HomeMy WebLinkAboutContract 36582CITY SECRETAR�1,�--'�'
CONTRACT NO, l�
PROFESSIONAL ZotKVICES 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 Karen L. Montgomery, its
July authorized Assistant City Manager, and PINK ELEPHANT CORP. ("Consultant") a Delaware
corporation and acting by and through Lou C. Cino, its duly authorized VP & CFO.
1. SCOPE OF SERVICES.
Consultant hereby agrees to provide the City with professional consulting services for the
purpose of providing ITIL V3 Foundations Training Services. Attached hereto and incorporated for all
purposes incident to this Agreement is Exhibit "A," Statement of Work ("SOW"), more specifically
describing the services to provided hereunder. A separate SOW will be completed for each schedule of
training services. Each SOW shall be numbered SOW # - 001, SOW # - 0023 SOW # - 003 and so forth.
Each SOW shall be attached hereto and incorporated into this Agreement.
This Agreement shall commence upon the date that both the City and Consultant have executed
this Agreement ("Effective Date") and shall continue in full force and effect until completion of all services
contemplated herein ("Expiration Date"), unless terminated in accordance with the provisions of this
Agreement.
3. COMPENSATION.
The City shall pay Consultant an amount not to exceed $20,450.00 in accordance with the
provisions of 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 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 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 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 shall have 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 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.
02-01-08 P03�10 IN
4.4 Cancellation and Rescheduling.
Subject to Section 4.2 above, the City agrees to the following: Consultant designates its
staff to provide the services on the dates specified, thereby removing the staff from the market
on such dates. Accordingly, a cancellation fee of one hundred percent (100%) of the total fees,
in addition to any non-refundable expenses already incurred by Consultant on behalf of the City,
will be charged should the services be cancelled less than twenty (20) business days before the
start date of the services. Should the services instead be rescheduled then a rescheduling fee
of fifty percent (50%) of the total fees, in addition to any nonrefundable expenses already
incurred by Consultant on behalf of the City, will be charged to the City should the services be
postponed and rescheduled by the City less than twenty (20) business days before the start date
of the services.
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 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. 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 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.
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
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 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 ANYAND ALL
PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT
CAUSED BY THE SOLE NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL
MISCONDUCT OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES.
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 CONSULTANTS 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 SOLE
NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS,
AGENTS, SERVANTS OR EMPLOYEES.
THE FOREGOING NOTWITHSTANDING IN NO EVENT SHALL CONSULTANT BE LIABLE
TO THE CITY FOR: (A) SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES,
INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, HOWSOEVER CAUSED,
EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THE PARTIES HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES; OR (B) PUNITIVE OR EXEMPLARY DAMAGES.
9. ASSIGNMENT AND SUBCONTRACTING.
Consultant shall not assign or subcontract any of its duties, obligations or rights under this
Agreement without the prior written consent of the City. If the City grants consent to an assignment, the
assignee shall execute a written agreement with the City and the Consultant under which the assignee
agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant
and Assignee shall be jointly liable for all obligations under this Agreement prior to the effective date of
the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written
agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to
be bound by the duties and obligations of the Consultant under this Agreement as such duties and
obligations may apply. The Consultant shall provide the City with a fully executed copy of any such
subcontract.
10. INSURANCE.
Consultant shall provide the City with certificates) 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
(a) Commercial General Liability
$1,000,000 Each Occurrence
$1,000,000 Aggregate
(b) Automobile Liability
$1,000,000 Each accident on a combined single limit basis
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" is defined as any vehicle owned, hired and non -owned
(c) Worker's Compensation
Statutory limits
This coverage may be written as follows:
Workers' Compensation coverage with limits consistent with statutory benefits outlined in
the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.)
(d) Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease - per each employee
$500,000 Disease - policy limit
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
(e) Information Technology (Errors &Omissions)
$1,000,000 Each Claim Limit
$1,000,000 Aggregate Limit
E&O coverage may be provided through an endorsement to the Commercial
General Liability (CGL) policy, or a separate policy specific to Technology E&O.
