HomeMy WebLinkAboutContract 43573 CITY SECRETARY
CONTRACT FOR PROFESSIONAL SERVICE WWRACTN09
This CONTRACT FOR PROFESSIONAL SERVICES ("Contract" or "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 Charles
Daniels, its duly authorized Assistant City Manager] and Sandy Oliver, an individual, hereinafter called,
"Consultant" or"Contractor."
I. SCOPE OF' SERVICES..
Consultant hereby agrees to provide comprehensive Capital Project audit Training and
preparation of related training manual(s) for the City's Internal Audit department in accordance with the
highest professional industry standards for auditing training and accounting services (the "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.
2, TERM.
Unless terminated pursuant to section 4, this contract shall be effective upon the date of execution
ands all expire upon completion of all work contemplated herein, but not later than Niovember 30,1 2012.
COMPENSATION.,
The City shall pay Consultant an amount not to exceed $20,000.00 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.
4. TERMINATION.
4.1. Written Notice.
The City or Consultant may terminate thus Agreement at any time and for any reason by
providing the other party with ays written nonce 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 Expliration Date, the City shall
pay Consultant for services actualllly 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.
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Contract for Professional Service CITy SIECIRETARY
I AM
Sandy diver J City of Fort'Worth FT.WORTHi
Page 1 of 15 ,
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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) Coins,ulltant
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.
I
As an independent Contractor for the City of Fort Worth Internal Audit Department, Consultant
shall perform all work assignments, without, direct supervision from the Internal Audit Department staff
Contract for Professional Services
Sandy Oliver/City of Fort Worth
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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 DEA TH, TO ANY AND ALL
PERSONS,, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED., TO THE EXTENT
CAUSED BY THE NEGLIGENT ACT(S), OR O,MIS'SION(S), MALFEASANCE OR INTENTIONAL
MISCONDUCTOF 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
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.
1101. COMPLIANCE wrm 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.
Con:tralct for Professional Services
Sandy Oliiver/'City of Fort Worth
Page 3 of 15
11. 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 ands 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* To CONSULTANT:
City of Fort Worth Sandy Oliver'th
Attn: [I Interinal Audit department Darlene Allen] 2161010 West,7 Street) Suite 25,018
1000 T'hrockmorton Fort Worth, TX 76107-9309
Fort Worth TX 76102-6311
Facsimile: (817) 392-8654
13. SOLICITATION OF EMPLOYEES.
Neither the City nor Consultant shall, during the term of this agreement and additionally fora period of
one year after its termination, solicit for employment or employ, whether as employee; or iindependent
contractor,, any person who is or has been empiloyed 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.
W
It is understood and agreed that by execution of this Agreement, the City does not waive or
surrender any of its governmental powers.,
11
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 rigiht, granted herelin shall not constitute a waiver of the City Is 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 Dis,trict of Texas; Fort Worth Division.
Contract for Professional Services
Sandy Oliver/City of Fort,Worth
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17. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
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 helid Iiable for any delay or omission in
performance due to force majeure or other causes, beyond their reasonable control (force majeure),
iinclluding, 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 t'his
Agreement and that the he 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.
No amendment of this Agreement shall be binding upon either party hereto unless 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 understiandinig and agreement between the City
i as,to,the matters contained herein., Any, prior or
and Consultant,, their assigns and successors, in interest,
contemporaneous, oral) or written agreement regarding the subject matter herein is hereby declared null
and void to the extent in con�fllict 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.
24. NETWORK ACCESS.
If Consultant, and/or any of its employees, officers, agents, servants or subcontractors for
purposes of this section "Consultant Personnel"), requires access to the City's compluiter network in order
to provide the services herein,, Consultant shall execute, and comply with the Network Access Agreement
which is attached heireto, as Exhibit 111D"and incorporated herein for all purposes.
Contract for Professional Services
Sandy Oliver/City of Fort Worth
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25. WAR,RANITY OF SERV110ES.,
Consultant warrants that its services will be of a professional quality and conform to generally
prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30)
days, from the date that the services are completed. In such event, at Consultant I s option, Consultant
shall either (a) use commercially reasonable efforts to re-perform the services in a manner that conforms
with the warranty, or(b) refund the fees paid by the City to Consultant for the nonconforming services.
