HomeMy WebLinkAboutContract 51493City Secretary Contract No.
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FORTWORTHO
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CIO
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 its duly authorized
Assistant City Manager, and PERFORMANCE ARCHITECTS, INC. ("Consultant"), a Massachusetts S
Corporation, and acting by and through Kirby Lunger its duly authorized Chief Sales and Marketing Officer.
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 — Milestone Acceptance Form;
5. Exhibit D — Network Access Agreement; and
6. Exhibit E — 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" shalt 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 Hyperion Assessment and Roadmap. 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.
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2. Term. This Agreement shall commence upon final execution of this Professional Services
Agreement ("Effective Date") and shall expire no later than three (3) months after execution ("Expiration
Date"), unless terminated earlier in accordance with the provisions of this Agreement or otherwise extended
by the parties.
3. Compensation. The City shall pay Consultant an amount not to exceed Forty -Five
Thousand, Nine Hundred and 00/100 Dollars ($45,900.00) 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%).
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.
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.
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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. Public Information Act. City is a government entity under the laws of the State of
Texas and all documents held or maintained by City are subject to disclosure under the Texas Public
Information Act. In the event there is a request for information marked Confidential or Proprietary,
City shall promptly notify Seller. It will be the responsibility of Seller to submit reasons objecting
to disclosure. A determination on whether such reasons are sufficient will not be decided by City,
but by the Office of the Attorney General of the State of Texas or by a court of competent
jurisdiction.
5.4. 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.
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 once per calendar year
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. All information disclosed in any audit shall be deemed to be the
confidential information of Consultant.
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 10 days written notice of any intended audits. Consultant
shall be under no obligation with respect to the foregoing if the subcontractor does not agree to
such provision.
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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 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 LIMITATION OF LIABILITY — EXCEPT FOR THE INDEMNIFICATION
OBLIGATIONS IN 8.2 AND 8.3 (ii), AND EXCEPT FOR CONSULTANT'S FRAUD,
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, (i) IN NO EVENT SHALL
CONSULTANT BE LIABLE TO CITY FOR ANYCONSEQUENTIAL,
EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES,
INCLUDING WITHOUT LIMITATION COSTS TO PROCURE SUBSTITUTE
GOODS OR SERVICES, LOSS OR CORRUPTION OF DATA, OR OTHER
PECUNIARY LOSS AND (ii) IN NO EVENT SHALL CONSULTANT'S LIABILITY
HEREUNDER EXCEED THE FEES PAID BY CITY TO CONSULTANT UNDER
THE STATEMENT OF WORK UNDER WHICH THE CAUSE OF ACTION
AROSE IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATA
THE CAUSE OF ACTION AROSE.
8.1. 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, BROUGHT AGAINST
CITY 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,,
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT
CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
CONSULTANT, ITS OFFICERS, AGENTS, SUBCONTRACTORS, SERVANTS OR
EMPLOYEES.
8.2. INTELLECTUAL PROPERTY INFRINGEMENT.
8.2.1. The Consultant warrants that all Deliverables, or any part thereof,
which are ConsuItant's original work and delivered hereunder, including but not
limited to: programs, documentation, software, analyses, applications, methods,
ways, and processes (in this Section 8.2 each individually referred to as a
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"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; provided the Consultant shall
have no liability for claims arising out of or related to (a) modifications of the
Deliverables by other than Consultant, (b) combinations of the Deliverables with
hardware, software or other materials not developed by Consultant, (c) materials
furnished by or on behalf of City or compliance with City's requirements or
specifications, (d) any third party materials not developed by Consultant, or (e) City's
misuse of the Deliverables. As City's sole and exclusive remedy and Consultant's
exclusive liability for a breach of the foregoing warranty, Consultant will indemnify
City pursuant to 8.2.2 immediately following.
