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HomeMy WebLinkAboutContract 32401 PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Richard Zavala, its duly authorized Assistant City Manager, and SOLUTIONARY, INC. ("Consultant") a Delaware corporation and acting by and through Chris Rehberg its duly authorized Executive Vice President, Operations. 1. SCOPE OF SERVICES. Consultant hereby agrees to provide the City with professional consulting services for the purpose of providing network monitoring services 24 hours per day, seven days per week. The services to be provided include performing electronic vulnerability scans, analysis, recommendations, and reporting. The specific services are described in further detail and set out in Exhibit A describing the Scope of Work, which is attached hereto and incorporated for all purposes incident to this Agreement. Consultant shall provide services to the City in accordance with the timeline and phases as set forth in Exhibit "C" Service Specifications. 2. TERM. This Agreement shall commence upon the date that both the City and Consultant have executed this Agreement ("Effective Date") and shall expire on August 22, 2006, unless terminated earlier in accordance with the provisions of this Agreement. This Agreement may be renewed for two additional one-year terms at the City's option. The City shall provide Consultant with thirty (30) days written notice of its intention to renew this Agreement. 3. COMPENSATION. The City shall pay Consultant per the terms of individual executed work order in accordance with Exhibit B, "Pricing," which is attached hereto and incorporated for all purposes into this Agreement. 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. 4. TERMINATION. 4.1. Written Notice. The City may terminate this Agreement at any time and for any reason by providing Consultant with six (6) months written notice of such termination. 4.2 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for r.. which appropriations were received without penalty or expense to the City of any kind) l Js?1U v��� U.?f,.r�fL whatsoever, except as to the portions of the payments herein agreed upon for which funds shall be been appropriated. 4.3 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 as of 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. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 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 and proposed services with respect to the Scope of Services. 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. Consultant, for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. Consultant understands and acknowledges that the City is a public entity under the laws of the State of Texas, and as such, all documents and data held by the City are subject to disclosure under Chapter 552 of the Texas Government Code, the Texas Public Information Act (the "Act"). If the City is required to disclose any documents that may reveal any Consultant proprietary information to third parties under the Act, or by any other legal process, law, rule or judicial order by a court of competent jurisdiction, the City will utilize its best efforts to notify Consultant prior to disclosure of such documents. The City shall not be liable or responsible in any way for the disclosure of information not clearly marked as "Proprietary / Confidential Information" or if disclosure is required by the Act or any other applicable law or court order. In the event there is a request such information, it will be the responsibility of Consultant to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by the City, but by the Office of the Attorney General of the State of Texas. Anything to the contrary notwithstanding, (a) all methodologies, procedures, management tools, workshops, manuals, software, data files, concepts, ideas, inventions, know-how and other intellectual property that Consultant has developed, created or acquired prior to or during the performance of the Services ("Consultant's Intellectual Property") are, and shall remain, the sole and exclusive property of Consultant. Customer shall not have or acquire any right, claim, title or interest in or to any of Consultant's Intellectual Property. 6. RIGHT TO AUDIT. Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this contract, 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 Contract. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided ;,J , adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant reasonable advance notice of 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 reasonable notice of 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. 8. LIABILITY AND INDEMNIFICATION. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE GROSSLY NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. IN NO EVENT SHALL CONSULTANT OR ANY OF CONSULTANT'S BUSINESS PARTNERS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES THAT MAY BE SUFFERED OR INCURRED BY CUSTOMER OR ANY PERSON OR ENTITY AFFILIATED OR ASSOCIATED WITH CUSTOMER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES RESULT FROM THE PERFORMANCE, ATTEMPTED PERFORMANCE, NON-PERFORMANCE, INCLUDING WITHOUT LIMITATION, DAMAGES RESULTING FROM THE USE OF ANY WORK PRODUCT, IMPLEMENTATION OF ANY RECOMMENDATIONS, INACCURACY OR INABILITY TO USE RESULTS FROM THE SERVICES, DELAY OF DELIVERY OR COMPLETION OF SERVICES, INACCURACY OR MISREPRESENTATION OF DATA, OR LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL. IN ADDITION, EXCEPT AS PERTAINS TO CLAIMS RELATING TO GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF CONSULTANT, THE LIABILITY OF CONSULTANT, ITS EMPLOYEES AND SUBCONTRACTORS, BUSINESS PARTNERS AND ALL PERSONS AND ENTITIES CITY , r- AFFILIATED OR ASSOCIATED WITH CONSULTANT, FOR LOSSES, DAMAGES, LIABILITIES, SUITS AND CLAIMS, REGARDLESS OF THE FORM OF ACTION AND THE PERSON OR ENTITY BRINGING SUCH ACTION, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO CONSULTANT IN CONNECTION WITH THE SPECIFIC SERVICES RENDERED IN CONNECTION WITH THIS AGREEMENT. CONSULTANT COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE GROSSLY NEGLIGENT ACTS OR GROSSLY NEGLIGENT OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES. 