HomeMy WebLinkAboutContract 41617 (2)CITY SECRETARY
COMTRACT N�SJLL°
Contract for Professional Services
Larry Robert Heath / City of Fort Worth .
Page 1 of 14
CONTRACT FOR PROFESSIONAL SERVICFS
This contract is made by and between the City of Fort Worth, Texas, a home rule municipal
corporation situated in portions of Tarrant, Denton and Wise Counties, Texas, hereinafter called "City,"
acting herein by and through Karen Montgomery, its duly authorized Assistant City Manager, and Larry
Robert Heath, an individual, hereinafter called "Consultant."
1. SCOPE OF SERVICES.
Consultant hereby agrees to perform in accordance with the highest professional industry
standards professional auditing and accounting services as assigned. Attached hereto and incorporated
for all purposes incident to this contract is Exhibit "A," Statement of Work, more specifically describing
the services to be provided hereunder.
Z. TERM.
Unless terminated pursuant to section 4, this contract shall be effective upon the date of execution
and shall expire upon completion of all work contemplated herein, but not later than September 30, 2011.
ao COMPENSATION.
ION.
The City shall pay Consultant an amount not to exceed $30,900.00 in accordance with the
provisions of this Agreement and the Payment Schedule attached as Exhibit "B," which is incorporated
for all purposes herein. 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.
Notwithstanding anything to the contrary in this Agreement: (i) Consultant shall have no obligation to
continue performance of the services once the Not -to -Exceed Amount has been attained; (ii) City shall
have sole responsibility for monitoring fees charged in relation to the Not -to -Exceed Amount; and (iii) City
will either terminate the assignment or increase the Not -to -Exceed Amount prior to attainment of the Not -
to -Exceed Amount.
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 uupitotithe .effective date of termination.
CITY SECRETARY
FTW WORTH, TX
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's obligations to maintain confidentiality of
information provided to it by the City shall be further set forth in Exhibit "C," Non -Disclosure
Agreement, which is attached hereto and incorporated herein for all purposes. 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.
City will maintain the confidentiality of information provided to it by consultant to the extent
permitted by applicable law. However, Consultant understands and acknowledges that the City is a
public entity under the laws of the State of Texas, and as such, all documents held by the City are
subject to disclosure under Chapter 552 of the Texas Government Code
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.
As an independent Contractor for the City of Fort Worth Internal Audit Department, Consultant
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Larry Robert Heath / City of Fort Worth
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shall perform all work assignments without direct supervision from the Internal Audit Department staff
and/or management. However, in order to ensure the work will meet required auditing and Internal Audit
Department standards, along with meeting previously established deadlines, Internal Audit management
shall be provided with periodic status updates of the respective project. Additionally, should any significant
issues and/or problems arise, Consultant shall timely notify Internal Audit management of these issues
and/or problems, and obtain applicable input from the City prior to completion of the work to ensure the
City receives the desired end product contracted pursuant to this agreement
8. LIABILITY AND INDEMNIFICATION.
CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY
LOSS, PROPERTY DAMAGE ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL
PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT
CAUSED BY THE 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 CONSULTANT'S BUSINESS AND ANY
RESULTING LOST PROFITS) ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND
ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE
NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS,
AGENTS, SERVANTS OR EMPLOYEES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
CONSULTANT SHALL NOT BE LIABLE OR RESPONSIBLE FOR, OR HAVE ANY DUTY OF
INDEMNIFICATION NOR ANY LOSS OR DAMAGE RESULTING FROM THE NEGLIGENCE OR
INTENTIONAL MISCONDUCT OF THE CITY, ITS OFFICERS, SERVANTS, OR EMPLOYEES.
9. ASSIGNMENT AND SUBCONTRACTING.
Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement
without the prior written consent of the City. If the City grants 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. The Consultant shall
be liable for actions of the subcontractor as if such services were performed by Consultant.
10. 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, to the extent required by applicable law, Consultant shall immediately desist from and correct
the violation.
11. NON-DISCRIMINATION COVENANT.
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Larry Robert Heath / City of Fort Worth
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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.
