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HomeMy WebLinkAboutContract 50036-A1 2 �s� CITY SECRETARY CONTRACT No."%1310 -A I wr ECEIVEC' FIRST AMENDMENT TO JUL —8 Z019 ` ` C1TYOF� FORT WORTH CITY SECRETARY CONTRACT NO. 50036 ORTWORTH ® CITYSEC TWORETARY ��` Professional Services Agreement—Datamatic, Inc. 'F�` 0 t,A is Amendment is entered into by and between the City of Fort Worth(hereafter"City"), a home rule municipal corporation situated in portions of Tarrant, Denton, Parker and Wise counties, Texas,and Datamatic,Inc,(hereafter"Consultant"),a Texas Corporation located in Collin County, acting by and through Philip J. Masters, its duly authorized Chief Financial Officer, each individually referred to as a "party" and collectively referred to as the "parties." WHEREAS, the City and Datamatic Inc. entered into an Agreement identified as Fort Worth City Secretary Contract No. 50036 on December 11, 2017; and WHEREAS, the purpose of the Agreement is to provide the City with professional consulting services for specific description of services. Specifically, Consultant will perform all duties for support and maintenance of Datamatic software license, a nontransferable and nonexclusive license for use and possession of the Datamatic software in objective code form only; and WHEREAS,the parties now wish to amend the Agreement to delete Exhibit 1, to the Agreement, "System Maintenance Breakdown and Annual Payment Schedule and replace with a revised Exhibit 1, SmartPhone Meter Reading (SPMR) Services Payment Schedule for annual payment periods following the later of the Activation Date or the end of the then current contract year; and WHEREAS, the parties now wish to amend the agreement to delete EXHIBIT 2, "ROADRUNNER Check Sheet" since ROADRUNNER hardware is no longer maintained; and WHEREAS, the parties wish to amend the agreement to delete EXHIBIT 3, Maintenance Supplies, Accessories and Hourly Charges to be replaced by a revised EXHIBIT 3, "SPMR Systems Subscription Agreement". NOW, THEREFORE,for and in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, the parties hereto agree as follows: I. Exhibit 1. Exhibit 1, Systems Maintenance Breakdown and Annual Payment Schedule shall be deleted in its entirety and replace with Exhibit 1 Revised, SPMR Services Payment Schedule for annual payment periods following the later of the Activation Date or the end of the then current contract year, which is attached to this amendment; and H. Exhibit 2, Exhibit, ROADRUNNER Check Sheet, is deleted in its entirety. CFW/[AMENDMENT NO. 1 DATAMATIC INC.CSC 50036] Page I of s OFFICIAL RECORD FT. WiRTH, ufx III. Exhibit 3. Exhibit 3, Maintenance Supplies, Accessories, and Hourly Charges shall be deleted in its entirety and replaced by Exhibit 3 Revised, Smartphone Meter Reading (SPMR) System Subscription Agreement. Other Terms and Conditions. All other terms and conditions of the Agreement shall apply. IN WI_TNESS WHWOF,the parties hereto have executed this Agreement in multiples this day of 2019. APPROVED FOR APPROVED FOR CITY OF FORT WORTH: Datamatic, 11-1c. By: By: d(,y Je a n ibwl , Philip J. Mast r Assistant Cily�anager CFO Date: B' 9 Date: ,S'U. c 2-1 _ Z,( iql APPRO AL RECOMMENDED: QQ [� By: By: (�C. /'� Kara khyrir Chris Harder, PE Deputy Director, Water Department Fort Worth Water Department Director APPROVED AS TO FORM AND LEGAL1T Y: By: Christa Lopez-Reynolds Senior Assistant City Attorney .4. FOR ATTEST: � `. By: Mar/J. KaysUr * Z City Secretary . .xAs OFFICIAL RECO r CFW [AMENDMENT NO. 1 DATAMATIC INC.CSC 500361 CITY SECRETARY Page 2 of 8 FT. WORTH,TX, Contract Authorization: M&C: No M&C Required HR 1295: NSA 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 and reporting requirements. H me o Beltran FI ld Operations Superintendent IAL ;jekX R CFW/[AMENDMENT NO. 1 DATAMATIC INC.CSC 50036] Page 3 of 8 CITY SECRETARY FT WORTH,TX Exhibit 1 Revised—SPMRTM Services Payment Schedule Effective July thru Description-Recurring Fees Rate per Qty October 2019 October 2020 October 2021 Month September 2019 SPMR SmartPhone: License/Support,per Active Phone Seat NA Unlimited SPMR SmartPhone: Data Hosting per Phone NA Unlimited SPMR Web: License/Support per Seat PREMIUM NA Unlimited $ 68,943.05 $ 75,837.33 $ 83,421.08 SPMR Web: License/Support additional Seats NA Unlimited Annual Hosting Charge $ 1,050.00 $ 4,200.00 $ 4,200.00 $ 4,200.00 *Start of Amendment is ProRated Other User Fees and One-Time Service Fees Cost Qty One Time Fees