8.2.2. Consultant agrees to indemnify, defend, settle, or pay, at its own cost
and expense, including the payment of reasonable attorney's fees, any third party
claim or action brought against the City for infringement of any valid patent,
copyright, trade mark, service mark, trade secret, or other intellectual property right
of a third party 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, and Consultant shall have no liability
for, claims arising out of or related to (a) modifications of the Deliverables by other
than Consultant, (b) combinations of the Deliverables with hardware, software or
other materials not developed by Consultant, (c) materials furnished by or on behalf
of City or compliance with City's requirements or specifications, (d) any third party
materials not developed by Consultant or (e) City's misuse of 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, at the City's expense, 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 Consultant, for whatever reason,
fails to assume the defense of the claim after receipt of written notice of the claim from
City, and City 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 with counsel selected by
Consultant. City agrees to give Consultant timely written notice of any such claim or
action, with copies of all papers City may receive relating thereto and Consultant's
obligations are subject to Consultant receiving prompt written notice of the claim.
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.
Neither party shall settle any claim in a manner adverse to the other party or which
does not fully release the other party from liability without the other party's prior
written consent. 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
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Deliverable(s); or (b) modify the Deliverables) 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
upon return of all Deliverables, refund all amounts paid to Consultant by the City.
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 with any confidential provisions redacted.
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:
10.1.1. Commercial General Liability:
10.1.1.1. 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.
10.1.2. 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 $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
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cover amounts for any claims not covered by the primary Technology Liability
policy. Defense costs shall be outside the limits of liability.
10.1.5.2. Coverage shall include, but not be limited to, the
following:
10.1.5.2.1. Failure to prevent unauthorized access;
10.1.5.2.2. Unauthorized disclosure of information;
10.1.5.2.3. Implantation of malicious code or computer
virus;
10.1.5.2.4. Fraud, Dishonest or Intentional Acts with final
adjudication language;
10.1.5.2.5. 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 term 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
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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.
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
Attn: Assistant City Manager
200 Texas Street
Fort Worth TX 76102
Facsimile: (817) 392-6134
With Copy to the City Attorney
at same address
TO CONSULTANT:
Performance Architects, Inc.
Attn: Authorized Signatory
470 Atlantic Avenue, 4`h Floor
Boston, MA 02210
Facsimile: (xxx) xxx-xxxx
14. Solicitation of Emplovees. 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.
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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 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 (other than payment obligations) due to force majeure or
other causes beyond their reasonable control (force ma)eure), 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 outside of a party's reasonable control.
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. Entiretyof 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
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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, as City's sole and exclusive remedy, 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 upon return of the nonconforming Deliverables.
EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 25 SERVICES AND DELIVERABLES ARE
PROVIDED "AS IS," AND CONSULTANT DISCLAIMS ANY AND ALL WARRANTIES WHETHER
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANGABILITY, NONINFRINGEMENT AND FITNESS FORA PARTICULAR PURPOSE.
26. Milestone Acceptance. Consultant shall verify the quality of each deliverable before
submitting it to the City for review and approval. The City will have ten (10) days from receipt of a
Deliverable (the "Review Period") to review the 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 but in any event within the Review Period. 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 accepts the Deliverable in writing in the form attached
or fails to accept or reject the Deliverable within the Review Period. 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") eF 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. Ownership of Deliverables
28.1. All work product that Consultant prepares or develops specifically for City in the
performance of the Services ("Deliverables") including all designs, graphics, layouts, program
code, web pages, user interfaces or other property, tangible or intangible, shall belong to City upon
full payment hereunder. Effective at such time as City has fully paid for all Deliverables,
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Consultant hereby assigns to City all right, title and interest in and to the Deliverables.
Notwithstanding the foregoing, Consultant shall retain an unlimited, perpetual, nonexclusive,
worldwide, fully paid, royalty -free right and license to use and to sublicense to others the ideas,
concepts, techniques or other expertise which it developed or employed in providing the services
or creating the Deliverables, in any products and for any purposes whatsoever ("Residual
Information"). Consultant may use without restriction Residual Information that (i) is retained in
the personal memory of employees or consultants of Consultant; and (ii) consists of generally
applicable knowledge relating to computer technology or the computer industry, but no including
any such information as specifically applied or related to City.