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 such consent, the assignee or subcontractor shall execute a written agreement with the City under which the assignee or subcontractor agrees to be bound by the duties and obligations of Consultant under this Agreement. 10. INSURANCE. Consultant shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement: 10.1 Coverage and Limits Commercial General Liability $1,000,000 Each Occurrence $1,000,000 Aggregate Automobile Liability $1,000,000 Each accident on a combined single limit basis or $250,000 Property damage $500,000 Bodily injury per person per occurrence Coverage shall be on any vehicle used by the Consultant, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned, hired and non- owned Worker's Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease - per each employee $500,000 Disease - policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per employee 10.2 Certificates. Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. All policies shall be endorsed to name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials, agent, and volunteers in respect to the contracted services. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. 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. Such terms shall be endorsed onto Consultant's insurance policies. 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. 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. '8NICI {Ryia}°pp\f)�(q� 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/IT Solutions Solutionary, Inc. Attn: Legal Department 1000 Throckmorton 9420 Underwood Avenue Fort Worth TX 76102-6311 Omaha, NE 68114 Facsimile: (817) 392-8654 Facsimile: (402) 361-3106 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. 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. CONSTRUCTION. This Agreement shall be construed in accordance with the internal 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. 6 19. FORCE MAJEURE. The City and Consultant shall exercise commercially reasonable 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. 20. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised 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. 21. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of 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. [Signature Pages Follow] IN vvITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this day of Sev+sgk&f , 200_<. CITY OF FORT WORTH: SOLUTIONARY, INC. By: B r sistant City Manager Chnst pher C. R rg EVP, Operations ATTEST: ATTEST: By: ---. City Secreta By: �- ► 003 APPROVED AS TO , FORM AND Contract Authorizatioa LEGALITY: By: Assistant btyAttorney M&C:P-10203 2 DD EXHIBIT A STATEMENT OF WORK 1. Scope of Work The Services defined within this SOW, constitute the extent of Services Solutionary will provide to City of Fort Worth. City of Fort Worth understands that any Services not specifically stated in this SOW are considered out of scope. 1.1 eV30 Subscription Services Solutionary will perform remote electronic scans of designated City of Fort Worth networks, network-accessible devices, and/or firewalls. Solutionary will perform these Services specifically on the Internet Protocol (IP) Address Range(s) and number of Internet-accessible IPs described in this section. 1.1.1 Visibility Scanning: (a) Solutionary will include up to five City of Fort Worth Class C IP address blocks for Visibility Scanning. 1.1.2 Schedule Vulnerability Assessments: (a) Solutionary will scan up to 10 Internet-accessible IPs, within the IP Address Range(s) specified above (if provided). (b) Solutionary to complete Scheduled Vulnerability Assessment Quarterly. 1.1.3 City of Fort Worth is allotted 4 On Demand Assessments for each annual term of this SOW. 2. Acceptance City of Fort Worth shall have the right to evaluate each deliverable. Within five business days of delivery, City of Fort Worth shall give Solutionary written notice of City of Fort Worth's acceptance or rejection of the deliverable. City of Fort Worth's failure to provide written notice within that time period shall be deemed to constitute acceptance. In addition, notwithstanding anything to the contrary in this SOW or the Professional Services, operational use of the deliverable by City of Fort Worth, shall be deemed to constitute acceptance. In the case of any rejection, the notice shall state with specificity the reasons for City of Fort Worth's rejection. Once accepted, City of Fort Worth may not thereafter reject a deliverable. 3. Terms and Billing This section describes the terms and billing of the SOW. 3.1. Solutionary will bill, and City of Fort Worth agrees to pay, the fees indicated on the Pricing Attachment. 3.2. Solutionary will bili, and the City of Fort Worth agrees to pay, the irs# ea ' ill yTi fi.;fin.pVi 7 Services on a Net 30 basis from the Effective Date. 3.3. On the corresponding anniversary dates, Solutionary will bill, and the City of Fort Worth agrees to pay, on a Net 30 basis, the annual subscription fee. 3.4. Solutionary will provide Services-to City of Fort Worth for a term of 12 months from the Effective Date. Upon expiration of the initial term, the City may exercise its option to renew in accordance with Section 2 of this Agreement. If the City chooses to renew the Agreement, this SOW automatically renews for an annual term, unless either party provides written notice of termination at least 30 days prior to the expiration of the then current term. 3.5. City of Fort Worth is responsible for all custom duties, clearance fee, freight and shipping costs associated with the purchase, transport, and installation of ActiveGuard®appliances, and any other hardware purchased from Solutionary. 3.6. Solutionary will bill travel and expenses at actual costs to City of Fort Worth. Solutionary will make every attempt to incur reasonable expenses associated with the implementation of this project. Solutionary will communicate to City of Fort Worth before travel is booked. Valid expenses may include, but are not limited to, parking, meals (unless a per diem is agreed upon), lodging, photocopying, and communication costs. Travel costs may include, but are not limited to, airfare, mileage (if a personal car is used), and automobile rental. 