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HomeMy WebLinkAboutContract 49578 QM 1 2 3 4 5 City Secretary Contract No. CP CITY SECRETAR AUG 2 9 201T Y RECEIVED FO RT WO RT H c,, CONTRACT N0._ o ...,_ CITY OF FORT WORTH ti ClTYSECRERRY 9s�sz � Wd PROFESSIONAL SERVICES AGREEMENT (Information Technology) This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City" or "Client"), a home-rule municipal corporation situated in portions of Tarrant, Denton, Johnson and Wise Counties, Texas, acting by and through Susan Alanis, its duly authorized Assistant City Manager, and HEALTHSPACE USA INC. ("Consultant"), a Virginia corporation, and acting by and through Joseph Willmott its duly authorized President. City and Consultant are each individually referred to herein as a "party" and collectively referred to as the "parties." The term "Consultant" shall include the Consultant, its officers, agents, employees, representatives, contractors or subcontractors. The term "City" shall include its officers, employees, agents, and representatives. CONTRACT DOCUMENTS: OFFICIAL RECORD The Contract documents shall include the following: CITY SECRETARY FT.WORTH,TX 1. This Agreement for Professional Services 2. Exhibit A— Statement Of Work Plus Any Amendments To The Statement Of Work 3. Exhibit B—Payment Schedule 4. Exhibit C—Milestone Acceptance Form 5. Exhibit D—Network Access Agreement 6. Exhibit E—Signature Verification Form 7. Exhibit F—HSCloud Suite Licensing and Service Agreement 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 Professional Services Agreement shall control. The term "Consultant" or"Contractor" shall include the Consultant 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. Consultant hereby agrees, with good faith and due diligence, to provide the City with professional consulting services for data management software system. Specifically, Consultant 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." Consultant shall perform the Services in accordance with standards in the industry for the same or similar services. In addition, Consultant 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 HealthSpace USA Inc. Professional Services Agreement-Technology Page i of 30 Rev. 1/2017 City Secretary Contract No. control. 2. Term. This Agreement shall commence upon date of agreement execution ("Effective Date") and shall expire no later than September 30, 2018 ("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 number of renewals at the City's option, each a "Renewal Term." The City shall provide Consultant with written notice of its intent to renew at least thirty (30) days prior to the end of each term. 3. Compensation. The City shall pay Consultant an amount not to exceed $115,920.00 in accordance with the provisions of this Agreement and Exhibit `B," Payment Schedule, which is attached hereto and incorporated herein for all purposes. Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. City agrees to pay all invoices of Consultant within thirty (30) days of receipt of such invoice. Consultant may charge interest on late payments not to exceed one percent(1%). 4. Termination. 4.1. Convenience. Either the City or Consultant 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 party fails to cure the breach within the stated period of time, the non-breaching party may, in its sole discretion, and without prejudice to any other right under 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 Consultant 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 Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, the City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant 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, Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Consultant has received access to City information or data as a requirement to perform services hereunder, Consultant shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. HealthSpace USA Inc. Professional Services Agreement-Technology Page 2 of 30 Rev. 1/2017 City Secretary Contract No. 5. Disclosure of Conflicts and Confidential Information. 5.1 Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing. 5.2 Confidential Information. The City acknowledges that Consultant may use products, materials, or methodologies proprietary to Consultant. The City agrees that Consultant'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. Consultant, 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 Unauthorized Access. Consultant 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. Consultant 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, Consultant 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. Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this Agreement,have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Consultant involving transactions relating to this Agreement at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant 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 Consultant not less than 10 days written notice of any intended audits. Consultant 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 Consultant shall operate as 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, Consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible HealthSpace USA Inc. Professional Services Agreement-Technology Page 3 of 30 Rev.1/2017 City Secretary Contract No. for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. . It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Consultant or any officers, agents, servants, employees or subcontractors of Consultant. Neither Consultant, nor any officers, agents, servants, employees or subcontractors of Consultant shall be entitled to any employment benefits from the City. Consultant 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. A.LIABILITY-CONSULTANT 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 CONSULTANT, ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES. B. INDEMNIFICATION - CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS 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 CONSULTANT'S 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 CONSULTANT, ITS OFFICERS, AGENTS, SUBCONTRACTORS, SERVANTS OR EMPLOYEES. C. INTELLECTUAL PROPERTY INFRINGEMENT — (i) The Consultant 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. (ii) Consultant 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) hereunder. (iii) Consultant 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 HealthSpace USA Inc. Professional Services Agreement-Technology Page 4 of 30 Rev.1/2017 City Secretary Contract No. modifies or misuses the Deliverable(s).So long as Consultant bears the cost and expense of payment for claims or actions against the City pursuant to this section 8, Consultant 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 Consultant 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,Consultant shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give Consultant 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 Consultant'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, Consultant 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 Consultant, terminate this Agreement, and refund all amounts paid to Consultant by the City, subsequent to which termination City may seek any and all remedies available to City under law. CONSULTANT'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH IN SECTION 10 OF THIS AGREEMENT. 9. Assignment and Subcontracting. Consultant 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 Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant 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 Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. MBE Goal - Delete if N/A - In accordance with City of Fort Worth Ordinance No. 20020-12- 2011, the City has goals for the participation of Minority Business Enterprises and Women Business Enterprises (M/WBE) in City contracts. Consultant acknowledges the M/WBE goal established for this contract at insert % of goal and its commitment to meet that goal. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by Consultant may result in the termination of this agreement and debarment from participating in city contracts for a period of time of not less than three(3)years. 10. INSURANCE. 10.1 The Consultant shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the City: HealthSpace USA Inc. Professional Services Agreement-Technology Page 5 of 30 Rev.1/2017 City Secretary Contract No. 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 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 Consultant 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 Consultant 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. 10.2 General Insurance Requirements: HealthSpace USA Inc. Professional Services Agreement-Technology Page 6 of 30 Rev. 1/2017 City Secretary Contract No. 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 Street, 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 Consultant 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. Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations,Consultant shall immediately desist from and correct the violation. 12. Non-Discrimination Covenant. Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant'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 Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 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: City of Fort Worth With Copy to the City Attorney Attn: Susan Alanis,Assistant City Manager at same address 200 Texas Street Fort Worth TX 76102 Facsimile: (817)392-6134 HealthSpace USA Inc. Professional Services Agreement-Technology Page 7 of 30 Rev.1/2017 City Secretary Contract No. TO CONSULTANT: HealthSpace USA Inc. Attn: Joseph Willmott 114 W. Magnolia Street, Suite 400 Bellingham,WA 98225 14. Solicitation of Employees. Neither the City nor Consultant 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 Consultant 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 Consultant'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 Consultant 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. HealthSpace USA Inc. Professional Services Agreement-Technology Page 8 of 30 Rev. 1/2017 City Secretary Contract No. 20. Headings Not Controlling. Headings and titles used in this Agreement are for reference 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 party. 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 Consultant, 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. Consultant 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 Consultant's option, Consultant 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 Consultant for the nonconforming services. 26. Milestone Acceptance. Consultant 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 Consultant in writing as soon as the determination is made listing the specific reasons for rejection. The Consultant shall have ten (10) days to correct any deficiencies and resubmit the corrected deliverable. Payment to the Consultant shall not be authorized unless the City HealtbSpace USA Inc. Professional Services Agreement-Technology Page 9 of 30 Rev.1/2017 City Secretary Contract No. 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 Consultant, and/or any of its employees, officers, agents, servants or subcontractors (for purposes of this section "Consultant Personnel"), requires access to the City's computer network in order to provide the services herein, Consultant 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 Consultant, or any Consultant Personnel, requires access to any federal law enforcement database or any federal criminal history record information system, including but not limited to Fingerprint Identification Records System ("FIRS"), Interstate Identification Index System ("III System"), National Crime Information Center ("NCIC") Of 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, Consultant 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. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Consultant shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Consultant shall complete the Employment Eligibility Verification Form (1-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Consultant shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Consultant shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Consultant shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Consultant. 29. Informal Dispute Resolution. Except in the event of termination pursuant to Section 4.2, if either City or Consultant 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 party'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 HealthSpace USA Inc. Professional Services Agreement-Technology Page 10 o1730 Rev. 1/2017 City Secretary Contract No. 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. Reporting Requirements. For purposes of this section,the words below shall have the following meaning: Child shall mean a person under the age of 18 years of age. 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. 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. 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. If Consultant 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, Consultant 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 Consultant to make the report required herein may result in criminal and/or civil penalties. 31. 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 Consultant 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. HealthSpace USA Inc. Professional Services Agreement-Technology Page 11 of30 Rev.1/2017 City Secretary Contract No. 32. 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. Executed in multiples this the_,��day of - i- J120/7. AGREED: AGREED: CITY OFEQRT WOnRTri: VENDO N E By. `- By: Susa 1 s J ep Willmott Assistant City"anger resident Date: Date: Ol/ a l % 7 Contract Compliance Manager: ATTEST: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: 113 Namel%��LE Title S eve Stre fert v Zr Assistant Dire tor, IT Solutions FORT ATT T: - U? _ Ma . a r City SecrAS APPROVED AS TO FORM AND LEGALITY: By: JB Str ng Assistant City Att ey CONTRACT AUTHORIZATION: M&C: _P-12072 Date Approved: 8/1/2017 Form 1295 Certification No.: 2017-195017 OFFICIAL RECORD CITY SECRETARY HealthSpace USA Inc. FL WORTH, Professional Services Agreement-Technology Page 12 of 30 City Secretary Contract No. Exhibit A Statement of Work Scope of Service HealthSpace USA Inc.("Contractor")will supply and deploy its software application described in the Consultant's response dated February 6,2017 to the Request for Proposal No. 17-0146(RFP)for a Data Management System(DMS)for the City of Fort Worth's Code Compliance Department-Consumer Health Division(CH)for the purpose of enforcing the Public Health Laws of the State of Texas and City of Fort Worth municipal ordinances within the city limits. Services include transitioning data from the Consumer Health Division's existing Data Management System,Sweeps,from Sweeps Software,Inc. (SWEEPS)and setting up surveillance and regulatory modules in the following areas: • Childcare • Summer Nutrition • Smoking • Fixed Food Establishments • Mobile Food Establishments • Temporary Food Establishments • Plan Reviews • Hotels/Motels • Public Swimming Pools/Spas • Vector Control • Game Rooms/Commercial Properties/Investigations • Employee Statement of Work The Contractor will provide the technical solution specified in its response to the RFP to support CH administrative and field functions previously listed. In addition to health inspection tracking and workflow support.The proposed solution will also include a financial component and web based functionality that allows for 24/7 access.The Contractor services will include the following functions: 1. Project Management-The Contractor will assign an experienced team of employees to the City's im- plementation.The project manager who has successfully completed multiple similar implementations will lead the team. Employees assigned possess expertise in the area they are assigned and have com- pleted similar implementations. 