28.2. hi performing the Services, including developing the Deliverables, Consultant may
utilize its own proprietary software programs, program code, information, methodologies, manuals,
ideas or trade secrets ("Consultant Property"). Consultant shall at all times retain all ownership
rights including copyrights in and to the Consultant Property; provided, however, that upon its
receipt of full payment hereunder, Consultant grants City, a fully paid, royalty -free, nonexclusive,
perpetual, worldwide license to use the Consultant Property. Such license applies only in
connection with City's use of the Deliverables for City's own internal use.
28.3. The parties acknowledge and agree that all right, title and interest in and to all
materials and information supplied by City for use in the delivery of the Services or residing on or
in City hardware or software ("City Property") will be owned by City; provided, however, City
grants Consultant a royalty -free, nonexclusive, license to use the City Property solely for the
purpose of providing the Services hereunder.
29. 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 (I-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.
30. 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 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
Performance Architects, Inc.
Professional services Agreement - Technology
Rev. 9/2017 Page 11 of 29
City Secretary Contract No.
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.
31. 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.
32. Reporting Requirements.
32.1. For purposes of this section, the words below shall have the following meaning:
32.1.1. Child shall mean a person under the age of 18 years of age.
32.1.2. 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.
32.1.3. 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.
32.1.4. 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.
32.2. 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.
33. 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
Performance Architects, Inc.
Professional Services Agreement - Technology
Rev. 9/2017 Page 12 of 29
City Secretary Contract No.
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.
34. 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)
Performance Architects, Inc.
Professional Services Agreement - Technology
Rev. 9/2017 Page 13 of 29
City Secretary Contract No,
Executed in multiples this the 7_ day of _NoV , 20A.
ACCEPTED AND AGREED:
CITY.
CITY OF FORT WORTH
5
By:
Name: Surat
Title: Assistant City Manager
Date: ice
APPROVAL RECOMMENDED:
11-M
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
reporting requirements.
By: "'Cj "bj t o (?_Ci
Name: Steve etffert
Title: Assistant Director, IT Solutions
APPROVED AS TO FORM AND LEGALITY:
Name: By:
Title: Na _:_ John '1J'§t�onp,/
,pd
ATTEST: T(tle: Assistant 0fy Attorney
CONTRACT AUTHORIZATION:
M&C: N/A
By: aft Date Approved: _N/A_
am/Mary J. Kayser '"-�kprm 1295 Certification No.: N/A
Title: City Secretary V_ OR
CONSULTANT: J
e
Performance Architects, Inc. -ATTEST:
By: By:
NaiW. Kirby Lunger W Name:
Title: Chief Sales and Marketing Officer Title:
Date: 10/27/18
Performance Architects, Inc.
Professional Services Agreement - Technology
Rev. 9/2017
OFFICIAL RECORD
.Qtz9
CITY SECAMETARY
FT. WORTH, TX
City Secretary Contract No.
EXHIBIT A
STATEMENT OF WORK
Performance Architects, Inc.
Professional Services Agreement — Technology — Exhibit A
Ret-. 9/2017 Page 15 of 29
City Secretary Contract No.
APERFORMANCE
ARCHITECTS
October 23, 2018
Mr. Tent' Hanson
Mr. Steve Streiffert
aty of Fat Worth
1000 Throckmoton Street
Fort Worth, TX 76102
Dear Steve and Terry,
Architects team is very excited about the opportunity to work with you and the rest of your team
THE PERFORMANCE ON THE "ORACLE EPM (HYPERION) ASSESSMENT AND ROADMAP"
INITIATIVE. OUR Statement of Work (SOW) for the project Is attached. Based on Our
discussions to date, the SOW provides a description of the scope of the overall project as well
as the deliverables, project team, roles and responsibilities, timeline and fees associated with
this project.
