HomeMy WebLinkAboutContract 52585 City Secretary Contract No. c5 g
WFORTWORTH.
f.1
F PROFESSIONAL SERVICES AGREEMENT
(Information Technology)
This PROFESSIONAL SERVICES AGREEMENT("Agreement")is made and entered into by and
between the CITY OF FORT WORTH(the "City"or"Client"), a home-rule municipal corporation situated
in portions of Tarrant,Denton,Johnson and Wise Counties,Texas,acting by and through its duly authorized
Assistant City Manager, and Namtek Corp ("Consultant"), a New Hampshire corporation, and acting by
and through Jim McDonald its duly authorized CEO. City and Consultant are each individually referred to
herein as a "party" and collectively referred to as the "parties." The term "Consultant" shall include the
Consultant, its officers, agents, employees,representatives, contractors or subcontractors. The term `'City"
shall include its officers, employees, agents, and representatives.
CONTRACT DOCUMENTS:
The Contract documents shall include the following:
1. This for Professional Services Agreement;
2. Exhibit A—Statement Of Work Plus Any Amendments To The Statement Of Work;
3. Exhibit B—Payment Schedule;
4. Exhibit C—Network Access Agreement; and
5. Exhibit D—Signature Verification Form
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 "Consultant" or "Contractor" shall include the Consultant or Contractor, and its officers, agents,
employees, representatives, servants, contractors or subcontractors.
The term "City"shall include its officers, employees, agents, and representatives.
I. Scope of Services. Consultant hereby agrees,with good faith and due diligence,to provide
the City with professional services. Specifically, Consultant 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." 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. If there is any conflict
between this Agreement and Exhibit A,the terms and conditions of this Agreement shall control.
2. Term. This Agreement shall commence upon May 24, 2019 ("Effective Date") and shall
expire no later than May 23, 2020 ("Expiration Date"), unless terminated earlier in accordance with the
provisions of this Agreement or otherwise extended by the parties. This Agreement may be renewed for
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four one-year renewals at the City's option,each a"Renewal Term."The City shall provide Consultant 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 Consultant an amount not to exceed Five Thousand
Dollars ($5,000.00)] in accordance with the provisions of this Agreement and Exhibit "B," Payment
Schedule, which is attached hereto and incorporated herein for all purposes. 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. City
agrees to pay all invoices of Consultant within thirty (30) days of receipt of such invoice. Consultant may
charge interest on late payments not to exceed one percent(1%).
4. Termination.
4.1. Convenience. Either 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. Breach. If either party commits a material breach of this Agreement, the non-
breaching Party must give written notice to the breaching party that describes the breach in
reasonable detail. The breaching party must cure the breach ten(10) calendar days after receipt of
notice from the non-breaching party,or other time frame as agreed to by the parties.If the breaching
party fails to cure the breach within the stated period of time, the non-breaching party may, in its
sole discretion, and without prejudice to any other right under this Agreement, law, or equity,
immediately terminate this Agreement by giving written notice to the breaching party.
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 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 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 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. Upon termination of this Agreement for any reason, Consultant shall provide the City,
with copies of all completed or partially completed documents prepared under this Agreement. In
the event Consultant has received access to City information or data as a requirement to perform
services hereunder, Consultant 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.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.
5.2. Confidential Information. The City acknowledges that Consultant may use
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products, materials, or methodologies proprietary to Consultant.The City agrees that Consultant'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. Consultant, 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. Public Information Act. City is a government entity under the laws of the State of
Texas and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. In the event there is a request for information marked Confidential or Proprietary,
City shall promptly notify Seller. It will be the responsibility of Seller to submit reasons objecting
to disclosure.A determination on whether such reasons are sufficient will not be decided by City,
but by the Office of the Attorney General of the State of Texas or by a court of competent
jurisdiction.
5.4. Unauthorized Access. 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, in which
event,Consultant 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.
6.1. 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 shalt
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 not less than 10 days written notice of
any intended audits.
