HomeMy WebLinkAboutContract 53943 V
RECEIVED CSC NO. 53943
MAY 2 8 2020
CITY OF FORT WORTH
CITY SECRETARY RESTRICTED USE AGREEMENT FOR SWEEPS°
This agreement between Sweeps Software, Incorporated, the Supplier, herein after referred to as S.S.I. and the City of Fort
Worth, Texas, herein after referred to as the Customer, Appendix `A', SWEEPS®Charges for the Period of June 1, 2020
through May 31,2024 and Appendix `B', SWEEPS®Site License Agreement' constitute the entire agreement of the parties
and shall supersede any prior agreements,either oral or written pertaining to the contemplated services.
I. SWEEPS®SOFTWARE/MAINTENANCE PROVIDED
S.S.I. agrees to provide to the CUSTOMER Restricted Access to the SWEEPS® SOFTWARE SYSTEM. The
system includes,but is not limited to,the following modules:
Master File Records(MFR)—Establishment and Inventory Information
Daily Activity Records(DAR)—Inspection and Time Accounting Information(Includes Field Inspections)
Investigation Request/Code Enforcement(IR/CE)—Complaint and Code Enforcement Information
Billing/Permitting—Accounts Receivable Tracking and Permit Generation
Card Registration (Reg Card) — Maintains Applicant Information for Food Handlers, Food Managers, Pool
Operators or anyone that requires training/registration to be issued a certificate or card.
"Restricted use"or"Restricted Access"is defined as"Read Only".There shall be no NEW data input into SWEEPS
from the beginning of this agreement period. S.S.I. reserves the right to audit the customer data at its discretion to
insure compliance.
Telephone Support is included in the Annual Charges.
II. CHARGES
The charges for SWEEPS®are based on a mutually agreed on Annual amount.
Charges are detailed in Appendix A,SWEEPS®Charges for the period of June 1,2020 through May 31,2024.
The charges for services stipulated herein are subject to revision for any changes the Customer may make to its
requirements or for additional work requested which is not set forth in this agreement or in the Appendices.
III. PERFORMANCE
S.S.I. warrants that the software provided has been tested and will provide the proper results when used in
accordance with the manufactures instructions.
S.S.I. reserves the right to upgrade, modify, or otherwise enhance, or change, SWEEPS®whenever necessary or
appropriate to the proper utilization of the system.
IV. TRAINING AND SUPPORT
S.S.I. will provide telephone support from approximately 9:00 A.M. Pacific Time until 5:00 P.M. Pacific Time,
Monday through Friday,normal holidays excluded. The Customer agrees to allow S.S.I. communications access to
provide remote support on a pre-arranged basis.
V. BILLING
The Customer will be billed on an annual basis. See Appendix A for charges.
OFFUMNEWIR&
1
CITY SECRETARY
FT WORTH,Ted
VI. PROPERTY
All computer programs,written procedures and similar items provided by S.S.I.,are the exclusive property of S.S.I.,
and shall always remain the property of S.S.I.,unless there is an express written provision to the contrary.
SWEEPS®provided to the Customer is the property of S.S.I. and is not for sale. Individual modules provided as a
part of SWEEPS® contain licensing and expiration routines that will make them unusable, unless the Customer
continues their subscription on an annual basis to the system.
S.S.I. will NOT store NOR be responsible for the Customer's source documents, data, magnetic tapes, diskettes or
other media. All Customer data will be stored at the Customer's location, and it is the responsibility of the
Customer to properly back up, store and safeguard.
All Customer furnished information and data resulting from the operation of S.S.I.'s programs on the Customer's
information in connection with this agreement shall be the sole and exclusive property of the Customer.
Such information is the proprietary property of the Customer and constitutes government records of the Customer.
S.S.I. shall treat the Customer's information as confidential,and shall safeguard it to the greatest extent practicable.
