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HomeMy WebLinkAboutContract 50748 CITY SECRETARY CONTRACT NO. q ff City Secretary Contract No. r FORTWORTHO 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 Better Impact, Inc. ("Consultant" or "Contractor"), a corporation of the state of Delaware, acting by and through Tony Goodrow its duly authorized CEO. 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: The Contract documents shall include the following: 1. This for Professional Services Agreement; 2. Exhibit A—Statement Of Work Plus Any Amendments To The Statement Of Work; 3. Exhibit B—Payment Schedule; 4. Exhibit C—Signature Verification Form 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 specific description of services. 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 control. 2. Term. This Agreement shall commence upon April 27, 20I8 ("Effective Date") and shall expire no later than date April 26, 2019 ("Expiration Date"), unless terminated earlier in accordance with Better Impact,Inc.Professional Services Agreement-Technology Nt City Secretary Contract No. the provisions of this Agreement or otherwise extended by the parties. This Agreement may be renewed for four one-year 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 Twenty-five thousand and 00/100($25,000.00) 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. 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. 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. Better Impact,Inc. Professional Services Agreement-Technology Page 2 of 18 City Secretary Contract No. 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 with 72 hours 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. 6.1. 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. 6.2. 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 I0 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 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 Better Impact,Inc. Professional Services Agreement-Technology Page 3 of 18 City Secretary Contract No. 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. 8.1. 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. 8.2. 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. 8.3. INTELLECTUAL PROPERTY INFRINGEMENT. 8.3.1. 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. 8.3.2. 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. 8.3.3. 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 Better Impact,Inc. Professional Services Agreement-Technology Page 4 of IS City Secretary Contract No. understood that this agreement to indemnify, defend, settle or pay shall not apply if the City modifies or misuses the Deliverable(s). So long as 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. 9.1. 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. 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: Better Impact,Inc. Professional Services Agreement-Technology Page 5 of 18 City Secretary Contract No. 10.1.1. Commercial General Liability: 10.1.1.1. Combined limit of not less than $2,000,000 per occurrence; $4,000,000 aggregate; or 10.1.1.2. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. 10.1.1.3. Defense costs shall be outside the limits of liability. 10.1.2. Automobile Liability Insurance covering any vehicle used in providing services under this Agreement, including owned, non-owned, or hired vehicles, with a combined limit of not less than$1,000,000 per occurrence. 10.1.3. Professional Liability (Errors & Omissions) in the amount of$1,000,000 per claim and $1,000,000 aggregate limit. 10.1.4. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. 10.1.5. Technology Liability(Errors&Omissions) 10.1.5.1. Combined limit of not less than $2,000,000 per occurrence; $4million aggregate or 10.1.5.2. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. The umbrella policy shall cover amounts for any claims not covered by the primary Technology Liability policy. Defense costs shall be outside the limits of liability. 10.1.5.3. Coverage shall include, but not be limited to, the following: 10.1.5.3.1. Failure to prevent unauthorized access; 10.1.5.3.2. Unauthorized disclosure of information; 10.1.5.3.3. Implantation of malicious code or computer virus; 10.1.5.3.4. Fraud, Dishonest or Intentional Acts with final adjudication language; 10.1.5.3.5. Intellectual Property Infringement coverage, specifically including coverage for intellectual property infringement claims and for indemnification and legal defense of any claims of Better Impact,Inc. Professional Services Agreement-Technology Page 6of18 City Secretary Contract No. 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; 10.1.5.3.6. Technology coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, a separate policy specific to Technology E&O, or an umbrella policy that picks up coverage after primary coverage is exhausted. Either is acceptable if coverage meets all other requirements. Technology coverage shall be written to indicate that legal costs and fees are considered outside of the policy limits and shall not erode limits of liability. Any deductible will be the sole responsibility of the 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; and 10.2. General Insurance Requirements: 10.2.1. All applicable policies shall name the City as an additional insured thereon, as its interests may appear. The terin City shall include its employees, officers, officials, agents, and volunteers in respect to the contracted services. 