26. OWNERSHIP OF WORK PRODUCT.
City shall be the sole and exclusive owner of all training materials, work papers, procedure
manuals, guides, and documentation, created, published, displayed, and/or produced in conjunction with
the services provided under this Agreement, collectively, "Work Product" Further, City shall be the sole
and exclusive owner of all copyright, patent, trademark, trade secret, and other proprietary rights in and to
the Work Product. Ownership of the Work Product shall inure to the benefit of the City from the date of
conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs
first). Each copyrightable aspect of the Work Product shall be considered a '"wort -made for-hire's within
I as amended. If and to the extent such Work Product or any
the meaning of the Copyright Act of 1917:6,
part thereof, is not considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as
amended, Consultant hereby expressly assigns to City all exclusive right, title and interest in and to the
or Product, and all copies thereof,, and in and to the copyright, patent, trademark, trade secret,, and all
other proprietary rights therein, that the City may have or obtain, without further consideration, free from
any claim, lien for balance due, or rights of retention thereto on the part of the City.
[SIGNATURE PAGE FOLLOWS]
Contract for Professional Services
Sandy Oliver/City of Fort Worth
Page 6 of 15
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Executedin multiples ltiples th ins t' y Of
AGREED: AGREED:
CITE" OF FORT WORTH: SAND" I E� ",I CONS, NT
2,
ory
0 ami.. San Oliver
iv ress: 2 ��t7 1h Street, Suite 2508
tharles Daniels, Fob Worth, Texas 761079309
Assistant,City Mlel ie 'er
Je
Date
Date,
« 046
045�� FRI?ocy 00 00
w , OU
ATTEST- 4�4 0040,
(` 0 ��'0
0
By:,42. -A 0 0 0
#1 1101, 0 9i, 0
Mary J. r/ a 0
0 OT
City Sect Lary
0 0000 0 0 '
Date*
APPROVED AS TO FORM AND LEGALITY:
'ales i s B. Far Ier
Senior Assistant City Attorney
Date. c� 1(0 t I,
CONTRACT AUTHORIZATION:
NA M&C Not Required
OFFICIAL RECORD11
CITY SECRETARY
Contract for Professional Services '"Tr WORTH, TX
Sandy Oliver 1 City of Fort Worth
Page 7 of 15
EXHIBIT A
STATEMENT OF WORK
Consultant agrees, to perform in accordance with the highest professional industry standards the following
training services as documented below:
Training for Capital Project Auditing
Obj'e�ctive�o. In order to augment and expand upon current practices for,conducting capital project audits, this
contract is to provide Comprehensive Capital Project Audit Training and preparation of related Training
Manual to support and document thorough and effective methodology/guide for conducting consistent
capital project audits by Office of City Auditor staff.
Efforts will include-, review/'identification of current practices in several related departments across the
organization pertinent to this objective, identification of documents and available software to assist support
capital project audit preparation, preparation of training documents/charts, provision of training for three
modules, preparation of training manual; and miscellaneous research, related efforts.
Tasks Milestones are proposed to meet objectives, as follows-,
PRELIMINARY REVIEW AND ASSESSMENT
a. Meet with,, auditor that has conducted a capital project audit to, review work papers, apipiroach, and
findings
b. Interview/meet with Capital Projects staff—CPMS Administrator-to review CPMS
procedures/reports pertinent to audit of capital projects
c. Interview/ meet with Director of Program Management Office to review/update status of multiple
issues,to include.
-Status of Primavera 6 (P-6) scheduling tool and pertinent outputs
-Any Project Close out efforts in P6 system
- Status of Option B
- Data available in bid tools
Determine if there is,consistency across all departments re-, procedures manual for
construction inspection and other capital project delivery staff
d. Interview/meet with Supervisor of Capital Accounting Section of Finance Department
- Review of Chart of Accounts; listing of capital funds; and significance of letters in capital fund
accounts
-Cuirrent, Project Close out elffoirts documentation/current practice, (determine status: Document the
flow that CPT worked out with Acct.)
- Document how they get the current green sheet
- Document how they track close out of capital projects
PREPARATIOIN OF TRAINING MAT'E"RlIAL,SI'PIRESENTATIO,NS/F'L,OW CHARTS
Prepare 3 training modules to include visuals and handouts
Update and expand the Capital Audit Program Steps Document, as needed
Parse out relevant portions of CPMS training, documentation
Coordinate relevant portions of CPIMS training with CPT—CPMS Administrator
TRAINING SESSIONS for THREE MODULES
Module 1,.- Capital Pro grare lProject, Overview and Funding SOurCes
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Sandy Oliver/City of Fort Worth
Page 7 of 15
Term Definitions—capital project and eligible expenditures versus operating/pro g ram matic
expenditures, capitalization, closed project, green sheet, etc.