Furthermore, S.S.I. agrees that during the term of this agreement it shall not make such information available in any
form to any person,other than the Customer,without the prior written authorization of the Customer.
Upon termination of this agreement, such information will not be made available by S.S.I.to any person other than a
duly authorized representative of the Customer.
VIL LIABILITY
In the event of any error, omission, or other problem, whether human or mechanical, on the part of S.S.I., its
employees,or SWEEPS®,S.S.I.agrees to correct the software at no additional charge to the Customer.
It is expressly understood and agreed that S.S.I. SHALL NOT be liable to any third persons for any damages which
said third persons may incur, directly or indirectly, as a result of the errors or omissions of the Customer or the
Customer's employees.
S.S.I. shall be liable for any and all damages, including personal injury or damage to property,caused by the acts or
omissions of its employees,agents,officers,or representatives.
S.S.I. shall provide the Customer with certificate(s)of insurance documenting policies of the following minimum
coverage limits that are to be in effect prior to commencement of any work pursuant to this Agreement.
7.1 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 or
$250,000 Property Damage
$500,000 Bodily injury per person per occurrence
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Coverage shall be on any vehicle used by S.S.I., its employees, agents, representatives in the course of the
providing services under this Agreement. "Any vehicle" shall be any vehicle owned,hired and non-owned.
(c) Worker's Compensation Statutory
Limits Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease —per each employee
$500,000 Disease-policy limit
This coverage may be written as follows:
Workers'Compensation and Employers'Liability coverage with limits consistent with statutory benefits outlined in
the Texas workers' Compensation Act(Art. 8308 — 1.01 et seq. Tex. Rev. Civ. Stat.) And minimum policy limits
for Employers' Liability of $100,000 each accident/occurrence, $500,000 bodily injury disease policy limit and
$100,000 per disease per employee.
7.2 Certificates
Certificates of Insurance evidencing that S.S.I. has obtained all required insurance shall be delivered to the
Customer prior to S.S.I.proceeding with any work pursuant to this Agreement. All policies shall be endorsed to
name the Customer as an additional insured thereon, as its interests may appear. The term Customer shall
include its employees, officers, officials, agent, and volunteers in respect to the contracted services. Any failure
on the part of the Customer to request required insurance documentation shall not constitute a waiver of the
insurance requirement. A minimum of thirty(30)days' notice of cancellation or reduction in limits of coverage
shall be provided to the Customer. Ten(10) days' notice shall be acceptable in the event of non-payment of
premium. Such terms shall be endorsed onto S.S.L's insurance policies. Notice shall be sent to the Risk
Manager, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102, with copies to the City Attorney at
the same address.
VIII. REPRESENTATIONS
This agreement, Appendix `A', SWEEPS®-- Charges for the Period of Juner 1, 2020 through May 31, 2024;
and Appendix `B', SWEEPS®-- Site License Agreement shall constitute the entire agreement of the parties
and shall supersede any prior arrangements,either oral or written pertaining to the contemplated services.
The terms and conditions of this agreement may be changed by written mutual consent.
IX. ANNUAL PRICE ADJUSTMENT
S.S.I. reserves the right to modify or change SWEEPS®prices on an annual basis. Customer will receive
written notice of S.S.L's intent to modify or change the existing prices no later than ninety(90)days prior to the
expiration date of the contract year.
X. FUNDING
Availability of Funds: The parties agree that this Agreement and all claims, suits, or obligations arising under
or related to this Agreement are subject to and limited to the availability of funds appropriated by the Fort
Worth City Council, for the purposes of this Agreement or for the respective claim, suit, or obligation, as
applicable. The Customer agrees to place the above notices relating to availability of funds,the source of funds,
and legal authority in all subcontracts.
