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HomeMy WebLinkAboutContract 47516 56 78 CITY 19ECRIBA W11N FORTWORTHO v ' L8 �S V PROFESSIONAL SERVICES AGREEMENT GOLF COURSE SOFTWARE This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a Texas home-rule municipal corporation, and Pro- ShopKeeper Computer Software Co. Inc., DBA Club Prophet Systems ("Contractor"), a Pennsylvania Company. City and Contractor are each individually referred to herein as a"party" and collectively referred to as the"parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Professional Services 2. Exhibit A—Statement of Work plus any amendments to the Statement of Work 3. Exhibit B—Payment Schedule 4. Exhibit C—Milestone Acceptance Form 5. Exhibit D—Network Access Agreement 6. Exhibit E—Signature Verification Form 7. Exhibit F—Contractor's response to RFP 15-0217 Golf Course Software 8. Exhibit G—Contractor's Insurance Policy All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes. In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. The term "Contractor" shall include the Contractor, and its officers, agents, employees, representatives, servants, contractors or subcontractors. The term "City" shall include its officers, employees, agents, and representatives. 1. Scone of Services. Contractor hereby agrees, with good faith and due diligence, to provide the City with professional consulting services for RFP 15-0217 Golf Course Software, attached hereto as Exhibit F. Specifically, Contractor will perform all duties outlined and described in the Statement of Work, which is attached hereto as Exhibit "A".and incorporated herein for all purposes, and further referred to herein as the "Services." Contractor shall perform the Services in accordance with standards in the industry for the same or similar services. In addition, Contractor shall perform the Services in accordance with all applicable federal, state, and local laws, rules, and regulations. If there is any conflict between this Agreement and Exhibit A, or any of the attachments, the terms and conditions of this Agreement shall control. 2. Term. This Agreement shall commence upon March 22,2016("Effective Date")and shall expire no later than one (1)year from the effective date which shall be March 23,2017("Expiration Date"),unless terminated earlier in accordance with the provisions of this Agreement or otherwise extended by the parties. nFFICIAL RECORD P,97Y SECRETARY FT.WORTH,TX This Agreement may be renewed for up to five(5)one(1)year renewals at the City's option,each a"Renewal Term."The City shall provide Contractor with written notice of its intent to renew at least thirty(30)days prior to the end of each term. 3. Compensation. The City shall pay Contractor an amount not to exceed $30,000 in accordance with the provisions of this Agreement and Exhibit"B," Payment Schedule, which is attached hereto and incorporated herein for all purposes. Contractor acknowledges this amount is not a guarantee of compensation payable to the Contractor rather it is a not to exceed amount and such compensation shall be made pursuant to Exhibit`B." Contractor shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Contractor not specified by this Agreement unless the City first approves such expenses in writing. City agrees to pay all invoices of Contractor within thirty(30)days of receipt of such invoice. Contractor may charge interest on late payments not to exceed one percent(1 4. Termination. 4.1. Convenience. Either the City or Contractor may terminate this Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. 4.2 Breach. Subject to Section 29 herein, either party may terminate this Agreement for breach of duty, obligation or warranty upon exhaustion of all remedies set forth in Section 29. 4.3 Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, the City will notify Contractor of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.4 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date,the City shall pay Contractor for services actually rendered up to the effective date of termination and Contractor shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Contractor shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Contractor has received access to City information or data as a requirement to perform services hereunder, Contractor shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. 5. Disclosure of Conflicts and Confidential Information. 5.1 Disclosure of Conflicts. Contractor hereby warrants to the City that Contractor has made full disclosure in writing of any existing or potential conflicts of interest related to Contractor's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Contractor hereby agrees immediately to make full disclosure to the City in writing. 