6.2. 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 not less than 10 days written notice of any 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
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between the City, its officers, agents, servants and employees, and Consultant, its officers, agents,
employees,servants,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. It is further
understood that the City shall in no way be considered a Co-employer or a Joint employer of Consultant or
any officers, agents, servants, employees or subcontractors of Consultant. Neither Consultant, nor any
officers, agents, servants, employees or subcontractors of Consultant shall be entitled to any employment
benefits from the City. Consultant 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.
8.1. LIABILITY - 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.
8.2. INDEMNIFICATION - CONSULTANT 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 CONSULTANT'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 ACTS OR OMISSIONS OF CONSULTANT, ITS OFFICERS,AGENTS,
SUBCONTRACTORS, SERVANTS OR EMPLOYEES.
8.3. INTELLECTUAL PROPERTY INFRINGEMENT.
8.3.1. The Consultant 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.
8.3.2. Consultant 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.
8.3.3. Consultant 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
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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 Consultant bears the cost
and expense of payment for claims or actions against the City pursuant to this section
8, Consultant 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 Consultant 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, Consultant shall fully participate and cooperate with the City in
defense of such claim or action. City agrees to give Consultant 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 Consultant'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,Consultant 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 Consultant,
terminate this Agreement, and refund all amounts paid to Consultant by the City,
subsequent to which termination City may seek any and all remedies available to City
under law. CONSULTANT'S OBLIGATIONS HEREUNDER SHALL BE SECURED
BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH IN
SECTION 10 OF THIS AGREEMENT.
9. Assignment and Subcontractin>?.
9.1. 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.
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10. Insurance.
10.1. The Consultant shall carry the following insurance coverage with a company that
is licensed to do business in Texas or otherwise approved by the City:
10.1.1. Commercial General Liability:
10.1.1.1. Combined limit of not less than $2,000,000 per
occurrence; $4,000,000 aggregate; or
10.1.1.2. Combined limit of not less than $1,000,000 per
occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of
$4,000,000. Umbrella policy shall contain a follow-form provision and shall
include coverage for personal and advertising injury.
10.1.1.3. Defense costs shall be outside the limits of liability.
10.1.2. Automobile Liability Insurance covering any vehicle used in providing
services under this Agreement, including owned, non-owned, or hired vehicles, with a
combined limit of not less than$1,000,000 per occurrence.
10.1.3. Professional Liability (Errors & Omissions) in the amount of$1,000,000
per claim and $1,000,000 aggregate limit.
10.1.4. Statutory Workers' Compensation and Employers' Liability Insurance
requirements per the amount required by statute.
10.1.5. Technology Liability (Errors &Omissions)
10.1.5.1. Combined limit of not less than $2,000,000 per
occurrence; $4million aggregate or
10.1.5.2. Combined limit of not less than $1,000,000 per
occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of
$4,000,000. Umbrella policy shall contain a follow-form provision and shall
include coverage for personal and advertising injury. The umbrella policy shall
cover amounts for any claims not covered by the primary Technology Liability
policy. Defense costs shall be outside the limits of liability.
10.1.5.3. Coverage shall include, but not be limited to, the
following:
10.1.5.3.1. Failure to prevent unauthorized access;
10.1.5.3.2. Unauthorized disclosure of information;
10.1.5.3.3. Implantation of malicious code or computer
virus;
10.1.5.3.4. Fraud, Dishonest or Intentional Acts with final
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adjudication language;
10.1.5.3.5. Intellectual Property Infringement coverage,
specifically including coverage for intellectual property infringement
claims and for indemnification and legal defense of any claims of
intellectual property infringement, including infringement of patent,
copyright, trade mark or trade secret, brought against the City for use of
Deliverables, Software or Services provided by Consultant under this
Agreement;
10.1.5.3.6. Technology coverage may be provided through
an endorsement to the Commercial General Liability (CGL) policy, a
separate policy specific to Technology E&O, or an umbrella policy that
picks up coverage after primary coverage is exhausted. Either is
acceptable if coverage meets all other requirements. Technology coverage
shall be written to indicate that legal costs and fees are considered outside
of the policy limits and shall not erode limits of liability. Any deductible
will be the sole responsibility of the Consultant and may not exceed
$50,000 without the written approval of the City. Coverage shall be
claims-made, with a retroactive or prior acts date that is on or before the
effective date of this Agreement. Coverage shall be maintained for the
duration of the contractual agreement and for two (2) years following
completion of services provided. An annual certificate of insurance, or a
full copy of the policy if requested, shall be submitted to the City to
evidence coverage; and
10.1.5.3.7. Any other insurance as reasonably requested by
City.