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XI. ASSIGNMENT
S.S.I. and the Customer bind themselves and any successors and assigns to this agreement. Neither S.S.I. nor
the Customer shall assign, sublet, or transfer its interest in this agreement without written consent of both, and
any attempted transfer without such consent is void. Nothing herein shall be construed as creating any personal
liability on the part of any officer or agent of S.S.I., or the Customer, nor shall it be construed as giving any
rights or benefits hereunder to anyone other than to S.S.I. and the Customer. Notwithstanding any provisions
relating to assignment in the Uniform Commercial Code, no delegation by a party hereto of any duties or
obligations nor assignment by a party hereto of any rights under or interests in the agreement will be binding on
another party hereto without the written consent of the party sought to be bound; and, specifically but without
limitation, monies that may become due and monies that are due may not be assigned without such consent
(except to an extent that the effect of this restriction may be limited by law),and unless specifically stated to the
contrary in any written consent to an assignment,no assignment will release or discharge the assignor from any
duty or responsibility under this agreement. S.S.I. and the Customer each binds itself, its partners, successors,
assigns and representatives to the other party hereto, its partners, successors, assigns and representatives in
respect to all covenants,agreements and obligations contained in the agreement.
XII. WAIVER OF SOVEREIGN IMMUNITY
S.S.I. and the Customer hereby agree that this Agreement does not waive the Customer's sovereign immunity
relating to suit, liability and the payment of damages. The parties further agree that all claims, suits or
obligations arising under or related to this Agreement are subject to and limited to the availability of funds
appropriated by the Fort Worth City Council for that respective claim,suit,or obligation.
XIIL SEVERABILITY
Any provision of this agreement held to be void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue to be valid and binding upon S.S.I. and the
Customer. In such an event,it is herein agreed by S.S.I. and the Customer that the agreement shall be reformed
to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as
possible to expressing the intention of the stricken provision. In the absence of reformation, this agreement
shall remain in effect and be construed as if the invalid, illegal or unenforceable provision had never been
contained in the agreement.
XIV. GOVERNING LAW AND VENUE
S.S.I. and the Customer agree that the laws of the State of Texas shall govern the validity and construction of
this agreement,except where preempted by Federal law. Should any action,real or asserted,at law or in equity,
arise out of the terms and conditions of this agreement,venue for said action shall be in Tarrant County,Texas.
XV. RIGHTS AND REMEDIES NOT WAIVED
In no event shall the making by the Customer of any payments to S.S.I. constitute or be construed as a waiver
by the Customer of any breach of covenant, or any default which may then exist, and the making of any such
payment by the Customer while any such breach or default exists shall in no way impair or prejudice any right
or remedy available to the Customer with respect to such breach or default. Any waiver by either party of any
provision or condition of this agreement shall not be construed or decreed to be a waiver of any other provision
or condition of this agreement,nor a waiver of a subsequent breach of the same provision or condition, unless
such waiver be expressed in writing by the party to be bound.
XVI. TERMINATION
The Customer may terminate this contract without cause by giving ninety (90) days written notice to S.S.I.,
provided that such termination shall be without prejudice to any other remedy the Customer may have. In the
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event of termination, any work in progress will continue to completion unless specified otherwise in the notice
of termination.
S.S.I. may terminate this contract without cause by giving ninety (90) days written notice to the Customer,
provided that such termination shall be without prejudice to any other remedy S.S.I. may have. In the event of
termination, any work in progress will continue to completion unless specified otherwise in the notice of
termination.
The Customer may terminate this agreement for failure of S.S.I.to comply with the terms of this agreement. In
the event the Customer decides to terminate S.S.I.'s contracted services, the Customer will provide S.S.I. with
written notice ninety(90)days prior to termination of the agreement.
S.S.I may terminate this agreement for failure of the Customer to comply with the terms of this agreement. In
the event S.S.I. decides to terminate services contracted by the Customer, S.S.I. will provide the Customer with
written notice ninety(90)days prior to termination of the agreement.