10.2.2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. 10.2.3. A minimum of Thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten(10)days' notice shall be acceptable in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. 10.2.4. The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A- VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. 10.2.5. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. 10.2.6. Certificates of Insurance evidencing that the 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. Better Impact,Inc. Professional Services Agreement-Technology Page 7 of 18 City Secretary Contract No. 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: TO CONSULTANT: City of Fort Worth Better Impact, Inc. Attn: Susan Alanis Attn: Tony Goodrow Assistant City Manager 6554 S. Kimbark Avenue #3 200 Texas Street Chicago, IL USA 60637 Fort Worth TX 76IO2 Facsimile: 905-538-7945 Facsimile: (817)392-6134 With Copy to the City Attorney at same address 14. Solicitation of Employ. 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 Better Impact,Inc. Professional Services Agreement-Technology Page 8 of 18 City Secretary Contract No. 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. 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. Immigration Nationality Act. Consultant shall verify the identity and employment eligibility of its employees in the USA who perform work under this Agreement, including completing the Employment Eligibility Verification Form (1-9). Upon request by City, Consultant shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Consultant shall adhere to all Federal and State laws as well as establish Better Impact,Inc. Professional Services Agreement-Technology Page 9 of 18 City Secretary Contract No. appropriate procedures and controls so that no services will be performed by any Consultant employee who is not legally eligible to perform such services. CONSULTANT SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY CONSULTANT, CONSULTANT 'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Consultant, shall have the right to immediately terminate this Agreement for violations of this provision by Consultant . 27. 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 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 hatter 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. 28. No Boycott of Israel. Consultant acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract, Consultant certifies that Consultant's signature provides written verification to the City that Consultant: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. 29. Reporting Requirements. 29.1. For purposes of this section,the words below shall have the following meaning: 29.1.1. Child shall mean a person under the age of 18 years of age. 29.1.2. Child pornography means an image of a child engaging in sexual conduct or sexual performance as defined by Section 43.25 of the Texas Penal Code. 29.1.3. Computer means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that perforins logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, Better Impact,Inc. Professional Services Agreement-Technology Page 10 of 18 City Secretary Contract No. output, processing, storage, or communication facilities that are connected or related to the device. 29.1.4. Computer technician means an individual who, in the course and scope of employment or business, installs, repairs, or otherwise services a computer for a fee. This shall include installation of software,hardware, and maintenance services. 29.2. Reporting Requirement. 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. 30. Siiznature 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. 3I. Survival of Provisions. The parties' duties and obligations pursuant to Section 4.4 (Duties and Obligations), 5 (Disclosure of Conflicts and Confidential Information), Section 6 (Right to Audit), and Section 8 (Liability and Indemnification)shall survive termination of this Agreement. (signature page follows) Better Impact,Inc. Professional Services Agreement-Technology Page 11 of 18 City Secretary Contract No. Executed in multiples this the day of_ 20-9 ACCEPTED AND AGREED: T—, CITY: CITY OF FORT WORTH CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and By: reporting requirements. ��'�N��amSusan,A'Ian'is Title: Assistant City Manager Date: SS Name: Whitney Rodriguez Title: Public Education Coordinator APPROVAL RECOMMENDED: APPROVED AS TO FORM AND LEGALITY: By: _ Na e: Richard Zavala By: Ti Director, Name: Matthew A.47Turray Park and Recreation Department Title: Assistant City Attorney ATTEST: CONTRACT AUTHORIZATION: M&C: Not applicable Date Approved: BY: ��' � 1295 Certification No.: a4: Mary J.Kayser �®.:•••••FO ie Title: City Secretary O CJ. CONSULTANT: Better Impact, Inc. ATTEST: By: By: Name:Tony Go drow Name: Title: CEO Title: �C c��intc: T Date: M A" 2� ;LO lT> FoF�IC�AL,Lt6�OR� Better Impact,Inc. Professional Services Agreement-Technology "�' 4of1 En! war e71 City Secretary Contract No. EXHIBIT A STATEMENT OF WORK Better Impact shall provide the Volunteer Impact Enterprise Edition and offer all the capabilities listed below: Maximum