Setup-Web Server,Web Seat(s),Phone(s),Users* $ 799.00 1 $ 799.00 Training-SPMR WEB,SPMR SmartPhone* $1,499.00 1 $ 1,499.00 *One time fee for the life of the agreement TOTAL $ 3,348.00 $ 73,143.05 $ 80,037.33 1 $ 87,621.08 CFW/[AMENDMENT NO. 1 DATAMATIC INC.CSC 50036] Page 4of8 Exhibit 3 Revised SmartPhone Meter Reading (SPMR) System Subscription Agreement This SPMR System Subscription Agreement ("Agreement") is made by and between CLC dba Datamatic, Inc., a Texas corporation, located at 840 Avenue F, Suite 100, Plano, Texas 75074 (hereinafter "DI"), and The City of Fort Worth, TX doing business at 200 Texas Street, Fort Worth, Texas 76102 ("Subscriber"). RECITALS A. WHEREAS DI licenses, in object form only, proprietary computer software ("Software") as an application for smart phones, or similar devices, to record utility meter data and to communicate such data to its remote server("Application"); B. WHEREAS DI hosts the utility meter data on its remote server for retrieval by Subscriber (`Hosting") and collectively, the Application, Hosting and any other services such as training or set-up shall constitute "Services"; and C. WHEREAS Subscriber desires to use the Services; IN CONSIDERATION of the terms and conditions of this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE 1 - GENERAL TERMS 1. ENTIRE AGREEMENT. It is agreed that this Agreement and any EXHIBIT(S) attached hereto and made a part hereby embody the entire agreement of the parties in relation to the subject matter hereunder, and that there is no other oral or written agreement or understanding between the parties at the time of execution pertaining to the subject matter of this Agreement. This Agreement shall not be modified except by the written agreement of all parties hereto. 2. GOVERNING LAW AND CHOICE OF VENUE. This agreement shall be construed, interpreted and enforced under the laws and statutes of the State of Texas without regard for any of said state's conflicts of law provisions. Any legal actions relating to this Agreement shall be brought in either a state court in Collin County, Texas or in a Federal court in the Northern District of Texas, Dallas Division. 3. TAXES. Subscriber shall pay all taxes arising out of this Agreement, except for taxes levied upon the net income of DI. Subscriber agrees to provide an exemption certificate with this contract if Subscriber is an exempt organization for state sales and use tax purposes. ARTICLE 2 —PAYMENTS 1. APPLICATION AND OTHER SERVICES. Subscriber shall pay DI for the fees described in EXHIBIT 1 for the Services. Payment shall be made as follows: A. Subscriber will have access to Services when Services are activated (`Activation Date"). The parties agree that initial payment of service fees for the period beginning with the Activation Date and ending September 30, 2019 shall have been satisfied by Subscriber's payment for the current year in the un-amended Agreement. Subsequent CFW/[AMENDMENT NO. I DATAMATIC INC.CSC 500361 Page 5 of 8 payments shall be for an entire annual period and shall be made each October I`until the Agreement is terminated. B. Subscriber shall pay DI for any support or training at DI's quoted price thirty (30) days after the invoice date. C. Ongoing fees are subject to change on subsequent October I` at the rate of ten (10) percent. D. Additional Hosting Fees. Subscriber shall pay$4,200 per year for taking approximately one (1)picture and up to three (3) pictures per meter reading. This fee shall be invoiced together but itemized separately, due each October I` and not subject to the 10% increase described in I.C. Subscriber agrees to pay a prorate amount of the $4,200 annual fee for the period beginning with the Activation Date and ending September 30, 2019. E. Subscriber shall receive a credit of$100 per handheld device from Consultant to be applied to a future invoice. 2. Subscriber's rights to use the Application or Hosting are expressly conditioned on the timely prepayment of the fees described in EXHIBIT 1. DI reserves the right to suspend Subscriber's use of Hosting Services for non-payment without notice to Subscriber, provided that Subscriber's use will be immediately restored upon full payment of such fees. Subscriber's rights to use the Application and Hosting will terminate effective the date any prepayment was due if not paid. ARTICLE 3—SOFTWARE 1. SOFTWARE LICENSE GRANT. DI hereby grants to Subscriber a nontransferable and nonexclusive license for the use and possession of the SPMR Software in object code form only. Said license is granted under the terms and conditions set forth herein. 