10.2. General Insurance Requirements:
10.2.1. 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.
10.2.2. The workers' compensation policy shall include a Waiver of Subrogation
(Right of Recovery) in favor of the City of Fort Worth.
10.2.3. 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.
10.2.4. 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.
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10.2.5. Any failure on the part of the City to request required insurance
documentation shall not constitute a waiver of the insurance requirement.
102.6. Certificates of Insurance evidencing that the Consultant 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. 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 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 Namtek Corp
Attn:Assistant City Manager Attn: Keith Turgeon
200 Texas Street 124 Bedford Center Road
Fort Worth TX 76102 Bedford,NH 03110
With Copy to the City Attorney
at same address
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.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 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
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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.
is. 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 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.
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 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.
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. Consultant 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 Consultant's
option, Consultant 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 Consultant for the
nonconforming services.
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26. Network Access.
26.1. City Network Access. If Consultant, and/or any of its employees, officers, agents,
servants or subcontractors(for purposes of this section"Consultant Personnel"),requires access to
the City's computer network in order to provide the services herein, Consultant shall execute and
comply with the Network Access Agreement which is attached hereto as Exhibit "C" and
incorporated herein for all purposes.
26.2. Federal Law Enforcement Database Access. If Consultant, or any Consultant
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") of National Fingerprint File ("NFF"), or Texas Law Enforcement Telecommunications
Systems ("TLETS"), 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 or the Fort Worth Police Department, under this
Agreement. Consultant shall comply with the Criminal Justice Information Services Security
Policy and CFR Part 20, as amended, and shall separately execute the Federal Bureau of
Investigation Criminal Justice Information Services Security Addendum. No changes,
modifications,alterations,or amendments shall be made to the Security Addendum.The document
must be executed as is,and as approved by the Texas Department of Public Safety and the United
States Attorney General.
27. 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. Consultant shall verify the identity and employment eligibility of all
employees who perform work under this Agreement. Consultant shall complete the Employment Eligibility
Verification Form (1-9), 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 tinder this Agreement. Consultant 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. Consultant shall provide City with a certification letter that
it has complied with the verification requirements required by this Agreement. Consultant 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 Consultant.
28. Informal Dispute Resolution. Except in the event of termination pursuant to Section 4.2, if
either City or Consultant 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 parry 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
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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 party 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.
29. No Bovcott 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.
30. Reporting Requirements.
30.1. For purposes of this section, the words below shall have the following meaning:
30.1.1. Child shall mean a person under the age of 18 years of age.
30.1.2. 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.
30.1.3. 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.
30.1.4. 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.
30.2. Reporting Requirement. If Consultant 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,Consultant 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 Consultant 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 Consultant
whose name, title and signature is affixed on the Verification of Signature Authority Form, which is
Professional Services Agreement-Technology
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City Secretary Contract No.
attached hereto as Exhibit "D" 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.
32. Survival of Provisions. The parties'duties and obligations pursuant to Section 4.4(Duties
and Obligations), 5 (Disclosure of Conflicts and Confidential Information), Section 6(Right to Audit), and
Section 8(Liability and Indemnification) shall survive termination of this Agreement.
(signature page follows
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City Secretary Contract No.
Executed in multiples this theme"'-1. day of-14
2( .