Explain "Color of Money" to include:
Review of capital accounts
Review of types of funding and various restrictions:
Certificates of Obligation (CO's), General Obligation bonds, Revenue boin�dsi,
combination CO's, Commercial Paper(CIP) Notes, Tax Notes, and CP Authority
Review/explanation of bond program formulation and booklets to include:
District projects specified versus unspecified projects
Review of Report 10-Sub fund report
Review of bond covenants and some Bond Counsel Opinions
Review of Fund Manager in CPMS
Review of bond sales- how bonds are sold by sub funds and how proceeds are placed in
unspecified accounts to be drawn down via CPMS
Review of Residual Bond Fund Policy
Review of where residual funds remaining after project completion should transfer
Define project manager role versus program manager role (CPMS Chart)
Define Sponsoring Dept versus Managing Dept,
Review of Fund Account Center structure that parallels GL (chart)
Identify Fiscal staff in capital departments
Module 2.m Connect the Software Dots - Pertinent Functionality and Information Available
Provide review of pertinent software functionality that supports auditing i effort to include,
- Primavera 6
-CPMS to include review of Fund Manager, phases in software/project and
available reports
- Bid Tools
- Others relevant-server with red line drawings, etc.
Module 3 Site s, in the Audit Process, and Areas,for Consideration and Summary Review and
Evaluation of all three modules
Review and monitoring procedures for capital projects
Evaluation of training materials and sessions by participants
PUBLISH TRAINING MANUAL
Prepare Manual and incorporate any additions/deletions identified during training sessions.
MISCELLANEOUS RESEARCH,-,-
- Research and document, national Public, Works percentage standards/bench marks for various costs and
pertinent aspects in capital projects.
Contract for Professional Services
Sandy Oliver/City of Fort Worth
Page 8 of 15
EXHIBIT B
PAYMENT SCHEDULE
31.1 The im 1aximum amolant to be paid to Consultant for al ll services, ple rforme�d hereunder shall be
$20,000.,00, which shall include all expenses incurred by Consultant. Consultant agrees that each
training module will require sign off by City Auditor management designating approval of each
training module.
3.2 Payment shall, be made based on an hourly rate of$813,.010 per hour worked on the listed scope of'
)f
services, hereinafter It Consultant's Fee
3.3 Consultant shall submit an invoice at project completion to the City for payment of the sums
referenced in section 31. This invoice shall include the City's contract number and contract
purchase order number, and:, the dates,work was, performed.
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 A, "Statement of Work," for the fee described in Section 3.1
Contract for Professional Services
Sandy Oliver/City of Fort Worth
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EXHIBIT C
NON-DISCLOSURE AGREEMENT
i
THIS AGREEMENT is entered into, and effective as, of the date of contract execution between
CITY OF FORT WORTH (k CITY"") a, home rule municipal corporation organized under the laws of'the state
of Texas, and Sandy Oliver, 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 Capital Project Audit Training and preparation of related
training manual(s) for the City's Internal Audit department. The term "Confidential Information"will imeain 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- (b) if oral or visual is identified as proprietary,
confidential or private at the time of disclosure; (c) is considered audit working papers; or(d) is the type and
form of document that is generally considered confidential.
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 ii 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
dliscloisure 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 responsibilitiles, in connection with the stated
purpose.
3, The obligations of Paragraph 2 will not apply to any Confidential Information which:
(a) is 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;
(el) is apiproveld for rellleasle by written authoriiz,ation 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
Contract for Professional Services
sandy Oiliver/' ty of Fort worthi
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..........
thereupon will return the unmarked information to the disclosing party and the disclosing party will
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
under Paragraph 2 ini connection with information encompassed by this paragraph will commence
upon notice from the disclosing party of the failure to properly mark or identify the Confidential
Information.