2. Implementation-The Contractor will manage and coordinate the implementation of the DMS.The Con- tractor will provide required personnel at its discretion to assist and train City staff on the configuration of the system.The Contractor's implementation team will also lead staff in a review of business pro- cesses to ensure that the most efficient business processes are implemented.The Contractor's project manager will create a project plan that highlights the projected project schedule and resources neces- sary to complete each task. The Contractor's project manager will track the status of the project against the project plan and measuring the project's progress against tasks completed and project budget.As the project nears completion,the Contractor's project manager will assist in planning the go-live activity and will be actively involved in ensuring that resources are available to support the City's go-live on the new DMS. 3. Training-The Contractor will provide two basic types of training for City staff: system administration and user training. Initially,the Contractor will train the City's implementation team in the configuration and setup of the new system.This training will occur early in the project, prior to the initial configuration of the system.After the system has been configured and prior to the final go-live,the Contractor will HealthSpace USA Inc. Professional Services Agreement-Technology Page 13 of 30 Rev. 1/2017 City Secretary Contract No. train the City staff on the usage of the system. This training will be broken down by role.The Contractor shall provide training material specific to the class content being covered. 4. Data Conversion-The Contractor will manage and coordinate along with City staff for the conversion of data from the existing Sweeps program into the new DMS. Conversion activities include the extraction of data from the existing Sweeps program,transformation of the legacy data into the format necessary for the new DMS and loading of the data into the DMS. 5. Interfaces-The Contractor will provide interfaces that our outlined in this RFP.The Contractor shall de- sign, build and deploy interfaces into and out of the DMS.The Contractor will work with City staff to de- sign each interface, including the extract from the source system and the load into the receiving system. 6. Testing-The Contractor will draft a User Acceptance Test (UAT) plan for the DMS.The UAT plan will out- line the Contractor's testing methodology along with the specific functions to be tested and include spe- cific scenarios to test each function by City staff.The test plan will also define the sequence in which each scenario will be testing and any dependencies associated with the scenario.The Contractor will co- ordinate any required repair/reconfiguration of the system and retesting to ensure that system per- forms as expected. 7. Other Additions or Unique Needs—Any additional system elements not specified in the RFP may be configured during deployment.These system element additions would not include any special logic or trigger any other activity.Any special logic or triggers needed,would need to be reviewed and assessed for additional development and cost. 8. Hosting—The Contractor service will include web-hosting, data storage, data backup, and provide ac- cess to the Application servers and the publishing of authorized inspection data to a public facing web site. This will include inspection information configured to meet the disclosure requirements of the City. The Contractor will ensure that the Application servers are available at 99.999%availability per calendar month on all its services subject to any force majeure as set out in section 12 of the Software Licensing Agreement attached hereto as Exhibit F. 9. Support and Maintenance-Any issues or needs with ongoing use of the system will be handled by using the Contractor's Support Feature. Full instructions on usage will be provided by product support staff. During usage any bugs encountered will be fixed within three business days.Any change or additional functionality requests will be reviewed and assessed,and if approved,a quote for the work will be pro- vided. The Contractor will provide and ongoing hosting,support and maintenance program that includes the following: a. Maintaining the servers in good working order including the server software installed on it and the structural integrity of the databases stored on the servers. b. Correction of all errors in the database design. c. Contractor's ongoing support program is divided into three key areas. i. Live support and coverage during normal business hours(24/7 is available). ii. Ongoing training through e-learning,e-conferencing. iii. Unlimited "bug"fixes and system maintenance. d. With the standard support package after deployment, new custom system upgrades are done on a project by project price quote. e. The Contractor system is a managed solution,which means that all support and development is HealthSpace USA Inc. Professional Services Agreement-Technology Page 14 of 30 Rev. 1/2017 City Secretary Contract No. handled by Contractor staff. f. Contractor offers a full, unlimited,toll-free technical support for all issues related to the use and deployment of the system.Operations staffs are given the authority to respond to all requests and make sure client needs are being addressed g. Contractor's support department is staffed by experienced professionals. Each client is assigned a primary contact person whose responsibility is to ensure that all support requirements are ful- filled as agreed. h. Contractor provides technical support as follows: i. Telephone,fax,e-mail and on-line support. j. Contractor's working hours are 8:00 AM Eastern to 4:30 PM Pacific, Monday to Friday except public holidays. k. Live Help Desk support will be available from 8:00 AM Eastern through 4:30 PM Pacific. I. After hour support is available on an on-call basis. m. Contractor acknowledges all support requests within one hour of receipt, during operational support desk hours. n. Contractor responds to emails/online posts,telephone calls or faxes within four working hours, with a resolution outline,during normal business hours. o. Contractor resolves support incidents within five working days. p. Support covers installation,configuration,operation, maintenance and upgrading of the system. It does not include support for any other software(such as operating system software or Inter- net connection software)or hardware supplied by the City. q. Contractor logs support calls and may provide the resulting data to the client so that it may as- sess Contractor's support performance. HealthSpace USA Inc. Professional Services Agreement-Technology Page 15 of 30 Rev.1/2017 City Secretary Contract No. EXHIBIT B PAYMENT SCHEDULE Phased Approach Cost Phase 1 -Total $29,320 Assessment/Workshops $ 1,800 Needs Analysis $ 3,200 Configuration $11,000 Implementation Schedule $ 2,400 Onsite Confirmation and Planning $ 4,200 Data Conversion $ 6,720 Phase 2 -Total $50,620 Onsite Training $ 4,560 Web Training $ 1,200 resting $ 3,540 Initial Installation $13,840 Data Corrections and adjustments $ 5,300 Public access website posted $ 3,500 Full Implementation $10,920 Evaluation and Release $ 7,760 On-going Maintenance $36,000 Total $115,920 HealthSpace USA Inc. Professional Services Agreement-Technology Page 16 of 30 Rev. 1/2017 e City Secretary Contract No. EXHIBIT C MILESTONE ACCEPTANCE FORM Services Delivered: Milestone/Deliverable Ref. #: Milestone/Deliverable Name: Unit Testing Completion Date: Milestone/Deliverable Target Completion Date: Milestone/Deliverable Actual Completion Date: Approval Date: Comments (if needed): Approved by Consultant: Approved by City Department Director: Signature: Signature: Printed Name: Printed Name: Title: Title: Date: Date: For Director Use Only Contracted Payment Amount: Adjustments,including penalties: Approved Payment Amount: HealthSpace USA Inc. Professional Services Agreement-Technology Page 17 of 30 Rev.1/2017 City Secretary Contract No. EXHIBIT D NETWORK ACCESS AGREEMENT 1. The Network. The City owns and operates a computing environment and network (collectively the "Network"). Contractor wishes to access the City's network in order to provide description of services. In order to provide the necessary support, Contractor needs access to description of specific Network systems to which Contractor requires access,i.e. Internet, Intranet,email,HEAT System, etc.. 2. Grant of Limited Access.Contractor 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 Contractor with Network Credentials consisting of user IDs and passwords unique to each individual requiring Network access on behalf of the Contractor. Access rights will automatically expire one (1) year from the date of this Agreement. If this access is being granted for purposes of completing services for the City pursuant to a separate contract, then this Agreement will expire at the completion of the contracted services, or upon termination of the contracted services, whichever occurs first. This Agreement will be associated with the Services designated below. Services are being provided in accordance with City Secretary Contract No. Contract No.. Services are being provided in accordance with City of Fort Worth Purchase Order No. PO No. XServices are being provided in accordance with the Agreement to which this Access Agreement is attached. No services are being provided pursuant to this Agreement. 4. Renewal. At the end of the fust year and each year thereafter, this Agreement may be renewed annually if the following conditions are met: 4.1 Contracted services have not been completed. 4.2 Contracted services have not been terminated. 4.3 Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the Contractor 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, Contractor 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 to the Network and/or termination of this Agreement. 5. Network Restrictions. Contractor officers, agents, servants, employees or representatives may not share the City-assigned user IDs and passwords. Contractor acknowledges, agrees and hereby gives its authorization to the City to monitor Contractor's use of the City's Network in order to ensure Contractor's compliance with this Agreement.A breach by Contractor, its officers, agents, servants, employees or representatives, of this Agreement and any other written instructions or guidelines that the City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately to deny Contractor access to the Network and Contractor's Data, terminate the Agreement,and pursue any other remedies that the City may have under this Agreement or at law or in equity. HealthSpace USA Inc. Professional Services Agreement-Technology Page 18 of 30 Rev. 1/2017 City Secretary Contract No. 5.1 Notice to Contractor Personnel—For purposes of this section, Contractor Personnel shall include all officers, agents, servants, employees, or representatives of Contractor. Contractor shall be responsible for specifically notifying all Contractor 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: (a) Contractor shall be responsible for any City-owned equipment assigned to Contractor Personnel, and will immediately report the loss or theft of such equipment to the City (b) Contractor, and/or Contractor Personnel, shall be prohibited from connecting personally-owned computer equipment to the City's Network (c) Contractor 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 (d) Contractor Personnel shall not engage in prohibited or inappropriate use of Electronic Communications Resources as described in the City's Administrative Regulation D7 (e) Any document created by Contractor Personnel in accordance with this Agreement is considered the property of the City and is subject to applicable state regulations regarding public information (f) Contractor 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 (g) All network activity may be monitored for any reason deemed necessary by the City (h) A Network user ID may be deactivated when the responsibilities of the Contractor Personnel no longer require Network access 6. Termination. In addition to the other rights of termination set forth herein, the City may terminate this Agreement at any time and for any reason with or without notice, and without penalty to the City. Upon termination of this Agreement, Contractor agrees to remove entirely any client or communications software provided by the City from all computing equipment used and owned by the Contractor, its officers, agents, servants,employees and/or representatives to access the City's Network. 7. Information Security. Contractor 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. Contractor 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 Contractor-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. [SIGNATURE PAGE FOLLOWS] HealthSpace USA Inc. Professional Services Agreement-Technology Page 19 of 30 Rev. 1/2017 City Secretary Contract No. ACCEPTED AND AGREED: CIT 1'OF FORT WORTH: HEALTSPAC U A INC.: By: By: AG e5 `j L A- 1,5 eph Willmott Assistant City M ager President Date: �r?ln Date: "-�2 �oI7 APPROVED AS TO FORM ATTEST: AND LEGALITY: By: t� By: J Strong Name: Assistant City ttorney I Title: ATTEST: By: Mary J.Kayser City Secretary FOf. * :2 �XP►S OFFICIAL RECORD HealthSpace USA Inc. CITY SECRETARY Professional Services Agreement-Technology pp���� Page 20 of 30 FT.WORlMj2 X City Secretary Contract No. EXHIBIT E VERIFICATION OF SIGNATURE AUTHORITY HealthSpace USA Inc. 114 W Magnolia Street, Suite 400,Bellingham,Washington 98225 Environmental Inspection and Regulatory Software and Services Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Company and to execute any agreement, amendment or change order on behalf of Company. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Company. The City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Company. Company will submit an updated Form within ten(10)business days if there are any changes to the signatory authority.The City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by the Company. 1. Name: Joseph Willmott Position: eside t Sig a re Name: TV Signa�r4 of President/CEO HealthSpace USA Inc. Professional Services Agreement-Technology Page 21 of 30 Rev. 1/2017 City Secretary Contract No. Exhibit F HSCIoud Suite INSPECTION MANAGEMENT SOFTWARE APPLICATION LICENSING AND SERVICE AGREEMENT City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 And HealthSpace USA Inc. 114 W. Magnolia Street, Suite 400 Bellingham, WA 98225 Telephone: (866) 860-4224 ext. 2000 Fax: (604) 860-4225 Web: www. HealthSpace.com Contact: Joseph Willmott jwillmott@HealthSpace.com HealthSpace USA Inc. Professional Services Agreement-Technology Page 22 of 30 Rev.1/2017 HEALTH, HealthSpace USA Inc. HAf4A+lOWZED INTELLIGENCE Table of Contents ENVIRONMENTAL HEALTH SOFTWARE LICENSING AND SERVICE AGREEMENT..ERROR! BOOKMARK NOT DEFINED. 