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HomeMy WebLinkAboutContract 26677� � �� _ Avizion Technologies Group CLIENT AGREEMENT CITY SECRETARY CONTRACT NO . �� �' �� � � 16300 Addison Road, Suite 250 Addison, TX 75001 phone.972.267.7950 fax.972.818.8402 877.587.2110 www.aviztech.com AGREEMENT made effective as of the 28th day of February, 2001, between Avizion Technologies Group, Inc., (hereinafter "ATG"), with offices at 16300 Addison Rd., #250, Addison, TX 75001, and The City of Fort Worth (hereinafter "Client") with offices at 1000 Throckmorton, Fort Worth, TX 76102. Whereas ATG is in the business of locating for clients, according to their specifications, technical personnel (hereinafter used in the plural to refer to one or more such personnel) to provide services to such clients, and performing as stated herein; and Whereas Client from time to time desires the services of one or more of such technical personnel; and Whereas ATG, and Client wish to enter into an agreement pursuant to which ATG will arrange with such technical personnel for them to provide their services to Client; NOW, THEREFORE, in consideration of the covenants and agreements contained herein, ATG and Client agree as follows: 1. SERVICES PROVIDED UNDER PURCHASE ORDER. For any technical personnel who will be performing services for Client pursuant to this Agreement, ATG will issue and Client will execute a Purchase Order in the form attached as Appendix A hereto referencing its incorporation of the terms and conditions of this Agreement and stating the name(s) and the payment rate(s) of the personnel, duration of services, brief description of project, authorization of additional costs beyond the payment rate(s) (such as travel, parking, drug testing), and any other terms to which ATG and the Client may choose to agree. In the event of a conflict between the terms of this Agreement and the terms of any Purchase Order, the terms of this Agreement shall control unless the Purchase Order specifically (and not generally) identifies the conflicting terms in this Agreement and explicitly states that such terms shall not apply but shall instead be superseded by the Purchase Order. An authorized representative of the Client will sign the Purchase Order. Upon expiration of a Purchase Order, to the extent that any services performed by one or more technical personnel are thereafter provided on the same or a different project, they shall be provided under the terms of this Agreement and under the payment rate (s) applicable to each such technical personnel as set forth in the most recent purchase order covering that personnel until such time as a new purchase order is issued. ���OC�B�� ���0�� C�� �[�����QQ'� I! Uo l!'�v c��UUp ��o semi-monthly basis for services provided by technical personnel and associated costs, as approved by Client, except that ATG has sole discretion to bill on a less frequent basis if it deems it is appropriate to do so. Client will pay ATG within (30) days from the date of such invoice according to the rates and terms of the Purchase Order provided, however, ATG may inform Client that some period less than (30) days shall be allowed for payment where Client is delinquent in payment of any sum due ATG, or Client's previous payment record or financial condition so warrants in the opinion of ATG. Any late invoicing by ATG shall not affect the obligation of the Client to pay for the services covered by that invoice. 3. ACCEPTANCE OF SERVICES. Client's Project Manager or other agent shall review for approval each week the time records of technical personnel on a form provided by ATG to the technical personnel and submitted to Client. ClienYs approval of such time records (including, but not limited to, costs of any applicable overtime rates, travel, per diem and other costs stated thereon), shall be evidenced by its signature thereon and such approval shall constitute acceptance of the work performed by technical personnel and Client's agreement to pay ATG as stated herein. Acceptance by Client shall not be unreasonably withheld and any refusal to accept shall be noted on the time record for the relevant week, with a written explanation of the reasons that the work was not acceptable and failure to so note such refusal shall constitute acceptance. Nothing herein shall eliminate ClienYs obligation to pay ATG for any services provided by technical personnel, which Client has approved by some other means. 4. ABILITY TO PAY. Client warrants that it is able and willing to pay for the services of technical personnel providing services under this Agreement. Client will provide ATG with suitable credit and financial information, as requested, including credit and financial references, which Client agrees that ATG may contact to obtain information about Client. If ATG determines, that Client's credit rating or financial condition is unsatisfactory, in the discretion of ATG, then ATG may terminate its obligations under this Agreement upon notification to Client. 