On behalf of everyone at Performance Architects, we would like to thank you for your
consideration of our organization's consulting services for this project. Our team understands
the strategic importance of this project to you, and we are committed to making this and future
projects successful.
If you have any questions or require further information regarding the SOW, please do not
hesitate to contact me at 617-699-9354. If everything is acceptable, please sign the last page
and email the entire document back to me.
Best Regards,
� �, olp-�
Kirby
Ms. Kirby Lunger
Chief Sales & Marketing Officer
Performance Architects, Inc.
Email: kirbv.lunaerOinerformancearchitects.com
Phone: +1.617.699.9354
Linkedln: kirbvlunger
Web: Performancearchitects.com
Twitter: OPerfArchitects
YouTube: PerformanceArchHowTo
Facebook: PerformanceArchitects
Performance Architccts, Inc.
Professional Services Agreement — Technology — Exhibit A
Rev. 9/2017 Page 16 of 29
City Secretary Contract No.
Oracle EPM (Hyperion)
Assessment and Roadmap
Statement of Work
® PERFORMANCE
October 23, 2018
Proprietary & Confidential
Performance Architects, Inc.
Professional Services Agreement — Technology— Exhibit A
Rev. 9/2017 Page 17 of 29
City Secretary Contract No.
6�)
PERFORMANCE
ArcHITEC 7 S
Proprietary & Confidential
Performance Architects, Enc.
Professional Services Agreement — Technology — Exhibit A
Rei. 9/2017
— Page 3 of 9 —
Page 18 of 29
City Secretary Contract No.
f PERFORMANCE
A R C H I T E C T S
This Statement of Work (this "SOW" or "Agreement") is made as of October 10, 2018,
("Effective Date"), by and between Performance Architects, Inc., a Massachusetts corporation,
with an address of 470 Atlantic Avenue, 411' Floor, Boston, MA 02210 ("Performance Architects",
"we" or "us"), and City of Fat Wath with an address at 1000 Throckmorton Street, Fat Worth,
TX 76102 ("Client").
For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows.
The following section outlines the services to be performed by Performance Architects on behalf
of Client. This Statement of Work (SOW) shall be governed by the Professional Services
Agreement (PSA) upon final execution by the parties.
PROJECT DESCRIPTION AND SCOPE
The City of Fort Worth has been successfully utilizing Oracle EPM (Hyperion) for budgeting,
planning, reporting and analysis. The following tools are part of the current Fat Worth Orade
EPM footprint, and are being utilized at varying degrees of detail:
• Oracle Hyperion Planning
• Oracle Public Sector Planning & Budgeting (PSPB)
• Oracle Public Sector Planning & Budgeting Workforce Planning Module
• Oracle Financial Data Quality Management (FDQM)
• Oracle Enterprise Performance Reporting Goud Service (EPRCS)
Due to an ever-changing product landscape, and Fort Worth's experiences based on two
planning cycles utilizing the system, the Fort Worth team would like Performance Architects to
assist them in completing a functional and technical assessment of the system and business
processes, as well as to develop a roadmap for the future.
Proprietary & Confidential — Page 4 of 8 —
Performance Architects, Inc.
Professional Services Agreement — Technology — Exhibit A
Rev. 9/2017 Page 19 of 29
City Secretary Contract No.
