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HomeMy WebLinkAboutresolution.council.054-18 RESOLUTION #054 (Series of 2018) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN AND ROCKY MOUNTAIN FIBER OPTICS AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN, COLORADO. WHEREAS, there has been submitted to the City Council a contract for Fiber Optics Professional Services between the City of Aspen and Rocky .. Mountain Fiber Optics, 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 that Contract for, Fiber Optics Professional Services between the City of Aspen and Rocky Mountain Fiber Optics, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager to execute said agreement on behalf of the City of Aspen. INTRODUCED, READ AND ADOPTED by the City Council of the -ity of Aspen on the 26th day of March 2018. Steven Skadron; ayor I, Linda Manning, duly appointed and acting City Clerk o 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, March 26, 2018. "AA kLitumc/ Linda Manning, City Cl rk The City olAsnen CITY OF ASPEN STANDARD FORM OF AGREEMENT vxoo9 Ci4'CmotneYIiiCihce PROFESSIONAL SERVICES City of Aspen Contract No.: 2018-031. AGREEMENT trade as of 26"'day of March in the year 2018. BETWEEN the City: Contract Amount: The City ofAspen c/o IT Department 130 South Galena Street Total: $300,000.00 Aspen, Colorado 81611 Plane:(970) 920-5079 R this Agreement requires the City to pay And the Professional: an amount of money in excess of $25,000.00 it shall not be deemed valid until it has been approved by the City Rocky Mountain Fiber Optics Council of the City of Aspen. c/o Scott Rosette 1998 Odin Dr. City Council Approval: 1 Sih; CO 81652 Date: Z(Q�blc& 22.6 Phone:(970)-3 19-2014 For the FolloNing Project: As needed" work installing liber optics cables and associated materials. Work includes installation of new fiber optics to the Aspen Police Department building.polcolial new City Ounces and the Castle Geek Fiber Pro ect. Exhibits appended and made a part of this Agreement: Exhibit A: Scope of Work. Exhibit 13: Fee Schedule. Agreement Professional Services Page 0 The City and Professional agree as set forth below. I. Scope of Work. Professional shall perform in a competent and professional manner the Scope of Work as set forth at Exhibit A attached hereto and by this reference incorporated hereon. 2. Completion. Professional shall commence Work immediately upon receipt of 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 of a timely manner. The parties anticipate that all Work pursuant to this Agreement shall be completed no hater than 3/1(_'021. Upon request of the Cay, Professional shall submit, for the Citys 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 engineer for review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the Cay, shall not, except for reasonable cause, be exceeded by the Professional. 3. Payment: In consideration of the work performed, City shall pay Professional on a time and expense basis for all work performed. The hourly rates for work performed by Professional shall not exceed those hourly rates set forth at 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, ifthey are considered incorrect or untimely,the Cay shall review the matter with Professional within ten days from receipt of the Professional's bill. 4. Non-Assimabil . 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. Sub-Contracting, if authorized, shall not relieve the Professional of any of the responsibilities or obligations under this Agi+eement. 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 shat, 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. 5. Termination of Procurement. The sale contemplated by this Agreement may be canceled by the Cay prior to acceptance by the Cay whenever for any reason and in its sole discretion the Cay shall determine that such cancellation is in its best interests and convenience. 6. 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, in writing, addressed to the other party, specifying die effective date of the termination. No fees shall be earned after the effective date of the termination. Upon any termination, all finished or unfinished 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 Cay. Notwithstanding the above, Professional shall riot be relieved ofany liability to the Cay for damages sustained by the Cay by virtue ofany breach of this Agreement by Agrecmcnt Professional Services Page 1 the Professional, and the City may withhold any payments to the Professional for the proposes of set-off until such time as the exact amount ofdamages due the City from the Professional may be determined. 7. Independent Contractor Status. It is expressly acknowledged and understood by the parties that nothing contained in this agreement shall result un, 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 as acts and for the acts of Professional's agents,employ- ees, 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 respect to Professional and/or Professionars employees engaged in the performance of the services agreed to herein. 8. Indemnification. Professional agrees to indemnify and hold harmless the City, its officers, employees, insurers, and self-insurance pool, from and against all liability, claims, and demands, on account of injury. loss, or damage, including without limitation claims arising from bodily injury, personal injury, sickness, disease, death property loss or damage, or any other loss of any kind whatsoever, which arise out of or are in any manner connected with this contract, to the extent and for an amour 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,the wrongful act, omission, error, professional error, mistake, negligence, or other fault 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. The Professional agrees to 'investigate, handle. respond to, and to provide defense for and defend against, any such liability, claims or demands at the sole expense of the Professional, or at the option of the City, agrees to pay the City or reimburse the City for the defense costs incurred by the City in connection with, any such liability, claims, or demands. If it is determined by the final judgment damage a court of competent jurisdiction that such injury, loss,or daage 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 fauh of the Cay, its officers, or employees. 