5.2 Confidential Information. The City acknowledges that Contractor may use products, materials, or methodologies proprietary to Contractor. The City agrees that Contractor's provision of services under this Agreement shall not be grounds for the City to have or obtain any rights in such proprietary products,materials, or methodologies unless the parties have executed a separate written agreement with respect thereto. Contractor, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City ("City Information") as confidential and shall not disclose any such information to a third party without the prior written approval of the City. 5.3 Unauthorized Access. Contractor shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Contractor shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised, in which event, Contractor shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. Right to Audit. Contractor agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Contractor involving transactions relating to this Agreement at no additional cost to the City. Contractor agrees that the City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Contractor not less than 10 days written notice of any intended audits. Contractor further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, until expiration of three (3) years after final payment of the subcontract, have access to and the right to examine at reasonable tunes any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor not less than 10 days written notice of any intended audits. 7. Independent Contractor. It is expressly understood and agreed that Contractor shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Contractor shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Contractor acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Contactor, its officers,agents, employees, servants,contractors and subcontractors. Contractor further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Contractor. . It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Contractor or any officers, agents, servants, employees or subcontractors of Contractor. Neither Contractor, nor any officers, agents, servants, employees or subcontractors of Contractor shall be entitled to any employment benefits from the City. Contractor shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself,and any of its officers, agents,servants,employees or subcontractors. 8. LIABILITY AND INDEMNIFICATION. A. LIABILITY - CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE GROSS NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. B. INDEMNIFICATION - CONTRACTOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONTRACTOR'S BUSINESS, AND ANY RESULTING LOST PROFITS) PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, AND DAMAGES FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE GROSS NEGLIGENT ACTS OR OMISSIONS OF CONTRACTOR, ITS OFFICERS, AGENTS, SUBCONTRACTORS,SERVANTS OR EMPLOYEES. C. INTELLECTUAL PROPERTY INFRINGEMENT—(i) The Contractor warrants that all Deliverables, or any part thereof, furnished hereunder, including but not limited to: programs, documentation, software, analyses, applications, methods, ways, and processes (in this Section 8C each individually referred to as a "Deliverable" and collectively as the "Deliverables,") do not infringe upon or violate any patent, copyrights, trademarks, service marks, trade secrets, or any intellectual property rights or other third party proprietary rights,in the performance of services under this Agreement. (ii)Contractor shall be liable and responsible for any and all claims made against the City for infringement of any patent, copyright, trademark, service mark, trade secret, or other intellectual property rights by the use of or supplying of any Deliverable(s) in the course of performance or completion of, or in any way connected with providing the services,or the City's continued use of the Deliverable(s)hereunder. (iii) Contractor agrees to indemnify, defend,settle, or pay,at its own cost and expense, including the payment of attorney's fees, any claim or action against the City for infringement of any patent, copyright,trade mark, service mark,trade secret,or other intellectual property right arising from City's use of the Deliverable(s),or any part thereof, in accordance with this Agreement, it being understood that this agreement to indemnify, defend, settle or pay shall not apply if the City modifies or misuses the Deliverable(s).So long as Contractor bears the cost and expense of payment for claims or actions against the City pursuant to this section 8, Contractor shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest, and City agrees to cooperate with Contractor in doing so. In the event City, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against the City for infringement arising under this Agreement,the City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, Contractor shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give Contractor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto.Notwithstanding the foregoing,the City's assumption of payment of costs or expenses shall not eliminate Contractor's duty to indemnify the City under this Agreement. If the Deliverable(s), or any part thereof,is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Contractor shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the Deliverable(s) to make them/it non-infringing, provided that such modification does not materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the Deliverable(s) with equally suitable, compatible, and functionally equivalent non-infringing Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Contractor, terminate this Agreement subsequent to which termination City may seek any and all remedies available to City under, law. CONTRACTOR'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH IN SECTION 10 OF THIS AGREEMENT. D. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, AND/OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT; PROVIDED,HOWEVER,THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE GROSS NEGLIGENCE OR WILFULL MISCONDUCT OF A PARTY. TO THE EXTENT PERMISSIBLE BY LAW,A PARTY SHALL BE LIABLE TO THE OTHER FOR ANY DIRECT DAMAGES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT THE LIABILITY OF A PARTY,WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT, AND PROVIDED, FURTHER, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO: DAMAGES CAUSED BY A PARTY'S GROSS NEGLIGENCE OR WILFULL MISCONDUCT; OR, A PARTY'S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AS FURTHER DESCRIBED IN THIS AGREEMENT. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. 9. Assignment and Subcontracting. Contractor shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City.If the City grants consent to an assignment,the assignee shall execute a written agreement with the City and the Contractor under which the assignee agrees to be bound by the duties and obligations of Contractor under this Agreement. The Contractor and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Contractor referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Contractor under this Agreement as such duties and obligations may apply. The Contractor shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. 10.1 The Contractor shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the City: TYPES OF INSURANCE LIMITS OF LIABILITY Commercial General Liability Each occurrence $1,000,000 (Business Owners) Damage to rented premises(ea. occurrence) $1,000,000 Medical Expense(any one person) $10,000 Personal and Advertising Injury $1,000,000 General Aggregate $2,000,000 Products and Completed Operations Aggregate $2,000,000 Umbrella Liability(Retention Each occurrence $2,000,000 $10,000) Aggregate $2,000,000 Professional/Technology Liability Each occurrence $2,000,000 (Error&Omissions) Aggregate $2,000,000 Automobile Liability(hired and non- Combined Single Limit(ea. accident) $1,000,000 owned autos) Workers Compensation(statutory) Each accident $500,000 10.2 General Insurance Requirements: 1. All applicable policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. 2. A minimum of Thirty(30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. 3. The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required,written approval of Risk Management is required. 4. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. 5. Certificates of Insurance evidencing that the Contractor has obtained all required insurance shall be delivered to and approved by the City's Risk Management Division prior to execution of this Agreement. 11. Compliance with Laws,Ordinances,Rules and Regulations. Contractor agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Contractor of any violation of such laws, ordinances, rules or regulations, Contractor shall immediately desist ft-om and correct the violation. 12. Non-Discrimination Covenant. Contractor,for itself, its personal representatives, assigns, subcontractors and successors in interest,as part of the consideration herein,agrees that in the performance of Contractor's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises fi•om an alleged violation of this non-discrimination covenant by Contractor, its personal representatives,assigns,subcontractors or successors in interest, Contractor agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 13. Notices. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, (3) delivered by email with return confirmation of the delivery by the accepting party or (4) received by the other party by United States Mail, registered,return receipt requested, addressed as follows: TO THE CITY: City of Fort Worth Attn: Richard Zavala Park&Recreation Department Director 1000 Throckmorton Fort Worth TX 76102 Facsimile: (817)392-5700 Email: Richard.Zavala@fortworthtexas.gov With a mailed copy to the City Attorney's Office at same address TO CONTRACTOR: Name: Club Prophet Systems Attn: Rick Robshaw Address: 701 Russellton Rd City, State,Zip Cheswick,PA. 15204 Facsimile: 724-274-0387 Email: Rick@ClubProphetSystems.com 14. Solicitation of Employees. Neither the City nor Contractor shall, during the term of this Agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this Agreement, without the prior written consent of the person's employer. This provision shall not apply to an employee who responds to a general solicitation or advertisement of employment by either party. 