the requirements of the GDPR or applicable Colorado law.
The Processor ensures, in particular, that it has implemented the appropriate measures to:
Agreement Professional Services Page 16
a. Prevent unauthorized persons from gaining access to data processing systems with which
personal data are processed or used;
b. Prevent data processing systems from being used without authorization;
c. Ensure that persons entitled to use a data processing system have access only to the
Personal Data to which they have a right of access, and that personal data cannot be
misused or removed without authorization during processing or use and after storage;
d. Ensure that personal data is encrypted during electronic transmission or transport by
getting necessary support from the Controller;
e. Ensure that it is possible to check and establish whether and by whom personal data has
been input into data processing systems, modified or removed;
f. Ensure that, for commissioned processing of personal data, the Personal Data is
processed strictly in accordance with the instructions of the Controller
g. Ensuring the availability of services as described and in accordance with this agreement
h. Ensuring the separation of processing as described and in accordance with this agreement
Significant changes of the above technical and organizational measures by the Processor shall be
agreed by the Parties in writing.
The Processor agrees and warrants that the security measures are appropriate to protect personal
data against accidental or unlawful destruction or accidental loss, alteration, unauthorized
disclosure or access, in particular where the processing involves the transmission of data over a
network, and against all other unlawful forms of processing, and that these measures ensure a
level of security appropriate to the risks presented by the processing and the nature of the
Personal Data to be protected having regard to the state of the art and the cost of their
implementation. ,
The Processor further agrees and warrants that the processing of the personal data has been and
will continue to be carried out in accordance with the relevant provisions of the applicable data
protection law and does not violate the relevant provisions.
Processor's Obligations
Under this agreement,the Processor has the obligation to:
a. process the Personal Data only on behalf of the Controller and in compliance with its
instructions;
b. Ensure that only appropriately trained personnel shall have access to the Personal Data;
c. Provide Controller with such cooperation(including access to its facilities) as the
Controller may reasonably request;
d. Implement such technical and organizational measures to protect the Personal Data as
required by the GDPR and applicable Colorado law
e. Notify the Controller immediately of any monitoring activities and measures undertaken
by the relevant authority that supervises the applicable data protection legislation;
f. Support Controller regarding Controller's obligations to provide information about the
collection,processing or usage of Personal Data to a data subject;
Agreement Professional Services Page 17
g. Ensure that the Personal Data is not in any way used, manipulated, distributed, copied or
processed for any other purpose than for the fulfilment of the contractual obligations as
explicitly agreed upon and arising from this agreement
h. Notify the Controller about data breach, if any, within 24 hours from the time the event
comes to the knowledge of the Processor and cooperate with Controller
i. identify a responsible person and assign the role of Data Protection Officer, who will be
the first contact for the Controller to ensure GDPR and State of Colorado compliance
Sub-Processing
The Processor shall not subcontract its obligations under this agreement to a sub-processor
without the prior written consent of the Controller unless such sub-processor undertakes, by way
of written agreement, substantively the same obligations as imposed on the Processor in this
Data Protection Agreement. The Processor shall inform the Controller of its intention to engage a
sub-processor and the Controller shall have the right to reasonably oppose the appointment of a
new sub-processor if the Controller shall have substantive and legitimate reasons for opposing
the specific sub-processor and shall notify Processor of such objections in writing as soon as
possible after receipt of the Processor's notice relating to such sub-processor. The addition or
removal of a sub-processor should not negatively affect the level of security within the
agreement to less than that which existed at the time of signing this Data Protection Agreement.
The Controller shall be granted control and examination rights according to this Data Protection
Agreement and the applicable data protection legislation. This also includes the right of the
Controller to obtain information from the Processor, upon written request, on the substance of
the contract and the implementation of the data protection obligations within the sub-contract
relationship, where necessary by inspecting the relevant contract documents. Where the sub-
processor fails to fulfil its data protection obligations under such written agreement the Processor
shall remain fully liable to the Controller for the performance of the sub- processor's obligations
under such agreement.
Controller's Rights and Obligations
Rights to monitor: Controller is entitled to appoint a third party independent auditor in the
possession of the required professional qualifications and bound by a duty of confidentiality, to
inspect Processor's compliance with this Data Protection Agreement and the applicable data
protection legislation required to determine the truthfulness and completeness of the statements
submitted by the Processor under this Data Protection Agreement. Controller's right to audit
shall be subject to giving the Processor at least(4) weeks prior written notice of any such audit.
Processor shall deal promptly and properly with all inquiries from the Controller relating to its
processing of the personal data subject to this Data Protection Agreement.
Rectification, deletion and blocking of data: upon instruction by the Controller, the Processor
shall correct, rectify or block the Personal Data. Any request from a data subject directly to the
Processor, shall be directed to Controller.
