HomeMy WebLinkAboutContract 52303 CITY
SECRETAR
CONTRACT NO.YJ`a 3b3
ADDENDUM TO SOFTWARE INSTALLATION RiGHTS AGREEMENT
BETWEEN
THE CITY OF FORT WORTH
AND
HOLT CAT
This Addendum to Software Installation Rights Agreement ("Addendum') is entered into
by and between HOLT CAT, ("Seller") and the City of Fort Worth ("City"), collectively the
"pasties'', for a purchase of licenses.
The Contract documents shall include the following:
i. The Software installation Rights Agreement, and
?. This Addendum.
Notwithstanding any language to the contrary in the attached Software installation Rights
Agreement (the "Agreement"), the Patties hereby stipulate by evidence of execution of this
Addendum below by a representative of each party duly authorized to bind the parties hereto,that
the parties hereby agree that the provisions in this Addendum below shall be applicable to the
Agreement as follows:
1. Term. This Agreement shall begin on April 16. 2019 ("Effective Date") and shall
expire on April 15. 2020 (,"Expiration Date"), unless terminated earlier in accordance with this
Agreement ("Initial Term"). Upon the expiration of the Initial Term, at the City's sole discretion
the Agreement may be renewed under the same terms and conditions for up to four(4) one-year
renewal periods.
2. Ten•nination.
a.. Convenience. Either City or Seller may terminate the Agreement at any time
and for any reason by providing the other party with 30 days written notice of termination.
b. Breach. i f either party commits a material breach of the 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 the Agreement, law, or equity, immediately terminate this Agreement by giving
written notice to the breaching party.
C. Fiscal Funding Out. In the event no funds or insufficient funds are
appropriated by City in any fiscal period for any payments due hereunder-. City will notify
Seller oil'such occurrence and the Agreement shall terminate on the last day of the fiscal
period for which appropriations were received without penalty or expense to the City of
Addendum to Software License Agreement ;d-J 1 E'i—bR®
CITY SECRETARY
FT. WORTH,TX
any kind whatsoever, except as to the portions of the payments herein agreed upon for
which funds have been appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date,City shall pay Seller for services actually rendered
Lip to the effective date of termination and Seller shall continue to provide City with
services requested by City and in accordance with the Agreement up to the effective date
of termination. Upon termination of the Agreement for any reason, Seller shall provide
City with copies of all completed or partially completed documents prepared under the
Agreement. In the event Seller has received access to City information or data as a
requirement to perform services hereunder,Seller shall return all City provided data to City
in a machine readable format or other format deemed acceptable to City.
3. Attorneys' Fees, Penalties. and Liquidated Dam,:. es. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted.from the Agreement and shall have no force or effect.
4. Law and Venue.The Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with the laws of the United States and state of
Texas,exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement
shall be in a court of competent jurisdiction in Tarrant County,Texas.To the extent the Agreement
is required to be governed by any state law other than Texas or venue in Tarrant County, City
objects to such terms and any such terms are hereby deleted from the Agreement and shall have
no force or effect.
5. Insurance. The City is a governmental entity under the laws of the state of Texas
and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self-insurance by
Governmental Units," is self-insured and therefore is not required to purchase insurance. To the
extent the Agreement requires City to purchase insurance, City objects to any such provision.. the
parties agree that any such requirement shall be null and void and is hereby deleted from the
Agreement and shall have no force or effect. City will provide a letter of self-insured status as
requested by Seller.
6. Sovereign Immun�y. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
7. Limitation of Liability and Indemnity. To the extent the Agreement, in any way,
limits the liability of Seller or requires City to indemnity or hold Seller or any third party harmless
from damages of any kind or character, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
8. No Debt. In compliance with Article 1 1 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of funds.
Addendum to Software License Agreement Page 2 of 5
If such funds are not appropriated or become unavailable, City shall have the right to terminate the
Agreement except for those portions of funds which have been appropriated prior to termination.
9. Confidential Information. 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. To the extent the Agreement requires that City maintain records in
violation of the Act,City hereby objects to such provisions and such provisions are hereby deleted
from the Agreement and shall have no force or effect. 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.
10. Addendum Contro!hne. If any provisions of the attached Agreement,conflict with
the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or
ordinance of City,the terms in this Addendum shall control.
11. Immigration Nationality Act. City actively supports the Immigration&Nationality
Act(INA)which includes provisions addressing employment eligibility,employment verification,
and nondiscrimination. Seller shall verify the identity and employment eligibility of all employees
who perform work under the Agreement. Seller shall complete the Employment Eligibility
Verification Fonn(1-9),maintain photocopies of all supporting employment eligibility and identity
documentation for all employees, and upon request, provide City with copies of all 1-9 forms and
supporting eligibility documentation for each employee who performs work under the Agreement.
