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HomeMy WebLinkAboutContract 48668-AD1 CITY SECRETARY CONTRACT NO. FORT WORTH STANDARD FORM ADDENDUM OF THE CITY OF FORT WORTH, TEXAS To: Sales Contract and License Agreement With: Shah Software, Inc. Notwithstanding any language to the contrary in the attached Agreement presented by Shah Software, Inc., ("Contractor") for Client Tracking software upgrade referred to as CaseManager-NewGen ("services"), the City of Fort Worth ("City") and Contractor (collectively the "parties") hereby stipulate by evidence of execution below by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree to the following: 1. 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 the City to purchase insurance, the City will provide a letter of self-insured status as requested by Contractor. To the extent the Contractor will be providing Technology services for the City, including but not limited to, software implementation, data migration, hosting services, maintenance and support services, or any other services which will require contractor to access to the City's network, servers, or computers, Contractor shall maintain Technology Errors & Omissions insurance coverage in an amount acceptable to the City. 2. Indemnity: To the extent the attached Agreement requires the City to indemnify or hold Contractor or any third party harmless from damages of any kind or character, such obligations are not binding upon the City. 3. Attorneys' Fees, Penalties, and Liquidated Damages: To the extent the attached Agreement requires the City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in any amount, the City shall not be liable for attorney's fees of Contractor or any third party, or any other fees or penalties or other such obligations. 4. Insurance by Contractor: 4.1 The Contractor shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the City: 1. Commercial General Liability a. Combined limit of not less than $2,000,000 per occurrence; $4million aggregate or b. 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. c. Defense costs shall be outside the limits of liability. 2. Automobile Liability Insurance covering any vehicle used in providing Services under this Agreement, including owned, non-owned, or hired vehicles, with a combined limit of not less than $1,000,000 per occurrence. 3. Professional Liability (Errors & Omissions) in the amount of$1,000,000 per claim and $1,000,000 aggregate limit. 4. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. 5. Technology Liability(Errors& Omissions) a. Combined limit of not less than$2,000,000 per occurrence; $4million aggregate or b. 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 OFFICIAL CITY SES:R TAry FT. WORTH,I, Tod 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. (a) Coverage shall include, but not be limited to, the following: (i) Failure to prevent unauthorized access (ii) Unauthorized disclosure of information (iii) Implantation of malicious code or computer virus (iv) Fraud, Dishonest or Intentional Acts with final adjudication language (v) 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 Contractor under this Agreement. 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 Contractor and may not exceed $50,000 without the written approval of the City. Coverage shall be claims-made, with a retroactive or prior acts date that is on or before the effective date of this Agreement. Coverage shall be maintained for the duration of the contractual agreement and for two (2) years following completion of Services provided. An annual certificate of insurance, or a full copy of the policy if requested, shall be submitted to the City to evidence coverage. 6. Any other insurance as reasonably requested by City. 4.2 General Insurance Requirements: 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. 2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. 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, 200 Texas St., Fort Worth, Texas 76102,with copies to the City Attorney at the same address. 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. 5. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. 6. Certificates of Insurance evidencing that the Contractor has obtained all required insurance shall be delivered to and approved by the City's Risk Management Division prior to execution of this Agreement. S. Governing Law and Venue: This 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 the state of Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under this Agreement shall be in a court of competent jurisdiction in Tarrant County, Texas. CFW/Shah Software,Inc,Addendum Execution Copy 2/3/17 Page 2 of 4 6. Sovereign Immunity: Nothing herein constitutes a waiver of the City's sovereign immunity. To the extent this Agreement requires the City to waive its rights or immunities as a government entity, such provisions are hereby deleted and shall have no force or effect. 7. Non Appropriation of Funds: In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that all financial obligations of the City hereunder are subject to the availability of funds. If sufficient funds are not appropriated or become unavailable to satisfy the City's financial obligations under the Agreement, the City shall have the right to terminate the Agreement without penalty or expense to the City whatsoever, except as to the portions of the payments agreed upon for which funds have been appropriated. 8. Taxes: To the extent the attached Agreement requires the City to pay taxes of any nature, the City shall not be liable for any taxes pursuant to the Agreement. Upon request, the City shall provide Contractor with evidence of its tax exempt status. 9. Confidential Information: To the extent the Agreement places any restrictions on the City with respect to disclosure of information, Contractor understands and acknowledges that the City of Fort Worth ("City") is a public entity under the laws of the State of Texas, and as such, all public documents and data, including the attached Agreement, held by the City are subject to disclosure under Chapter 552 of the Texas Government Code, the Texas Public Information Act (the "Act"). If the City is required to disclose any documents that may reveal any Contractor proprietary information to third parties under the Act, or by any other legal process, law, rule or judicial order by a court of competent jurisdiction, the City will utilize its best efforts to notify Contactor prior to disclosure of such documents. The City shall not be liable or responsible in any way for the disclosure of information not clearly marked as "Proprietary/Confidential Information" or if disclosure is required by the Act or any other applicable law or court order. In the event there is a request for such information, it will be the responsibility of Contractor to work with the City to submit reasons objecting to disclosure. A determination as to whether such reasons are sufficient will not be decided by the City, but by the Office of the Attorney General of the State of Texas, or by a court of competent jurisdiction. To the extent the City provides information to the Contractor, Contractor 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. Contractor shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. The parties agree that Confidential Information shall not include information that is required to be disclosed pursuant to applicable law, rule, regulation or court order. 10. Force Majeure: To the extent the attached Agreement purports to release a party from its obligations under the Agreement due to causes beyond its 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, such provision shall apply equally to both parties. 11. Dispute Resolution: To the extent the attached Agreement sets forth a dispute resolution procedure, such provision shall only apply to the City as set forth herein in this Addendum. In the event of a dispute, the parties may first submit the dispute for non-binding mediation in Tarrant County, Texas. 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. In the event mediation is not successful, the dispute may, upon written consent of both parties, be submitted for binding arbitration in accordance with the rules of the American Arbitration Association. Each party shall be liable for its own expenses, including attorney's fees; however, the parties shall share equally in the costs of the arbitration. In no event shall the City be required to submit a dispute to binding mediation or arbitration without the City's prior written consent. 12. Assignment: To the extent the Agreement authorizes assignment of rights, duties and obligations of either party, such assignment shall only be valid upon the express written consent of both parties. Any attempted assignment in violation of this provision shall be null and void. CFW/Shah Software,Inc,Addendum Execution Copy 2/3/17 Page 3 of 4 13. Conflicting Terms: If any provisions herein conflict with the terms of the attached Agreement, the terms herein shall control. 14. Right to Audit: Contractor 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 Contractor involving transactions relating to this Agreement. Contractor agrees that City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Contractor reasonable advance notice of intended audits. Contractor further agrees to include in all its subcontracts hereunder a provision to the effect that the subcontractor 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 subcontractor, involving transactions 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 article. City shall give subcontractor reasonable advance notice of intended audits. ACCEPTED AND AGREED: CITY OF FORT WORTH: SHAH SOFT ARE, INC. By: % f c�ra_._ _. By: Fernando Costa Jagat Shah Assistant i y Manager President Date: Z /S /�' Date: APKser By / MCiy APPROVED AS TO FORM AND LEGALITY: By: nn Jessica San Assistant ty Attorney II Form 1295 Certification No.N/A M&C: N/A CONTRACT COMPLIANCE MANAGER: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including en ring all perfor ance a d e orting requirements. arae: 5enla Sing Title: 1�155iar�' �.tr( Fc.��. CFW/Shah Software,Inc,Addendum Execution Copy 2/3/17 [ Page 4 of 4 FT. WORTi ll TX