Controller ensures that they collect the personal information from individual and allow the
Processor to process such information after getting the consent from the respective individual.
Agreement Professional Services Page 18
In the event of data breach that is reported to the Controller by the Processor, the Controller shall
validate the breach and report to the Data Subject and the Data Protection Authority within the
timeline allowed in GDPR or the applicable State of Colorado statutes.
Controller provides security guidelines to the Consultants of Hexaware, who works from Client's
environment under their direct control
Information Obli atm
If the Processor cannot provide compliance or foresees that it cannot comply with its obligations
as set out in this Data Protection Agreement, for whatever reasons, it agrees to promptly inform
the Controller of its inability to comply, in which case the Controller is entitled to suspend the
transfer of data.
Processor will promptly notify the Controller about:
(i) any legally binding request for disclosure of the Personal Data by a law enforcement
authority unless otherwise prohibited, such as a prohibition under criminal law to
preserve the confidentiality of a law enforcement investigation;
(ii) any accidental, unauthorised access, or other event that constitutes a personal data breach;
and
(iii) any request received directly from the Personal Data subjects without responding to that
request, unless it has been otherwise authorised to do so.
The Processor shall indemnify Controller for claims of any third party that arises as a result of
Processor's non-compliance with its obligations under this Agreement and the applicable local
laws and legislation of the countries where the Personal Data is processed and regulations
regarding data protection and privacy.
Conseq-uences of Termination
The parties agree that on the termination of the provision of the services, the Processor and the
sub-processor shall, at the choice of the Controller, return all the personal data transferred
including any data storage media supplied to Processor, and the copies thereof to the Controller
or shall destroy all the personal data and certify to the Controller that it has done so, unless
legislation imposed upon the Processor prevents it from returning or destroying all or part of the
personal data transferred. In that case, the Processor warrants that it will guarantee the
confidentiality of the personal data transferred and will not actively process the personal data
transferred anymore.
Confidentiality
Any information of whatever kind (whether technical, commercial, financial, operational or
otherwise) and in whatever form (whether oral, written, recorded or otherwise), including
Personal Data, (hereafter referred to as "Confidential Information") which may be disclosed in
any form or matter by one Party to the other Party, with respect to, or as a result of this Data
Protection Agreement, shall be deemed to be of a confidential nature. Data relating to
Controller's customers database, procedures and knowledge shall be considered as private and
confidential information.
Agreement Professional Services Page 19
Data Security Breaches and Reporting Procedures
The Data Processor is under a strict obligation to immediately notify the Data Controller of any
Data Security Breach within 24 hours of the Data Processor becoming aware of the breach.
In the event of a Data Security Breach, the Data Processor is required to provide complete details
about the breach to the Data Controller.
The Data Processor agrees to provide any reasonable assistance as is required by the Data
Controller or the Data Protection Authority to facilitate the handling of any Data Security breach
in an expeditious and compliant manner.
In the event of a Data Security Breach at Controller's place, Controller alerts the Processor about
the incident and advises the Processor if any additional security controls are to be implemented.
In case of penalty claim from the Data Subject or the Data Protection Authority, both the
Controller and the Processor assess the situation and after a mutual discussion and agreement
will decide on the penalty amount based on the negligence of the party or parties. If an
agreement cannot be reached, this provision does not preclude the Controller from seeking a
remedy via court in the State of Colorado.
Resolution of disputes with Data Subjects or the Data Protection Authority
In the event of a dispute or claim brought by a data subject or the Data Protection Authority
concerning the processing of Personal Data against either or both parties, the Parties will inform
each other about any such disputes or claims and will cooperate with a view to settling them
amicably in a timely fashion.
The Parties agree to respond to any generally available non-binding mediation procedure
initiated by a Data Subject or by the Data Protection Authority. If they do participate in the
proceedings, the parties may elect to do so remotely (such as by telephone or other electronic
means). The Parties also agree to consider participating in any other arbitration, mediation or
other dispute resolution proceedings developed for data protection disputes.
Each Party shall abide by a decision of a competent court of law in the State of Colorado.
30. Warranty.
Hexaware will provide 6 weeks of warranty support to address critical (Severity 1) and high
severity (Severity 2) issues only. Warranty period starts immediately on completion of Phase 2
production deployment. The completion of the production deployment will be marked by
APCHA signifying in writing that the system is ready for full go-live and that all UAT testing
has been completed and defects resolved. The definition of P1 and P2 are provided below:
1. Severity 1 - Critical: A bug in the Hexaware delivered software code or
configuration that will result in(i) a complete or substantial loss of service
functionality or accuracy with no credible workaround, for one or more core
APCHA business services
2. Severity 2 - High: A bug in the Hexaware delivered software code or
configuration that will result in: (i)the functionality of the software being
adversely affected, but can be circumvented, or(ii) certain functions within the
Agreement Professional Services Page 20
software being disabled, but the Software remains operable for all key APCHA
functions.