5. TECHNICAL PERSONNEL NOT EMPLOYEES OF CLIENT. ATG and Client agree that for purposes of FICA, FUTA and income tax withholding, as well as for purposes of any pension plan or health benefit plan maintained by client for its own employees, the technical personnel supplying services under this Agreement are not employees of Client. 6. EMPLOYMENT OR CONTRACTING OF PERSONNEL. During the period covered by any Purchase Order and extensions thereof pursuant to this Agreement, or when Client is provided with the name of a technical personnel but determines not to use the services of such personnel, so that no Purchase Order is written covering that personnel, and for (6) months thereafter, Client will not directly or indirectly, other than through ATG, solicit for hire, contract with, or engage or receive the services of, any technical personnel located by ATG or Client, except that Client may directly employ any personnel as its employee if Client provides ATG with notice of a request to retain such personnel other than through ATG _ at least (30) days in advance of the desired retention date which request may be ��rj ,,_ , ' ����'��� ����G�D . . 2 ��� b' ���� G[��Ql� Av�zron � Technologies Group � __� � �� r'�� ��f ° �i�: � , Ly!/�10 discretion of ATG and if Client agrees to and does pay the following fee prior to commencement of services other than through ATG. EXAMPLE 1 (BASED ON MONTHS) Contract Period 0-2 months with client 3-4 months with client 5-6 months with client over 6 months with client Fee 25% of annual salary 20% of annual salary 15% of annual salary 0% of annual salary THE "CONTRACT PERIOD" IS THE NUMBER OF MONTHS THAT A TECHNICAL PERSONNEL HAS BEEN PROVIDING SERVICES TO CLIENT IN THE MOST RECENT SIX-MONTH PERIOD UNDER THE TERMS OF THIS AGREEMENT. (Note) For purposes of this section 6 of the agreement, the term "client" includes any customers of the client for which the ATG referred such technical personnel to client to provide services under this agreement (whether or not such services were performed) and also includes any successors, assigns, subsidiaries, parents, and partners of client, as well as other affiliates of client with at least fifty per cent (50%) common ownership of client. 7. DUTIES AND SUBSTITUTION OF TECHNICAL PERSONNEL. ATG will locate technical personnel for Client according to the qualifications, experience, and project requirements set forth by Client and given to ATG. The work to be performed by the technical personnel providing services under this Agreement shall be set out by Client and stated in the Purchase Order. The technical personnel shall report the results of the work, to the extent required by Client, to Client's Project Manager or other designated official, but the primary control over such personnel shall be exercised by ATG or, in the case of such personnel who is a valid independent contractor, by that personnel itself. Because Client has the opportunity to interview all technical personnel located by ATG prior to their commencement of any services for Client, ATG shall have no liability to Client if such personnel are determined by Client not to meet its requirements and Client shall not be relieved of making payments to ATG for the services provided by such personnel up to the time that they are terminated in accordance with this Agreement. However, if the services of any personnel providing services under this agreement are terminated and client requests substitute personnel and has paid for the services previously p o�i TG e g ees to make reasonable efforts to locate substitute personneL l%I�I��"" I 1'�� c�l ���°°" ;: _ �� ��rti� ����v c���a �,°� /`l V �Z��h 3 _ _ _5��`��1� ��`'-���F_����� Technologies Group - 8. NOTICE OF TERMINATION OF SERVICES. Client agrees to notify ATG in writing (30) days prior to its termination of any services of the technical personnel covered by this Agreement regardless of whether such termination comes before, is coincident with, or follows the duration date set forth in a written Purchase Order covering such services, provided however that client may terminate such services immediately upon notice to ATG for cause or when termination is due to matters completely beyond the control of client. In the event that ATG plans to terminate without cause or reassign any technical personnel performing services under this Agreement as ATG's employees, it shall give Client at least (30) thirty days prior notice. If ATG plans to terminate any such personnel for cause, it shall give Client at least (1) day's prior notice. If any technical personnel providing services under this Agreement has terminated the relationship with ATG, and whether or not such termination is in violation of such personnel's agreement with ATG, ATG shall notify Client of such termination upon receipt of notice from such personnel. 9. INTELLECTUAL PROPERTY RIGHTS. ATG agrees that all material, documentation, deliverables and other tangible expressions of information including but not limited to software programs and software documentation, designs, technical data, formulae, and processes, whether in final production or draft, which result from any work performed by any technical personnel providing services under this Agreement shall be deemed to be works for hire and all rights, title and interest, including any copyright, patent rights and all other intellectual property rights, shall belong exclusively to Client unless some other arrangements have been agreed to by both parties or by Client and such technical personnel, as appropriate, in writing. 