15. Governmental Powers. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 16. No Waiver. The failure of the City or Contractor to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Contractor's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. Governing Law and Venue. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action,whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 18. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable,the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 19. Force Majeure. The City and Contractor shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 20. Headings Not Controlling. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 21. Review of Counsel. The parties acknowledge that each party and its counsel have reviewed this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 22. Amendments. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument,and duly executed by an authorized representative of each party. 23. Entirety of Agreement. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Contractor, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. 24. Counterparts. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. An executed Agreement, modification, amendment, or separate signature page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e-mail, and reflects the signing of the document by any party. Duplicates are valid and binding even if an original paper document bearing each party's original signature is not delivered. 25. Warranty of Services. Contractor warrants that its services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty(30)days from the date that the services are completed. In such event, at Contractor's option, Contractor shall either (a) use commercially reasonable efforts to re-perform the services in a manner that conforms with the warranty, or(b)refund the fees paid by the City to Contractor for the nonconforming services. 26. Milestone Acceptance. Contractor shall verify the quality of each deliverable before submitting it to the City for review and approval. The City will review all deliverables to determine their acceptability and signify acceptance by execution of the Milestone Acceptance Form, which is attached hereto as Exhibit "C." If the City rejects the submission, it will notify the Contractor in writing as soon as the determination is made listing the specific reasons for rejection. The Contractor shall have ten (10) days to correct any deficiencies and resubmit the corrected deliverable. Payment to the Contractor shall not be authorized unless the City accepts the deliverable in writing in the form attached. The City's acceptance will not be unreasonably withheld. 27. Network Access. 27.1 City Network Access. If Contractor, and/or any of its employees, officers, agents, servants or subcontractors (for purposes of this section"Contractor Personnel'),requires access to the City's computer network in order to provide the services herein, Contractor shall execute and comply with the Network Access Agreement which is attached hereto as Exhibit"D" and incorporated herein for all purposes. 27.2 Federal Law Enforcement Database Access. If Contractor, or any Contractor Personnel, requires access to any federal law enforcement database or any federal criminal history record information system, including but not limited to Fingerprint Identification Records System ("FIRS"), Interstate Identification Index System ("III System"), National Crime Information Center ("NCIC") or National Fingerprint File ("NFF"), that is governed by and/or defined in Title 28, Code of Federal Regulations Part 20 ("CFR Part 20"), for the purpose of providing services for the administration of criminal justice as defined therein on behalf of the City under this Agreement, Contractor shall comply with the Criminal Justice Information Services Security Policy and CFR Part 20, and shall separately execute the Federal Bureau of Investigation Criminal Justice Information Services Security Addendum. 28. Immigration Nationality Act. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Contractor shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Contractor shall complete the Employment Eligibility Verification Form (I-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Contractor shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Contractor shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Contractor shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Contractor. 