12. 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: [Internal Audit department/Darlene Allen]
1000 Throckmorton
Fort Worth TX 76102-6311
Facsimile (817) 392-8654
13. SOLICITATION OF EMPLOYEES.
To CONSULTANT:
Larry R. Heath
4323 Rambling Creek Dr.
Arlington, Tx. 76016
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 For the purpose of this Agreement, "solicit'
does not include contact resulting from indirect means such as public advertisement, placement firm
searches or similar means not directed specifically to an individual.
14. 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.
15. 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.
16. GOVERNING LAW / VENUE.
This Agreement shall be construed in accordance with the internal laws of the State of Texas. If
any action, whether real or asserted, at law or in equity is brought on the basis of this Agreement, venue
for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court
for the Northern District of Texas, Fort Worth Division.
17. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity,
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Larry Robert Heath / City of Fort Worth
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legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
18. FORCE MAJEURE.
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.
19. HEADINGS NOT CONTROLLING.
Headings and titles used in this Agreement are for reference purposes only and shall not be
deemed a part of this Agreement.
20. REVIEW OF COUNSEL.
The parties acknowledge that each party and its counsel have reviewed and revised this
Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto.
21. AMENDMENTS / MODIFICATIONS / EXTENSTIONS.
No extension, modification or amendment of this Agreement shall be binding upon either 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 each party.
22. ENTIRETY OF AGREEMENT.
This Agreement, including the schedule of exhibits attached hereto and any documents
incorporated herein by reference, contains the entire understanding and agreement between the City
and Consultant, their assigns and successors in interest as to the matters contained herein. Any prior or
contemporaneous oral or written agreement regarding the subject matter herein is hereby declared null
and void to the extent in conflict with any provision of this Agreement.
23. 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. The other party is fully entitled to
rely on this warranty and representation in entering into this Agreement.
[SIGNATURE PAGE FOLLOWS]
Contract for Professional Services
Larry Robert Heath / City of Fort Worth
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples this
Aar<ii& 1201 ' .
CITY OF FORT WORTH:
B
Karen L. Montgomery
Assistant City Manager
Date: L3/4--17 /8
ATTE
By:
Marty Hendrix
City Secretary
Date: tS ) lz°i I I
APPROVED AS TO FORM AND LEGALITY:
By:
Date:
Maleshia Farmer
Assistant City Attorney
'5122 itC(I
klfr C C cH 3
AeQuitst512.2,[01,
Contract for Professional Services
Larry Robert Heath / City of Fort Worth
Page 6 of 14
LARRY ROBERT HEATH:
By: , el t
dkil
Name: Larry Robert Heath
Address: 4323 Rambling Creek Dr.
Arlington, Texas 76016
Title: Consultant
Date:
4o!t,0 �roN
OFFICIAI. RECORD
CITY SECRETARY
FT. WORTH, TX
day of
EXHIBIT A
STATEMENT OF WORK
Consultant agrees to perform in accordance with the highest professional industry standards the following
professional auditing and accounting services as assigned:
1.1 Assist in completing the following Construction Contract Audits:
1.1 a. DOE Project 5114 (Sanitary Sewer Main: Village Creek, 2009.008)
1.1 b. DOE 5501 (Water and Sewer: Grover Ave., Runnels St., Melody Ln , 2009.117)
1.1c. DOE 4843 (Street Reconstruction, Water and Sewer: Wesleyan Dr. S., 2009 118)
1.1d. DOE 4874 (Paving Water & Sewer Lynndale PI & Wedgeway Dr., 2009.111)
1.2 Assist in conducting parts of the audit of Budget Suites Motel (Hotel/Motel Audit), along with
other Hotel/Motel audits assigned from 2011 work plan
1.3 Conducting various Construction Contract Audits to be assigned from 2011 work plan
1.4 Documenting the results of their audit work in conformance with City of Fort Worth Internal
Audit Department standards; along with Generally Accepted Auditing Standards.
This effort will include preparation of an audit program (with stated objectives and related audit steps to
achieve these objectives), EDP request for data and format necessary to perform the steps, and completion
of the program steps through fieldwork and audit draft stage. Internal Audit personnel will make all data and
information available to Consultant for this project through read only access and/or downloads of accounts
and files This effort will also include documenting the results of Consultant's audit work in conformance with
City of Fort Worth Internal Audit Department standards and Generally Accepted Auditing Standards.
Periodic, scheduled reports of audit work will be submitted to the City at designated milestones to ensure
continued and satisfactory progression of work.
City will provide "boilerplate" programs that are used for similar engagements; however, Consultant shall be
responsible for preparing a customized audit program, specific to the particular audit project. Additionally,
there are many audit sites and bulletin boards that have "canned' audit programs available for downloading
that can be used by Consultant and customized to conduct the audit project. Consultant is expected to
adjust the audit program and audit steps (adding steps or deleting steps) based upon the situations
encountered during the audit. Any significant changes should also be discussed with Internal Audit
Management to ensure the City receives the end product contracted for pursuant to this Agreement.
Consultant may work whatever work schedule each day and whatever days of the week deemed necessary
to complete the audit project by the mutually established deadline and subject to the Payment Schedule and
Rates as set forth in Exhibit B. In order to ensure the confidentiality of City owned data and information
Consultant shall utilize an Internal Audit Department laptop computer for preparing and storing electronic
work papers. These computers do not allow for "wireless' Internet capabilities and all data will be encrypted
to protect the data and information. It is understood that all information and data collected and utilized during
the audit project is the property of the City of Fort Worth Internal Audit Department therefore, it may not be
used for any personal use; nor disclosed to anyone other than City of Fort Worth Internal Audit
management.
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Larry Robert Heath / City of Fort Worth
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EXHIBIT B
PAYMENT SCHEDULE
3.1 The maximum amount to be paid to Consultant for all services performed hereunder shall be
$30,900.00, which shall include all expenses incurred by Consultant,
3.2 Payment shall be made based on an hourly rate of $30.00 per hour worked on the listed scope of
services hereinafter "Consultant's Fee", and mileage reimbursement of $0.50 per mile.
3.3 Consultant shall submit a monthly invoice to the City for payment of the sums referenced in section
3.2. This invoice shall include the City's contract number and contract purchase order number, the
quantity of hours worked and the dates work was performed Time sheets covering invoiced
timeframes shall be submitted with the invoices, and shall include the signature of the Assistant City
Auditor attesting to the hours worked.
3.4 It is understood that this Contract contemplates the provision of full and complete consulting
services for this project, including any and all necessary changes or contingencies to complete the
work as outlined in Exhibit Al ' Statement of Work," for the fee described in Section 3.2.
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Larry Robert Heath / City of Fort Worth
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EXHIBIT C
NON -DISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and effective as of the date of contract execution between
CITY OF FORT WORTH (' CITY") a home rule municipal corporation organized under the laws of the state
of Texas, and Larry Robert Heath, an individual, hereinafter called "Consultant", and collectively referred to
as the 'parties" and individually as a "party."
1. City and Consultant intend to disclose to each other information, which may include confidential
information, for the purpose of providing staffing augmentation services. The term "Confidential
Information" will mean any information or data which is disclosed by a party to the other party under
or in contemplation of the stated purpose and which (a) if in tangible form or other media that can be
converted to readable form is clearly marked as proprietary confidential or private when disclosed,
or (b) if oral or visual, is identified as proprietary, confidential or private at the time of disclosure.
2. For all Confidential Information, the recipient will:
(a) use the Confidential Information only for the stated purpose;
(b) restrict disclosure of the Confidential Information solely to those employees,
consultants or agents of such party with a "need to know" and not disclose it to third parties
without the prior written consent of the disclosing party;
(c) advise those employees, consultants or agents who gain access to Confidential Information
of their obligations regarding the Confidential Information;
(d) make only the number of copies of the Confidential Information necessary to disseminate
the information to those employees who are entitled to have access to it, and ensure that all
confidentiality notices set forth on the Confidential Information are reproduced in full on
such copies;
(e) safeguard the Confidential Information with the same degree of care to avoid unauthorized
disclosure as recipient uses to protect its own confidential and private information; and
(f) notify disclosing party immediately upon discovery of any unauthorized use or
disclosure of Confidential Information or any other breach of this Agreement by recipient, its
employees, consultants or agents and will cooperate with disclosing party in every
reasonable way to help disclosing party regain possession of the Confidential Information
and prevent its further unauthorized disclosure or use. For purposes of this Agreement a
'need to know" means that the employee, consultants or agents requires the Confidential
Information in order to perform his or her responsibilities in connection with the stated
purpose.
3. The obligations of Paragraph 2 will not apply to any Confidential Information which:
(a) s or becomes available to the public through no breach of this Agreement:
(b) was previously known by the recipient without any obligation to hold it in confidence
(c) is received from a third party free to disclose such information without restriction;
(d) is independently developed by the recipient without the use of Confidential Information of
the disclosing party;
(e) is approved for release by written authorization of the disclosing party, but only to the extent
of and subject to such conditions as may be imposed in such written authorization; or
(f) is required to be disclosed pursuant to applicable law, rule, regulation or court order as set
forth in section 12 below.
4. If the disclosing party inadvertently fails to mark as proprietary, confidential or private information for
which it desires confidential treatment; it will so inform the receiving party. The receiving party
thereupon will return the unmarked information to the disclosing party and the disclosing party will
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Larry Robert Heath / City of Fort Worth
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substitute properly marked information. In addition, if the disclosing party, at the time of disclosure,
inadvertently fails to identity as proprietary, confidential or private oral or visual information for which
it desires confidential treatment it will so inform the receiving party. The receiving party's obligations
u nder Paragraph 2 in connection with information encompassed by this paragraph will commence
u pon notice from the disclosing party of the failure to properly mark or identify the Confidential
Information.
5. Each party acknowledges its obligation to control access to and/or exportation of technical data
u nder the applicable export laws and regulations of the United States, and each party agrees to
adhere to and comply with the laws and regulations governing any technical data received under
this Agreement.
6. Confidential Information, including permitted copies, will be deemed the property of the disclosing
party. The receiving party, will, within ten (10) calendar days of a written request by the disclosing
party, return all Confidential Information, including all copies, to the disclosing party or, if so directed
by the disclosing party, destroy all such Confidential Information The receiving party will also, within
ten (10) calendar days of a written request by the disclosing party, certify in writing that it has
satisfied its obligations under this Paragraph 6. The receiving party s obligations under Section 2 will
expire two (2) years after return or destruction of the disclosing party's Confidential Information.
7 Both parties agree that an impending or existing violation of any provision of this Agreement would
cause the disclosing party irreparable injury for which it would have no adequate remedy at law and
that the disclosing party will be entitled to seek immediate injunctive relief prohibiting such violation,
in addition to any other rights and remedies available to it.
8. Nothing contained in this Agreement or in any discussions undertaken or disclosures regarding the
expiration of the confidentiality period stated in Section 6 stated purpose will be deemed a
commitment to engage in any business relationship, contract or dealing with the other party. The
parties acknowledge that in the event that they develop, market and sell similar products and
services nothing contained herein is intended to limit a party's activities or dealings except as
expressly provided herein with respect to the disclosing party's Confidential Information
9. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise
transferred by this Agreement or any disclosure hereunder, except for the right to use such
information in accordance with this Agreement. No warranties of any kind are given for the
Confidential Information disclosed under this Agreement.
10. The term of this Agreement shall commence on the Effective Date.
11. This Agreement may not be assigned by either party without the prior written consent of the other
party. Any assignment in violation of this Paragraph will be void. This Agreement will be binding
upon the parties and their respective successors and assigns.
12. The provisions of this Agreement shall not prohibit a disclosure required by law or any court of
competent jurisdiction or any investigation of a governmental or regulatory body which is lawfully
entitled to require any such disclosure; provided that prior to such disclosure the receiving party
shall promptly notify the disclosing party of such requirement so that the disclosing party may
contest such disclosure and otherwise protect its interests in the timing and content of such
disclosure. The receiving party will exercise reasonable efforts to help disclosing party obtain a
protective order or other reliable assurance that confidential treatment will be accorded to the
Confidential Information. If a protective order or other remedy is not obtained, the receiving party
will furnish only that portion of the Confidential Information that the receiving party is legally
required to disclose.
13. If any provision of this Agreement will be held invalid or unenforceable, such provision will be
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Larry Robert Heath / City of Fort Worth
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deemed deleted from this Agreement and replaced by a valid and enforceable provision which so
far as possible achieves the parties' intent in agreeing to the original provision. The remaining
provisions of this Agreement will continue in full force and effect.
14. If either party employs attorneys to enforce any rights arising out of this Agreement, each party will
be responsible for the payment of its own attorney's fees.
15. Each party warrants that it has the authority to enter into this Agreement and to lawfully make the
disclosures contemplated hereunder.
16. This Agreement represents the entire understanding between the parties with respect to the subject
matter hereof and supersedes all prior communications, agreements and understandings The
provisions of this Agreement may not be modified, amended or waived, except by a written
instrument duly executed by both parties.
17. This Agreement may be executed in one or more counterparts, each of which will be deemed to
be an original and all of which, when taken together, will be deemed to constitute one and the
same agreement. Delivery of an executed counterpart of this Agreement by facsimile or any other
reliable means shall be effective for all purposes as delivery of a manually executed original
counterpart. Either party may maintain a copy of this Agreement in electronic form. The parties
further agree that a copy produced from the delivered counterpart or electronic form by any
reliable means (for example, photocopy, facsimile or printed image) shall in all respects be
considered an original.
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Larry Robert Heath / City of Fort Worth
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EXHIBIT D
NETWORK ACCESS AGREEMENT
This NETWORK ACCESS AGREEMENT ("Agreement') is made and entered into by and
between the CITY OF FORT WORTH ( City"), a home rule municipal corporation with its principal
location at 1000 Throckmorton Street, Fort Worth, Texas 76102, organized under the laws of the State of
Texas and situated in portions of Tarrant, Denton and Wise Counties, Texas, and Larry Robert Heath, an
individual, hereinafter called "Consultant", collectively referred to as the 'parties" and individually as a "party."
1. The Network. The City owns and operates a computing environment and network (collectively the
"Network"). Contractor wishes to access the City's network in order to provide staff augmentation
services. In order to provide the necessary support, Contractor needs access to city's network and
Internet, intranet, and email.
2. Grant of Limited Access. Contractor is hereby granted a limited right of access to the City's
Network for the sole purpose of providing staff augmentation services 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 Contractor 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.
4. Renewal This Agreement may be renewed via inclusion in, and acceptance of additional contracts
for professional services between the City and Consultant.
Notwithstanding the scheduled contract expiration or the status of completion of services,
Contractor 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. Contractor 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.
employees or representatives of this Agreement and any other written instructions or guidelines that
the City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately
to deny Contractor 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.
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. Contractor 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
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Larry Robert Heath / City of Fort Worth
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7. Information Security. Contractor 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. Contractor 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.
LIABILITY AND INDEMNIFICATION. CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE
FOR ALL DAMAGES THAT THE CITY MAY INCUR DIRECTLY ON ACCOUNT OF ANY
BREACH OF THIS AGREEMENT BY CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR
EMPLOYEES. THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, SHALL
NOT BE LIABLE FOR ANY DAMAGES THAT CONTRACTOR MAY INCUR AS A RESULT OF
THE CITY'S RESTRICTIONS TO OR DENIAL OF ACCESS TO CONTRACTOR'S DATA ON
ACCOUNT OF ANY BREACH OF THIS AGREEMENT BY CONTRACTOR, ITS OFFICERS,
AGENTS, SERVANTS OR EMPLOYEES OR FOR ANY REASONABLE SECURITY MEASURES
TAKEN BY THE CITY. IN ADDITION, CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE
FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY,
INCLUDING DEATH, AND ALL CLAIMS, DEMANDS AND JUDGMENTS THEREFOR, TO THE
EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL
MISCONDUCT OF CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS AND/OR
EMPLOYEES. CONTRACTOR, AT CONTRACTOR'S OWN COST OR EXPENSE, HEREBY
AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY, ITS OFFICERS,
AGENTS, SERVANTS AND/OR EMPLOYEES FROM AND AGAINST ANY THIRD PARTY CLAIM,
LAWSUIT, DEMAND OR OTHER ACTION TO THE EXTENT THAT THE SAME ARISES FROM
THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF
CONTRACTOR, ITS OFFICERS AGENTS, SERVANTS OR EMPLOYEES.
9. Confidential Information. Contractor, for itself and its officers, agents, employees, and
representatives, 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.
Contractor further agrees that it 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. Contractor shall notify the City immediately if the security or integrity of any City information
has been compromised or is believed to have been compromised.
10. Right to Audit. Contractor agrees that the City shall, during the initial term, any renewal terms,
and until the expiration of three (3) years after termination or expiration of this contract, have access
to and the right to examine at reasonable times any directly pertinent books, data, documents
papers and records, both hard copy and electronic, of the Contractor involving transactions relating
to this Agreement provided that the audit is performed at City's sole expense Contractor agrees
that the City shall have access during normal working hours to all necessary Contractor 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 Contractor reasonable advance notice of
intended audits. Contractor further agrees to include in all its subcontractor agreements hereunder a
provision to the effect that the subcontractor agrees that the City shall, during the initial term, any
renewal terms, and until expiration of three (3) years after termination or expiration of the
subcontract, have access to and the right to examine at reasonable times any directly pertinent
books, data. documents papers and records, both hard copy and electronic, 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
Contract for Professional Services
Larry Robert Heath / City of Fort Worth
Page 13 of 14
11. Agreement Cumulative. This Agreement is cumulative of and in addition to any written contracts,
agreements, understandings or acknowledgments with the City signed by Contractor This
Agreement and any other documents incorporated herein by reference constitute the entire
understanding and Agreement between the City and Contractor as to the matters contained herein
regarding Contractors access to and use of the City s Network.
12. Amendments. The terms of this Agreement shall not be waived, altered, modified,
supplemented, or amended in any manner except by written instrument signed by an authorized
representative of both the City and Contractor.
13. Assignment. Contractor may not assign or in any way transfer any of its interest in this
Agreement. Any attempted assignment or transfer of all or any part hereof shall be null and void.
14. Severabilitv. 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.
15. Force Maieure. Each party shall exercise commercially reasonable efforts, consistent with the
degree of care that a prudent and competent entity engaged in the same line of business or
endeavor would exercise under similar circumstances, to meet its 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.
16. Governing Law I 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
17. Signature Authority The signature below of an authorized representative acknowledges that the
Contractor has read this Agreement and agrees to be bound by terms and conditions set forth
herein.
Contract for Professional Services
Larry Robert Heath / City of Fort Worth
Page 14 of 14
M&C Review
Page 1 of 2
AGENDA
COUNCIL ACTION: Approved on 3/22/2011
Official site of the City of Fort Worth, Texas
FORT \VORTI I
DATE: 3/22/2011 REFERENCE NO.: **C-24783 LOG NAME: 10STAFF
SERVICES
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize Professional Services Agreements for Audit Staffing with Larry Robert Heath for
the Office of City Auditor in the Total Amount of $87,076.00
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to execute Professional Services
Agreements for Audit Staffing with Larry Robert Heath for the Office of City Auditor in the total
amount of $87,076.00.
DISCUSSION:
The Office of City Auditor has contracted with Mr. Heath to perform professional auditing services,
since September 2009. Mr. Heath has supplemented the audit staff via small project -oriented
contractual agreements, the combined total of which has now reached $56,176.00 (over the last 20
months). As a result of staffing vacancies and budget -mandated staff reductions, it is necessary to
continue the contractual relationship with Mr. Heath in order to complete open projects and other
projects included in the approved audit plan. It is estimated the cost of these additional professional
services for the remainder of this budget year will accumulate to approximately $30,900.00 for a total
cost of $87,076.00. The cost of these professional services continues to be Tess than the cost of a
journey -level audit position.
In order to comply with ordinance requirements which stipulate City Council approval must be
obtained when the cumulative cost of services reaches or exceeds $50,000.00, this M&C is submitted
for your approval. Please note, this is not a request for additional budgeted funds, but merely a
request to utilize funds that are already budgeted for continued professional services in accordance
with city contractual processes.
FISCAL INFORMATION/CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current operating
budget, as appropriated of the General Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
0001 531200 0101000 $301900.00
Submitted for City Manaaer's Office bv:
Originating Department Head:
Additional Information Contact:
Karen Montgomery (6222)
Darlene Allen (6132)
Terry Holderman (6141)
Marilyn Heinen (6158)
http://apps.cfwnet.org/council packet/mc_review.asp?ID=14998&councildate=3/22/2011 3/22/2011
M1&C Review Page 2 of 2
ATTACHMENTS
http://apps.cfwnet org/counckpacket/mc_review.asp?ID=14998&councildate=3/22/2011 review.asp?ID=14998&councildate=3/22/2011 3/22/2011