10. CONFIDENTIALITY. ATG agrees that it will not disclose to any party any information learned by it which has been clearly marked "Confidential" by Client, except as such disclosure is necessary on an individual basis to technical personnel whom ATG has located for Client. Client may request the technical personnel covered by this Agreement to execute a separate agreement not to disclose the Client's confidential information. Client shall not request of the technical personnel providing services under this Agreement any information regarding the rate(s) and other terms of remuneration agreed to between ATG and such technical personnel, nor shall Client induce such technical personnel to provide such information, nor shall Client disclose or permit to be disclosed to such personnel, directly or through another party, any information regarding the rate(s) or other terms of remuneration agreed to between Client and ATG. As ATG considers such information to be "Confidential", Client agrees to notify ATG immediately if such rate(s) or other terms are disclosed to it by any technical personnel or any other party, or if it learns that any technical personnel have received information about the rate(s) or other such terms agreed to between Client and ATG. 11. EXCISE, SALES, ETC. TAX ON SERVICES. There shall be added Avizioh Technologies Group ble ' ������������ ���cuG1D 4 �i i�'f r�� �� i�l o���, ,�C�ti ��C��:�G���-;�G� ��, ��r���l�.'��� ���� - ...._.i..- U Client under this Agreement amounts equal to any and all applicable taxes, however designated, levied or based on any charges payable under this Agreement or the services rendered hereunder, including without limitation state and local privilege, excise, sales, and use taxes and any taxes or amounts in lieu thereof paid or payable by ATG, but excluding taxes based upon the net income Of ATG. Client shall be billed by ATG before or within a reasonable time following payment of such taxes by ATG, and such amounts shall be due and payable by Client promptly following billing thereof, whether or not such billing occurs following completion of the services hereunder. 12. INSURANCE. ATG will procure and maintain in effect during the term of this Agreement appropriate insurance coverage. ATG will provide client with certificates of insurance according to industry standards upon request. 13. LIABILITY AND INDEMNIFICATION. In connection with the services provided generally under this Agreement and specifically by a particular technical personnel, in no event shall ATG be liable to Client for damages to any property or person or for indemnification in an amount greater than the amount paid by Client in connection with the performance of such services by such personnel whose actions or omissions are the basis for such damages or indemnification or greater than the limits of ATG's applicable insurance coverage (if any), whichever is greater; provided, however, that ATG shall not be liable for any damages whatsoever caused by any acts or omissions beyond its control or not due to its fault, or for any special or consequential damages, loss of profits, interest, penalties or fines; and provided further, that if Client requests or directs that ATG perform an act or omit the performance of an act, and if ATG performs or omits the performance of such act as directed or requested, or if Client approves, of ATG's or ratifies the performance or omission of any act of ATG, then notwithstanding anything in any section of this Agreement, Client shall have no claim against ATG for liability or indemnification in connection with such act or omission to act. In the event that ATG performs or omits to perform any act which may support a claim for liability or for indemnification by Client, Client shall give prompt written notice to ATG upon its initial receipt of information that could reasonably support such claim, and failure to give such timely notice shall constitute a waiver of such claim. ATG shall have the right to defend, or cause Client to defend, any claim for indemnification and Client shall extend reasonable cooperation in connection with such defense, which shall be at ATG's expense. ATG or its designated representative shall also have the sole right to settle any such claim for indemnification if such settlement includes a complete release of Client. Client may at its expense participate in the defense of any such claim for indemnification if its position is not materially inconsistent with that of ATG and if in its reasonable judgment such claim or the resolution thereof would have an ongoing material effect on Client. In the event ATG fails to defend the same within a reasonable length of time, Client shall be entitled to assume the sole defense thereof, and ATG shall be liable to repay Client for all expenses reasonably incurred in connection with said defense (including reasonable attorneys' fees and settlement payments) if it is determined that such request for indemnification was proper. Avizion Technologies Group � ����� ���� G��� �uGD s �0� ���� �[� �� G''� �I�, �Q��jC��MB �lS'Wa II �/'� 14. TERMINATION OF THIS AGREEMENT. This Agreement will continue in effect until terminated by Client or ATG at any time upon the terminating party giving not less than (30) days notice to the non- terminating party. Such termination of this Agreement shall not affect any technical personnel providing services under it unless such personnel are terminated in accordance with the terms of section 8 of this Agreement. 