PERFORMANCE
ARCHITECTS
PROJECT ACTIVITIES AND DELIVERABLES
Based on our experience with these projects, we expect this project will require the following
high-level activities and deliverables:
Stagel Stage2 Stage3
Assess Dauvent Review
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sFl mefW9 - reswcesro orta ize m:cmmendayons,
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,+ Al"I and latae ` awculiw-kwlsuesrery
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racornmsr,dallmrs w;i
: madmepkemnatlon
The project timeline is structured to allow the Fort Worth and Performance Architects teams to
be as efficient and effective as possible, while still allowing the Fort Worth team time to do their
"day jobs:"
Days 1-4
• Conduct on-site ntennews and system assessmend with two Performance Architects resources contributing
• During this period. Fat Worth personnel to provide avaiebity to accommodate for meetings and discussions
Day 5
• May consist of remote faiow up conversations to fit in any incomplete mfonmetion or to answer new questions
residing from Initial &Wysts
I ' Days 6-9
Conduct open dialogue and folow up conversations
Performance Architects teem works ofFsiteto produce documentation deliverables
I 1 Day 10
• Documentation delyerabies provided to Fort Wath
19i'itl Days 11-12
- Performance Arehaects team rearms to Fort Worth to review endings and reeommendatldn6
- Team makes possihie modifications to documentation, resulting in final documentation delivered
Proprietary & Conlidential — Page 5 of 9 —
Performance Architects, Inc.
Professional Services Agreement -Technology —Exhibit A
Rev. 9/2017 Page 20 of 29
City Secretary Contract No.
' PERFORMANCE
A R C H 1 7 E C S S
We expect to staff roles at the following rates. This staffing roster cannot be guaranteed until
Performance Architects receives a signed SOW from Gient.
Project Parametei
Estimated Total Performance Architects
Resources (FTEs)
Estimate
1 9 resources
(see details below)
Estimated Project Duration
2-3 weeks
Estimated Fees (excluding expensesr
-$38.5K
Sae essi.mptioro on following peg"
=ees and expenses will be 6i4er on a monthly we and + tere!e basis, assumes egt+•fiour ca, or esh"lier purposes
Travel expenses shall not exceed $7,400 and will follow the Federal GSA federal
reimbursement guidelines (https://www.,qsa.gov/travel/plan-book/per-diem-rates/per-diem-rates
_lookup/?action=Perdiems rep ort&state=TX&fiscal year= 2019&zip=&city=fort%20worth).
While preparing this proposal, certain assumptions were made relating to the unique
characteristics of this project. Identifying and carefully managing these assumptions will assist
Client and Performance Architects in co -managing the project to a successful completion.
• The Fat Worth project team will be available for scheduled working sessions
• Working sessions will include no more than 12 people
• Fat Worth will schedule interview and workshop location, logistics, participant calendars,
etc.
• When work is awarded, Performance Architects and Fort Worth can determine the exact
interview schedule and required participants for the initial `interview" days of the project
• When possible and deemed appropriate, Performance Architects can and may make
approved, minor changes to the system; however, the nature of this project is to "assess"
and to "recommend" for future action and there are no system modifications required as part
of this project
• Performance Architects will have access to relevant materials at appropriate stages in the
project
Proprietary & Confidential - Page 6 of 8 -
Performance Architects, hic.
Professional Services Agreement - Technology - Exhibit A
Ret-. 9/2017
Page 21 of 29
City Secretary Contract No.
PERFORMANCE
A l< C H I T E C T S-
• While on-site at Client, Performance Architects will have the necessary access to work
space with network connectivity, Intemet connectivity and access to a printer and to a phone
for each resource at the commencement of the project and throughout the duration of the
project
• When needed, Performance Architects will work on location at Client Monday through
Thursday and at Performance Architects offices on Friday. As appropriate, Performance
Architects will also have the opportunity to work off-site at a Performance Architects office
location
• Client, at its expense, will provide Performance Architects with all equipment, software,
system access, data and any other materials necessary to perform the Services
(collectively, the "Materials") and will take all reasonable efforts to prevent any
circumstances which would interrupt, delay or hinder the performance of the Services.