The Warranty Period warrants that a) all work performed in connection with the agreement was
performed in a competent, professional and workmanlike manner, and of industry standard quality;
b) all work performed and all deliverables comply with applicable laws; c) all work performed and
all deliverables were provided in accordance with and confirm in all materials respects to all
specifications and requirements set forth in this agreement and any associated Change Orders; and
that d)all deliverables perform as expected individually and as a total system.
To receive warranty remedies, the City must report any deficiencies to the Professional in writing
within the Warranty Period. If an item is reported by the City within the warranty period, it will be
completed under the warranty regardless of the delivery date of the item falling outside of the
warranty period. Professional shall correct all deficiencies in the Services or Work identified by the
City during the Warranty Period, provided that the defective Services or Work is not caused by any
inappropriate, improper or unforeseen usage of the Work or Services by the City, unless such
actions are taken at the direction of the Professional. If the deficiency is related to a software issue
beyond the control of the Professional, Professional shall work in good faith with Salesforce to
resolve the situation or develop a workaround solution that materials meets the City's requirements
as set forth in this agreement.
31. General Terms.
a. Non-Discrimination. No discrimination because of race, color, creed, sex, marital
status, affectional or sexual orientation, family responsibility, national origin,
ancestry, handicap, or religion shall be made in the employment of persons to
perform services under this contract. Professional agrees to meet all of the
requirements of City's municipal code, Section 15.04.570, pertaining to non-
discrimination in employment.
b. Warranties Aizainst Contingent Fees, Gratuities, Kickbacks and Conflicts of
Interest.
i. Professional warrants that no person or selling agency has been employed
or retained to solicit or secure this Contract upon an agreement or
understanding for a commission, percentage, brokerage, or contingent fee,
excepting bona fide employees or bona fide established commercial or
selling agencies maintained by the Professional for the purpose of securing
business.
ii. Professional agrees not to give any employee of the City a gratuity or any
offer of employment in connection with any decision, approval,
disapproval, recommendation, preparation of any part of a program
requirement or a purchase request, influencing the content of any
specification or procurement standard, rendering advice, investigation,
auditing, or in any other advisory capacity in any proceeding or
application, request for ruling, determination, claim or controversy, or
other particular matter, pertaining to this Agreement, or to any solicitation
or proposal therefore.
Agreement Professional Services Page 21
iii. In addition to other remedies it may have for breach of the prohibitions
against contingent fees, gratuities, kickbacks and conflict of interest, the
City shall have the right to:
1. Cancel this Purchase Agreement without any liability by the City;
2. Debar or suspend the offending parties from being a Professional,
contractor or subcontractor under City contracts;
3. Deduct from the contract price or consideration, or otherwise
recover, the value of anything transferred or received by the
Professional; and
4. Recover such value from the offending parties.
c. Mediation: Prior to pursuing other legal remedies (i), all disputes shall be
submitted to non-binding mediation by written notice given by either Party to the
other Party. Except as otherwise expressly provided herein, the mediation process
will be conducted under the American Arbitration Association's (the "AAA")
Commercial Arbitration Rules and Mediation Procedures (including Procedures
for Large, Complex Commercial Disputes) (collectively the "AAA Rules"). If the
Parties cannot agree on a mediator, a mediator will be designated by the AAA at
the request of a Party. The mediation shall be conducted in Colorado. The
mediation will be treated as a settlement discussion and therefore will be
confidential. The mediator may not testify for either Party in any later proceeding
relating to the dispute. No recording or transcript shall be made of the mediation
proceedings. Each Party will bear its own costs in the mediation. The fees and
expenses of the mediator will be shared equally by the Parties.
d. Governing Law. This Agreement shall be governed by the laws of the State of
Colorado as from time to time in effect. Venue is agreed to be exclusively in the
courts of Pitkin City, Colorado.
e. Taxes, VAT, & Service Tax. Professional and the City shall each bear sole
responsibility for all US taxes, assessments, and other real property-related levies or
property taxes on its owned property. The City shall be responsible for Service tax,
GST, or Value Added Tax or similar taxes applicable on the sale of services or
goods.
f. Non-Solicitation: Each party agrees that during the term of this Agreement and
for a period of one year thereafter, it will not and will procure that its Affiliate
will not directly or indirectly, either on its own account or in conjunction with or
on behalf of any other person, hire solicit or endeavor to entice away from the
other party any person who, during the term of this Agreement has been an
officer, manager, employee, agent or consultant of the other party.
