HomeMy WebLinkAboutContract 40757STATE OF TEXAS
COUNTY OF TARRANT
0
CITY' �tECRETgRy
CQNTMQT NO. S 9-
KNOWN ALL BY THESE PRESENTS:
THIS AGREEMENT, entered into the, '--**--day of 2010 by and
between the City of Fort Worth, a home -rule municipal corpo ation situated in Tarrant,
Denton, Parker, and Wise Counties, Texas, acting herein by and through Fernando Costa
its duly authorized Assistant City Manager, hereinafter called the "City", and Field
Automated Communication Systems, LLC, an independent contractor "Consultant". City
and Consultant may be referred to herein individually as a Party, or collectively as the
Parties.
WITNESSETH
That for and in consideration of mutual covenants and agreements herein contained, the
Parties hereto mutually agree as follows:
ARTICLE 1
SERVICES
Section 1.
Consultant hereby agrees to perform as an independent contractor the services set forth in
the Scope of Services attached hereto as Attachment "A". These services shall be
performed in connection with City of Fort Worth: 2007 Critical Capital Project (Council
District 7) — Part 1. (Project Numbers 00930, 00933 & 009380).
Section 2.
Additional services, if any, will be requested in writing by the City. City shall not pay for
any work performed by Consultant or its subconsultants, subcontractors and/or suppliers
that has not been ordered in writing. It is specifically agreed that Consultant shall not be
compensated for any alleged additional work resulting from oral orders of any person.
ARTICLE 2
COMPENSATION
Consultant shall be compensated in accordance with the Fee Schedule shown in
Attachment "B". Payment shall be considered full compensation for all labor, materials,
supplies, and equipment necessary to complete the services described in Attachment "A".
However the total fee paid by the City shall not exceed a total of $45,000 unless the City
and the Consultant mutually agree upon a fee amount for additional services and amend
this Agreement accordingly.
OFFftikL RECORD
CITY SECRETARY
FT. WORTH, TX
09-01-10 P03:58 IN
The Consultant shall provide monthly invoices to the City. Payment for services
rendered shall be due within thirty (30) days of the uncontested performance of the
particular services so ordered and receipt by City of Consultant's invoice for payment of
same.
Acceptance by Consultant of said payment shall operate as and shall release the City
from all claims or liabilities under this Agreement for anything related to, done, or
furnished in connection with the services for which payment is made, including any act
or omission of the City in connection with such services.
ARTICLE 3
TERM
Unless terminated pursuant to the terms herein, this Agreement shall be for a term of one
year, beginning upon the date of its execution, or until the completion of the subject
matter contemplated herein, whichever occurs first.
ARTICLE 4
INDEPENDENT CONTRACTOR
Consultant shall operate hereunder as an independent contractor, and not as an officer,
agent, servant, or employee of the City. Consultant shall have exclusive control of and
the exclusive right to control the details of its work to be performed hereunder and all
persons performing same, and shall be solely responsible for the acts and omissions of its
officers, agents, employees, contractors and subcontractors. The doctrine of respondent
superior shall not apply as between City and Consultant, its officers, agents, employees,
contractors, and subcontractors, and nothing herein shall be construed as creating a
partnership or joint venture between City and Consultant.
ARTICLE 5
PROFESSIONAL COMPETENCE AND INDEMNIFICATION
Section 1.
Work performed by Consultant shall comply in all aspects with all applicable local, state
and federal laws and with all applicable rules and regulations promulgated by the local,
state and national boards, bureaus and agencies. Approval by the City shall not constitute
or be deemed to be a release of the responsibility and liability of Consultant or its
officers, agents, employees, contractors and subcontractors for the accuracy and
competency of its services performed hereunder.
Section 2.
In this connection, Consultant shall indemnify, hold harmless and defend the City and its
officers, agents, servants and employees from and against any and all claims or suits for
property damage or loss and/or personal injury, including death, to any and all persons of
whatsoever kind or character, including but not limited to employees of Consultant,
Consultant's subcontractor's, employees of Consultant's subcontractors, and all other
persons performing work incident to this Agreement which may rise out of or be
connected with directly or indirectly with performance of this Agreement. Consultant
shall likewise indemnify, and hold harmless City for any and all injury or damage to City
property arising out of or in connection with, any and all acts or omissions of Consultant,
its officers, agents, employees or subcontractors.
ARTICLE 6
INSURANCE
Section 1.
Consultant shall not commence work under this Agreement until it has obtained all
insurance required under this Article and the City has approved such insurance, nor shall
Consultant allow any subcontractor to commence work on its subcontract until all similar
insurance of the subcontractor has been so obtained and approval given by the City;
provided, however, Consultant may elect to add any subconsultant as an additional
insured under its liability policies.
Commercial General Liability
$1,000,000 each occurrence
$1,000,000 aggregate
Automobile Liability
$1,000,000 each accident (or reasonably equivalent limits of
coverage if written on a split limits basis) Coverage shall
be on any vehicle used in the course of the Project.
Worker's Compensation
Coverage A: statutory limits
Coverage B: $100,000 each accident
$500,000 disease - policy limit
$100,000 disease - each employee
Technology Liability (E&O)
$1,000,000 Each Claim Limit
$1,000,000 Aggregate Limit
Coverage shall include but not be limited to the following:
➢ Failure to prevent unauthorized access
➢ Unauthorized disclosure of information
➢ Implantation of malicious code or computer virus
➢ Fraud, Dishonest or Intentional Acts with final adjudication language
Technology coverage may be provided through an endorsement to the
Commercial General Liability (CGL) policy, or a separate policy specific to
Technology E&O. Either is acceptable if coverage meets all other
requirements. Coverage shall be claims -made, and maintained for the
duration of the contractual agreement and for tw o (2) years following
completion of services provided. An annual certificate of insurance shall be
submitted to the City to evidence coverage.
Section 2.
Additional Insurance Requirements
a Except for employer's liability insurance coverage under Consultant's
worker's compensation insurance policy, the City, its officers employees and
servants shall be endorsed as an additional insured on Consultant s insurance
policies.
b. Certificates of insurance shall be delivered to the City of Fort Worth,
Department of Transportation & Pubic Works, Attention: Gopal Sahu, P E ,
Project Manger, 1000 Throckmorton Street, Fort Worth, TX 76102, prior to
commencement of work.
c. Any failure on part of the City to request required insurance documentation
shall not constitute a waiver of the insurance requirements specified herein.
d. Each insurance policy shall be endorsed to provide the City a minimum thirty
days notice of cancellation, non -renewal, and/or material change in policy terms
or coverage. A ten days notice shall be acceptable in the event of non-payment
of premium.
Insurers must be authorized to do business in the State of Texas and have a
current A.M. Best rating of A: VII or equivalent measure of financial strength
and solvency.
f. Other than worker's compensation insurance, in lieu of traditional insurance,
City may consider alternative coverage or risk treatment measures through
insurance pools or risk retention groups. The City must approve in writing any
alternative coverage.
g. Workers' compensation insurance policy(s) covering employees employed on
the Project shall be endorsed with a waiver of subrogation providing rights of
recovery in favor of the City.
h. City shall not be responsible for the direct payment of insurance premium
costs for Consultant's insurance.
Consultant's insurance policies shall each be endorsed to provide that such
insurance is primary protection and any self -funded or commercial coverage
maintained by City shall not be called upon to contribute to loss recovery.
In the course of the Agreement Consultant shall report, in a timely manner, to
City's officially designated contract administrator any known loss occurrence
which could give rise to a liability claim or lawsuit or which could result in a
property loss
k. Consultant's liability shall be limited to the specified amounts of insurance
required herein.
1. Upon the request of City, Consultant shall provide complete copies of all
insurance policies required by these Agreement documents.
ARTICLE 7
TRANSFER OR ASSIGNMENT
City and Consultant each bind themselves, and their lawful successors and assigns, to this
Agreement. Consultant, its lawful successors and assigns, shall not assign, sublet or
transfer any interest in this Agreement without prior written consent of the City.
ARTICLE 8
TERMINATION OF CONTRACT
Section 1.
City may terminate this Agreement for its convenience on 30 days' written notice Either
the City or the Consultant for cause may terminate this Agreement if either Party fails
substantially to perform through no fault of the other and does not commence correction
of such nonperformance with 5 days of written notice and diligently complete the
correction thereafter
Section 2.
If City chooses to terminate this Agreement under Article 8, upon receipt of notice of
termination, Consultant shall discontinue services rendered up to the date of such
termination and City shall compensate Consultant based upon calculations in Article 2 of
this Agreement and Exhibit "B ' attached hereto and incorporated herein.
Section 3.
All reports, whether partial or complete, prepared under this Agreement, including any
original drawings or documents, whether furnished by the City, its officers, agents,
employees, consultants, or contractors, or prepared by Consultant, shall be or become the
property of the City, and shall be furnished to the City prior to or at the time such
services are completed, or upon termination or expiration of this Agreement.
ARTICLE 9
RIGHT TO AUDIT
(a) 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 any directly
pertinent books, documents, papers and records of Consultant involving transactions
relating to this Agreement. Consultant agrees that the City shall have access during
normal working hours to all necessary 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 Consultant reasonable advance notice of intended audits.
(b) Consultant further agrees to include in all its subcontracts hereunder, a provision to
the effect that the subcontracting consultant agrees that the City shall, until the
expiration of three (3) years after final payment under the subcontract, have access to
and the right to examine any directly pertinent books, documents, papers and records
of such subconsultant, involving transactions to the subcontract, and further that City
shall have access during normal working hours to all subconsultant facilities, and
shall be provided adequate and appropriate work space in order to conduct audits in
compliance with the provisions of this article. City shall give Consultant and any
subconsultant reasonable advance notice of intended audit.
(c) Consultant and subconsultants agree to photocopy such documents as may be requested
by the City. The City agrees to reimburse Consultant for the cost of copies at the rate
published in the Texas Administrative Code in effect as of the time copying is
performed.
ARTICLE 10
MINORITY AND WOMAN BUSINESS ENTERPRISE
(M/WBE) PARTICIPATION
In accordance with City Ordinance No. 15530, the City has goals for the participation of
minority business enterprises and woman business enterprises ("M/WBE") in City
contracts. Consultant acknowledges the M/WBE goal established for this Agreement and
its commitment to meet that goal. Any misrepresentation of facts (other than a negligent
misrepresentation) and/or the commission of fraud by the Consultant may result in the
termination of this Agreement and debarment from participating in City contracts for a
period of time of not less than three (3) years.
ARTICLE 11
OBSERVE AND COMPLY
Consultant shall at all times observe and comply with all federal state, and local laws and
regulations and with all City ordinances and regulations which in any way affect this
Agreement and the work hereunder, and shall observe and comply with all orders, laws
ordinances and regulations which may exist or may be enacted later by governing bodies
having jurisdiction or authority for such enactment. No plea of misunderstanding or
ignorance thereof shall be considered. Consultant agrees to defend indemnify and hold
harmless City and all of its officers, agents and employees from and against all claims or
liability arising out of the violation of any such order law, ordinance, or regulation, whether
it be by itself or its employees.
ARTICLE 12
VENUE AND JURISDICTION
If any action, whether real or asserted, at law or in equity, arises on the basis of any
provision 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. This Agreement shall be construed in accordance with the
laws of the State of Texas.
ARTICLE 13
CONTRACT CONSTRUCTION
The Parties acknowledge that each party and, if it so chooses, its counsel have reviewed
and revised this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party must not be employed in the
interpretation of this Agreement or any amendments or exhibits hereto.
ARTICLE 14
SEVERABILITY
The provisions of this Agreement are severable, and if any word, phrase, clause,
sentence, paragraph, section or other part of this Agreement or the application thereof to
any person or circumstance shall ever be held by any court of competent jurisdiction to
be invalid or unconstitutional for any reason, the remainder of this Agreement and the
application of such word, phrase, clause, sentence, paragraph, section or other part of
this Agreement to other persons or circumstances shall not be affected thereby and this
Agreement shall be construed as if such invalid or unconstitutional portion had never
been contained therein.
ARTICLE 15
NOTICES
Notices to be provided hereunder shall be sufficient if forwarded to the other Party by
hand -delivery or via U.S. Postal Service certified mail return receipt requested, postage
prepaid, to the address of the other Party shown below:
City of Fort Worth
Attn: Gopal Sahu, P E , Project Manger
Transportation & Public Works Department
1000 Throckmorton Street
Fort Worth, Texas 76102
Consultant
Field Automated Communication Systems, LLC
142 Sansome Street Suite 610
San Francisco, CA 94104
Attention: Dennis Vami
ARTICLE 16
HEADINGS
The headings contained herein are for the convenience in reference and are not intended
to define or limit the scope of any provision of this Agreement
ARTICLE 17
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
but one and the same instrument.
(Remainder of Page Intentionally Left Blank)
IN WITNESS THEREOF, the parties hereto have made and executed this Agreement in
Multiple originals the day and year first above written, in Fort Worth, Tarrant County,
Texas.
CITY OF FORT WORTH:
CONSULTANT:
Fernando Costa
Assistant City Manager Dennis Varni
President
RECOMMENDED:
William A. Verkest, .E., Director
Department of Transportation and Public Work
APPROVED AS TO FORM AND
LEGALITY:
Assi hf City Attorney
ATTEST:
Marty Hendrix
City Secretary
Date
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OFFICIAL RECORD
CIT'`! SECRETARY
Ft WORTH, TX
ATTACHMENT "A"
SCOPE OF SERVICES
1. CONSULTANT will perform or cause to be performed those services described
below in accordance with all applicable laws, regulations, and/or codes and with
the provisions of this agreement. CONSULTANT shall use its best efforts to
conduct the services in an expeditious and timely manner.
2. As part of this Agreement, CONSULTANT shall deliver to CITY:
a. Project System.
i. Project Specific Summary page
ii. Client Specific Summary page
Hi. Daily Journals loaded with General and Specific Item information
iv. Reports Module
v. Field Sketch Module
vi. Search Engine
vii. Weather Module
viii. File Upload Module
ix. Correspondence module for tracking
1. RFI's
2 Submittals
3. Transmittals
4 Memos/E-mails
5. Meeting Minutes
6 Letters
x. Admin Module
xi. With functionality to enter, edit, and monitor information in
CONSULTANT system
b. Support and Maintenance
i. CONSULTANT provides support and maintenance for the
software and hardware on each project including system/security
upgrades (when and if available) and system maintenance.
c. Documents: Document loading is delivered and priced according to the
terms set forth in this Agreement.
i. Baseline CPM with monthly updates loaded in pdf form
ii. Bid Package and Information (includes proposal, amendments,
project specific data) loaded in pdf form
iii. Plans loaded in FACS Viewer
1. Bookmarked for easy navigation
2. Fully linked between other sheets and applicable spec
books
3. Drawing Package for mark-ups on the plan sheets
4. Plan processing report which outlines any page, link or
other errors discovered during processing of plan sheets
5. Plan sheet updates as submitted by project (includes
storage of old sheets and placement of new sheets in
correct location)
d. Common Data
i. Manuals
ii. Specification Books
iii. Project Cross Sections
e. Training: Training is delivered and priced according to the terms set forth
in this Agreement. In addition to training services, CITY is entitled to the
following.
i. Participation in Company sponsored Webinars
ii. Access to feedback system to aid in issue resolution
Hi. User Manual Module training via video presentation
f. Hardware:
If requested, CONSULTANT will supply tablets in 'ready to use'
condition
ii. Tablets will be loaded with CONSULTANT software, Open Office
package, and System Utilities package
Power cable, hard drive and battery is included
3. CONSULTANT and CITY shall jointly review samples of the data to be delivered
to CONSULTANT hereunder. CITY shall reasonably cooperate with
CONSULTANT to cause CITY's data, including each of the items set forth
hereinabove to be Reasonably Uploadable Data. In the event CONSULTANT
receives data in not Reasonably Uploadable format CONSULTANT will contact
CITY for approval prior to incurring any costs for processing.
4. Delivery of Service
a. CONSULTANT will provide CITY the Services (herein understood to
mean the hosted Application Services(s) provided by CONSULTANT
identified above or a Change Order to this Agreement as either a
subscription term or any other services identified on such Change Order)
set forth under this Agreement or subsequent Change Orders.
b. CONSULTANT Support (English only) is staffed during normal business
hours recognized as 8am — 8pm Eastern Standard Time in North
America, Monday through Friday excluding CONSULTANT holidays.
Applicable support terms for the Service including specific hours of
operation, phone numbers, holidays and maintenance windows are
posted on CONSULTANT support website (www facsware.com).
Regularly scheduled maintenance is performed during fixed periods that
are posted on CONSULTANT support website. These periods are
subject to change by CONSULTANT by providing 30-day advance email
notification. If necessary unscheduled maintenance is required,
CONSULTANT will act to issue a timely email warning. CITY shall
reasonably cooperate to facilitate maintenance.
c. Telephone support is available via telephone numbers posted on the
CONSULTANT support website referenced in (c) below. Dunng regular
support hours, CONSULTANT endeavors to respond to telephone
support issues within sixty (60) minutes.
d. CONSULTANT Support maintains a self-service support website at
www.facsware.com/support. This site requires password authentication
and is available to registered CITYs This site is available 24x7 and
contains updated CITY service information.
e. Monitoring CONSULTANT or its subcontractors shall monitor the
Service, on a 24 x 7 x 365 basis, for correct operation, capacity and
performance. The status of the Service is monitored by agents on the
CONSULTANT servers. If an error condition is detected by one of the
agents, an alarm is generated The Service has redundant external
monitors that poll at regular intervals. If these monitors do not receive a
response or if utilization exceeds predefined thresholds an alarm is
generated. When an alarm is received and verified, CONSULTANT will
act to correct any failures and restore normal operation of the Service.
f. Security. The security provided by CONSULTANT shall be in accordance
with good industry practices and includes the following elements@
i Each dataset resides in an independent space that is protected
from other Customers.
ii. Security hardened operation system.
Hi. Secure building infrastructure manned 24x7x365.
End of Attachment A
ATTACHMENT "B"
FEE SCHEDULE
For and in consideration of the performance and completion of the services hereunder,
CITY agrees to pay CONSULTANT an amount not to exceed $45,000 in accordance
with the terms of this Attachment B
1. CONSULTANT shall not perform any additional service, or incur any additional
expense in the performance of this Agreement without the prior written approval
of CITY.
2. CITY shall not be responsible for payment or reimbursement of monies for
additional services performed without the prior written approval of CITY.
3. Taxes. All fees charged by CONSULTANT for Services do not include any
taxes, duties levies or withholdings. In addition to the fees set forth on the order,
CITY will pay to CONSULTANT all sales, use excise, VAT or other taxes and/or
withholdings applicable to the Order, except for taxes based on CONSULTANT
net income.
4. Late Payments. Any payment not received within thirty (30) days of the date
received may accrue interest at a rate of one and one-half percent (1'/2%) per
month, or the highest rate allowed by applicable law, whichever is lower.
5. Payment for Services during the Subscription Term of service:
Project
Set
Up
Fee
$10,000
Covers system
set
up
and
initial
training
General
License
$15,045
Covers
10
internal
users for 12
months
Project
Fee
$2,000
100
sheets
at
$20
each
Plans
Smart
Form
Creation
$2,500
Loading
of 5 Single
page
forms
$5,400
1
Books
for
12
months
Tough
Books
Tough
Additional
Sheets
$10
Each
Plan
Additional
$1000
Per day
plus
expenses
Training
Additional
User
Licenses
$1875
Annual
license
per single
user
invoiced
monthly
Lost/Stolen/or
FACS
Tablet
Damaged
$5000
Per
occurrence
P roject Setup Fee: System setup and training
S ystem Setup will include application deployment, configuration and security.
Standard FACS end -user initial training includes 2 days of onsite training for the
project listed on Attachment A. Additional onsite training is available at a cost of
$1,000 per day, plus travel expense.
Payment Terms: Setup Fee is due upon execution of this Agreement.
P roject Plans/Documents Fee: Plans, Specifications, Contract Documents
The initial loading of project documents shall be paid at the contract lump sum price
for FACS Set -Up Schedule This agreement includes the loading of 200 plan sheets.
P ayment Terms: Payment is due upon receipt of the first set of project plans
S ubscription Fee: Desktop user licenses, support, maintenance, .storage.
S ubscription Fee shall include 10 desktop licenses and ongoing phone and e-mail
support for the duration of the Subscnption Term defined in Attachment A.
S ubscription Fee also includes system storage of up to 1 terabyte, system
maintenance, and core software upgrades if and when they become available.
P ayment Terms: Subscription Fee will be billed monthly.
Tablet Rental Fee: $450/tablet/month
Tablets in Hibernation: $100/tablet/month (available after the initial 12 month period)
Tablets are available for initial one year terms, with automatic monthly renewal until
returned by CITY and physically received by CONSULTANT Tablet rental includes
the tablet equipment, including a unique single user CONSULTANT software license
and proprietary communications software, and all monthly wireless charges,
including data transfer.
P ayment Terms: Due monthly
Tablet billing for partial month is established by date sent/received in FACS SF office
as outlined below:
Tablets
Returned
e
will
receive a
fullmonths
credit
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Tablets
Delivered
will
be invoiced
for
full
month
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Tablets
Returned
will
receive
a
half
months
credit
Tablets
Delivered
will
be invoiced
for
half
month
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Tablets
Returned
will
receive no credit
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Tablets
Delivered
will
not
be invoiced
Customization Fee: $150/hour
The current agreement has forty(40) hours of customization included. Adjustments to
the core product of the FACS system are initiated through individual Customization
Orders and executed in writing by both parties and invoiced at the established rate
plus an additional annual support fee equal to fifteen percent (15%) of the total
Customization cost.
Payment Terms: Due as outlined in Customization Order created for each
requested item.
End of Attachment B