29. Informal Dispute Resolution. Except in the event of termination pursuant to Section 4.2, if either City or Contractor has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim, dispute, or breach. The notice shall state the nature of the dispute and list the party's specific reasons for such dispute. Within ten(10)business days of receipt of the notice, both parties shall commence the resolution process and make a good faith effort, either through email, mail, phone conference, in person meetings, or other reasonable means to resolve any claim, dispute, breach or other matter in question that may arise out of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty(60)days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non-binding mediation in Tarrant County,Texas,upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect. The mediator shall be agreed to by the parties. Each party shall be liable for its own expenses, including attorney's fees; however,the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process, the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either parry may,before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 30. Reporting Requirements. For purposes of this section,the words below shall have the following meaning: Child shall mean a person under the age of 18 years of age. Child pornography means an image of a child engaging in sexual conduct or sexual performance as defined by Section 43.25 of the Texas Penal Code. Computer means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input,output,processing,storage, or communication facilities that are connected or related to the device. Computer technician means an individual who, in the course and scope of employment or business, installs,repairs, or otherwise services a computer for a fee. This shall include installation of software, hardware, and maintenance services. If Contractor meets the definition of Computer Technician as defined herein, and while providing services pursuant to this Agreement, views an image on a computer that is or appears to be child pornography, Contractor shall immediately report the discovery of the image to the City and to a local or state law enforcement agency or the Cyber Tip Line at the National Center for Missing and Exploited Children. The report must include the name and address of the owner or person claiming a right to possession of the computer, if known, and as permitted by law. Failure by Contractor to make the report required herein may result in criminal and/or civil penalties. 31. Signature Authority. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. This Agreement, and any amendment(s) hereto, may be executed by any authorized representative of Contractor whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit "E" and incorporate herein by reference. Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. Signature Page To T o�Follow Executed in multiples this the day of �i�,2_` (. AGREED: AGREED: CITY OF FORT WORTH: PRO-SHOPKEEPER COMPUTER SOFTWARE CO. INC. DBA CLUB PROPHET SYSTEMS: i 4 By: By: Sus Ala 's Authorized Signatory Name Assis it Manager Title: Date: Date: ATTES ATTEST: By: By: M Ka ser Name ,Ke C' Secretary Title APPROVED AS TO FORM AND LEGALITY: By t j Guillermo(Will) S.Trevino Assistant City Attorney II CONTRACT AUTHORIZATION: M&C: None Required FOFFICIALECORD ETS Fi," H, TX EXHIBIT A STATEMENT OF WORK Club Prophet Systems will provide City of Fort Worth, CPS Golf POS, integrated CPS tee sheet with golf outing planner, CPS online reservations booking engine, PA-DSS Certified Credit card integration, smart cards, gift cards, extensive auto generated & auto emailed reporting, customer management with photo ID, integrated high-speed credit card processing, staff time, customer data management with extensive email marketing tools, inventory management tools and People Soft Accounting interface. Training Itinerary for City of Fort Worth Golf(4/4 - 4/8) MONDAY 8:00 AM- 12:00 PM All Admin/Managers: Customer Management,Inventory Management 12:00 PM- 12:30 PM Lunch 12:30 PM-4:00 PM All Admin/Managers: Options/Settings/Security TUESDAY 8:00 AM- 12:00 PM Golf Admin/Managers: Tee sheet/Online Res high level, Sales and Reporting 12:00 PM- 12:30 PM Lunch 12:30 PM-4:00 PM F&B Admin/Managers: Menus,F&B settings,manager functions WEDNESDAY 8:00 AM- 12:00 PM Golf Staff Course#1 12:00 PM- 12:30 PM Lunch 12:30 PM-4:00 PM Golf Staff Course 92 THURSDAY 8:00 AM- 12:00 PM Golf Staff Course#3 12:00 PM- 12:30 PM Lunch 12:30 PM-4:00 PM Golf Staff Course#4 FRIDAY=GO LIVE EXHIBIT B PAYMENT SCHEDULE Software&Services Yearly FeeQty Unit Cost FxtendedCostt `CPS Separate Server Data Base 4 $250.00 $1,000.00 1 CPS Sync Tool 4 $500.00 $2,000.00 CPS Golf POS,Inventory,Customer Management 4 $1,800.00 $7,200.00 i CPS Starter Hut Tee Times with Outing Planner 4 $1,200.00 $4,800.00 CPS Online Tee Times 4 $1,200.00 $4,800.00 CPS Email Marketing 4 $400.00 $1,600.00 i CPS Executive Reports 4 $600.00 $2,400.00 CPS Staff Time 4 $300.00 $1,200.00 CPS PA-DSS PCI Compliant Credit Card Integration 4 $400.00 $1,600.00 CPS People Soft Accounting Interface 1 $1,000.00 $1,000.00 jCPS Unlimited Client Station User License 1 $2,400.00 $2,400.001 Yearly Retail Software&Service Total $30,000.00 CPS Municipal Golf Yearly Fee Discount ($6,000.00)1 