HomeMy WebLinkAboutContract 53678-AD1 CITY SECRETARY
CONTRACT NO. 5,�(Dl� -A'D 1
0 tQ20 ADDENDUM TO CUSTOMER AGREEMENT
ov O..F �R p� BETWEEN
THE CITY OF FORT WORTH
AND
ENVISIONWARE, INC.
This Addendum to the Customer Agreement("Addendum")is entered into by and between
EnvisionWare, LLC. ("Vendor") and the City of Fort Worth ("City"), collectively the "parties",
for a purchase of licenses.
The Contract documents shall include the following:
1. The Customer Agreement
2. This Addendum;
3. The EnvisionWare End User License Agreement(EULA),which includes the following:
a. Verifone Payment Gateway Terms of Use
b. Payment Express,Inc.End User Licenses Agreement(EULA)
Notwithstanding any language to the contrary in the attached Customer Agreement (the
"Agreement"), the Parties hereby stipulate by evidence of execution of this Addendum below by
a representative of each party duly authorized to bind the parties hereto, that the parties hereby
agree that the provisions in this Addendum below shall be applicable to the Agreement as follows:
l. Term. The Agreement shall become effective upon the signing of the Agreement
by an Assistant City Manager of the City(the"Effective Date") and shall expire no later than(12)
months after the Effective Date (the Expiration Date"), unless terminated earlier in accordance
with the provisions of the Agreement or otherwise extended by the parties. The Agreement may
be renewed at the City's option, each a "Renewal Term." City shall provide Vendor with written
notice of its intent to renew at least thirty(30) days prior to the end of each term.
2. Termination.
a. Convenience. Either City or Vendor may terminate the Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach.If either party commits a material breach of the 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 the Agreement, law, or equity, immediately terminate this Agreement by giving
written notice to the breaching party.
tORD
Addendum LF7,
C. Fiscal Funding Out. In the event no funds or insufficient funds are
appropriated by City in any fiscal period for any payments due hereunder, City will notify
Vendor of such occurrence and the 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.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Vendor for services actually
rendered up to the effective date of termination and Vendor shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Vendor shall
provide City with copies of all completed or partially completed documents prepared under
the Agreement. In the event Vendor has received access to City information or data as a
requirement to perform services hereunder, Vendor shall return all City provided data to
City in a machine readable format or other format deemed acceptable to City.
3. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
4. Law and Venue. The Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with the laws of the United States and state of
Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement
shall be in a court of competent jurisdiction in Tarrant County,Texas. To the extent the Agreement
is required to be governed by any state law other than Texas or venue in Tarrant County, City
objects to such terms and any such terms are hereby deleted from the Agreement and shall have
no force or effect.
5. Linked Terms and Conditions. If the Agreement contains a website link to terms
and conditions, the linked terms and conditions located at that website link as of the effective date
of the Agreement shall be the linked terms and conditions referred to in the Agreement. To the
extent that the linked terms and conditions conflict with any provision of either this Addendum or
the Agreement, the provisions contained within this Addendum and the Agreement shall control.
If any changes are made to the linked terms and conditions after the date of the Agreement, such
changes are hereby deleted and void. Further, if Vendor cannot clearly and sufficiently
demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the
linked terms and conditions are hereby deleted and void.
6. Insurance. The City is a governmental entity under the laws of the state of Texas
and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self-Insurance by
Governmental Units," is self-insured and therefore is not required to purchase insurance. To the
extent the Agreement requires City to purchase insurance, City objects to any such provision, the
parties agree that any such requirement shall be null and void and is hereby deleted from the
Addendum Page 2 of 9
Agreement and shall have no force or effect. City will provide a letter of self-insured status as
requested by Vendor.
7. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
8. Limitation of Liability and Indemnity. To the extent the Agreement, in any way,
limits the liability of Vendor or requires City to indemnify or hold Vendor or any third party
harmless from damages of any kind or character, City objects to these terms and any such terms
are hereby deleted from the Agreement and shall have no force or effect.To the maximum extent
permitted by applicable law and regardless of whether any remedy set forth herein fails of its essential purpose,
in no event will Envision Ware or its licensors be liable to the City for any loss of use, lost data, failure of security
mechanisms(other than those contained in the software), interruption of business or any special, consequential,
indirect, punitive,exemplary or similar damages,including any lost profits arising out of the use or inability to use
the software or hardware,even if EnvisionWare has been advised of the possibility of such damages. In no case
shall EnvisionWare's or its licensors'total liability(a)for any products covered under this agreement,exceed the
purchase price for the software and hardware or(b)for any professional services, exceed the fees paid by the
City for the professional services during the twelve (12) months immediately prior to the event which directly
caused the damages alleged.
9. IP Indemnification. Vendor 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 City modifies or misuses the
Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions
against the City pursuant to this section 8,Vendor 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 Vendor 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, Vendor shall fully
participate and cooperate with the City in defense of such claim or action.City agrees to give
Vendor 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 Vendor'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, Vendor 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
Addendum Page 3 of 9
Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is
reasonably available to Vendor, terminate this Agreement, and refund all amounts paid to
Vendor by the City, subsequent to which termination City may seek any and all remedies
available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE
SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY.
10. Insurance. City agrees that insurance coverage provided to City by Vendor is
sufficient for purposes of the Agreement only.
11. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of funds.
If such funds are not appropriated or become unavailable, City shall have the right to terminate the
Agreement except for those portions of funds which have been appropriated prior to termination.
12. Confidential Information. 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. To the extent the Agreement requires that City maintain records in
violation of the Act, City hereby objects to such provisions and such provisions are hereby deleted
from the Agreement and shall have no force or effect.In the event there is a request for information
marked Confidential or Proprietary,City shall promptly notify Vendor. It will be the responsibility
of Vendor 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.
13. Addendum Controlling. If any provisions of the attached Agreement, conflict with
the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or
ordinance of City, the terms in this Addendum shall control.
14. Network Access.
a. City Network Access. If Vendor, and/or any of its employees, officers,
agents, servants or subcontractors (for purposes of this section "Vendor Personnel"),
requires access to the City's computer network in order to provide the services herein,
Vendor shall execute and comply with the Network Access Agreement which is attached
hereto as Exhibit"G" and incorporated herein for all purposes.
b. Federal Law Enforcement Database Access. If Vendor, or any Vendor
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"), 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 the Agreement, Vendor shall comply
with the Criminal Justice Information Services Security Policy and CFR Part 20, as
Addendum Page 4 of 9
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.
15. Immigration Nationality Act. Vendor shall verify the identity and employment
eligibility of its employees who perform work under this Agreement, including completing the
Employment Eligibility Verification Form(I-9). Upon request by City,Vendor shall provide City
with copies of all I-9 forms and supporting eligibility documentation for each employee who
performs work under this Agreement. Vendor shall adhere to all Federal and State laws as well as
establish appropriate procedures and controls so that no services will be performed by any Vendor
employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY
CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S
EMPLOYEES,SUBCONTRACTORS,AGENTS,OR LICENSEES.City,upon written notice
to Vendor, shall have the right to immediately terminate this Agreement for violations of this
provision by Vendor.
16. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is
for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with
Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with
a company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those
terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Vendor
certifies that Vendor's signature provides written verification to City that Vendor: (1) does not
boycott Israel; and(2) will not boycott Israel during the term of the Agreement.
17. Right to Audit. Vendor agrees that City shall,until the expiration of three(3)years
after final payment under the Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Vendor involving transactions relating to the
Agreement. Vendor agrees that City shall have access during normal working hours to all
necessary Vendor facilities and shall be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable
advance notice of intended audits.
(signature page follows)
Addendum Page 5 of 9
ACCEPTED AND AGREED:
CITY:
City of Fort Wort$ Contract Compliance Manager:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract,including ensuring all
By: performance and reporting requirements.
Name: Kevin(37urdi
Title: Assistant City Manager
1^/Date:
//y A�p By: "
Name: Xsti0irace
Approval Recommended: Title: JSr.IT Solutions Manager
Approved as to Form and Legality:
By.- A -9- 01d
M oger Wnght
Titl : Interim IT Solutions Director By: 4
Name: Idhn B. Str ng
Attest: Title: Assistant Ci ttorney
lnxk� Contract Authorization:
M&C: NA
Name: Aary J. Ka r ,%'
Title: City Secrets I LL,.
{ � 1
VENDOR:
EnvisionWare, Inc.
By:
Name: Michae . Monk
Title: CEO
Date: Maros 2,2020
OFFICIAL RECORD
Exhibit A CITY SECRETARY
FT. WORTHo TX
Addendum Page 6 of 9
EXHIBIT A
NETWORK ACCESS AGREEMENT
1. The Network. The City owns and operates a computing environment and network
(collectively the "Network"). Vendor wishes to access the City's network in order to provide
description of services. In order to provide the necessary support, Vendor needs access to
description of specific Network systems to which Vendor requires access, i.e. Internet, Intranet,
email, HEAT System, etc. ("Access").
2. Grant of Limited Access. Vendor 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 Vendor with Network Credentials
consisting of user IDs and passwords unique to each individual requiring Network access on behalf
of the Vendor. Access is being granted for purposes of completing services for the City pursuant
to the Agreement and Access shall expire at the completion of the, or upon termination of the
Agreement, whichever occurs first.
4. Renewal. This Network Access Agreement shall be renewed in accordance with
the Agreement 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 Vendor 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,
Vendor 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 and/or termination of this Network Access Agreement.
5. Network Restrictions. Vendor officers, agents, servants, employees or
representatives may not share the City-assigned user IDs and passwords. Vendor acknowledges,
agrees and hereby gives its authorization to the City to monitor Vendor's use of the City's Network
in order to ensure Vendor's compliance with this Network Access Agreement.A breach by Vendor,
its officers,agents,servants,employees or representatives,of this Agreement and any other written
instructions or guidelines that the City provides to Vendor pursuant to this Network Access
Agreement shall be grounds for the City immediately to deny Vendor access to the Network and
Vendor's Data,terminate the Agreement and the Network Access Agreement,and pursue any other
Addendum Page 7 of 9
remedies that the City may have under the Agreement or this Network Access Agreement or at
law or in equity.
5.1. Notice to Vendor Personnel — For purposes of this section, Vendor
Personnel shall include all officers, agents, servants, employees, or representatives of
Vendor. Vendor shall be responsible for specifically notifying all Vendor 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. Vendor shall be responsible for any City-owned equipment assigned
to Vendor Personnel, and will immediately report the loss or theft of such
equipment to the City;
5.1.2. Vendor, and/or Vendor Personnel, shall be prohibited from
connecting personally-owned computer equipment to the City's Network;
5.1.3. Vendor 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;
5.1.4. Vendor 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 Vendor 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. Vendor 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 Vendor Personnel no longer require Network access
6. Termination. In addition to the other rights of termination set forth herein,the City
may terminate this Network Access Agreement at any time and for any reason with or without
notice, and without penalty to the City. Upon termination of this Network Access Agreement,
Vendor agrees to remove entirely any client or communications software provided by the City
from all computing equipment used and owned by the Vendor, its officers, agents, servants,
employees and/or representatives to access the City's Network.
7. Information Security.Vendor 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. Vendor 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 Vendor-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.
Addendum Page 8 of 9
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
By: performance and reporting requirements.
Name: Kevin Gund
Title: Assistant City Manager
Date: 7v By:
Name: J stin Grace
Approval Recommended: Title: Sr.IT Solutions Manager
Approved as to Form and Legality:
By; Iz 3��Q�za /
Qs�
( I
Nar .Roge ght
Tit Interim IT Solutions Director By:
Name: Jo B. Strong
Attest: Title: Assistant City Att /ey
Contract Authorization:
NA
By; y
Name: Pary J. KaW F
Title: City Secretary
w �y.........
VENDOR: �'•�"�� ``
' .
EnvisionWare,Inc.
By:
Name: Mich el J. Monk
Title: CEO
Date: March 2,2020
FOMCIA1
ETJYTH,
Addendum Page 9 of 9