2. Subscriber agrees that DI retains ownership rights to the Software, and that Subscriber acquires no title to the Software, nor any other interest in the Software, other than the right to use and possess the Software in accordance with the terms and conditions of this Agreement. All rights not explicitly granted to Subscriber are retained by DI. 3. Subscriber may not copy, decompile, reverse-engineer, disassemble, nor attempt to derive the source code of, modify or create derivative works of the Application or any part thereof. 4. Subscriber agrees that it shall not attempt to or actually sell, give, lend, lease, convey, transfer, license, sublease, provide, or in any other manner transfer any of its rights in the Software, whether or not modified. CFW, [AMENDMENT NO. 1 DATAMATIC INC.CSC 500361 Page 6 of 8 ARTICLE 4-SERVICES 1. Consultant shall provide Subscriber with the Services described on the attached EXHIBIT(S). 2. Services include those specifically described on the attached EXHIBIT(S) and Subscriber agrees that any services not described such as supplemental training or consulting and any related travel and living expenses are not included and Subscriber agrees to pay such charges and expenses within thirty(30) days of DI's invoice. User-specific third-party charges for excessive usage, e.g. data storage volumes or mapping requests that cannot be quantified at the Activation Date may be invoiced separately to Subscriber. ARTICLE 5-WARRANTIES 1. DI warrants that the System shall operate substantially in accordance with the on-line User Manual. The exclusive remedy for any valid warranty claim shall be the provision of conforming software. 2. DISCLAIMER OF WARRANTY AND LIMITATIONS OF REMEDIES. TO THE EXTENT ALLOWED BY LAW, SUBSCRIBER UNDERSTANDS AND AGREES AS FOLLOWS: A. THE EXPRESS WARRANTIES AS SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,AND ALL SUCH OTHER WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED BY DI. B. DI SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING SOFTWARE, SERVICES OR ANY OTHER PERFORMANCE UNDER OR PURSUANT TO THIS AGREEMENT. C. DI DOES NOT WARRANT THE OPERATION OF SOFTWARE OR SERVICES INCLUDED IN THE SYSTEM TO BE ERROR FREE. D. THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF ANY AND ALL WARRANTIES AND THE SOLE REMEDIES FOR DI'S LIABILITY OF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCE)WITH RESPECT TO THE SOFTWARE OR SERVICES COVERED BY THIS AGREEMENT OR ANY PERFORMANCE BY DI UNDER OR PURSUANT TO THIS AGREEMENT, WILL BE LIMITED TO THE REMEDIES SET FORTH IN THIS ARTICLE AND IN NO EVENT SHALL EXCEED THE AGGREGATE CONSIDERATION PAID BY SUBSCRIBER FOR THE SERVICES. E. IN NO EVENT SHALL DI'S LIABILITY OF ANY KIND INCLUDE ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES,EVEN IF DI SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. ARTICLE 6-TERM and TERMINATION 1. The initial term of this Agreement ("Subscription Year") shall be from the Activation Date through the one-year anniversary of that date, except that if the Activation Date is not on the first day of a calendar month, then the first anniversary and all subsequent anniversaries of the Activation Date shall be the first day of the following month. This Agreement shall automatically renew each Subscription year unless the Subscriber provides DI with written CFW/[AMENDMENT NO. 1 DATAMATIC INC.CSC 500361 Page 7 of 8 notice of termination at least one hundred and twenty(120) days prior to the beginning of the upcoming Subscription Year. 2. If Subscriber defaults on any obligation in accordance with the terms and conditions of this Agreement and DI notifies Subscriber in writing of the details of said failure of performance, then DI may, at its option, terminate this Agreement without notice to Subscriber. 3. In the event either party terminates this Agreement or the license of Software, or should Subscriber fail to timely make any payment for the services, all licenses granted under this Agreement shall be terminated, and Subscriber shall, immediately, on the termination date, erase the Software in whatever form retained, and return or destroy any copies of Software documentation. Subscriber shall certify in writing to DI that Subscriber has so returned and/or destroyed the Software and SPMR Documentation. CFW/[AMENDMENT NO. I DATAMATIC INC.CSC 500361 Page 8 of 8