9. Professionars Insurance. (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 assumed by the Professional pursuant to Section 8 above. Such insurance shall be in addition to any other insurance requirements unposed 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 Agreement Professional Sen-ices Page 2 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 forms and insurance acceptable to the City. All coverages shall be continuously maintained to cover all liability, clams, demands, and other obligations assumed by 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. O Workers' Compensation insurance to cover obligations imposed by applicable laws for any employee engaged in the performance of work under this contract, and Employers'Liability insurance with minimum limits of ONE DOLLARS ($1,000,000.00) for each accident, ONE MILLION DOLLARS ($1,000,000.00) disease - policy limit, and ONE MILLION DOLLARS ($1,000,000.00) disease - each employee. Evidence of qualified self-insured status may be substituted for the Workers'Compensation requirements of this paragraph. (i) Commercial General Liability insurance with minimum combined single limits of TWO MILLION 'DOLLARS ($2,000,000.00) each occurrence and TWO MILLION DOLLARS ($2,000,000.00) 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. (ii) Comprehensive Automobile Liability insurance with manimtrn 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, hoed and run-owned vehicles assigned to or used in perfommance 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 mmonun limits of ONE MILLION DOLLARS ($1,000,000)each claim and ONE MILLION DOLLARS ($1,000,000)aggregate. (c) The policy or policies required above 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. Agreement Professional Services Page 3 (d) "Ilse certificate of insurance provided to the Cay shall be completed by the Professionars insurance agent as evidence that policies providing the required coverages, conditions.and minimum luras are in full force and effect, and shall be reviewed and approved by the City prior to commencement of the contract. No other form of certificate shall be used. "Ihe certificate shall identify this contract and shall provide 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) Faille 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 City may immediately terminate this contract, or at its discretion City may 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. (0 Cay reserves the right to request and receive a certified copy of any policy and any endorsement thereto. (g) 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 protectors provided by the Colorado Governmental Immunity Act, Section 24-10-101 el seq., C.R.S., as from time to time amended, or otherwise available to City, its officers, or is employees. 10. City s Insurance. 'Ilene parties hereto understand that the Cay is a member of the Colorado Intergovern- mental Risk Sharing Agency (CIRSA) and as such participates in the CIRSA Property/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. Cay 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. 11. Comaleteness of Atweement. 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. 12. 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 above. 13. 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 ofCtys municipal code. Section 13-98, pertaining to non-discrimination in employment. 14. Waiver. The waiver by the Cay of any tern, 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 condition of this Agreement can be waived except by the written consent of the Cay, and forbearance or indulgence by the City in any regard Agreement Professional Services Page 4 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 Cay shall be entitled to invoke any remedy available to it under this Agreement or by law despite any such forbearance or indulgence. 15. Execution of Ataeement by City. 'This Agreement shall be binding upon all parties hereto and their respective trees, executors,administrators, successors, and assigrts. Notwithstanding anything to the contrary con- tained herein, this Agreement shall not be binding upon the City unless duly executed by the Mayor of the City of Aspen (or a duly authorized official in his absence) following a Motion or Resolution of the Council of the City of Aspen authorizing the Mayor(or a duly authorized official in his absence)to execute the same. 16. Illegal 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 die employment of and contracting with illegal aliens. These new 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 hues with an illegal alien to perform work under the contract. The new laws also requite that all contracts for services include certain specific language as set forth in the statutes. The following terns and conditions have been designed to comply with the requirements of this new law. (b) Definitions. The following terns 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 Piot 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: () Professional shall confirm the employment eligibility of all employees who are newly hired for employment in the United States; and (i) 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: Agreement Professional SeMees Page 5 () Professional shall not knowingly employ or contract new employees without confirming the employment eligibility of all such employees hued for employment in the United States under the Public Contract for Services. (i) Professional shall not enter into a contract with a subcontractor that fails to confirm to the Professional that the subcontractor shall not knowingly hue new employees without confirming their employment eligibility for employment in the United States under the Public Contract for Services. (w) 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 of 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, 