15. ASSIGNMENT. Neither this Agreement nor any interest hereunder may be assigned or otherwise transferred by either party to third parties other than affiliates of either party without the prior written consent of the other party which shall not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the heirs, successors, assigns, and delegates of the parties hereto. 16. NOTICES. Any requirement to "notify", or for "notice" or "notification", in connection with the subject matter of this Agreement shall be in writing and shall be effective when delivered personally (including by Federal Express, Express Mail, or similar courier service) to the party for whom intended, or five (5) days following deposit of the same into the United States mail, certified mail, return receipt requested, first class postage prepaid, addressed to such party at the address set forth below its signature to this Agreement. Either party may designate a different address by notice to the other given in accordance herewith. 17. SEVERABILITY. If any term or provision of this Agreement shall be found to be illegal or otherwise unenforceable, the same shall not invalidate the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary by the adjudication to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth. 18. COMPLETE AGREEMENT AND AMENDMENT. This Agreement and any written Purchase Orders executed hereunder contain the entire agreement between that parties hereto with respect to the matters covered herein. Client acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein. This Agreement shall not be modified in any way except in writing signed by both parties and stating expressly that it constitutes a modification of this Agreement. 19. LAW AND DISPUTES. The laws of the State of Texas shall govern this Agreement. All claims against either party to this Agreement shall be brought by the other party no later than one (1) year after such claims have arisen (except for claims for non-payment for services, which may be brought within two (2) years after the last date of services for which payment is sought). Except as stated below in this section, any controversy or claim, whether such claim arises in contract, tort, or otherwise, including, but not limited to, claims for employment discrimination (whether under title VII of the Civil Rights Act of 1964, as amended from time to time, the Age Discrimination in Employment Act, or state and laws), arising out of or relating to this agreement, or the breach thereof, or the commercial or economic relat.�ip of the AVlZIOf1 Technologies Group �;���G�:G� �,� �'l��J�1C� 6 �; ��� ����� G?f��G°��� �o �'���=�G�� ���. - parties hereto, shall be submitted to arbitration in accordance the rules of the American Arbitration Association then obtaining as modified hereby. Any award resulting from arbitration authorized by this agreement shall be binding and conclusive upon all parties. Notwithstanding the obligation to pursue other claims through arbitration, a party may file with a court claims for injunctive relief to prevent or limit the disclosure of confidential information protected under this agreement and claims for injunctive relief to prevent the hiring of similar retention of technical personnel by the client other than through ATG, in cases where ATG has not consented to such hiring or retention. (Any lawsuits or agreed arbitrations (or award enforcement proceedings) pertaining to this agreement or the services provided hereunder shall be brought in the federal or state courts in the State of Texas. IN W ITNESS HEREOF, the parties have caused this Agreement to be executed by their authorized agents as of the date written above. Avizion Technologies Group, Inc. li� " , Zj By: /, � < c �,.z-.� � ��-� (Name) `� � J �� n. � S 0� _�:' u � (Print) �� ��� �� ;�e s:� �ti��;` (Title) �- 9�� j �ontract Authorization � _���i�/ Date �: The City of Fort Worth By: � (Name) C� I�s 2_ �os we 11 (Print) -�sst� C�'�Y Vh�r� er (Title) . , /� , �._.I.�. / � ��.,�, 0 ,.� �.!,�►1 (c) The terms off this Agreement are based upon an Agreement prepared by the National Association of Compu[er Consultant Businesses and are subject to the copyright of that Association. Any use of any language in this Agreement by anyone who is not a member in good standing of that Association is prohibited and �will subject the user to damages as well as other civil penalties Avizion Technologies Group � ������Gi�r��� ���COQD ����'bf �[��;��1���� � [�i; f��,�;i;!,�_���� I��'� __..,._ -�=--�.h� � a PURCHASE ORDER In accordance with the Client Agreement signed between Avizion Technologies Group, Inc. and ("Client") on , it is agreed as follows: 1. This Purchase Order incorporates by reference all of the terms and conditions of the Client Agreement. 