In the event either party defaults in the performance of any of its obligations under this contract, misrepresents
to the other a material fact,or fails to notify the other party of any material fact which would affect the party's
performance of its obligations hereunder, the non-defaulting party shall have a right to terminate this contract
upon giving the defaulting party written notice describing the breach or omission in reasonable detail. The
defaulting party shall have a ninety(90)day period commencing upon the date of notice of default in which to
effect a cure. If the defaulting party fails to effect a cure within the aforesaid ninety(90) day period, or if the
default cannot be cured,the contract shall terminate as of the date provided in the notice of default.
XVII. RIGHT TO AUDIT
S.S.I. agrees that the Customer shall, until the expiration of three (3) years after final payment under this
Agreement,have access to and the right to examine at reasonable times any directly pertinent books, documents,
papers and records of S.S.L involving transactions relating to this Agreement at no additional cost to the
Customer. S.S.I. agrees that the Customer shall have access during normal working hours to all necessary S.S.L
facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with
the provisions of this section. The customer shall give S.S.I. not less than 10 days written notice of any intended
audits. S.S.I.further agrees to include in all its subcontractor agreements a provision to the same effect.
XVIIL FORCE MAJEURE
S.S.I. shall not be deemed to be in default because of any failure to perform under this contract, if the failure
arises from causes beyond the control and without the fault or negligence of S.S.I. Such causes shall include
acts of God,acts of the public enemy,acts of Government, in either its sovereign or contractual capacity, fires,
flood,epidemics,quarantine restrictions, strikes,freight embargoes,and unusually severe weather.
If the failure to perform is caused by the failure of a subcontractor of S.S.I.'s to perform,and if such failure was
beyond the control of both S.S.I. and the subcontractor, without their fault or negligence, S.S.I. shall not be
deemed to be in default unless the subcontracted supplies or services were reasonably obtainable from other
sources.
Alternatively,if at any time during the term of this contract the work of S.S.I. fails to meet the specifications of
the contract documents,the Customer may notify S.S.I. of the deficiency in writing. Failure of S.S.I.to correct
such deficiency and complete the work required under this contract to the satisfaction of the Customer within
ten days after written notification shall result in termination of this contract. S.S.I. shall pay all costs and
attorneys fees incurred by the Customer in the enforcement of any provision of this contract.
The remedies provided for herein are in addition to any other remedies available to the Customer elsewhere in
this contract.
This shall be reciprocal where neither party is liable or deemed to be in default for a force majeure event.
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XIX. AUTHORIZATION
The undersigned officer and/or agents of the parties hereto are properly authorized officials and have the
necessary authority to execute this Agreement on behalf of the parties hereto,and each party hereby certifies to
the other that any necessary resolutions extending such authority have been duly passed and are now in full
force and effect.
XX. TERM of AGREEMENT
This agreement is in effect when all parties have signed and is valid for the period of June 1,2020 through May
31,2024,renewable annually thereafter subject to paragraphs IX and XVI.
The terms and conditions of this agreement may be changed by written mutual agreement at any time.
XXL IMMIGRATION NATIONALITY ACT
S.S.I. shall verify the identity and employment eligibility of its employees who perform work under this
Agreement, including completing the Employment Eligibility Verification Form (1-9). Upon request by
Customer, S.S.I. shall provide Customer with copies of all I-9 forms and supporting eligibility
documentation for each employee who performs work under this Agreement. S.S.I. shall adhere to all
Federal and State laws as well as establish appropriate procedures and controls so that no services will be
performed by any S.S.I. employee who is not legally eligible to perform such services. S.S.I. SHALL
INDEMNIFY CUSTOMER AND HOLD CUSTOMER HARMLESS FROM ANY PENALTIES,
LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY S.S.I., S.S.I.'S
EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. Customer, upon written notice to
S.S.I.,shall have the right to immediately terminate this Agreement forviolations ofthis provision by S.S.I.