3.7. City of Fort Worth will provide a purchase order (PO) number and all other related billing information upon execution of this SOW. 4. SOW and Other Agreements All terms and conditions of this SOW are in accordance with the Professional Services Agreement and the Service Specification Document(s) (SSD[s]) attached hereto. If the SOW conflicts with any other written terms related to this Agreement, then the terms of this SOW take precedence and override all other documents and agreements. �rZ Exhibit B Pricing Attachment This Pricing Attachment outlines the fees for Services to be provided by Solutionary to City of Fort Worth. 1. Pricing for Services in Scope 1.1. The SOW is for a term of 12 months with an option to renew for two (2) one year periods at the conclusion of year one. Offering Quantity One-Time Subscription Extended Fees Fees eV30 Subscription Services Annual Subscription Fees — 10 external 1 year $26,800 $26,800 devices Services Discount -$2,800 Net Annual Subscription Fee $24,000 Total Contract Value $24,000 Option: Since the Q&A responses contained in the Addendum #1 call out a maximum of 17 devices, we have provided as an option pricing of $34,080 to cover all 17 devices. 1.2. Incremental fees for Services Note: Incremental fees only apply when City of Fort Worth exceeds the quantities agreed upon in the SOW. Incremental Services Fee Internet-accessible IPs for Vulnerability Assessments — Solutionary will bill, and City $2,400.0 of Fort Worth agrees to pay, the following prorated annual fee for each additional 0 internet-accessible IP, exceeding 10 as allotted in the "Scope of Work", encountered during the execution of Services over the life of this SOW. Verification Scanning — Solutionary will bill, and the City of Fort Worth agrees to $2,500.0 pay, the following prorated annual fee per block of 50, or portion thereof, for 0 additional Verification Scanning of Domain Name Registrations, Root Name Servers, and SSL Certificates exceeding the quantity specified in the SSD. On-Demand Assessments — Solutionary will bill, and the City of Fort Worth agrees $1,000.0 to pay, the following rate for each additional On-Demand Assessment over and 0 above 4 as allotted in the "Scope of Work" section in the SOW. Technical Specialists — Solutionary Technicians are available for alert troubleshooting and vulnerability remediation assistance. You can reserve these resources through your Solutionary Account Manager at the following hourly rates: • Security Specialist $150.00 • Security Engineers $200.00 • Security Architects $250.00 'j 2f1 �IL e , City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 8/9/2005 DATE: Tuesday, August 09, 2005 LOG NAME: 13P05-0103 REFERENCE NO.: **P-10203 SUBJECT: Authorize a Purchase Agreement for a Network Monitoring External Assessment Subscription for the City's Computer Infrastructure with Solutionary, Inc., for the Information Technology Solutions Department RECOMMENDATION: It is recommended that the City Council: 1. Authorize a purchase agreement for a network monitoring external assessment subscription for the City's computer infrastructure with Solutionary, Inc., for the Information Technology Solutions Department (IT Solutions) for an estimated first year cost of$24,000.00 and; 2. Authorize this agreement to begin August 23, 2005 and expire August 22, 2006, with options to renew for two additional one-year periods. DISCUSSION: The purchase agreement for subscription services will provide IT Solutions with a 24 hours per day, seven days per week, monitoring service that will protect the City of Fort Worth's Internet presence by performing electronic vulnerability scans, analysis, recommendations and reporting. The information provided by the service will facilitate IT Solutions staff addressing problems in an expedient manner. In addition, this service will verify the City's domain ownership, routing and the integrity of the web content. The security subscription service is considered a best practice for local and state government agencies to protect their information systems from hackers, web page defacement, denial of service attacks and rogue networking. An evaluation team of IT Solutions Department employees evaluated the Request for Proposals (RFP) to provide assessements of the network. Six vendors responded with proposals to provide security assessments of the network environment. The primary factors for the review included: 1) Proposed Price, 2) Vendor Experience, 3) Response to Specifications and 4) Quality and Thoroughness of Response. After evaluation, the committee determined that Solutionary, Inc. would provide the best solution for the City. The first year cost for the City is an estimated $24,000.00. This cost includes a first year services discount from Solutionary, Inc. If the City renews the agreement for the 2nd or 3rd year the estimated cost to renew is $26,400.00. BID ADVERTISEMENT - The RFP was advertised in the Commercial Recorder on May 18 and 25, 2005. M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by the Purchasing Division and approved by the M/WBE Office because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. RENEWAL OPTIONS - This agreement may be renewed for two additional one-year t444" I r: Logname: 13P05-0103 option. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during the renewal term. FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that funds are available in the current operating budget, as appropriated, of the Information Systems Fund. BQN\05-0103\LGS TO Fund/Account/Centers FROM Fund/Account/Centers P168 539120 0041100 $24,000.00 Submitted for City Manager's Office W. Richard Zavala (Acting) (6222) Originating Department Head: Jim Keyes (8517) Additional Information Contact: Robert Combs (8357)Pete Anderson (8781) Logname: 13P05-0103 Page 2 of 2