Seller 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. Seller shall provide City with a
certification letter that it has complied with the verification requirements required by the
Agreement. Seller shall indemnify City from any penalties or liabilities due to violations of this
provision. City shall have the right to immediately terminate the Agreement for violations of this
provision by Seller.
12. No Boycott of Israel. Seller acknowledges that in accordance with Chapter 2270
of the Texas Government Code, 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 Addendum, ,_Seller certifies that Seller's
signature provides ivritten verification to City that Seller.• (1)does not boycott Israel;and(2)will
not boycott Israel(luring the term of the Agreement.
13. Right to Audit. Seller agrees that City shall, until the expiration of three(3) years
after final payment under the Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Seller involving transactions relating to the
Agreement. Seller agrees that City shall have access during normal working hours to all necessary
Seller facilities and shall be provided adequate and appropriate workspace in order to conduct
Addendum to Software License Agreement Page 3 of 5
audits in compliance with the provisions of this section. City steal give Seller reasonable advance
notice of intended audits.
(signature page J611ows)
Addendum to Software License Agreement Page 4 of 5
Executed this the 19th day of' M _. 204.
CITY:
City of Fort Worth Contract Compliance Manager:
By signing 1 acknowledge that. I am the person
responsible for the monitori T and administration
of this contract, including e�suring all
By: � �_., � � perfor ce an orting r curt eats.
Name: JeSIIS J. Chapa
Title: Assistar t fiy Manager
Date:
'/ �( � E3 y..Date:
Name an Sht r
Approval Recommended: Title: Sr. Administrative Services Manager
Approved as to Form ant) Legality:
By:
Nan r ena le.-
Title: A t g rop rty anagement Director By:
Narne: Jo . Strong
Attest: Title: ssistant City Attor y
Contract Authorization:
PC" WIN
By: 'r
Name Ma Kayser �C ,
Title:: City Secretary
U�
SELLER:
HOLT CAT
By:
Name: Brent Schlapkohl
Title: Service Technology Coordinator
Date: 04/22/2019
rir-FICIAL RECORD
Addendum to Software License Agreement: CITY SR`E9��RY
FT. WORTH,TX
SOFTWARE INSTALLATION_RIGHTS AGF:EEMENT
This Software Installation Rights Agreement (this "Agreement") is ent_red into and effective as of March 8,
2019, (the "Effective Date") by and between Caterpillar Inc., a Delaware corporation ("Caterpillar") having its
principal executive offices at 100 N.E. Adams Street, Peoria, Illinois 61620 and Installer ("Installer") having its
principal executive offices at(Address here).
Caterpillar and Installer agree as follows:
1. Services. Installer is hereby granted the right to install Caterpillar Electronic Technician software, Media
Number NEXGXXXX for type(the"Software")provided by Caterpillar for(End User)(the"Services"),which
has obtained X amount (XXX) licenses to the Software from Caterpillar or one of its dealers (each a
"Customer"). The Services may be performed upon receipt of payment from(End User)to(Dealer), and only
during the period beginning on the Effective Date and ending on(End Date). Only one(1)copy of the Software
may be installed.for each license a Customer has. Installer shall not activate the Software. Installer shall
deliver computers with the installed Software as directed by (End User). Installer may not purchase, license,
market,sell or distribute the software in any manner. Caterpillar shall not be obligated to make any payment to
Installer under this Agreement.
2. Relationship. Installer's relationship to Caterpillar hereunder is one of independent contractor and nothing
contained in this Agreement or any Schedule shall be construed to imply that Installer or any of Installer's
officers,employees or agents is an employee or agent of Caterpillar for any purpose, Neither party shall have
the right, power or authority to create any obligation, expressed ur implied, ur lu make any representation on
behalf of the other party,except as may be expressly authorized from time to time by such other party in writing
and then only to the extent of such authorization. Nothing herein is to imply an agency,joint venture or partner
relationship between the parties.
3. Representations and Warranties. Installer represents and warrants to Caterpillar that:
(a) Installer is a corporation duty organized,validly existing and in good standing under the laws of the State of
(State of Installer), and Installer has the full and unrestricted power and authority to execute, deliver and
perform this Agreement and such execution, delivery and performance have been duly authorized by all
necessary action on the part of Installer and the Agreement, when executed and delivered by Installer in
accordance with the provisions hereof, will be a legal, valid and binding obligation of Installer, enforceable
against Installer in accordance with its terms;
(b) Installer's execution and performance of this Agreement shall not constitute a breach or default under any
contract, instrument or agreement to which Installer is a party or by which Installer is bound and shall not
violate or interfere with the rights of any other patty;
(c) Services performed in connection with this Agreement shall be of profes>ional quality,conforming to generally
accepted industry standards and practices for similar services;and
(d) The system and the equipment(e.g.,computers, processors, etc.) used in connection with Services will be free
of any "back door", "time bomb", "Trojan Horse", "worm", "drop dead device", "virus", or other software
routines or hardware.components designed to permit unauthorized access,to disable or erase software,hardware
or data,or to perform any other similar actions.