2. The services to be performed under this PO shall be as follows: Start Date: Approximate End Date: Authorized Funds: [CHOOSE OPTION(S)] (OPTION: NUMBER OF HOURS AUTHORIZED: (OPTION: DOLLARS AUTHORIZED: Hourly Billing Rate: Per Hour* * Customer agrees to provide minimum of forty (40) hours available working time each week of this assignment with the exception of Customer's regularly scheduled holidays. In the event the consultant is on contract for a period of six months and longer a 3.25% rate increase will go into effect. *Special Billing Rates/Terms (Overtime, Etc.): Project/Services Description: Personnel: Issued by ATG by: Title Date: Contracted for Client by: Title: Date: (c) The terms off this Agreement are based upon an Agreement prepared by the National Association of Computer Consultant Businesses and are subject to the copyrigh[ of that Association. Any use of any language in this Agreement by anyone who is not a member in good standing of that Association is prohibited and will subJect the user to damages as well as other civil penalties Avizioh Technologies Group : �,�G��O�Olr;i� ��(�r���°?D ���'�' �[����1���1� f�C� t�1l��i�:��Wo u�Wo City of Fort Worth, Texas �1h�A�or A1td Caunc�i( Can�tn�tun�cAt�an DATE REFERENCE NUMBER LOG NAME PAGE 4/10/01 **P-9331 0001-0134 1 of 2 SUBJECT PURCHASE AGREEMENT WITH AVIZION TECHNOLOGIES GROUP FOR CONTRACT TECHNICAL HELP FOR THE INFORMATION TECHNOLOGY SOLUTIONS DEPARTMENT RECOMMENDATION: It is recommended that the City Council: Authorize a purchase agreement with Avizion Technologies Group for contract technical help for the Information Technology Solutions Department (IT Solutions) using the State of Texas Catalogue purchasing procedure; and 2. Authorize this agreement to begin April 10, 2001, and expire April 9, 2002, with options to renew for four successive one-year periods. DISCUSSION: IT Solutions uses contract staffing to augment existing staff and skilts, and provide a source of qualified candidates for vacant permanent positions within the department. The contract staffing firm provides individual contractors who integrate directly into IT Solutions and report to department management like permanent staff. The advantage of contractor staffing is that it provides flexibility to respond to high customer demand, and fills short-term gaps in permanent staffing when positions become vacant. When a contractor is hired into a permanent position, the staffing agency assumes the same role as a recruiter would, with IT Solutions paying a percentage of salary as a fee to the staffing agency for providing the qualified candidate. � Avizion Technologies Group will supply a variety of technical contractors, and IT Solutions will use the vendor services on an as-needed basis. IT Solutions will balance the need for contractors and the effo�t to hire full-time staff members. Each circumstance will be reviewed to determine the best strategy for staffing. For short-term efforts, contracting is a good option, while long-term needs typically require a full-time staff person. No guarantee was made that a specific amount of services will be purchased. In the past year, approximately $650,000.00 was spent on this service with other firms. IT Solutions has included sufficient resources in its current operating budget to acquire these services. Avizion Technologies Group is designated as a Qualified Information Systems Vendor by the Sfate of Texas. Under Section 271.083 of the Texas Local Government Code, a local government satisfies otherwise applicable competitive bidding requirements when it makes a purchase through the State of Texas General Service Commission Catalogue purchasing procedure established by Section 2157.061 of the Texas Government Code. The City will comply with that procedure for the purchase agreement authorized under this Mayor and Council Communication. City of Fo�t Wo�th, Texas �1►�A�or Aitd aunc�( a u �c ' C. mm n At�an C DATE REFERENCE NUMBER 4/10/01 *�P-9331 suB�Ecr PURCHASE AGREEMENT W TECHNICAL HELP FOR DEPARTMENT LOG NAME 0001-0134 PAG E 2 of 2 H AVIZION TECHNOLOGIES GROUP FOR CONTRACT THE INFORMATION TECHNOLOGY SOLUTIONS M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE Office because the purchase of services is from sources where subcontracting or supplier opportunities are negligible. RENEWAL OPTIONS - This agreement may be renewed for up to four successive one-year terms at the City's option. This action does not require specific City Council approval, provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget, as appropriated, of the Information Systems Fund. CB:k BQN/01-0134/JRC Submitted for City Manager's Office by: Charles Boswell Originating Department Head: Jim Keyes Additional Information Contact: Robert Combs FUND ACCOUNT ( CENTER (to) 8511 8517 (from) 8357 AMOUNT � CITY SECRETARY �1�'PR01�Ef� ��TY COUNCtC APR 10 200f �+.. t:�ra.c..� CitF Secretary ot t�;a �7 Ot FOit Wnrt1. T _.