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 rat use the Basic Pilot Program procedures to undertake pre- employment screening ofjob applicants while the Public Contract for Services is being performed. (v) If Professional obtains actual knowledge that a subcontractor perforni ng 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. (A) Professional shall comply with any reasonable request by the Colorado Department of Labor and Employment made in 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 Agreement Professional Services Page 6 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. (a) If Professional operates as a sole proprietor, Professional hereby sweats or affirms under penalty of perjury that the Professional (1) is a citizen of the United States or otherwise lawfully present in the United States pursuant to federal law, (2) shall comply with the provisions of CRS 24-76.5-101 el seq., and (3) shall produce one of the fours of identification required by CRS 24-76.5-103 prior to the efTeclive date of this Agreement. 16. Warranties Against Contingent Fees, Gratuities Kickbacks and Conflicts of Interest. (a) 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 file established commercial or selling agencies maintained by the Professional for the purpose of securing business. (b) 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 requitement 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 rulittg, determination, claim or controversy, or other particular matter, pertaining to this Agreement, or to any solicitation or proposal therefore. (c) Professional represents that no official, officer, employee or representative of the City during the term of this Agreement has or one (1) year thereafter shall have any interest, direct or indirect, in this Agreement or the proceeds thereof. except arose that may have been disclosed at the time City Council approved the execution of this Agreement. (d) 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. 17. 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 terns ofthis Agreement. 18. General Terms. Agreement I'rufessinnal Services Page 7 (a) It is agreed that neither this Agreement nor any of its terms, provisions,conditions, representations or covenants can be modified, changed, tenninated or amended,waived, superseded or extended except by appropriate written instrument fully executed by the parties. (b) If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable it shall not affect or'ompa'tr the validity, legality or enforceability of any other provision. (c) llne parties acknowledge and understand that there are no conditions or limitations to this understanding except those as contained hereon at the time ofthe execution hereofand that after execution no alteration, change or modification shall be made except upon a writing signed by the parties. (d) This Agreement shall be governed by the laws of the State of Colorado as from time to time in effect. 19. Electronic Signatures and Electronic Records This Agreement and any amendments hereto may be executed or 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 sigmures by either Party. The Scope of Work, and any other documents requiring a signature hereunder, may be signed electronically on 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 fort 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 ground that it is an electronic record or electronic signature or that it is riot on its original form or is riot an original. IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this Agreeinent in three copies each of which shall be deemed an original on the date first written above. CITY OF ASPEN, G COLORADO: PROFES ZONAL: "'z [Sigaturel [signature). By: By: S ��"C_ [Namcl [Namcl Title: y ham, �� Title: �cuno� Date: ? — Z7%(� Date: 3hal'�)01r Agreement Professional Services Page 8 Approved as to forth: O City Attorttey s Office Agreement Professional Sen-ices page 9 EX141BIT A PROFESSIONAL SERVICES AGREEMENT • Order and install vaults, conduits, mnerducts and fiber optics cables. • Splice, terminate and test fiber optics cables and terminations. • Order and install fiber termination panels, electrical pull boxes and network premise boxes. • Core drill/Horizontal Drill/Bore/French to accommodate mnerducts as well as 2 and 4-inch conduits. Agreement Professional Services Page 10 EXHIBIT B PROFESSIONAL. SERVICES AGREEMENT Fee Schedule (4K) Install Term. Panel Service Installation ofFiber Termination Panel $250.00EA (9G) Install Mid Span Service Install Mid Span Sheath Splice Case $350.00EA (A) Splice Fiber Optics Service Splice Fiber Optic Cable $56.00EA (E)Terminate Fiber Service Terminate Fiber Optic; Cable at Term Location$60.00EA (F)New Splice Case Service Install New Splice Case $250.00EA G) Install Mid-Sheath Case Service Install Mid-Sheath Case $350.00EA (H) Re Enter Existing Case Service Re Enter Existing Splice Case $175.00EA (1) Replace Existing Case Service Replace Existing Splice Case $350.00EA (J)OTDR Service OTDR and Document Single Direction $12.50 EA (K) Install Term Panel Service Install New Panel $250.00EA (M)Test Circuit Service Test and Tum Up Fiber Circuit $120.00EA 2.P. Proof Existing Conduit Service Proof Existing Conduit for Exploratory, Engineering or Locating $2:00 FT 2.W. Intercept Existing Conduit Non-inventory Intercept existingconduh(s) $130.00EA 22. Place Fiber Service Place Each Fiber Cable in Empty Duct $1.75 FT 2.AA. Place Fiber Occupied Service Place Each fiber Cable in Occupied Duct $2.35 FT 2.1'. Vacuum Evac Service Vacuum Excavator with crew $120.00HR 20.13. General Labor w/ Service General Labor w/Foretrrnn on Site $70.00 HR 20.8.1. General Labor w/o Service General Labor w/o Foreman on Site $45.00 HR 3.P. Core Drill Service Core Drill to Accommodate up to 2-itch Conduit $135.00EA 4.F. Interior install Fiber Cable Service Place new Fiber in Building with existing pathway, Including Drop Ceiling $9.75 FT Agreement Professional Services Page I I Blow Micro-Fiber Service Blow Micro-Fiber thru Micro-Duct $1.93 FT Agreement Professional Services Page 12