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HomeMy WebLinkAboutContract 50107 a RECEIVED a , N CITY SECRETARY Me 2 7 2011 M CONTRACT NO. J�� N << �►jYSECREI a o� N MAINTENANCE AGREEMENT 6 8 9 S £ This MAINTENANCE AGREEMENT ("Agreement') is made and entered into by and between the CITY OF FORT WORTH (the"City"), a home rule municipal corporation of the State of Texas, acting by and through Valerie R. Washington, its duly authorized Assistant City Manager, and OXYGEN FORENSICS,INC.("Consultant'),a Commonwealth of Virginia Corporation. 1. SCOPE OF SERVICES. Consultant will, with good faith and due diligence, provide the City with software updates and technical support and assistance for the Analyst software. In particular, Consultant will perform all duties outlined and described in the Scope of Work, which is attached hereto as Exhibit "A" and incorporated herein for all purposes as though it were set forth at length. The actions and objectives contained in Exhibit"A"are referred to herein as the"Services." Consultant shall perform the Services in accordance with standards in the industry for the same or similar services. In addition, Consultant shall perform the Services in accordance with all applicable federal, state,and local laws,rules,and regulations. 2. TERM. This Agreement shall commence upon November 7, 2017 ("Effective Date") and shall expire on November 6, 2018, unless terminated earlier in accordance with the provisions of this Agreement. The Agreement may be renewed for up to three additional one-year periods by mutual written agreement of the parties. 3. COMPENSATION. As full and complete compensation for all Services described above, Consultant shall be paid a fee of One Thousand Two Hundred Ninety Nine Dollars and 00/100 ($1,299.00) in accordance with the provisions of this Agreement. Consultant 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 Consultant not specified by this Agreement unless the City first approves such expenses in writing. 4. TERMINATION. 4.1. Written Notice. The City or Consultant 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 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant 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 shall have been appropriated. Maintenance Agreement OFFICIAL RECORD CFW and Oxygen Forensics,Inc. CITY SECRETARY Page 1 of 8 FT.WORTH,TX 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant 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. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing. Consultant, for itself and its officers, agents and employees, further 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. Consultant 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. Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. 6. RIGHT TO AUDIT. Consultant 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 consultant involving transactions relating to this Agreement at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant 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 Consultant reasonable advance notice of intended audits. Consultant 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 times 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 reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Consultant 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, Consultant 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. Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, Maintenance Agreement CFW and Oxygen Forensics,Inc. Page 2 of 8 contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. 8. LIABILITY AND INDEMNIFICATION. CONSULTANT 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 NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS,SERVANTS OR EMPLOYEES. CONSULTANT COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY,INCLUDINGDEATH, TOANYANDALL PERSONS, OFANYKIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Consultant 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 Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant 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 Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 10. INSURANCE. The City has waived the insurance requirement for this contract. 11. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS. Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations,Consultant shall immediately desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant'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 from an alleged violation of this non- discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or successors Maintenance Agreement CFW and Oxygen Forensics,Inc. Page 3 of 8 in interest, Consultant 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, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To The CITY: To CONSULTANT: City of Fort Worth Oxygen Forensics, Inc. Attn: Valerie R. Washington Attn: Lee Reiber 200 Texas Street 901 N.Pitt Street, Ste 100 Fort Worth TX 76102 Alexandria,VA 22314 Facsimile: (817)392-3942 Phone: (877)969-9436 14. SOLICITATION OF EMPLOYEES. Neither the City nor Consultant 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. 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 Consultant 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 Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 17. GOVERNING LAW/VENUE. This Agreement shall be construed in accordance with the internal 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. IMMIGRATION NATIONALITY ACT. City 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, Maintenance Agreement CFW and Oxygen Forensics,Inc. Page 4 of 8 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. 19. 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. 20. FORCE MAJEURE. The City and Consultant 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. 21. 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. 22. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have had the opportunity to review and revise 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. 23. AMENDMENTS/MODIFICATIONS/EXTENSIONS. No extension,modification or amendment of this Agreement shall be binding upon a party hereto unless such extension,modification, or amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of such party. 24. 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. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. 25. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Maintenance Agreement CFW and Oxygen Forensics,Inc. Page 5 of 8 Consultant, 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. 26. NO BOYCOTT OF ISRAEL. Consultant acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1)does not boycott Israel; and(2)will not boycott Israel during the term of the contract. The terms"boycott Israel"and"company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract, Consultant certifies that Consultant's signature provides written verification to the City that Consultant: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. (signature page follows) Maintenance Agreement CFW and Oxygen Forensics,Inc. Page 6 of 8 Executed in multiples this the � ay of 2017. ACCEPTED AND AGREED: CITY: CITY OF FORT WORTH CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance By: and reporting requirements. Name: Valerie R.Washington Title: Assistant City Manager Date: By: /n Name: +c APPROVAL RECOMMENDED: Title: ak"k,no/oj .Svcs�t� — APPROVED AS TO FORM AND LEGALITY: By: Name. Joel F.Fitzgerald Title: City of Fort Worth Police Chief By: Na e: Jo n B. Str g ATTEST: Title: Assista ity Attorney CONTRACT AUTHORIZATION: FORT�� M&C: N/A By: ate Approved:N/A Name: ay Title: ty Secreta 1" rm 1295 Certification No.:N/A V TFEX�� CONSULTANT: Oxygen Forensics, Inc. s ATTEST: By: By: Name: ee Reiber Name: Title: COO Title: Date: OFFICIAL RECORD CITY SECRETARY FT. WORTH Ty Maintenance Agreement CFW and Oxygen Forensics,Inc. Page 7 o 8 "Exhibit A" Statement of Work Oxygen Forensics, Inc. Maintenance Plan Technical/Client Support Oxygen Forensics (Consultant) will provide client support from 9:00 a.m. to 5 p.m. EST, Monday through Friday; and by appointment 24 hours/day, 7 days/week. This Plan does not constitute a warranty but provides for problem resolutions and answers to user's questions during normal business hours, EST. Consultant does not warrant third party software applications used by Consultant products and provided by customers, e.g. Microsoft Word. The purpose of this plan is to provide the necessary technical assistance to ensure timely problem resolution and answers to user's questions. Program Updates Program updates are provided by Consultant as new updates, fixes and features are added. Updates will be provided electronically at no additional costs to the client. Company will provide City with notice of release of a new version through email and program notifications. In the event that a new version is released, company will continue to support the current version throughout the life of the maintenance agreement. Maintenance Agreement CFW and Oxygen Forensics,Inc. Page 8 of 8