ACCEPTED AND AGREED:
City of For Worth Contract Compliance Manager:
By signing I acknowledge that I am the person
By: responsible for the monitoring and administration
Name: Dana Burghdoff of this contract, including ensuring all
Title: Acting Assistant Vity Manager performance and reporting requirements.
Date: _ t By: e
4 04��
Name: Verlon Plunk
Approval Recommended: Title: IT Infrastructure Manager
Date: I/10/20t •�
By: -C't /�L
Name: Chris Harder Approved as to Form and Legality:
i
Title: Director
Date: By: _
Name: J96 B. Strong
Title: Assistant Cit orney
Attest: "
Date:
By:
Name: ary Kay s
Title: City Secre U ° ontract Authorization:
l$C: NPr
Date: � t
SELLER:
Namtek Corp
1
/l
By:
Name: Keith Turgeon
Title: President
Date: July 10, 2019
vs:e�i_ ��R�a 9�!D
Professional Services Agreement-Technology rcilY
g� +�Rev.9./2017 SECRE 1ARY
Pagc 13 of 19
. WoftrHt 7l(
City Secretary Contract No.
EXHIBIT A
STATEMENT OF WORK
Scope:
This contract provides professional services in support of Varonis software used by the Water Department's secured
network environment. Namtek will upgrade the current installation of Varonis for the Water Department to the latest
release. The initial effort is expected to consume 1 day of professional services; however,the cost not to exceed
provides a contingency should the service time extend into a 2"d day. This contract will authorize the initial service
for the current year and provide the option for up to 4 annual renewals. These renewals allow the Water Department
to upgrade the software annually leveraging consulting expertise to assist with installing each new release. The cost
not to exceed amount also covers potential increases in the unit cost for future professional services.
Purpose:
The Varonis DatAdvantage product provides a security and monitoring layer for protecting sensitive water
operations data. Used in the segmented Water network,Varonis detects potential unusual file share activity by
monitoring privileged accounts,detecting threats,securing exposed folders,and archiving inactive data.
Service Need:
Working with a cybersecurity consultant and expert with Varonis software, internal Water IT staff will learn more
about how Varonis can be configured to protect the critical water operations environment. Using a qualified
consulting service for this software upgrade reduces the risk of inadvertently exposing sensitive data due to the need
to migrate the database to a new server. Namtek provides cybersecurity consulting services and is a GSA-approved
government contractor. The City of Fort Worth has an established business relationship with Namtek from prior
service engagements.
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City Secretary Contract No.
EXHIBIT B
PAYMENT SCHEDULE
Year 1:
The Contract Compliance Manager designated in this agreement will provide authorization to
CONSULTANT to schedule the work. CONSULTANT will submit a notification of initial service as well
as service completion. Upon acceptance by the Contract Compliance Manager, CONSULTANT will
submit the invoice for the services performed and accepted. Payment terms will be Net 30 from the date
of the invoice.
Subsequent Work:
The Contract Compliance Manager designated in this agreement may request additional services from
CONSULTANT as long as the Agreement is in full force and effect and has not expired. Upon request,
the CONSULTANT will issue an additional statement of work and a quote for the requested services to
the Contact Compliance Manager. The estimated cost of additional services along with previously paid
services will not be greater than the cost-not-to-exceed amount as defined in Section 3 of the Agreement
on an annual basis. CONSULTANT must have authorization to proceed from the Contract Compliance
Manager prior to executing additional services. Once the additional services have been authorized,
performed, and accepted, CONSULTANT will submit an invoice for payment. Payment terms will be Net
30 from the date of the invoice.
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City Secretary Contract No.
EXHIBIT C
NETWORK ACCESS AGREEMENT
1. The Network. The City owns and operates a computing environment and network
(collectively the "Network"). Consultant wishes to access the City's network in order to provide
description of services. In order to provide the necessary support, Consultant needs access to description
of specific Network systems to which Consultant requires access, i.e. Internet, Intranet, email, HEAT
System, etc.