Either is acceptable if coverage meets all other requirements. Coverage shall be
claims -made, and maintained for the duration of the contractual agreement and
for two (2) years following completion of services provided. An annual certificate
of insurance shall be submitted to the City to evidence coverage.
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. When possible all policies shall include waivers of
subrogation in favor of the City and 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. The insurer shall endeavour to notify the City with
thirty (30) days of cancellation or reduction in limits of coverage. 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.
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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/IT Solutions
1000 Throckmorton
Fort Worth TX 76102-6311
Facsimile: (817) 392-8654
14. SOLICITATION OF EMPLOYEES.
To CONSULTANT:
Pink Elephant Corp.
1600 Golf Road, Suite 1200
Rolling Meadows, IL 60008
Facsimile: 847 956-3352
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. However, this will not apply to the
following: (i) staff that have been made redundant, or dismissed by the other party, or (ii) prevent or
prohibit either party from making a general solicitation or advertisement and offering employment to the
staff of the other party who initiates contact in response to such solicitation and advertisement.
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 He in state courts located in Tarrant County, Texas or the United States District Court
for the Northern District of Texas, Fort Worth Division,
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on 3EVERABILITY.
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 anyway be affected or impaired.
The City and Consultant shall exercise their best efforts to meet their respective duties and
obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in
performance due to force majeure or other causes beyond their reasonable control (force majeure),
including, but not limited to, compliance with any government law, ordinance or regulation, acts of God,
acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor
restrictions by any governmental authority, transportation problems and/or any other similar causes.
Headings and titles used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
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.
No extension, modification or amendment of this Agreement shall be binding upon a party hereto
unless such extension, modification, or amendment is set forth in a written instrument, which is executed
by an authorized representative and delivered on behalf of such party.
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 PAGE FOLLOWS]
ITNESS WHEREO ,
200�
CITY OF FORT WORTH:
the parties hereto have executed this Agreement in multiples this V day of
Karen L. Montgomery()
Assistant City Manager / CFO
Date: z Z: / ZO
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APPROVED AS TO FORM AND LEGALITY:
By:
Assistant bty Attorney
CONTRACT AUTHORIZATION:
M&C: rJ
Date Approved:
PINK ELEPHANT CORP.:
Lou C. Cino
VP and CFO
7
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This SOW is binding between Pink Elephant and City of Fort Worth C'Customer"). Pink Elephant must
receive a frilly executed SOW at least fifteen (15) Business Days prior to the start of any engagement to
effectively procure exams (if required) on behalf of Customer and ship materials to Customer destination. If
Pink Elephant does not receive a fully executed SOW at least fifteen (IS) Business pays prior to the start of
any engagement, Customer will be responsible for all late exam fees imposed on Pink Elephant by the
exammin body.
f 77
.. _ ,..":..
Number: SOW # - 001
Reference MSA& ED07-0408
Course Title: ML V3 Foundations
_
Number of Times Delivered: 1
Course Dates: February &S, 2008
Number of Manuals: 25
Number of Exams: 25
Number of Attendees (Min 6, Max 25): 25
Time: Day one and two consists of instruction between 8:30 and 5:00 with two 15 mirurte breaks and I hour for
Much. Day three consists of instruction between 8;30 and 3:30 with two 15 minute breaks and I hour for lunch.
The examination at the end of da three begins at 4:00 and is 1:00 hours in duration ending at 5:00.
uoulee iaterr�tl.wilt-be." 'ent is r . ;
C i ' arBf i in .:.
.
Name% rich White Name: Fire and Police Training Center
Address: 1000 Throckmorton St.