Yearly Software& Service Total $24,000.00 Support/Installation/Training(Inciuded'in Yearly Fee) Qty Unit Cost Extended Cost Support& Software Updates &Upgrades 1 $0.00 $0.00 **On Site Service(integration,set up&training)Daily Rate 10 $0.00 $0.00 Data Conversion 1 $0.00 $0.00 Support/Installation/Training Total $0.00 Total Yearly Services Agreement, $24,000.00 ** Note: Travel expenses are additional and are billed at cost and are estimated at$3000 Optional Hardware i 19" ELO LCD Touch Screen w/Card Swipe$680 IMS Standard Cash Drawer with Epson Cable$120 Epson USB Thermal Receipt Printer$290 Symbol USB Bar Code Scanner$160 f Eltron Zebra Bar Code Label Printer$280 Dell Optiplex 3020 Client PC without monitor$590 Micro Touch 10" Windows Tablet with docking station and card swipe.$1200 Optional Software CPS Amazon Servers Cloud Solution$2500 per year Note:Software Customization is available at$100 per hour. EXHIBIT C MILESTONE/DELIVERABLE ACCEPTANCE FORM CITY OF FORT WORTH PLANNING MILESTONES AND DELIVERABLES DATE MILESTONE/DELIVERABLE 6-Oct(Dec PLANNING CALL TO DETERMINE TRAVEL,TRAINING DATES. 1) 9-Oct(Dec DISCUSSION WITH IT ABOUT EXISTING HARDWARE AND HARDWARE THAT IS 4) NEEDED 30-Nov CREATE DATABASE,ONLINE RESERVATIONS ON AMAZON SERVERS (Jan 25) 3-Dec(Jan SOFTWARE INSTALLATION ON ALL TERMINALS IN NEED OF ACCESSING CPS 29) PRIOR TO JANUARY 1 4-Dec(Feb DATA TEMPLATES DUE 5) 7-Dec(Feb FIRST LOOK AT DATA WITH TRAINER/NATHAN 8) 8-Dec(Feb FIRST PRE-TRAINING SESSION WITH GOLF AND/OR F&B MANAGERS TO BEGIN 9) SYSTEM CONFIGURATION 11-Dec TRAINER TO CHECK IN ON SYSTEM CONFIGURATION STATUS (Feb12) 18-Dec(Feb TRAINER TO CHECK IN ON SYSTEM CONFIGURATION STATUS 19) 4-Jan (Mar INSTALLATION OF ALL REMAINING TERMINALS NEEDING CPS AS WELL AS 4) LOADING PERIPHERAL HARDWARE DRIVERS 11-Jan TRAINER TO TRAVEL TO FORT WORTH (Mar 14) Services Delivered: Milestone/Deliverable Ref.#: Milestone/Deliverable Name: Unit Testing Completion Date: Milestone/Deliverable Target Completion Date: Milestone/Deliverable Actual Completion Date: Approval Date: Comments(if needed): Approved by Contractor: Approved by City Department Director: Signature: Signature: �l/�' Signature: Printed Name: e,,14::; 117 4(s4-L✓ Printed Name: Title: � ��� � Title: Date: 2 -1 V/ Date: For Director Use Only Contracted Payment Amount: Adjustments,including penalties: Approved Payment Amount: EXHIBIT D NETWORK ACCESS AGREEMENT 1. The Network. The City owns and operates a computing environment and network (collectively the "Network"). Contractor wishes to access the City's network in order to provide Installation and on-going support of Club Prophet Systems Golf Management Software. In order to provide the necessary support, Contractor needs access to SQL Server, Web Server, Point of Sale Client, Back Office computers and their related LAN, WAN and Internet connections that will access the CPS system. 2. Grant of Limited Access. Contractor is hereby granted a limited right of access to the City's Network for the sole purpose of providing CPS Golf Management Software. Such access is granted subject to the terms and conditions forth in this Agreement and applicable provisions of the City's Administrative Regulation D-7(Electronic Communications Resource Use Policy), of which such applicable provisions are hereby incorporated by reference and made a part of this Agreement for all purposes herein and are available upon request. 3. Network Credentials. The City will provide Contractor with Network Credentials consisting of user IDs and passwords unique to each individual requiring Network access on behalf of the Contractor. Access rights will automatically expire one (1) year fi-om the date of this Agreement. If this access is being granted for purposes of completing services for the City pursuant to a separate contract,then this Agreement will expire at the completion of the contracted services, or upon termination of the contracted services, whichever occurs first. This Agreement will be associated with the Services designated below. ❑ Services are being provided in accordance with City Secretary Contract No. ❑ Services are being provided in accordance with City of Fort Worth Purchase Order No. ® Services are being provided in accordance with the Agreement to which this Access Agreement is attached. ❑ No services are being provided pursuant to this Agreement. 4. Renewal. At the end of the first year and each year thereafter,this Agreement may be renewed annually if the following conditions are met: 4.1 Contracted services have not been completed. 4.2 Contracted services have not been terminated. 4.3 Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the Contractor has provided the City with a current list of its officers, agents, servants, employees or representatives requiring Network credentials. Notwithstanding the scheduled contract expiration or the status of completion of services, Contractor shall provide the City with a current list of officers, agents, servants, employees or representatives that require Network credentials on an annual basis. Failure to adhere to this requirement may result in denial of access to the Network and/or termination of this Agreement. 