• For each day that Client fails to provide Performance Architects with the materials and
information necessary to perform the Services and such failure results in a delay in
Performance Architects' performance of the Services, Client shall pay to Performance
Architects a fee equal to Performance Architects' standard daily charge for each
Performance Architects employee assigned to the performance of the Services
• To the extent the assumptions set forth above prove to be invalid (such as, by way of
example only, the availability or validity of Client data), then Client shall pay to Performance
Architects a fee imposed by Performance Architects to fairly compensate Performance
Architects for additional efforts that are necessary or desirable in Performance Architects'
commercially reasonable judgment to satisfactorily perform the Services
• Should Client cancel this Statement of Work less than thirty (30) business days prior to the
date that such engagement was scheduled to commence, or without a minimum of 30 days'
notice after commencement of the Services, Client shall pay Performance Architects 50% of
the estimated fees due hereunderfor the thirty (30) scheduled days (8 hours per day)
following such cancellation notice, plus non-recoverable expenses
The payment and invoicing terms are based on standard Performance Architects financial
policies as set forth below.
ACTUAL HOURS WORKED
All estimates of fees or time required to complete the Project are provided for convenience only
and are approximations of the anticipated amount of time needed to complete the Project.
Client will be invoiced based on the amount of time actually required to complete the Project.
Billable haus are applicable only to actual hours expended. Billing is not applicable for absence
due to holidays, illness, emergency leave, or vacation time. Performance Architects will use
commercially practical efforts to minimize absences over which it may have control.
INVOICING
All work will be invoiced on time and materials, hourly basis. Performance Architects will submit
an invoice monthly to Client for all fees and direct expenses incurred hereunder. Client will pay
Proprietary & Confidential — Page 7 of S —
Performance Architects, Inc.
Professional Services Agreement — Technology — Exhibit A
Rev. 9/2017 Page 22 J29
City Secretary Contract No.
PERFORMANCE
all undisputed invoices on a net -30 -day basis. Current industry standard interest rates will be
assessed on amounts greater than 30 days past due.
All out-of-pocket expenses (e.g. travel, mileage, lodging, etc.) incurred by Performance
Architects in connection with the Project will be invoiced net to Client and shall not exceed
$7,400. All such expenses will be itemized when billed. Performance Architects will use
commercially practical efforts to minimize those expenses over which it has control.
SIGNATURES AND APPROVAL
The undersigned parties do hereby agree and warrant that on the date that this document has
been signed are duly authorized to act on behalf of their respective organizations and are duly
able to take all appropriate action to execute this SOW. This SOW is valid for a period of 30
days following delivery to Client.
CITY OF FORT WORTH PERFORMANCE ARCHITECTS, INC.
37 Kirby Lunger
ZIM"Mr*4EH 1fS Name
Assistant Ci Manager`
Com]
Signature
Il'-"-), - Ze
Date
Proprietary & Confidential
Chief Sales & Marketing Officer
Title `` v
Sigb4ture Ll
10/27/18
Date
— Page 8 of 8 —
Performance Architects, Inc.
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Rev. 9/2017 Page 23 of 29
City Secretary Contract No.
EXHIBIT B
PAYMENT SCHEDULE
All work will be invoiced on time and materials, hourly basis. Performance Architects will submit an
invoice monthly to Client for all fees and direct expenses incurred hereunder. Client will pay all
undisputed invoices on a net -30 -day basis. Current industry standard interest rates will be assessed on
amounts greater than 30 days past due.
All out-of-pocket expenses (e.g. travel, mileage, lodging, etc.) incurred by Performance Architects in
connection with the Project will be invoiced net to Client and shall not exceed $7,400. All such expenses
will be itemized when billed. Performance Architects will use commercially practical efforts to minimize
those expenses over which it has control.
Performance Architects, Inc.
Professional Services Agreement — Technology — Exhibit A
Rev. 9/2017 Page 24 of 29
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:
Signature:
Printed Name:
Title:
Date:
For Director Use Only
Contracted Payment Amount:
Adjustments, including
penalties:
Approved Payment Amount:
Approved by City Department Director:
Signature:
Printed Name:
Title:
Date:
PerformanceArchitects, Inc.