XXII. NO BOYCOTT OF ISRAEL
If S.S.I.has fewer than 10 employees or this Agreement is for less than $100,000, this section does
not apply. S.S.I. acknowledges that in accordance with Chapter 2270 of the Texas Government Code,the
Customer 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: (I)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, S.S.I. certifies that S.S.I.'s signature provides written verification to the
Customer that S.S.I.: (1) does not boycott Israel; and (2) will not boycott Israel during the term of
the contract.
[Appendix A follows]
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APPENDIX A: SWEEPS®CHARGES
SWEEPS®
Charges for
City of Fort Worth, Texas
June 1, 2020—May 31, 2024
Charges for SWEEPS®are as follows:
Annual Restricted Use Fee for SWEEPS............$600.00
"Restricted Use"or"Restricted Access"is defined as"Read Only"access.There shall be no new data input into SWEEPS
from the start date of this agreement. S.S.I.reserves the right to audit the customer data at its discretion to insure compliance.
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SWEEPS®
Site License Agreement—Appendix`B'
IMPORTANT: READ THIS LICENSE AGREEMENT CAREFULLY
GRANT OF LICENSE
S.S.I., grants to the Customer — a non-transferable, non-exclusive license — to use the software system, programs and
documentation referred to herein as SWEEPS®-
This is a LICENSE AGREEMENT and NOT an agreement for sale. S.S.I.,owns SWEEPS®,which is copyrighted,and has
proprietary rights in the product. You are purchasing a revocable license to use the system. You obtain no rights other than
the license granted by this agreement. Title to SWEEPS®,and any copy made of it,is retained by S.S.I. The Customer does
not receive any,and S.S.I.,retains all ownership rights in SWEEPS®.
This agreement and any of the licenses, programs, or materials to which it applies may not be assigned, sub-licensed or
otherwise transferred by the Customer without written consent from S.S.I.
LIMITED WARRANTY AND LIABILITY
S.S.I.,warrants that SWEEPS®will perform in compliance with the documentation and instructions,when used on computer
hardware approved by S.S.I.
S.S.I., does not warrant that SWEEPS®, will operate error free or uninterrupted, or that all non-conformities can or will be
corrected. S.S.I., does not warrant statements, or claims by other parties. Should the software fail to operate as warranted,
S.S.I., shall promptly, upon notice, replace or correct the defective software. This shall be the only liability of S.S.I., with
respect to the software product or license. In no event shall S.S.I.be liable for any damages, claim or loss incurred by user,
including without limitation,compensatory,incidental,indirect, special,consequential,or exemplary damages,lost revenues,
or expenditures resulting from lost data or the Customer's inability to use the data or the product.
The CUSTOMER assumes all responsibility for the use of the product to achieve the intended results, and for the results
obtained from the product.
SWEEPS® software is provided subject to the warranty and remedy just expressed, and is in lieu of all other warranties of
any kind, either expressed or implied,but not limited to the implied warranties of merchantability and fitness for a particular
purpose,both of which are specifically excluded.
S.S.I. agrees to defend, settle, or pay,at its own cost and expense,any claim or action against the Customer for infringement
to any patent,copyright,trade secret,or similar property right arising from Customer's use of the software in accordance with
this agreement. S.S.I. 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,and Customer agrees to cooperate with it in doing so.
Customer agrees to give S.S.I. timely written notice of any such claim or action, with copies of all papers Customer may
receive relating thereto. If the software 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, S.S.I. shall,at its own expense and as
Customer's sole remedy,either: (a)procure for customer the right to continue to use the software;or(b)modify the software
to make it non-infringing,provided that such modification does not materially adversely affect Customer's authorized use of
the software; or (c) replace the software with equally suitable, compatible, and functionally equivalent non-infringing
software at no additional charge to Customer; or (d) if none of the foregoing alternatives is reasonably available to S.S.I.,
terminate this agreement and refund to Customer the payments actually made to S.S.I.under this agreement.