32. Records to be Kent by Professional.
The Professional shall make available to the City if requested, true and complete records, which
support billing statements, reports, deliverables, performance and all other related documentation to
this agreement(the Documentation). The City's authorized representatives shall have access, at any
time during reasonable hours and with reasonable advance notice, to all records that are deemed
appropriate to auditing the Documentation at the Professional's offices or via email and without
expense to the City related to copying or document access. The Consultant agrees that it will keep
and preserve for at least seven (7) years all documents related to the Agreement which are routinely
prepared, collected or compiled by the Professional during the performance of this Agreement.
Agreement Professional Services Page 22
33. Attorney's Fees.
In the event that legal action is necessary to enforce any of the provisions of this Agreement, the
prevailing party shall be entitled to its costs and reasonable attorney's fees.
34. Waiver of Presumption.
This Agreement was negotiated and reviewed through the mutual efforts of the parties hereto and
the parties agree that no construction shall be made or presumption shall arise for or against
either party based on any alleged unequal status of the parties in the negotiation, review or
drafting of the Agreement.
35. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary
Exclusion.
Professional certifies, by acceptance of this Agreement, that neither it nor its principals is
presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily
excluded from participation in any transaction with a Federal or State department or agency. It
further certifies that prior to submitting its Bid that it did include this clause without modification
in all lower tier transactions, solicitations, proposals, contracts and subcontracts. In the event
that Professional or any lower tier participant was unable to certify to the statement, an
explanation was attached to the Bid and was determined by the City to be satisfactory to the City.
36. Electronic Signatures and Electronic Records
This Agreement and any amendments hereto may be executed in several counterparts, each of
which shall be deemed an original, and all of which together shall constitute one agreement
binding on the Parties, notwithstanding the possible event that all Parties may not have signed
the same counterpart. Furthermore, each Party consents to the use of electronic signatures by
either Party. The Scope of Work, and any other documents requiring a signature hereunder, may
be signed electronically in the manner agreed to by the Parties. The Parties agree not to deny the
legal effect or enforceability of the Agreement solely because it is in electronic form or because
an electronic record was used in its formation. The Parties agree not to object to the
admissibility of the Agreement in the form of an electronic record, or a paper copy of an
electronic documents, or a paper copy of a document bearing an electronic signature, on the
grounds that it is an electronic record or electronic signature or that it is not in its original form
or is not an original.
37. Order of Document Precedence
This Professional Services Agreement, together with all Exhibits, constitutes the entire agreement
and contract and shall be considered one contract document. In the event of conflicting or missing
provisions within portions of this contract,the order of precedence for an item is:
1. the general terms as specified in the Professional Services Agreement
2. the specific terms set forth in Exhibit C,the Requirements Matrix
3.the specific terms set forth in Exhibit A,the Statement of Work
4.the specific terms set forth in Exhibit E,the Hexaware Proposal
5. the specific terms and requirements set forth in Exhibit D,the City of Aspen RFP
In the event, however, that the Statement of Work omits requirements agreed to in the
Professional's Proposal and listed in the associated Detailed Requirements, the Proposal will
supersede the Statement of Work.
Agreement Professional Services Page 23
38. Execution of Agreement by City.
This Agreement shall be binding upon all parties hereto and their respective heirs, executors,
administrators, successors, and assigns. Notwithstanding anything to the contrary contained herein,
this Agreement shall not be binding upon the City unless duly executed by the City Manager of the
City of Aspen(or a duly authorized official in her absence) following a Resolution of the Council of
the City of Aspen authorizing the City Manager (or a duly authorized official in her absence) to
execute the same.
39. Authorized Representative.
The undersigned representative of Hexaware Technologies Limited, as an inducement to the City
to execute this Agreement, represents that he/she is an authorized representative of Professional
for the purposes of executing this Agreement and that he/she has full and complete authority to
enter into this Agreement for the terms and conditions specified herein.
Agreement Professional Services Page 24
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement of which shall be deemed an original on the date first written
above.
CITYOF ASPEN, COLORADO: PROFESSIONAL:
7�;� 6�-6jz� —
[Signature]/� 1 [Signature]
C-7.By: � LV c� By:
[Name] [Name]
Title: VIA Title:
Date: Z Z 3 Date:
Approved as to form:
Attorney's Office
Agreement Professional Services Page 25
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly
authorized officials, this Agreement of which shall be deemed an original on the date first written
above.
CITY OF ASPEN,COLORADO: PROFESSIONAL:
Hexaware Technologies Limited
[Signature] \W-_ [Signature]
By: By: Ayesha Nair
[Name] [Name]
Title: Title: Associate VP-Finance Legal
Date: Date: Decembre 20,2019
Approved as to form:
City Attorney's Office
Agreement Professional Services Page 25