1. DEFINITIONS...............................................................................................................................................24 2. LICENSE TO USE SOFTWARE........................................................................................................................25 3. OWNERSHIP OF SOFTWARE AND DATA......................................................................................................26 4. OBLIGATIONS OF THE CITY..........................................................................................................................26 S. SOFTWARE SYSTEM UPGRADES AND CHANGES..........................................................................................26 6. INTELLECTUAL PROPERTY..........................................................................................................................27 7. TERMINATION............................................................................................................................................27 8. DECOMMISSIONING .............................................................................................27 9. CONFIDENTIALITY.......................................................................................................................................27 10. INDEMNIFICATION......................................................................................................................................28 11. NOTICE.......................................................................................................................................................28 12. FORCE MAJEURE.........................................................................................................................................29 13. INFORMATION MANAGEMENT RESPONSIBILITIES......................................................................................29 14. GENERAL. ...................................................................................................................................................29 HealthSpace USA Inc. Professional Services Agreement-Technology Page 23 of 30 Rev.1/2017 City Secretary Contract No. THIS AGREEMENT, is made and entered into this day oc ,2017 by and between City of Fort Worth (the "City") located at 200 Texas Street, Fort Worth, Texxa 6102 and HealthSpace USA Inc. ("HealthSpace"), an independent contractor with its corporate office located at 114 W. Magnolia Street, Suite 400, Bellingham,WA 98225. WHEREAS, the City desires to purchase an Internet Web Based Inspection application software user licenses designed by and hosted HealthSpace known at HSCioud Suite and the inspection applica- tion known as HSTouch to be used with the Apple iPad (together known as the "Application"), and ser- vices including data hosting and support/maintenance services from HealthSpace. NOW THEREFORE, the parties hereto, each in consideration of mutual promises and obligations assumed herein by the other, agree as follows: 1. Definitions a) "Application" means a web based application and an inspection application that is developed for the iOS operating systems that uses the nature features on tablets using the operating systems which, are downloaded from either from Apple's App Store. b) "City" means the government of the City of Fort Worth and its representative departments. c) "Confidential Information" means any and all data or information that is known or used by a par- ty that is not generally available to the public or that, by its nature or the nature of its disclosure, ought reasonably be known to be the confidential or proprietary information of such party, and in- cludes, but is not limited to, business information, specifications, research, software, trade se- crets, know-how, designs, drawings, data, computer programs, customer names and other tech- nical, financial and business information concerning a party, or any such information of clients or customers of a party, which is disclosed by or on behalf of such party to the other party. For greater clarity, the City's Confidential Information will include the Data, but not the Public Data, and HealthSpace's Confidential Information will include the terms of this Agreement, including all pricing and fees. d) "Custom Development" means alterations to the Standard Application requested by the City to meet specific needs that cannot be achieved in the configurable Application settings. Any Custom Development will be conducted at agreed rates, as an addendum to this Agreement. e) "Data" means any and all information, processes, documentation, marks and other intellectual property owned or produced by the City that is not Public Data. f) "Decommissioning" means the process of transitioning the City away from using the Health- Space Software following termination or expiration of this Agreement, as more particularly set out in section 8. g) "HealthSpace Servers" means servers operated and maintained by HealthSpace or co-located on which Data and Public Data may be stored and accessible by the City. h) "HSCioud" means a fully hosted cloud based solution with a browser based interface as well as supplementing API's that allows for deployment of enterprise level solutions to government, par- ticularly those in the Environmental Health industry. i) "HSTouch" means the iPad Application downloaded from the Apple App Store that interfaces with HSCioud providing a data collection and reporting function for field staff working either con- nected or disconnected from the internet with the base engine and logical mechanisms written in the native languages appropriate for the iOS. j) "License Fee" means the aggregate license fee payable in respect of each User and included in the annual Ongoing Maintenance Fee, as set out in Exhibit B. k) "Module Mapping" means setting up HS Touch to record the required inspection data required HealthSpace USA Inc. Professional Services Agreement-Technology Page 24 of 30 Rev.1/2017 �1/ City Secretary Contract No. by the department for each contracted inspection program. 1) 'PAC" means the Primary Administrative Contact who is the key point of contact and decision maker regarding the Application of behalf of the City. m) `Public Data" means any and all information entered into or stored in the Application by the City or by HealthSpace on behalf of the City that is published and made available to the general public or which is otherwise subject to freedom of information disclosure under any law or regulation ap- plicable to the City. n) "Standard Application" means application functionality that is available out-of-the box including the configurability options in the system. o) "System" means HSCloud, and HSTouch Inspection Application p) "UAT" means user acceptance testing. q) "User' is defined as anyone who is given access to HS Touch by an authorized license, whether or not employed by the City. 2. License to Use Software a) Subject to the terms and conditions specified in this Agreement, HealthSpace grants the City and its successors a limited, non-perpetual license (the "License") to use the Application or other HealthSpace Software for the duration of this Agreement, subject to the City paying for ongoing support. b) The License Fee is calculated on the basis of the number of Users set out in RFP-0146, and the City agrees that, for any increase in the number of Users, the City will give HealthSpace notice of such increase. If such increase is accepted by HealthSpace, the ongoing support fee will be amended to reflect the current number of Users and the difference between the License Fee pay- able under this Agreement and that under the amended Licensing Agreement will become imme- diately due and payable to HealthSpace c) HealthSpace will provide sufficient software licenses and upgrades of the Supporting Software required for the number of Users, as may be amended under paragraph 2.b), using the Health- Space Software, subject to payment for such software licenses and upgrades by the City. d) The City is responsible for and agrees to abide by all the provisions of applicable license agree- ments for Supporting Software and will ensure that the City staff complies with the license agreements. e) The City may add additional Users, provided that it pays the License Fee and any other associat- ed software license fees for such additional Users. f) The City acknowledges and agrees its license to, and accordingly its use of, the HealthSpace Software is at all times subject to the following limitations: i) No Modification or Reverse Engineering—The City will not directly or indirectly modify, or in any way alter (excluding configuration expressly permitted by the Documentation) the whole or any part