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NUMBER OF MACHINES THAT SWEEPS®MAY BE INSTALLED ON
SWEEPS®licensed under this agreement authorizes the Customer to use SWEEPS®on as many single-user P.C. computer
systems, or as many multi-user(networked)computer systems, or any combination thereof,as desired,provided they adhere
to the pricing provisions of the`AGREEMENT FOR SWEEPS®'.
PERMISSION TO COPY LICENSED PROGRAMS
No right to print or copy, in whole or in part, SWEEPS® licensed program(s), documentation, procedures, or any related
materials,is granted except as herein expressly provided.
The programs and their related documentation are copyrighted. Any licensed programs which are provided by S.S.I. in
machine readable form may be copied for back-up or archive purposes only. The Customer agrees to maintain appropriate
records of the number and location of all such copies of SWEEPS®. The original and any copies of SWEEPS®licensed
programs,in whole or in part,which are made by the Customer shall be the property of S.S.I.,except for the media on which
the licensed programs are recorded. The Customer agrees to reproduce and include the copyrighted notice of S.S.I. on all
copies,in whole or in part,in any form,including partial copies of licensed programs made hereunder.
You may not copy,reverse engineer(de-compile),translate,port, merge, modify, or make derivative works of SWEEPS®.
You may not rent, disclose,publish, sell, assign, lease, sub-license, market, or transfer SWEEPS®or use it in any manner
not expressly authorized by this agreement. You shall not alter or remove any copyright notice or proprietary legend
contained in or on SWEEPS®.
PROTECTION AND SECURITY
The Customer agrees NOT to provide or otherwise make available any portion of SWEEPS® including but not limited to
object code in any form, to any person other than Customer, or S.S.I. employees, without prior written consent from S.S.I.,
except for purposes specifically related to the Customer's use of the licensed program.
TERM OF AGREEMENT
The term of this agreement is referenced in and stipulated by `The Agreement For SWEEPS®' which is a part of this `Site
License Agreement'.
MISCELLANEOUS
This `Site License Agreement' shall be governed by the laws of the State of Texas and applicable Federal law,and shall inure
to the benefit of S.S.I.,its successors,administrators,heirs and assignees. Any litigation arising from the use of the programs
must be filed in Tarrant County,Texas.
If any provision of this agreement is declared invalid or unenforceable, the remaining provisions of this agreement shall
remain in full force and effect. Any notice under this agreement shall be delivered by U.S. Certified Mail, return receipt
requested to the following address:
Sweeps Software,Incorporated
12440 Firestone Blvd.,Suite 206
Norwalk,CA 90650
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By signing this agreement, you acknowledge that you have read this agreement, Appendix A: SWEEPS®Charges, and
Appendix B: SWEEPS®Site License Agreement and understand them,and agree to be bound by the terms and conditions of
these agreements.
Accepted By: Accepted By:
Sweeps Software,Incorporated City of Fort Worth,Texas
41 ^ IC e J J44,� Valerie Washington(May 27,202013:54 CDT)
Kevin R.Thrasher Valerie Washington
President/CEO Assistant City Manager
Date: May 26, 2020 Date: May 27, 2020
Recommended by:
A-,oL--
Elmer DePaula(May 27,202010:03 CDT)
Elmer DePaula
Assistant Director
Date: May 27, 2020
Approved as to Form and Legality by:
Chris�onherAusfria(No WC KBquired)
Christopher ustria(No M/C Required)(May 27,202013:52 CDT)
Christopher Austria600600620
Assistant City Attorney
Date: May 27, 2020
Attested by: -,! 0� F O&T a`
Mary J.Kayser
City Secretary
Date: May 27, 2020 ' ,.
CONTRACT COMPLIANCE MAIGER " •
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.
Yt/u_nr7ie-7'cu-aetr,
By:Wyndie Turpen(May 2,2020 08:47 CDT)
Name:Wyndie Tureen
Title: Superintendent
- 3
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