number of volunteer profiles allowed—Unlimited Find volunteers with a portion of their name from any screen General contact information Volunteer photograph Number of custom fields allowed-short text Unlimited Number of custom fields allowed- long text Unlimited Number of custom fields allowed-date Unlimited Number of custom fields allowed-numeric Unlimited Number of custom fields allowed-check box Unlimited Number of custom fields allowed-drop down list Unlimited Number of custom fields allowed- file upload Unlimited Number of custom vetting fields that facilitate volunteer self-scheduling- Unlimited Alerts when certifications or similar elements are soon to expire Hide selected fields from the volunteer's view in MyVolunterPage.com Track volunteer interests Track volunteer availability Select a record and then take actions like view, edit, delete or e-mail Select multiple records and make data changes to all selected records Volunteer profiles can contain fields common across all departments/locations Volunteer profiles can contain fields unique to specific departments/locations Exporting of all volunteer profile data or selected portions of it into csv files or spreadsheets Volunteer contact details export Volunteer custom field data and qualifications export Volunteer schedule export Volunteer hours log and feedback export Graphic banner to brand the volunteer experience to your organization Options to add your organization's colors to various areas of the form Automated email upon volunteer application Number of custom fields allowed- short text Unlimited Number of custom fields allowed- long text Unlimited Number of custom fields allowed-date Unlimited Number of custom fields allowed- numeric Unlimited Number of custom fields allowed-check box Unlimited Number of custom fields allowed-drop down list Unlimited Number of custom fields allowed-file upload Unlimited Number of volunteer applications form templates 3 &3/Act in E Volunteer policy waiver required upon applying(configurable) Customizable Limited Access Administrators who cannot access all functions in the software Maximum number of administrators(no additional fees) Unlimited Extra cost for additional administrators No Internal Document Library—File storage for internally accessible documents Better Impact,Inc. Professional Services Agreement Page 13 of 18 City Secretary Contract No. Volunteer Document Library—File storage documents accessible to volunteers Default settings for hours log pennissions Email Templates Activity Templates Activity Schedule Templates Time zone(to ensure all time and date calculations are accurate) Separate and optional client module(with the same database)to store client data Separate and optional member module(with the same database)to store membership information Customize the software differently for different departments,programs or locations Customizable Activity meta tags(Classifications that help volunteers when searching of volunteer opportunities across the entire Enterprise) Functions in English and Spanish(translations by professional, native-tongue translators) Email individual volunteers directly from the software Email volunteers based on a customizable set of filters Merge `First Name' into email Email templates that can be saved and used as needed Text formatting(font, size and colors)supported in emails Links and attachments supported in emails Photo insertion supported in emails Automatic custom e-mails are generated when volunteers first apply SMS texting to all or a selected portion of volunteers—Additional fees apply Record of emails and texts sent are stored in the software Volunteers on a committee can email the rest of the committee without knowing their email addresses(if allowed by administrator) Automated shift reminder emails Ability to group similar roles together Publicly viewable descriptions (if desired) Privately viewable descriptions-only visible to volunteers assigned to the role(if desired) Activity Type Option-No Schedule Activity Type Option-No Schedule but Seasonal Activity Type Option- Single Shift Activity Type Option- Multiple Unrelated Shifts Activity Type Option- Recurring Shift Pattern Bulk changes to role and schedule profiles Control over which volunteers can see the role and/or schedule online Feedback fields associated with each volunteer shift(if desired) Customizable classifications to assist volunteers searching for opportunities across large organizations Calendar that displays current schedules, open slots and placed volunteers Prequalified volunteers can self-schedule according to your needs and preset rules Calendar can be viewed by day,week, or month Scheduling conflicts are displayed Volunteers with expired certifications can't register for opportunities that require them. View all volunteers who are currently active,available and ready to volunteer for a shift Ongoing slots can use patterns, like"Weekdays, 9-12 and 12-3" Shifts and positions can be set to accept a predefined maximum number of volunteers. At-a-glance view of which days need schedule slots filled&how many Find qualifying volunteers for each position using previously created(or new) searches Filters or suggestions for the most qualified volunteer based on skills,availability,etc. Print schedules by date range, volunteer, opportunity and