of the HealthSpace Software, nor will the City translate, decompile, dis- assemble, reconstruct, decrypt, or reverse engineer the whole or any part of the Health- Space Software. ii) No Rental or Timeshare Use—Except as permitted herein, the City will not directly or indi- rectly license, sublicense, sell, resell, transfer, assign, distribute, rent, lease, or otherwise commercially exploit the HealthSpace Software in any way, nor will the City use of the HealthSpace Software in a computer service business, service bureau, hosting or timeshar- ing arrangement. iii) Unauthorized Equipment—The City will only use the HealthSpace Software on computing devices which are supplied by HealthSpace or which meet certain the minimum system re- quirements as provided by HealthSpace from time to time. HealthSpace USA Inc. Professional Services Agreement-Technology Page 25 of30 Rev. 1/2017 City Secretary Contract No. iv) Proprietary Notices—The City will not directly or indirectly remove any proprietary notices, labels or marks from the HealthSpace Software or other materials, including those indicat- ing any intellectual property rights of HealthSpace or any third party unless otherwise agreed between the parties in writing. 3. Ownership of Software and Data a) HealthSpace warrants to the City that HealthSpace is the developer and owner of HS Touch ap- plication and the HS Cloud system and has full rights to the HealthSpace Software and has the right to distribute to the City required licenses to operate the HealthSpace Software. b) In the event of any suit or claim against the City by any third party for damages and/or injunctive relief contesting ownership of the HealthSpace Software and/or the City's rights under this Agreement, HealthSpace agrees to, at its own expense, defend the City against such suit or claim and to hold the City harmless from expenses of such defense and from any court-awarded judgments resulting from such suit or claim. c) Further, if such suit or claim occurs or is likely to occur, HealthSpace will, at its own expense, ei- ther procure for the City the right to continue using the HealthSpace Software or replace the same with a non-infringing product, substantially conforming to that described herein, or modify the same so that it will be non-infringing, provided that this Agreement has not been terminated. d) For greater clarity, the provisions of section 3.b) will not apply to the extent that any such claim relates to the City's combination of the HealthSpace Software with computing devices, systems or other software not approved by HealthSpace or otherwise contemplated hereunder, or in the event of the City's refusal to install any update or replacement provided pursuant to section 3.c). e) All Data and Public Data, whether entered into or stored in the system by the City or by Health- Space on behalf of the City, is and will remain the sole property of the City. The City hereby grants HealthSpace the irrevocable, royalty-free license during the term of this Agreement to use, copy and otherwise exploit the Data and the Public Data to operate the HealthSpace Software and perform the services provided in this Agreement, including to extract, derive, compile and publish the Public Data, and for any other purpose permitted hereunder. The City acknowledges that whether the HealthSpace Software uses HealthSpace Servers or third party servers, the Supporting Software will transmit Data to HealthSpace Servers for the purpose of performing functions on the Data required by this Agreement and also to collect the Public Data, which Public Data may be further used, published or distributed by HealthSpace. 4. Obligations of the City a) The City will designate a PAC who is responsible for the administrator functions of the system on behalf of the City. b) The City agrees to designate a replacement PAC within thirty(30) days if the primary is unable to serve in that capacity or leaves the organization. c) All newly designated Administrator's must receive HealthSpace designed and delivered training which will be done electronically through web-based training and documentation. d) The City will provide access to HealthSpace's online learning material for all Users using the Ap- plication. e) If the City supplies the computing devices to operate the Supporting Software, the City is respon- sible, with support from HealthSpace, to install the HS Touch Application on the City computing devices. 5. Software System Upgrades and Changes a) The License Fee includes all subsequent core system upgrades and changes instituted by HealthSpace after deployment. It does not include any Custom Development, such as design changes to modules deployed for the City that are outside the normal configuration options of the HealthSpace Software. HealthSpace USA Inc. Professional Services Agreement-Technology Page 26 of30 Rev.1/2017 City Secretary Contract No. b) HealthSpace will use commercially reasonable efforts to minimize any changes to minimum sys- tem requirements for the HealthSpace Software resulting from system upgrades and changes. 6. Intellectual Property a) The HealthSpace Software will, at all times, remain the property of HealthSpace, subject only to the license of use granted herein, specifically excluding any right of reproduction, sale, lease, sub-license or any other transfer or disposition of the HealthSpace Software, or any portion thereof, by the City except as follows: i) upon the transfer, or merger, of substantially all of the assets of the City to a successor or- ganization, this Agreement and the rights and obligations of the City herein may be as- signed to such successor; or b) The City grants HealthSpace a non-exclusive, perpetual and royalty-free license to use all innova- tions, suggestions, and feedback ("Feedback") regarding the HealthSpace Software suggested by the City staff, provided that the Feedback pertains to the operation or design of the Health- Space Software, or of possible future extensions of the HealthSpace Software, and is either pre- sented in an area not private to the City or is sent directly to HealthSpace. Such Feedback is given to HealthSpace on an "as is" basis and the City does not provide any warranty regarding the Feedback. 7. Termination a) Should either party default in the performance of any obligation under this Agreement or breach any provision contained in the Agreement and not correct or substantially cure the default or breach within thirty (30) days after receipt of written notice by the other party of such default or breach, then in addition to any other remedies set forth herein, or available in law or in equity, this Agreement may be terminated by the non-defaulting/non-breaching party,following which the City will comply with the provisions set out in section 8 for Decommissioning. b) In the event either party ceases its business operations, makes a general assignment for the benefit of creditors, is adjudged bankrupt, or becomes insolvent, then the other party may, at its sole discretion, terminate the Agreement upon thirty (30) days' notice to the other party and the provisions set out in section 8 for Decommissioning will not apply. 8. Decommissioning a) Upon termination of this Agreement, or its expiration without replacement, the City will immediate- ly cease using the Application. HealthSpace will transmit all data captured using the Application and all City data stored on the HS Cloud system to the City data system and scrubbed from the Application servers within five (5) business days of the effective termination date. HealthSpace will provide support for this process. 