2. Grant of Limited Access. Consultant is hereby granted a limited right of access to the
City's Network for the sole purpose of providing description of services. 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 Consultant with Network Credentials
consisting of user 1Ds and passwords unique to each individual requiring Network access on behalf of the
Contractor. Access rights will automatically expire one (1) year from 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.
3.1. Services are being provided in accordance with City Secretary Contract No.
Contract No.;
3.2. Services are being provided in accordance with City of Fort Worth Purchase Order
No. PO No.;
3.3. Services are being provided in accordance with the Agreement to which this
Access Agreement is attached.
3.4. 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; and
4.3. Within the thirty (30) days prior to the scheduled annual expiration of this
Agreement, the Consultant 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, Consultant 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. Consultant acknowledges, agrees and hereby
gives its authorization to the City to monitor Contractor's use of the City's Network in order to ensure
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City Secretary Contract No.
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 Consultant pursuant to this Agreement shall be grounds for the City immediately to deny
Consultant 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 Consultant Personnel — For purposes of this section, Consultant
Personnel shall include all officers, agents, servants, employees, or representatives of Contractor.
Consultant shall be responsible for specifically notifying all Consultant 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:
5.1.1. Contractor shall be responsible for any City-owned equipment assigned to
Consultant Personnel, and will immediately report the loss or theft of such equipment to
the City;
5.1.2. Contractor, and/or Consultant Personnel, shall be prohibited from
connecting personally-owned computer equipment to the City's Network;
5.1.3. Contractor Personnel shall protect City-issued passwords and shall not
allow any third party to utilize their password and/or user 1D to gain access to the City's
Network;
5.1.4. Contractor Personnel shall not engage in prohibited or inappropriate use
of Electronic Communications Resources as described in the City's Administrative
Regulation D7;
5.1.5. Any document created by Consultant Personnel in accordance with this
Agreement is considered the property of the City and is subject to applicable state
regulations regarding public information;
5.1.6. 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:.
5.1.7. All network activity may be monitored for any reason deemed necessary
by the City; and
5.1.8. A Network user ID may be deactivated when the responsibilities of the
Consultant 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, Consultant 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. Consultant 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.Consultant 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.
(signature page follows)
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Page 17 of 19
City Secretary Contract No.
ACCEPTED AND AGREED:
CITY:
City of Fort Worth Contract Compliance Manager:
By signing I acknowledge that 1 am the person
By: 0" responsible for the monitoring and administration
Name: Dana Burghdoff ) of this contract. including ensuring all
Title: Acting/Assistant ity Manager performance and reporting requirements.
Date: _ 71 ZZ By: _ �� �.�-•��
Name: Verion Plunk
Approval Recommended: Title: IT Infrastructure Manager
Date: 710 / ZO A%
By: e�g 4,(C
Name: Chris Harder Approved as to Form and Legality:
Title: Director
Date: By:
Name: J B. Strong
a Title: Assistant City ttorney
Attest: ~'
ate:
By: L
Name: a KaOer -Title: CitySe ontract Authorization:
&C:
Date: .....• '
SELLER:
Namtek Corp �--
By:
Name: Keith Turgeon
Title: President
Date: July 10, 2019
Professional Services Agreement—Technology
Rev.9/2011
Page 18 of 19
City Secretary Contract No.
EXHIBIT D
VERIFICATION OF SIGNATURE AUTHORITY
Namtek Corp
124 Bedford Center Road, Suite C
Bedford NH 03110
Professional Services—Varonis Upgrade
Execution of this Signature Verification Form ('Form") hereby certifies that the following individuals
and/or positions have the authority to legally bind the Consultant and to execute any agreement,amendment
or change order on behalf of Consultant. 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 Consultant.
Consultant 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 property executed by the Consultant.
l. Name: Keith Turgeon
Position: President
/l
Signature
2. Name:
Position:
Signature
3. Name:
Position:
Signature
Name:Keith Turgeonn
/�
Signature of President/CEO
Other Title:
Date: July 10,2019
Professional Services Agreement—Technology
Rev.9/2017
Page 19 of 19