organization. Copy opportunities to save data entry Better Impact,Inc. Professional Services Agreement Page 14 of 18 City Secretary Contract No. Create schedules for new roles from pre-saved templates Groups can be scheduled such that the group consumes the appropriate number of spots on the shift View schedules on screen Gaps in schedule displayed visually and numerically Export schedules as PDF, Word or Excel Volunteers can sync their volunteer schedule with their calendar in Outlook,Gmail etc. Touch screen time-clock with feedback and output reporting Mobile phone hours reporting with feedback and output reporting View and print volunteer hours and volunteer numbers by date range,volunteer, position and department View and print volunteer hours&volunteer numbers by type of role across a region or entire enterprise Filter reporting by multiple criteria, including volunteer profile data Track and report on the outputs related to relevant volunteer activities Track volunteer reported incidents or comments by volunteer, position and department Track expenses incurred by volunteers Volunteers can log hours through their volunteer portal and generate an hours report(admin verification if needed) Generate reports based on any profile data including custom fields Build your own comparison reports on hour outputs Track efficiencies(outputs per hour of volunteer time) View reports on screen Export reports as PDF, Word or Excel Phone, email and chat support(internal) ... 24x5 and periodically on weekends Client suggestion forum Online user's manual Searchable knowledgebase Video training On-site training—Additional fees apply Web meeting support International volunteer management consultants on the support team Completely web-based.No installation on your computers required SSAE 16 hosting facility certification Regional points of presence to speed up content delivery Nightly offsite backup 5 year uptime(exclusive of planned upgrades and maintenance) 99.985 Data encrypted in transit over the internet(backwards compatible to I28 bit SSL)256bit SSL Passwords encrypted(such that not even the Consultant can read them) 24x7x365 server monitoring to detect and prevent intrusion attempts on servers Recent version of Windows IE supported(Administrator&Volunteer) Recent version of Windows Firefox supported(Administrator& Volunteer) Recent version of Windows Chrome supported(Administrator&Volunteer) Recent version of Mac Firefox supported Recent version of Mac Safari supported Recent version of Mac Chrome supported iPad and Android tablets—Most admin functions accessible Mobile phone interface for volunteers Better Impact,Inc. Professional Services Agreement Page 15 of 18 City Secretary Contract No. EXHIBIT B PAYMENT SCHEDULE Better Impact bills annually for the use of the Volunteer Impact Enterprise Edition based on the number of volunteers subscribed. Better Impact charges for additional accounts under the Enterprise Edition based on the number of existing accounts.These are a one-time fee. Accounts* under the Enterprise(* Individual locations,branches,departments etc.,a one-time fee) I to 9$295 each 10 to 19$250 each 20 to 29 $220 each 30 to 49$205 each 50 to 74 $190 each 75 to 99 $175 each 100 to 124 $160 each 125 to 149 $145 each 150 to 174 $130 each 175 to 199 $115 each 200 +$100 each Annual Subscription Fees—Volunteer Impact • Up to 3,000 volunteers$2,285 • Up to 4,000 volunteers$2,655 • Up to 5,000 volunteers $3,045 • Up to 6,000 volunteers $3,400 • Up to 7,000 volunteers$3,675 • Up to 8,000 volunteers $3,865 • Up to 9,000 volunteers $4,065 • Up to 10,000 volunteers $4,200 • Over 10,000 volunteers $400/ 1,000 Text Messaging$30/1,000 after the first 5,000 per year Billable Services Importing Standard Contact Details $100 Additional Importing—Custom fields(interest,traits,qualifications, etc.)$20/field Hours logs—we will need to see the data to provide you with a quote Varies Insurance Certificates name in the City $100 in year one and$50 per year 1-9 forms $50 Training Enterprise Administrator Training Half day session at your location (Recommended when the installation of the new software will lead to the adoption of new processes) $600+travel Account Administrator Training Better Impact,Inc. Professional Services Agreement Page 16 of 18 City Secretary Contract No. Option 1 —Two half day hands-on sessions at your location(Recommended if you can bring administrators together to one central location)$1200 +travel Option 2—Three 1 hour group webinars where all administrators participate in all three sessions (Useful if bringing administrators together is impracticable and each location has similar processes)$375 Option 3—Two forty-five minute webinars,where administrators from only one location participate at a time (Useful if bringing administrators together is impracticable and locations have unique needs) $200/ per location Custom training services—When the other options don't quite fit,we are happy to tailor a custom training program to fit your needs Call us. Better Impact,Inc. Professional Services Agreement Page 17 of 18 City Secretary Contract No. EXHIBIT C VERIFICATION OF SIGNATURE AUTHORITY Better Impact, Inc. 6554 S. Kimbark Avenue#3 Chicago, IL USA 60637 Provide the Volunteer Impact Enterprise Edition software and related maintenance. Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Consultant and to execute any agreement, amendment or change order on behalf of Consultant. 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 Consultant. Consultant 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 Consultant. 1. Name: Position: Signature 2. Name: Position: Signature 3. Name: Position- Signature Name: Signature of side CEO Y Other Title: Date: Better Impact,Inc. Professional Services Agreement Page 18 of 18 HM :BETTER ��I M PACT Volunteer Software Feature Comparison Volunteer Profiles Volunteer Option Option Impact 2 3 Maximum number of volunteer profiles allowed Unlimited Find volunteers with a portion of their name from any screen ✓ General contact information ✓ Volunteer photograph ✓ Number of custom fields allowed-short text Unlimited Number of custom fields allowed-long text Unlimited Number of custom fields allowed-date Unlimited Number of custom fields allowed-numeric Unlimited Number of custom fields allowed-check box Unlimited Number of custom fields allowed-drop down list Unlimited Number of custom fields allowed-file upload Unlimited Number of custom vetting fields that facilitate volunteer self scheduling Unlimited Alerts when certifications or similar elements are soon to expire ✓ Hide selected fields from the volunteer's view in MyVolunterPage.com ✓ Track volunteer interests ✓ Track volunteer availability ✓ Select a record and then take actions like view,edit,delete or e-mail ✓ Select multiple records and make data changes to all selected records ✓ Volunteer profiles can contain fields common across all departments/locations ✓ Volunteer profiles can contain fields unique to specific departments/locations ✓E Exporting of all volunteer profile data or selected portions of it into csv files or spreadsheets ✓ Volunteer contact details export ✓ Volunteer custom field data and qualifications export ✓ Volunteer schedule export ✓ Volunteer hours log and feedback export ✓ E=Enterprise Edition Only Better Impact Inc.—www.Betterlmpact.com - We're here to help! lls F ► mo TT sial M PACT Volunteer Software Feature Comparison Application Forms Volunteer Option Option Impact 2 3 Graphic banner to brand the volunteer experience to your organization J Options to add your organization's colors to various areas of the form J Automated email upon volunteer application J Number of custom fields allowed-short text Unlimited Number of custom fields allowed-long text Unlimited Number of custom fields allowed-date Unlimited Number of custom fields allowed-numeric Unlimited Number of custom fields allowed-check box Unlimited Number of custom fields allowed-drop down list Unlimited Number of custom fields allowed-file upload Unlimited Number of volunteer applications form templates 3&3/Act in E Volunteer policy waiver required upon applying(configurable) J E=Enterprise Edition Organization Profiles Volunteer Option Option Impact 2 3 Customizable Limited Access Administrators who cannot access all functions in the software J Maximum number of administrators(no additional fees) Unlimited Extra cost for additional administrators No Internal Document Library—File storage for internally accessible documents J Volunteer Document Library—File storage documents accessible to volunteers J Default settings for hours log permissions J Email Templates J Activity Templates J Activity Schedule Templates J Time zone(to ensure all time and date calculations are accurate) J Separate and optional client module(with the same database)to store client data ✓ Separate and optional member module(with the same database)to store membership information Customize the software differently for different departments,programs or locations ✓E Customizable Activity meta tags(Classifications that help volunteers when searching of volunteer opportunities across the entire Enterprise) J E Functions in English and Spanish (translations by professional, native-tongue translators) J Better Impact Inc. —www.Betterimpact.com - We're here to help! Ol BETTER Volunteer Software Feature Com arison IMPACT p Communications Volunteer Option Option Impact 2 3 Email individual volunteers directly from the software ✓ Email volunteers based on a customizable set of filters J Merge `First Name' into email J Email templates that can be saved and used as needed J Text formatting (font, size and colors) supported in emails J Links and attachments supported in emails J Photo insertion supported in emails J Automatic custom e-mails are generated when volunteers first apply SMS texting to all or a selected portion of volunteers ✓ Record of emails and texts sent are stored in the software J Volunteers on a committee can email the rest of the committee without knowing their email addresses (if allowed by administrator) J Automated shift reminder emails J Role Profiles Volunteer Option Option Impact 2 3 Ability to groups similar roles together J Publicly viewable descriptions(if desired) ✓ Privately viewable descriptions-only visible to volunteers assigned to the role(if desired) J Activity Type Option-No Schedule ✓ Activity Type Option-No Schedule but Seasonal J Activity Type Option -Single Shift J Activity Type Option-Multiple Unrelated Shifts J Activity Type Option -Recurring Shift Pattern J Bulk changes to role and schedule profiles ✓ Control over which volunteers