Address: 1000 Calvert St
City & Province/State: Fort Worth, TX _
City & Province/State: Fort Worth, TX
m
PostaUZi Code: 76102
Postal/Zip Code: 76107 ��
Phone: 817-392-8680 Fax: 817-392-8654
Room: TBD
Email: rich.white fortworth ov.org
Phone: 817-871-6875 Fax:
Email: victoria_fierro fortworthgov.org
� 9er lii-hd111Se t C ai'S $lolr f or` , ion
.
Security Requirements: YIN = N; if yes, please provide details:
Data Projector Availabili : Y/N = Y
Client 0 a -site Contact
Name: Rich White
_
Title: Senior IT Manager
E-mail: rich.white fortrvortlr ov,or
Phone: 817-392-8680
Mobile: 817-944-6581
kiot�I,lZeccrr>rrieia�utroagfor3si�ti-a;aa�i°�p_ ">1. _ .
Hotel Name: Cou and Fort Worth Downtown
Address; 601 Main St, Fort Worih, TX, 76IO2
Directions from Hotel to Training Facility: Go East on 5 ' St towards Commerce St (279 ft)
Tutu left at Commerce St (0.3 mi)
Turn left at E Belk iap St (0.5 mi)
Turn right at N Henderson St (0.3 mi)
Turn right at Woodward St (0.2 ml)
Arrive at Fire and Police Training Center
IF, EEs:
Course: $11,970 US per delivery_
Exams: $210 US per candidate eater than 6
Course Manuals*: $165 US per candidate greater than
Please note that photo ID must be shown prior to
60
taking the examir
*based on the namber of sets shipped or the attendee sign -in sheet, whichever is greater
Invoi�� s must�beseatftii.
Contact: Beatrice DeHoyos
Company: City of Fort Worth
Title: IT Services Specialist
Address: 1000 Throclanorton
E-mail: Beatrice.DeHoyos@fortworthgoy.org
City & Province/State: Fort Worth, TX
Phone: 817-392-6640
Postal/Zip Code: 76102
Fax: 817-392-8654
Purchase Order Required: YIN = Y, if yes please proyide the number:
Are there any other invoicing requirements (i.e. PO required on invoice): Y/N = ; if yes please provide
specifics:
EXPENSES:
Payment Terms: Customer agrees to reimburse Pink Elephant for costs and expenses of travel, accommodation and other incidental
expenses, including but not limited to, expenses for:
(a) reasonably priced airfare such as discounted available ` ' class;
b four star or similar priced reasonable hotel accommodation;
(c) local travel by taxi or car rental;
d $75 US per diem allowance for meals, refreshments and all other personal incidental expenses of Pink Elephant employees;
e messenger or courier service including shipping and handling costs;
(f) long distance telephone/facsimile transmission charges; and
(g) photocopying printiagat$0.25 US per
Invoices are payable within ten (10) days of invoice date. If Customer faits to pay any amount required, Customer will be charged a late fee
at the rate of two percent (21%) per month (or the highest rate permitted by law if less) starting on the eleventh (11) day after the date of the
invoice until payment is made.
TERMS:
Cancellation Policy _ Customer acknowledges that in entering into this Agreement, Pink Elephant designates its staff to provide the Training
Services on the dates specified, thereby removing the staff from the market on such dates. Accordingly, a cancellation fee of one hundred
percent (10001o) of the total Fees, in addition to any non-refundable expenses already incurred by Pink Elephant on behalf of Customer, will
be charged should the Training Services be cancelled less than twenty (20) business days Before the start date of the Training Services.
Rescheduling Policy - A rescheduling fee of fifty percent (50%) of the total Fees, in addition to any nonrefundable expenses already
incurred by Pink Elephant on behalf of Customer, will be charged to Customer should the Training Services be postponed and rescheduled
by Customer less than twenty 20 business days before the start date of the Training Services,
COMMENTS:
PINK ELEPHANT QOP,
City of Fort Worth ("Customer")
Signature:
All
Signs e:le
Name: Lou C. C
Name. Karen L. Montgo4&ry
Title: Vice President & CFO
Title: Assistant City Manager/CFO
Date:
Date: f , /7 o g
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