51. Ea,chi, party acknowledges its obligation to control access,to an�d/oir exportation of'technical data
under the applicable export laws and reguilations,of the United "totes,1 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
i
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 disclosi or,
ng party 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 prolvis,ions,of this Agreement shall not prohibit a disclosure required by law or any court of
colm�petentjuris,dictioln 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 r,elq,uiiir,ement so that the disclosing party may
contest such disclosure and oltherwis,e, protect,its interests in the timing and content of such
disclosure. The receiving party wiillll 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 receiiviing party
will furnish only that Iportioin of the Confidential Information that the receiiviing party is, legally
required to disclose,
13. If any provision of this Agreement will be held invalid or unenforceable, such provision will be
Contract for Professional Services
Sandy Oliver/City of Fort Worth
Page 11 of 15
deemed de�lleted from th�is Agreement and replaced by a valid and enforceable provision which so
fa,r as possible achieves the parties' intent in agireeing to,the original provision. The remaining
provisions of this Agreement wil 11, continue in fulll force andl 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 dellivered counterpart or electronic,form by any
reliable means (for example;, photocopy, facsimile or printed, image), shall in alll respects be
considered an original.
Contract for Professional Services
Sandy Oliver/City of Fort Worth
Page 12 of 15
EXHIBIT D
NETWORK ACCESS AGREEMENT
This NETWORK ACCESS AGREEMENT ("Access 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 Sandy Oliver, an
individual, for purposes of this Access Agreement, hereinafter called "Contractor," 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 Capital Project Audit Training
and preparation of related training manual(s) for the City's Internal Audit department. 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 Capital Project Audit Training and preparation of related training
manual(s) for the City's Internal Audit department. 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 upon termination of the Agreement, or one (1) year from the date of the
Agreement, whichever occurs first. If this access is being granted for purposes of completing services for
the City pursuant to a separate contract, then this Agreement will expire at the completion of the contracted
services, or upon termination of the contracted services, whichever occurs first. This Agreement will be
associated with the Services designated below.
❑ Services are being provided in accordance with City Secretary Contract No.
❑ Services are being provided in accordance with City of Fort Worth Purchase order No.
X Services are being provided in accordance with the Agreement to which this Access Agreement is
attached.
❑ No services are being provided pursuant to this Agreement.
4. Renewal. At the end of the first year and each year thereafter, this Agreement may be renewed
annually if the following conditions are met:
4.1 Contracted services have not been completed.
4.2 Contracted services have not been terminated.
4.3 Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the
Contractor has provided the City with a current list of its officers, agents, servants, employees or
representatives requiring Network credentials.
Notwithstanding the scheduled contract expiration or the status of completion of services, 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
Contract for Professional Services
Sandy Oliver 1 City of Fort Worth
Page 13 of 15
compliance with this Agreement. A breach by Contractor, its officers, agents, servants, employees or
rep,re�s,e ntatives, of this, Agrele�m�e�n�t and any other written instructions, or guidelines that the City provides to
Contractor pursuant to th�is, Agreement shall be grounds, for the City iimmediately to deny Contractor access
to the Network and Contractor I s Data, terminate the Agreement, and pursue any other remedies that the,
City may have under this Agreement or at law or in equity.
5.1 Notice to Contractor Personnel — For purposes o f t his section, Contractor Personnel shall
include all officers, agents, servants, employees, or representatives of Contractor. Contractor shall be
responsible for specifically notifying all Contractor Personnel who will provide services to the City under this
agreement of the following City requirements and restrictions regarding access to the City's Network:
(a) Contractor shall be responsible for any City-owned equipment assigned to Contractor
Personnel, and will immediately report the loss or theft of such equipment to the City
(b) Contractor, and/or Contractor Personnel, shall be prohibited from connecting personally-
owned computer equipment to the City's Network
(c) Contractor Personnel shall protect City-issued passwords and shall not allow any third party
to utilize their password and/or user ID to gain access to the City's Network
(d) Contractor Personnel shall not engage in prohibited or inappropriate use of Electronic
Communications Res,olurces,as dlescrii edl in the,City's Administrative Regulation D7
(e,) Any document, createdl by Contractor Personnel in accordance with this Agreement is
considered the property of the City and is subject to applicable state; regulations regarding
public information
Contractor Personnel shall not copy or duplicate electronic information for use on any non-
City computer except as necessary to provide services pursuant to this Agreement
(g) All network activity may be monitored for any reason deemed necessary by the City
(h) A Network user ID may be deactivated when the responsibilities of the Contractor
Personnel no longer require Network access
6. Termination. In addition to the other rights of termination set forth herein, the City may terminate
this Agreement at any time and for any reason with or without notice, and without penalty to the City. Upon
termination of this Agreement, 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.
7. Informatlion Se 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 dliately upon dlisc�oveiry of a
. Contractor agirees to notify, the, City i�mme
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 so are, 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.
Contract for Professional Services
Sandy Oliver/City of Fort Worth
Page 14 of 15