can see the role and/or schedule online J Feedback fields associated with each volunteer shift(if desired) J Customizable classifications to assist volunteers searching for opportunities across large organizations ✓E Better Impact Inc. —www.Betterlmpact.com - We're here to help! '11111111'N B ETTE R Volunteer Software Feature Comparison Scheduling Vi Opt 2 Opt 3 Calendar that displays current schedules,open slots and placed volunteers ✓ Prequalified volunteers can self-schedule according to your needs and preset rules ✓ Calendar can be viewed by day,week, or month ✓ Scheduling conflicts are displayed ✓ Volunteers with expired certifications can't register for opportunities that require them. ✓ View all volunteers who are currently active, available and ready to volunteer for a shift ✓ Ongoing slots can use patterns, like"Weekdays, 9-12 and 12-3" ✓ Shifts and positions can be set to accept a predefined maximum number of volunteers. ✓ At-a-glance view of which days need schedule slots filled & how many ✓ Find qualifying volunteers for each position using previously created(or new)searches ✓ Filters or suggestions for the most qualified volunteer based on skills,availability,etc. ✓ Print schedules by date range, volunteer, opportunity and organization. ✓ Copy opportunities to save data entry ✓ Create schedules for new roles from pre-saved templates ✓E Groups can be scheduled such that the group consumes the appropriate number of spots on the shift ✓ View schedules on screen ✓ Gaps in schedule displayed visually and numerically ✓ Export schedules as PDF,Word or Excel ✓ Volunteers can sync their volunteer schedule with their calendar in Outlook, Gmail etc. ✓ E = Enterprise Edition Tracking and Reporting III Opt 2 Opt 3 Touch screen time-clock with feedback and output reporting ✓ Mobile phone hours reporting with feedback and output reporting ✓ View and print volunteer hours and volunteer numbers by date range, volunteer, position and department ✓ View and print volunteer hours& volunteer numbers by type of role across a region or entire enterprise ✓E Filter reporting by multiple criteria, including volunteer profile data ✓ Track and report on the outputs related to relevant volunteer activities ✓ Track volunteer reported incidents or comments by volunteer, position and department ✓ Track expenses incurred by volunteers ✓ Volunteers can log hours through their volunteer portal and generate an hours report (admin verification if needed) Generate reports based on any profile data including custom fields ✓ Build your own comparison reports on hours outputs ✓ Track efficiencies(outputs per hour of volunteer time) ✓ View reports on screen ✓ Export reports as PDF,Word or Excel ✓ Better Impact Inc. —www.Betterimpact.com- We're here to help! M �/�1�T Volunteer Software Feature Comparison Administrator Support Volunteer Option Option Impact 2 3 Phone support (internal) ... we are getting close to 24x5 but not there yet 23 x 5 Email and ticketed support (internal) 24 x 7 Client suggestion forum J Online user's manual J Searchable knowledgebase J Video training J On-site training J Web meeting support J International volunteer management consultants on the support team J Technology and Security VI Opt 2 Opt 3 Completely web-based. No installation on your computers required J SSAE 16 hosting facility certification J Regional points of presence to speed up content delivery J Nightly offsite backup ✓ 5 year uptime (exclusive of planned upgrades and maintenance) 99.985 Data encrypted in transit over the internet(backwards compatible to 128 bit SSL) 256bit SSL Passwords encrypted (such that not even the vendor can read them) J 24x7x365 server monitoring to detect and prevent intrusion attempts on servers J Web Browser Compatibility—All Products VI Opt 2 Opt 3 Windows IE supported (Administrator&Volunteer) J Windows Firefox supported (Administrator&Volunteer) J Windows Chrome supported (Administrator&Volunteer) J Mac Firefox supported J Mac Safari supported ✓ Mac Chrome supported J iPad and Android tablets—Most admin functions accessible J Mobile phone interface for volunteers J Better Impact Inc. —www.Betterlmpact.com- We're here to help! W-IMPACT BETTER Volunteer Software Feature Comparison Client Module (Optionally available with Volunteer Impact) Volunteer Option Option Impact 2 3 Look up clients with a portion of their name from any screen J General contact information J Client photograph J Number of custom fields allowed-short text Unlimited Number of custom fields allowed-long text Unlimited Number of custom fields allowed-date Unlimited Number of custom fields allowed-numeric Unlimited Number of custom fields allowed-check box Unlimited Number of custom fields allowed-drop down list Unlimited Number of custom fields allowed-file upload Unlimited Select multiple records and make data changes to all selected records J Client profiles can contain fields common across all departments/locations J Client profiles can contain fields unique to specific departments/locations JE Export all client profile data or selected portions of it into csv files or spreadsheets J Maximum number of client profiles allowed Unlimited Link volunteers to clients J Clients can apply online(if desirable) J E = Enterprise Edition Better Impact Inc. —www.Betterimpact.com - We're here to help!