9. Confidentiality a) Each party agrees to protect the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind but in no case less than reasonable care, and will not use the Confidential Information of the other party, except in connection with the performance of its obligations under this Agreement or as permitted by this Agreement. The confidentiality provisions set forth in this Agreement will remain in full force and effect in perpetuity. b) Without limiting the foregoing, HealthSpace will (a) ensure that all copies of the Data will be se- cured behind a professionally configured firewall, (b) use database systems with adequate and reliable security and will make regular security checks on these systems, and (c) HealthSpace will supply the PAC with copies of the results of such checks upon request.The City agrees that it will treat these results as HealthSpace's Confidential Information. c) Upon termination of this Agreement or upon the written instruction of the party owning Confiden- tial Information, the other party will return or destroy the requesting party's Confidential Infor- mation. For this Agreement, a party will be deemed to have destroyed electronic Confidential In- HealthSpace USA Inc. Professional Services Agreement-Technology Page 27 of 30 Rev.1/2017 t City Secretary Contract No. formation when it executes an application- or operating system-level, commercially reasonable delete function on it, provided that thereafter it does not conduct or permit any recovery or resto- ration of same. d) Each party will be responsible to the other for any disclosure of Confidential Information that is not permitted by this Agreement to the extent caused by such party and for any failure by such party to comply with the terms hereof. Each party will defend, indemnify and hold harmless the other,from and against any and all claims arising out of any breach by it of this section 9.d). e) The obligations of confidentiality set out in this section will not apply in respect of uses or disclo- sures of Confidential Information where: i) the discloser consents in writing, ii) disclosure is required to comply with any applicable law, judicial order or stock exchange rules, provided that the party proposing to disclose the Confidential Information gives the other party reasonable, sufficient notice as may be practicable in the circumstances to con- test or protect the required disclosure, or iii) the party proposing to use or disclose the Confidential Information can establish with doc- umentary evidence that, other than as a result of a breach of this Agreement, the Confiden- tial Information (a) is available in the public domain or is Public Data, (b)was disclosed to it by a third party without violating confidentiality obligations, or(c)was already known by it or was subsequently developed by it without any use of Confidential Information. 10. Indemnification a) HealthSpace agrees that it will defend, indemnify and hold the City harmless from any liabilities, claims or demands arising out of the work performed or services provided pursuant to this Agreement from persons who are not party thereto and who claim or allege any personal injury or death or any damage to their property due to the intentional or negligent acts of HealthSpace or its officers, employees, agents or assigns, except to the extent that any such liability relates to any actions of the City, the Users or any other employees or contractors of the City. The City will immediately provide notice to HealthSpace in the event of any such claim, and HealthSpace will have the right to defend and settle any such claims. b) HealthSpace agrees to compensate the City for any loss or damages caused directly by Health- Space to the City's premises or physical property, arising out of the work performed or services provided pursuant to this Agreement. c) The City acknowledges that the licensed software provided by HealthSpace constitutes part of an information system to be used by the City, its staff, employees and authorized agents in the per- formance of their professional responsibilities and is in no way intended to replace their profes- sional skill and judgment. 11. Notice a) All notices will be in writing and will be sent by certified mail, return receipt requested, or by email to the people and addresses set out below, or to such other address as either party may request by notice. All notices sent by certified mail will be effective upon the date of receipt. Notices sent by email will be immediately effective on the date of transmission if sent during regular business hours, or on the next business day if sent outside of regular business hours. To the Company: HealthSpace USA Inc. 114 W. Magnolia Street, Suite 400 Bellingham,WA 98225 Telephone: 1 (866)860-4224 Ext. 2000 Web:www.healthspace.com Contact: Joseph Willmott iwi Ilmott@ healthsoace.com HealthSpace USA Inc. Professional Services Agreement-Technology Page 28 of 30 Rev. 1/2017 City Secretary Contract No. To the City: As set out in the Professional Service Agreement to which this is attached. b) If normal mail service or email are interrupted by strike, slow down, Force Majeure or other cause, then a notice sent by the impaired means of communication will not be deemed to be re- ceived until actually received, and the parties sending the notice will use any other such services which have not been so interrupted or will deliver such notice in order to ensure prompt receipt thereof. 12. Force Majeure a) Neither party is liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war, declared or undeclared, fire, flood, storm, slide, earthquake, their failure, inability to obtain equipment, supplies or other facilities not caused by a failure to pay, la- bor disputes, or other similar event beyond the control of the party affected which may prevent or delay such performance. If any such act or event occurs or is likely to occur, the party affected will promptly notify the other, giving particulars of the event. The party so affected will use rea- sonable efforts to eliminate or remedy the event. 13. Information Management Responsibilities a) HealthSpace will comply with all applicable privacy laws, rules and regulations of the jurisdiction in which the City is located. 14. General a) HealthSpace will not, during the term of this Agreement, perform a service or, or provide advice to any person, firm or agency, which gives rise to a conflict of interest between the obligations of HealthSpace under this Agreement, except that which is required by law. b) This Agreement, the schedules and all attachments referenced herein will constitute the entire Agreement of the parties and will supersede all prior negotiations, proposals, and representa- tions, whether written or oral. c) Time will be of the essence in this Agreement. d) This Agreement may not be modified except by subsequent agreement in writing executed by both the City and HealthSpace. e) It is mutually agreed by and between the parties that the relationship between the City and HealthSpace will be that of independent contractor and no principal-agent or employer-employee relationship is created by this Agreement. The City is interested in the results achieved and the conduct and control of the work will lie solely with HealthSpace. HealthSpace is not entitled to any of the benefits the City provides its employees. It is further understood that the City does not agree to use HealthSpace exclusively. Moreover, it is understood that HealthSpace is free to con- tract for similar services to be performed for other parties while under contract with the City. f) It is mutually agreed by and between the parties that if any section, subsection, sentence, clause, phrase, or portion of this Agreement will be for any reason held invalid, unenforceable or uncon- stitutional by a court of competent jurisdiction, such portion will be deemed a separate, distinct and independent provision and such holding will not affect the validity of the remaining portions thereof. g) It is mutually agreed and acknowledged by and between the parties that any breach by it of this Agreement with respect to intellectual property rights to HealthSpace Software or Confidential In- formation may cause the other party immediate and irreparable harm for which monetary damag- es