4. Confidential Information.
(a) Installer may receive Confidential Information from Caterpillar or create Confidential Information as a result of
Services, and any such Confidential Information is and shall be owned by Caterpillar. Except as required to
perform Services, Installer shall not use or disclose any such Confidential Information of Caterpillar. Installer
agrees to take all necessary steps to protect any Confidential Information of Caterpillar with at least the same
degree of care that Installer uses to protect its own confidential and proprietary information of like kind, but in
no event less than reasonable care.
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(b) "Confidential Information" includes any process, methods, system, formula, pattern, model, device,
compilation, or other business or technical information of any kind, whether oral, written or viewed by
inspection, unless such information: (i)was already in a Installer's possession prior to its receipt without
restriction on its use or disclosure; (ii)is or becomes available to the general public through no act or fault of
Installer; (iii)is rightfully disclosed to Installer by a third party without restriction on its use or disclosure; or
(iv)is independently developed by Installer or its employees who did not have access to any of Caterpillar's
Confidential Information.
(c) Upon termination of Services and at the written request of Caterpillar, all materials containing Confidential
Information of Caterpillar shall be promptly returned to Caterpillar.
(d) The requirements of this Paragraph 4 shall survive the termination of this Agreement for a period of ten(10)
years.
5. Disclosure. Except as allowed under separate agreements between Caterpillar and Installer, Installer agrees to
not(a)disclose to Caterpillar confidential information belonging to Installer or a third party;or(b)produce or
deliver to Caterpillar anything, which Installer knew or should have known, that: (i)embodies information
under confidential restriction by any party;or(ii)is,or will be when made,used or sold by Caterpillar,covered
by a patent,patent application,copyright,trade secret,or other intellectual property right owned by any person
or entity other than Caterpillar.
6. Indemnification.
(a) Installer shall indemnify,defend, and hold harmless Caterpillar, its affiliates,directors,officers,employees and
agents from and against any and all suits, claims, demands, losses, damages, costs and expenses of any nature
whatsoever, including without limitation, litigation expenses, attorney's fees and liabilities incurred in'
connection therewith, arising out of injury to,or death of, any person whatsoever or damage to property of any
kind by whomever owned,caused in whole or in part by the acts or omissions of Installer,any of its members,
employees,agents or other persons directly or indirectly employed by or associated with Installer.
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY.FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR RELIANCE DAMAGES
(INCLUDING,WITHOUT LIMITATION, LOST OR ANTICIPATED REVENUES OR PROFITS)ARISING
OUT OF THIS AGREEMENT ON ANY THEORY OF LIABILITY EVEN IF SUCH PARTY IS ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
7. Insurance.
(a) Installer shall maintain commercial general liability insurance coverage in the amount of $1,000,000 per
occurrence throughout the entire term of this Agreement. This amount is a minimum limit and shall not be
construed to limit Installer's liability.All cost and deductible amounts shall be for the sole account of Installer.
8. Termination. Caterpillar may terminate this Agreement by giving Installer thirty (30) days written notice.
Installer may terminate this Agreement by giving Caterpillar thirty(30)days written notice, so long as there is
no outstanding Schedule remaining to be completed. Obligations that by their nature survive termination,
including,but not limited to,the obligation with respect to Confidential Information set forth in Section 4,shall
remain effective after the termination of this Agreement.
9. Caterpillar Marks. Installer shall not use in advertising,publicity, promotion, marketing, or other activity,any
name,trade name,trademark,service mark or other designation of,or owned by,Caterpillar.
10. Miscellaneous. This Agreement and any Schedule hereto embodies the entire understanding between the
parties with respect to the subject matter herein. The terms of this Agreement shall take precedence over any
conflicting terms and conditions set forth in any Schedule relating to the subject matter hereof, unless such
conflicting terms and conditions comprise a writing which is signed by both parties and which specifically
references the terms and conditions which are in conflict. Should any provision of this Agreement be held
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unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining provisions shall not
be affected by such holding. Installer shall not assign, convey, encumber, or otherwise dispose of this
Agreement or any rights or obligations hereunder without the prior express written consent of Caterpillar. This
Agreement shall be binding upon the heirs, successors, and/or legal representatives of the parties. The law of
the State of Illinois shall govern this Agreement without regard to principles of conflicts of law.
AGREED AND ACCEPTED:
INSTALLER CATERPILLAR INC.
By: By:Holt Inc
Name: Name:Brent Schlapkohl
Title: Title:Service Technology Coordinator
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