Professional Services Agreement — Technology — Exhibit A
Rev. 9/2017 Page 25 of 29
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"). Consultant wishes to access the City's network in order to provide Hyperion
Assessment and Roadmap. In order to provide the necessary support, Consultant needs access to Internet,
Intranet and e-mail.
2. Grant of Limited Access. Consultant is hereby granted a limited right of access to the
City's Network for the sole purpose of providing Hyperion Assessment and Roadmap. 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 Consultant 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.
3.1. Services are being provided in accordance with City Secretary Contract No.
Contract No.;
3.2. Services are being provided in accordance with City of Fort Worth Purchase Order
No. PO No.;
3.3. ® Services are being provided in accordance with the Agreement to which this
Access Agreement is attached.
3.4. No services are being provided pursuant to this Agreement.
4. Renewal. At the end of the first 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; and
4.3. Within the thirty (30) days prior to the scheduled annual expiration of this
Agreement, the Consultant 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, Consultant 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. Consultant 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,
Performance Architects, Inc.
Professional Services Agreement — Technology — Exhibit A
Rev. 9/2017
OFFICIAL RECORD
CITYSE
FT WORTH, TX
City Secretary Contract No.
employees or representatives, of this Agreement and any other written instructions or guidelines that the
City provides to Consultant pursuant to this Agreement shall be grounds for the City immediately to deny
Consultant 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.
5.1. Notice to Consultant Personnel — For purposes of this section, Consultant
Personnel shall include all officers, agents, servants, employees, or representatives of Contractor.
Consultant shall be responsible for specifically notifying all Consultant 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.
5.1.1. Contractor shall be responsible for any City -owned equipment assigned to
Consultant Personnel, and will immediately report the loss or theft of such equipment to
the City;
5.1.2. Contractor, and/or Consultant Personnel, shall be prohibited from
connecting personally -owned computer equipment to the City's Network;
5.1.3. 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;
5.1.4. Contractor Personnel shall not engage in prohibited or inappropriate use
of Electronic Communications Resources as described in the City's Administrative
Regulation D7;
5.1.5. Any document created by Consultant Personnel in accordance with this
Agreement is considered the property of the City and is subject to applicable state
regulations regarding public information;
5.1.6. 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;
5.1.7. All network activity may be monitored for any reason deemed necessary
by the City; and
5.1.8. A Network user ID may be deactivated when the responsibilities of the
Consultant 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, Consultant 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. Consultant 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. Consultant 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)
Performance Architects, Inc.
Professional Services Agreement — Technology — Exhibit A
Rev. 9/2017 Page 27 of 29
ACCEPTED AND AGREED:
CITY OF FORT WORTH:
By:
�nrlis
Assistant City Manager
Date: JI -,a -
APPROVED AS TO FORM
AND LEGALITY:
By:
J hn B.rong
Assistant City ttorney II
ATTEST:
By:
ary.Kayser
City ecretary
Performance Architects, Inc.
Professional Services Agreement — Technology— Exhibit A
Rev. 9/2017
City Secretary Contract No.
PERFORMANCE ARCHITECTS, INC.:
By: x�
Na e: Kirby Lung r
Title: Chief Sales & Marketing Officer
Date: 10/27/18
V4", ka
Page 28
A
i3
City Secretary Contract No.
EXHIBIT E
VERIFICATION OF SIGNATURE AUTHORITY
Full Legal Name of Consultant: Performance Architects, Inc.
Full Business Address470 Atlantic Avenue, 4th Floor, Boston, MA 02210
Services to be Provided: Hyperion Assessment and Roadmap
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.
Name:Kirby Lunger
Position: Chief Sales & Marketing Officer
Signature
2. Name:
Position:
Signature
Name:
Position:
Signature
Name:
Signature of President / CEO
Other Title:Chief Sales & Markeitng Officer
Date:10/27/18
Performance Architects, hie.
Professional Services Agreement — Technology — Exhibit E
Rev. 9/2017 Page 29 of29