5. Network Restrictions. Contractor officers, agents, servants,employees or representatives may not share the City-assigned user IDs and passwords. Contractor acknowledges,agrees and hereby gives its authorization to the City to monitor Contractor's use of the City's Network in order to ensure Contractor's compliance with this Agreement. A breach by Contractor, its officers, agents, servants, employees or representatives, of this Agreement and any other written instructions or guidelines that the City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately to deny Contractor access to the Network and Contractor's Data, terminate the Agreement,and pursue any other remedies that the City may have under this Agreement or at law or in equity. 5.1 Notice to Contractor Personnel—For purposes of this section, Contractor Personnel shall include all officers, agents, servants, employees, or representatives of Contractor. Contractor shall be responsible for specifically notifying all Contractor Personnel who will provide services to the City under this agreement of the following City requirements and restrictions regarding access to the City's Network: (a) Contractor shall be responsible for any City-owned equipment assigned to Contractor Personnel, and will immediately report the loss or theft of such equipment to the City (b) Contractor, and/or Contractor Personnel, shall be prohibited from connecting personally-owned computer equipment to the City's Network (c) Contractor Personnel shall protect City-issued passwords and shall not allow any third party to utilize their password and/or user ID to gain access to the City's Network (d) Contractor Personnel shall not engage in prohibited or inappropriate use of Electronic Communications Resources as described in the City's Administrative Regulation D7 (e) Any document created by Contractor Personnel in accordance with this Agreement is considered the property of the City and is subject to applicable state regulations regarding public information (f) Contractor Personnel shall not copy or duplicate electronic information for use on any non-City computer except as necessary to provide services pursuant to this Agreement (g) All network activity may be monitored for any reason deemed necessary by the City (h) A Network user ID may be deactivated when the responsibilities of the Contractor Personnel no longer require Network access 6. Termination. In addition to the other rights of termination set forth herein, the City may terminate this Agreement at any time and for any reason with or without notice, and without penalty to the City.Upon termination of this Agreement, Contractor agrees to remove entirely any client or communications software provided by the City from all computing equipment used and owned by the Contractor, its officers, agents, servants, employees and/or representatives to access the City's Network. 7. Information Security. Contractor agrees to make every reasonable effort in accordance with accepted security practices to protect the Network credentials and access methods provided by the City from unauthorized disclosure and use. Contractor agrees to notify the City immediately upon discovery of a breach or threat of breach which could compromise the integrity of the City's Network, including but not limited to,theft of Contractor-owned equipment that contains City-provided access software, termination or resignation of officers, agents, servants, employees or representatives with access to City-provided Network credentials, and unauthorized use or sharing of Network credentials. ACCEPTED AND AGREED: CITY OF FORT WORTH: PRO-SHOPKEEPER COMPUTER SOFTWARE CO.INC. DBA CLUB PROPHET SYSTEMS:: By: By: sa Alanis Name: °ir1'n /n Assistant City Manager Title: Si��T Date: Z kQ f aO \p Date: ATT T: ATTEST: / By /�� By: /�l'loll.C cJV a Kayser �y City Secretary Name: /«11�C /�'✓d0�'i�,1 Title: o A APPROYED AS TO FORM LEGALITY: t ®� o®aQa 0- By: � ®� �o Guillermo(Will)S.Trevino $ Assistant City Attorney II M&C: none required � a© 6� Mel EXHIBIT E VERIFICATION OF SIGNATURE AUTHORITY Full Legal Name of Company:Pro-ShopKeeper Computer Software Co.Inc. DBA"Club Prophet Systems" Legal Address: 701 Russellton Rd. Cheswick,PA. 15204 Services to be provided: Golf Management Software Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Company and to execute any agreement, amendment or change order on behalf of Company. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Company. The City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Company. Company will submit an updated Form within ten(10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by the Company. 1. Name: Rick Robshaw Position: CEO z4L ca Signature 2. Name: Tom Robshaw PositioPresident V,2 Signature 3. Name: Position: Signature Name: Signature of President/CEO Other Title: Date: