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HomeMy WebLinkAboutContract 57959 CSC No. 57959 FORTWORTH. VENDOR SERVICES AGREEMENT (Information Technology) This Vendor Services Agreement("Agreement")is made and entered into by and between the City of Fort Worth,a Texas home-rule municipal corporation(the"City"or"Client")and Analytical Technology, Inc.,a Pennsylvania Corporation("Vendor").City and Vendor are each individually referred to herein as a "party" and collectively referred to as the "parties." The term "Vendor" shall include Vendor, 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 Vendor Services Agreement; 2. Exhibit A—Statement Of Work Plus Any Amendments To The Statement Of Work; 3. Exhibit B—Payment Schedule; 4. Exhibit C—Conflict of Interest Questionnaire 5. Exhibit D—Network Access Agreement; 6. Exhibit E—Seller Contact Information; 7. Exhibit F—Verification of Signature Authority; 8. Exhibit G—Seller's Soule Source Justification Letter;and 9. Exhibit H—Seller's Proposal 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 Agreement shall control. The term "Vendor" or "Contractor" shall include the Vendor or Contractor, and its officers, agents, employees,representatives, servants,contractors or subcontractors. The term"City"shall include its officers, employees,agents, and representatives. 1. Scope of Services. Vendor hereby agrees, with good faith and due diligence, to provide the City with Original Manufacturer(OEM)replacement parts,equipment,repairs an maintenance services for five (5) s::can measuring systems monitoring stations.. Specifically, Vendor 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."Vendor shall perform the Services in accordance with standards in the industry for the same or similar services. In addition, Vendor 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. OFFICIAL RECORD Vendor Services Agreement—Technology(Rev. CITY SECRETARY 8/19) 20 FT.WORTH, TX 2. Term. This Agreement shall commence upon the date signed by the Assistant City Manager below ("Effective Date") and shall expire no later than Septemberr 1, 2023 ("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 four(4) at the City's option, each a"Renewal Term."The City shall provide Vendor with written notice of its intent to renew at least thirty (30) days prior to the end of each term. 3. Compensation. City shall pay Vendor an amount not to exceed Fourteen Thousand Four Hundred Thirty Dollars ($14,330.00) in accordance with the provisions of this Agreement and Exhibit "B," Payment Schedule, which is attached hereto and incorporated herein for all purposes. For each Renewal Term, the City shall pay the amount on a written quote provided by Vendor which shall then be attached to the City's respective renewal form. Vendor shall not perform any additional services for City not specified by this Agreement unless City requests and approves in writing the additional costs for such services. City shall not be liable for any additional expenses of Vendor not specified by this Agreement unless City first approves such expenses in writing. City agrees to pay all invoices of Vendor within thirty (30)days of receipt of such invoice. 4. Termination. 4.1. Convenience.Either the City or Vendor 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 parry 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 Vendor 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 Obliaations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date,the City shall pay Vendor for services actually rendered up to the effective date of termination and Vendor 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,Vendor shall provide the City with copies of all completed or partially completed documents prepared under this 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 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.Vendor hereby warrants to the City that Vendor has made Vendor Services Agreement—Technology(Rev. 8/19) Page 2 of 20 full disclosure in writing of any existing or potential conflicts of interest related to Vendor's services under this Agreement.In the event that any conflicts of interest arise after the Effective Date of this Agreement,Vendor hereby agrees immediately to make full disclosure to the City in writing. 5.2. Confidential Information. The City acknowledges that Vendor may use products, materials, or methodologies proprietary to Vendor. The City agrees that Vendor'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. Vendor, 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.Vendor 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.Vendor 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, Vendor 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. Vendor 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 Vendor involving transactions relating to this Agreement at no additional cost to the City.Vendor agrees that the City shall have access during normal working hours to all necessary Vendor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Vendor not less than 10 days written notice of any intended audits. 6.2. Vendor 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 Vendor shall operate as Vendor Services Agreement—Technology(Rev. 8/19) Page 3 of 20 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, Vendor 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.Vendor acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers,agents,servants and employees,and Vendor, its officers, agents, employees, servants, contractors and subcontractors. Vendor further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Vendor.It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Vendor or any officers, agents, servants, employees or subcontractors of Vendor. Neither Vendor, nor any officers, agents, servants, employees or subcontractors of Vendor shall be entitled to any employment benefits from the City. Vendor 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 - VENDOR 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 VENDOR,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. 8.2. INDEMNIFICATION -VENDOR HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMILESS 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 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 VENDOR, ITS OFFICERS, AGENTS, SUBCONTRACTORS,SERVANTS OR EMPLOYEES. 8.3. INTELLECTUAL PROPERTY INFRINGEMENT. 8.3.1. The Vendor 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. Vendor 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) Vendor Services Agreement—Technology(Rev. 8/19) Page 4 of 20 hereunder. 8.3.3. 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 the 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 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 AND AMOUNTS SET FORTH IN SECTION 10 OF THIS AGREEMENT. 8.4. Data Breach. Vendor further agrees that it will monitor and test its data safeguards from time to time, and further agrees to adjust its data safeguards from time to time in light of relevant circumstances or the results of any relevant testing or monitoring.If Vendor suspects or becomes aware of any unauthorized access to any financial or personal identifiable information ("Personal Data") by any unauthorized person or third party, or becomes aware of any other security breach relating to Personal Data held or stored by Vendor under this Agreement or in connection with the performance of any services performed under this Agreement or any Statement(s)of Work("Data Breach"),Vendor shall immediately notify City in writing and shall fully cooperate with City at Vendor's expense to prevent or stop such Data Breach.In the event of such Data Breach,Vendor shall fully and immediately comply with applicable laws,and shall take the appropriate steps to remedy such Vendor Services Agreement—Technology(Rev. 8/19) Page 5 of 20 Data Breach.Vendor will defend,indemnify and hold City,its Affiliates,and their respective officers,directors,employees and agents,harmless from and against any and all claims,suits, causes of action,liability,loss,costs and damages,including reasonable attorney fees,arising out of or relating to any third party claim arising from breach by Vendor of its obligations contained in this Section,except to the extent resulting from the acts or omissions of City.All Personal Data to which Vendor has access under this Agreement,as between Vendor and City, will remain the property of City. City hereby consents to the use,processing and/or disclosure of Personal Data only for the purposes described herein and to the extent such use or processing is necessary for Vendor to carry out its duties and responsibilities under this Agreement, any applicable Statement(s) of Work, or as required by law.Vendor will not transfer Personal Data to third parties other than through its underlying network provider to perform its obligations under this Agreement, unless authorized in writing by City. Vendor's obligation to defend,hold harmless and indemnify City shall remain in full effect if the Data Breach is the result of the actions of a third party.All Personal Data delivered to Vendor shall be stored in the United States or other jurisdictions approved by City in writing and shall not be transferred to any other countries or jurisdictions without the prior written consent of City. 9. Assignment and Subcontracting. 9.1. Vendor 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 Vendor under which the assignee agrees to be bound by the duties and obligations of Vendor under this Agreement.The Vendor 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 Vendor referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Vendor under this Agreement as such duties and obligations may apply.The Vendor shall provide the City with a fully executed copy of any such subcontract. 10. Insurance. 10.1. The Vendor 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 Vendor Services Agreement—Technology(Rev. 8/19) Page 6 of 20 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 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 Vendor 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 Vendor and may not exceed$50,000 without the written approval of the City. Coverage shall be claims-made, Vendor Services Agreement—Technology(Rev. 8/19) Page 7 of 20 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 City. 10.1.5.3.7. Any other insurance as reasonably requested by 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. 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. 10.2.6. Certificates of Insurance evidencing that the Vendor 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. Vendor agrees to comply with all applicable federal, state and local laws,ordinances,rules and regulations. If the City notifies Vendor of any violation of such laws, ordinances, rules or regulations, Vendor shall immediately desist from and correct the violation. 12. Non-Discrimination Covenant. Vendor, for itself, its personal representatives, assigns, subcontractors and successors in interest,as part of the consideration herein,agrees that in the performance of Vendor'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 Vendor, its personal representatives, assigns, subcontractors or successors in interest,Vendor agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. Vendor Services Agreement—Technology(Rev. 8/19) Page 8 of 20 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 VENDOR: City of Fort Worth Analytical Technology, Inc. Attn:Assistant City Manager Attn: Mr.William J. Popp 200 Texas Street 6 Iron Bridge Drive Fort Worth TX 76102 Collegeville,PA 19426 With Copy to the City Attorney Facsimile: (610)917-0992 at same address 14. Solicitation of Employees. Neither the City nor Vendor 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 Vendor 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 Vendor's respective right to insist upon appropriate performance or to assert any such right 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. 18. 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 Vendor 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 Vendor Services Agreement—Technology(Rev. 8/19) Page 9 of 20 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 parry. 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 Vendor,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. Vendor 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 Vendor's option,Vendor 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 Vendor for the nonconforming services. 26. _Milestone Acceptance. Vendor shall verify the quality of each deliverable before submitting it to the City for review and approval. The City will review all deliverables to determine their acceptability and signify acceptance by execution of the Milestone Acceptance Form, which is attached hereto as Exhibit"C."If the City rejects the submission, it will notify the Vendor in writing as soon as the determination is made listing the specific reasons for rejection. The Vendor shall have ten (10) days to correct any deficiencies and resubmit the corrected deliverable. Payment to the Vendor shall not be authorized unless the City accepts the deliverable in writing in the form attached. The City's acceptance will not be unreasonably withheld. 27. Network Access. 27.1. 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 "D" and incorporated herein for all purposes. 27.2. 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 Vendor Services Agreement—Technology(Rev. 8/19) Page 10 of 20 ("FIRS"),Interstate Identification Index System("III System"),National Crime Information Center ("NCIC")er 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, Vendor 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. 28. 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. 29. Informal Dispute Resolution. Except in the event of termination pursuant to Section 4.2, if either City or Vendor 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 party 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 parry'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 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. 30. 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 Vendor Services Agreement—Technology(Rev. 8/19) Page 11 of 20 "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 31. Reporting Requirements. 31.1. For purposes of this section,the words below shall have the following meaning: 31.1.1. Child shall mean a person under the age of 18 years of age. 31.1.2. 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. 31.1.3. 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. 31.1.4. 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. 31.2. Reporting Requirement.If Vendor 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,Vendor 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 Vendor to make the report required herein may result in criminal and/or civil penalties. 32. 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 Vendor whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit"E"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. 33. 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) Vendor Services Agreement—Technology(Rev. 8/19) Page 12 of 20 [Executed effective as of the date signed by the Assistant City Manager below.]/[ACCEPTED AND AGREED:] City: Vendor:Analytical Technology,Inc. I�Gl.K,Gli By: Dana Burghdoff(A g 9,202 9:27 CDT) By: Name: Dana Burghdoff Name: William J.Epp Title: Assistant City Manager Title: North American Sales Manager; Water Date: Quality Date: 7 ZL ZZ CITY OF FORT WORTH INTERNAL ROUTING PROCESS: Approval Recommended: Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration C`l�'/,I�D(�`lG 6�ydGi' of this contract, including ensuring all By: Christopher H rder(Aug 1,202211:00 CDT) performance and reporting requirements. Name: Christopher Harder,P.E. Title: Water Department Director By: Approved as to Form and Legality: Name: Patty e ilson Title: Con c rvices Administrator By: City Secretary: Name: Taylor Paris Title: Assistant City Attorney By: J ette S.Goodall(Aug 9,2022 10: DT) Contract Authorization: Name: Jannette S.Goodall davdd"� FORM&C: N/A Title: City SecretarypF° r� o-ft° 0O ° o°° 00 *a I�, 000000 �OFFICIAL RECORD Vendor Services Agreement—Technology(Rev. CITY SECRETARY 8/19) 20 FT.WORTH, TX EXH11BIT A SCOPE OF SERVICES Analytical Technology,Inc. agrees to provide Original Manufacturer(OEM)replacement parts, equipment,repairs and maintenance services for five(5)s::can measuring systems monitoring stations. Site Visit: One-day on-site visit by Analytical Technology,Inc. for start-up and training(includes travel costs). Please see attached Vendor's written quotation(Exhibit H—Seller's Proposal)for additional information. Vendor Services Agreement—Technology(Rev. 8/19) Page 14 of 20 EN=IT B PAYMENT SCHEDULE The payment terms shall be"Net 30 days"from receipt of invoice. Vendor Services Agreement—Technology—Exhibit B Page 15 of 20 Exhibit C CONFLICT OF INTEREST QUESTIONNAIRE FORM CIO For vendor doing business with local governmental entity This questionnaire reflects changes made to the taw by K8.23.64th Leg_Regular Session. OFFICEUSEONLY This questionnaire is being filed in accordancewith Chapter 176.Local Government Code. o,tG Rv ova0 by a vendorwho has a business relationship as defined by Section 176.001(1-a)with a local govemmental entity and the vendor meets requirements under Section 176.006(a). By iav this questionnaire must be filedwith the records administrator of the local governmental entity not later than the 7th business day after the date the vendor becomes aware of facts that require the statement to be filed. See Section 176.006(a-1).Local Government Code. A vendor commits an offense it the vendor knowingly violates Section 176.009. Local Government Code.An offense under this section is a misdemeanor. t Name of vendor Who haS a business relationship with local governmental entity. ATtc-kn-o z Check this box If you are filing an update-to a previously filed questionnaire. (The law requires that you file an updated completed questionnaire with the appropriate filing authority not later than the 7th business day after the date on which you became aware that the originally filed questionnaire was incomplete or inaccurate.) 3 Name of local government officer about whom the Information In this section Is being disclosed. Name of Officer This section(item 3 including subparts A. B,C.&0) must be completed for each officer with whom the vendor has an employment or other business relationship as defined by Section 176.001(1-a).Local Government Code. Attach additional pages to this Form CIO as necessary. A. is the local eovernment officer named in this section receiving or likely to receive taxable income.other than investment income.from the vendor? Yes a No �/A S. is the vendor receiving or Rely to receive taxable income,other than investment income.from or at the direction of the local government officer named in this section AND the taxable income is not received from the local govemmental entity? = Yes allo N 1A C. Is the fifer of this questionnaire employed by a corporation or other business entity with respect to which the local government officer serves as an officer or director.or holds an ownership interest of one percent or more?JA Yes No 0. Describe each employment or business and family relationship with the local government officer named in this section. . ..c� � z�lz2 Signature of tie r oing�rsiness with the governmental entity Date Adopted 8%7:201 a Vendor Services Agreement Page 18 of 22 EXHIBIT D 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 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: Vendor Services Agreement—Technology—Exhibit D Page 17 of 20 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. Vendor Services Agreement—Technology—Exhibit D Page 18 of 20 5.L L 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. Vendor Services Agreement—Technology—Exhibit D Page 18 of 20 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 n6 4A' of this contract, including ensuring all By: Dana Burghdoff(A(fg 9,20z 9:27 CDT) performance and reporting requirements. Name: Dana Burghdoff Title: Assistant City Manager Date: By. Name: Pa J Wilson Approval Recommended: Title: Contract ervices Administrator Approved as to Form and Legality: By: Christopher H rder(Aug 1,2022 11:00 CDT) Name: Christopher Harder,P.E. �% — Title: Water Department Director By: Name: Taylor Paris Attest: Title: Assistant City Attorney Contract Authorization: M&C: N/A By: J ette S.Goodall(Aug 9,202210:g PTA r.RnrT Name: Jannette S.Goodall pAFoFORr� ad Title: City Secretary a�o o o o0 Od G�o° P.—o °o�� 0 o � o o 41 0 nEX4►So�cy VENDOR: Analytical Technology,Inc. By. L Name: William J.Popp Title: North American Sales Manager; Water Quality Date: OFFICIAL RECORD CITY SECRETARY Vendor Services Agreement—Technology—Exhibit D FT.WORTH, TX 20 EXMIT E—SELLER CONTACT INFORMATION Seller's Name: r � '�� C Seller's Local Address: f Phone: Fax: �bj-j- D Z Email: o. e s 0.nn - : ►. �- L�• Name ofpersons to contact when placing an order or invoice questions: Name/Title c•rcv�S 4 U - 1 h te. Phone: Ott - fl 2 Fax: (e!D j- n q Gi z Email: i- S h r �.� wo fi a l,r, ` � 4 Name/Title Phone: Fax: Email: Name/Title Phone: Fax: Email: 0;��' ar��,Qmcr; „l�5 Prl �� 1 LI-7 �2 Signature Printed Name Date Vendor Services Agreement Page 22 of 22 Exhibit F ' 6 Iron Bridge Drive A ' Collegeville,PA 19426 S . - can (610)917-0991 A Badger Meter Brand A Badger MeterO Brand Fax: (610)917-0992 www_analyti ca ltechnoloov.com www.s-can.at/en/ June 29,2022 City of Forth Worth Purchasing Department 200 Texas Street Fort Worth Texas 76102 Lower level Analytical Technology,Inc.—Signature Authoritv To Whom It May Concern: Mr.William J.Popp,our North American Sales Manager,Water Quality has the authority to offer, bind and contract on behalf of Analytical Technology, Inc.with the City of Forth Worth on the sole source Service Agreement of water quality products and services. Ze Matthew L.Stuyvenberg Vice President—Water Quality Badger Meter, Inc. (Parent Company to ATI) Officer and Authorized Signor for ATI _.0 William R. Bergum — • 905 Vice President—General Counsel &Secretary Badger Meter, Inc.(Parent Company to ATI) '' WISCOr;•`� Badger Meter 454S\N. Brown Deer Rd. PO Bcs 2450361 Mil'nIaukee.Wisconsin S3224t-9S36 .bad=er'meter.ccm Exhibit G Ai 6 Iron Bridge Drive T s ■ • can Collegeville.PA 19426 ■ ■ (610)917-0991 A Badger Meter Brand A Badger Meter`Brand Fax: (610)917-0992 www.analvticaltechnoloev com www.s-can.at/en/ June 29,2022 Analytical Technology, Inc.Manufacturer's Statement Analytical Technology, Inc. (ATi) is the sole source distributor of s::can water quality instrumentation, equipment,and systems in the United States,Canada,and Latin America.ATi support engineers are trained on a continuous basis to ensure that equipment purchased is maintained and updated to factory standards. If you have any questions please contact our sales department at 800/959-0299 or email at sales@analyticaltechnolosv com. Regards, t��rr \,Villiam J. Popp I North America Sales Manager,Water Qualitv Cell: 262.853.2371 wpopp@analyticaltechnoloay.com Badger Meter 1545 W, Brown Deer Rd. I PO Bor.2450361 hiilwaukee,'Wisconsin 53224-?5361www.oadc,err-e'—e .cc