would not be adequate to compensate such other party, and so upon such a breach the other party may seek injunctive or other equitable relief against the breaching party from any court of competent jurisdiction without establishing the inadequacy of monetary damages, proof of actual harm or posting any bond or security. HealthSpace USA Inc. Professional Services Agreement-Technology Page 29 of 30 Rev. 1/2017 City Secretary Contract No. h) This Agreement will be governed by and construed in accordance with the laws enforced from time to time in the State of Tennessee and the federal laws of the United States applicable there- in, without reference to their conflicts of laws principles. i) The captions and headings appearing in this Agreement are inserted for convenience only and do not form a part of this Agreement and are not intended to interpret, define or limit the scope, ex- tent or intent of this Agreement or any provision hereof. j) This Agreement will enure to the benefit of, and be binding upon, the parties hereto and their re- spective heirs, executors, administrators, personal representatives, successors and assigns. The City may not assign or transfer any interest in this Agreement without the prior written consent of HealthSpace. k) Whenever the singular or masculine is used herein,the same will be deemed to include the plural or the feminine of the body politic or corporate where the context of the party so requires. 1) The terms of this agreement shall be subject to the terms and conditions of the Purchase order issued by the City for the purchase of the Application. In the event of conflict, the terms of the Purchase Order shall prevail. IN WITNESS WHEREOF, the parties hereto have entered into this Agreement on the day of 2017. For the CITY: I � � Date Suan kanis, Ass t City Manager For HEALTHSPACE USA INC. Date Jo ph Willmott APPROVED AS TO FORM AND LEGALITY: ITY ATTORNEY OF FORT A v OFFICIAL RECORD * _ CITY SECRETARY Mary J. s , Ci FT weWy s •W��I itilh�dce SA Inc. XA Professional S ices Agreement-Technology Page 30 o1730 Rev.1/2017 CERTIFICATE OF INTERESTED PARTIES FORM 1295 v 1 of 1 Complete Nos. 1-4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING 1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number: of business. 2017-195017 HealthSpace USA Inc. Bellingham,WA United States Date Filed: 2 Name of governmental entity or state agency that is a party to the contract for which the form is04/19/2017 being filed. City of Fort Worth Date Acknowledged: 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract,and provide a description of the services,goods,or other property to be provided under the contract. RFP 17-00146 Data management software system for the Code Compliance Consumer Health Division. 4 Nature of interest Name of Interested Party City,State,Country(place of business) (check applicable) Controlling I Intermediary HealthSpace USA Inc. Bellingham,WA United States X 5 Check only if there is NO Interested Party. ❑ 6 AFFIDAVIT +✓ jJAFO� I swear,or affirm,under penalty of perjury,that the above disclosure is true and correct. Qs's0SY y � y�� �� Signature of authorized agent of contracting business entity �j► 3.04 / AFFIX N,dT�I � �-ABOVE '�tttth.,...••``� �j Sworn to and subscribed before me,by the said �(�5�/�/T (/V t L � 7"' this the day of , 20_ to certify which,witness my hand and seal of office. i /Ice n-Q- ignature of officer administering oath Printed name of officer administering oath Title of officer dministering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.883 M&C Review • the City of F6rmo�tfi,Texas, CITY COUNCIL AGENDA FORTWORTN COUNCIL ACTION: Approved on 8/1/2017 DATE: 8/1/2017 REFERENCE ,.P-12072 LOG NAME: 13P17-0146 DATA MANAGEMENT NO.: SB CODE CODE: P TYPE: CONSENT PUBLIC NO HEARING: SUBJECT: Authorize Contract with HealthSpace USA, Inc., in an Amount Up to $190,000.00 for the First Year to Provide Data Management Software System for the City's Code Compliance Department (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council authorize a contract with HealthSpace USA, Inc., in an amount up to $190,000.00 for the first year to provide data management software system for the City's Code Compliance Department. DISCUSSION: The City of Fort Worth (City) will use this contract to provide a Data Management Software System (DMS) for Code Compliance Department, Consumer Health Division for a software system for permitting, invoicing, complaint processing, inspections and monitoring for compliance, as well as a data management platform that supports customization for storage, analysis and reporting. The HealthSpace Cloud product will allow the Consumer Health division to convert historical data to the new system for continuity of service. The DMS will allow the Consumer Health staff full access to update any and all aspects of the database without having to contact HealthSpace staff. BID ADVERTISEMENT-A Request for Proposals (RFP) was advertised in the Fort Worth Star- Telegram on Wednesdays between January 11, 2017, January 18, 2017, January 25, 2017, February 1, 2017, February 8, 2017, February 15, 2017 and February 22, 2017. The evaluation factors included quality of project management services, data management system provisions of system requirements, qualifications and references, warranty and maintenance, financial stability and ability to obtain insurance and cost. Four hundred twenty-one vendors were solicited from the purchasing vendors database system and sixteen non-registered vendors via email; three responses were received. The proposals received were reviewed by an evaluation committee consisting of staff from the Code Compliance and Information Technology Solutions Departments. The proposal from HealthSpace USA, Inc., was found to present the best value to the City. PRICE ANALYSIS -The City' has no previous comparable procurement cost for this system. The Code Compliance Department's existing Data Management System (DMS) has been in use since 1995 and the current system does not have the capability to integrate technology functionality common in applications utilized by Consumer Health staff. Staff reviewed HealthSpace USA, Inc., prices and determined the pricing to be fair and reasonable. ADMINISTRATIVE CHANGE ORDER-An administrative change order or increase may be made by the City Manager in the amount up to $47,500.00 and does not require specific City Council approval as long as sufficient funds have been appropriated. CONTRACT TERMS - Upon City Council's approval, the initial term of the Agreement shall be one http://apps.cfwnet.org/council_packeVmc review.asp?ID=24726&councildate=8/1/2017[8/2/2017 10:51:11 AM] M&C Review year from date of execution. RENEWAL OPTIONS - The Agreement may be renewed for up to two additional 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. M/WBE OFFICE -A waiver of the goal for the MBE/SBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE office in accordance with the BDE Ordinance because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. FISCAL INFORMATION/CERTIFICATION: The Director of Finance certifies that upon approval of the above recommendation, funds are available within the existing appropriations of the General Information Technology Capital Program for these expenditures and that prior to an expenditure being made, the IT Solutions Director has the responsibility to validate the availability of funds. BQN\17-0146\SB TO Fund Department Account Project Program Activity Budget Reference# Amount ID I ID Year (Chartfield 2) FROM Fund Department Account Project Program Activity Budget Reference# Amount ID ID Year (Chartfield 2) Submitted for City Manager's Office by: Fernando Costa (6122) Originating Department Head: Aaron Bovos (8517) Additional Information Contact: Sheila Baker (8356) Jack Dale (8357) ATTACHMENTS Health Space Signed 1295pdf http://apps.cfwnet.org/council_packet/mc_review.asp?1D=24726&councildate=8/1/2017[8/2/2017 10:51:11 AM]