HomeMy WebLinkAboutContract 44526 (3)`�
� � ' �;
MAINTENANCE AGREEMENT
This MAINTENANCE AGREEMENT ("Agreement") is made and entered into by and
between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation of the State of
Texas, acting by and through Charles W. Daniels, its duly authorized Assistant City Manager, and
MdE, Inc. ("Consultant"), a Maryland Corporation and acting by and through Lisa Reaver, its duly
authorized President and CEO.
1. SCOPE OF SERVICES.
Consultant will, with good faith and due diligence, provide the City with technical support and assistance
and program updates for the ADORE software and provide a one day on-site training. In particular,
Consultant will perform all duties outlined and described in the Scope of Work, which is attached hereto
as E�ibit "A" and incorporated herein for all purposes as though it were set forth at length. The actions
and objectives contained in Exhibit "A" are referred to herein as the "Services."
Consultant shall perform the Services in accordance with standards in the industry for the same or similar
seivices. In addition, Consultant shall perform the Services in accordance with all applicable federal,
state, and local laws, rules, and regulations.
2. TERM.
This Agreement shall commence upon October 1, 2012 (`Bffective Date") and shall expire on
September 30, 2013, unless terminated earlier in accordance with the provisions of this Agreement.
3. COMPENSATION.
As full and complete compensation for all Seivices described above, Consultant shall be paid a
fee of Five Thousand Nine Hundred Ten Dollars ($5,910.00) in accordance with the provisions of this
Agreement and the Payment Schedule attached as Exhibit "B," which is incorparated 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 seivices. The City shall not
be liable for any additional expenses of Consultant not specified by this Agreement unless the City first
approves such expenses in writing.
4. TERMINATION.
4.1. Written Notice.
The City or Consultant may terminate this Agreement at any time and for any reason by
providing the other party with 30 days written notice of termination.
�
�
�
r�-�
�
m
�
�
c
�
�
�
�
�
_,
�
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 occun•ence 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 ��,priat�d___________
�` " `' �' �, !_ -; - �i �
�
, - �. ��'. � .'��
4.3 Duties and Obligations of the Parties.
In the event that this Agreement is terminated prior to the Expiration Date, the City
shall pay Consultant for services actually rendered up to the effective date of termination and
Consultant shall continue to provide the City with services requested by the City and in
accordance with this Agreement up to the effective date of termination.
��� J �.Yy IC�3.Y1�'� �[�l_�[K�l�l-�1_11 [f11=Ky\►MZK�]►`I �l l ] �1►Y_M I\_1�1,1C�1:7►i I_r Y [1�!
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 ("City Information") as confidential and shall not disclose any
such information to a third party without the prior written approval of the City. Consultant shall store
and maintain City Information in a secure manner and shall not allow unauthorized users to access,
modify, delete or otherwise corrupt City Information in any way. Consultant shall notify the City
immediately if the security or integrity of any City information has been compromised or is believed to
have been compromised.
6. RIGHT TO AUDIT.
Consultant agrees that the City shall, until the expiration of three (3) years after final payment
under this Agreement, 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
Agreement at no additional cost to the City. Consultant agrees that the City shall have access during
normal working hours to ail 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 ofiicers, agents, servants, employees, contractors and subcontractors.
Consultant acknowledges that the doctrine of respofzdeat strperior shall not apply as between the City,
its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants,
Maintenance Agreement
CFW and MdE, Inc. Page 2 of 10
contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the
creation of a partnership or joint enterprise between City and Consultant.
8. LIABILITY AND INDEMNIFICATION.
CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL
PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL IN.IURY, INCL UDING DEATH,
TO ANY AND ALL PERSONS, OF ANY IfIND 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) AND/OR PERSONAL
INJURY, INCL UDING DEATH, TO ANYAND ALL PERSONS, OF ANYKIND 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.
G��T.X� [l���u 1��1�1[��17.Y1 : K�7�M M::7,��JlM 1►[e�
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.
[G���►�Y�J ��[�
Consultant shall provide the City with one or more certificates of insurance documenting
policies of the following minimum coverage limits that are to be in effect prior to commencement of any
work pursuant to this Agreement:
10.1 Covera�e and Limits
(a) Commercial General Liability
$1,000,000 Each Occurrence
$2,000,000 Aggregate
(b) Automobile Liability
$1,000,000 Each accident on a combined single limit basis or
$250,000 Bodily injury per person
$500,000 Bodily injury per occurrence
$100,000 Property damage
Maintenance Agreement
CFW and MdE, Inc. Page 3 of 10
Coverage shall be on any vehicle used by the Consultant, its employees, agents,
representatives in the course of the providing services under this Agreement.
"Any vehicle" 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 beneiits outlined in the Texas Workers' Compensation Act (Texas Labor Code,
Title 5, Subtitle A) 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
(d) Professional Liability (Errors & Omissions)
$1,000,000 Each Claim Limit
$1,000,000 Aggregate Limit
Professional Liability coverage may be provided through an endorsement to the
Commercial General Liability (CGL) policy, or a separate policy specific to
Professional E&O. Either is acceptable if coverage meets all other requirements.
Coverage shall be claims-made, and maintained for the duration of the
contractual agreement and for two (2) years following completion of services
provided. An annual certificate of insurance shall be submitted to the City to
evidence coverage.
10.2 Certificates.
Certificates of Insurance evidencing that the Consultant has obtained all required
insurance shall be delivered to the City prior to Consultant proceeding with any work
pursuant to this Agreement. All policies except Workers' Compensation shall be
endorsed to name the City as an additional insured thereon, as its interests may appear.
All policies shall contain a Waiver of Subrogation for the benefit of the City of Fort
Worth. The term City shall include its employees, officers, officials, agent, and
volunteers in respect to the contracted services. Any failure on the part of the City to
request required insurance documentation shall not constitute a waiver of the insurance
requirement. A minimum of thirty (30) days notice of cancellation or reduction in limits
of coverage shall be provided to the City. Ten (10) days notice shall be acceptable in the
event of non-payment of premium. Such terms shall be endorsed onto Consultant's
insurance policies. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000
Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same
address.
Maintenanc e Agreement
CFW and MdE, Inc. Page 4 of 10
11. COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS.
Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules
and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or
regulations, Consultant shall immediately desist from and correct the violation.
12. NON-DISCRIMINATION COVENANT.
Consultant, for itself, its personal representatives, assigns, subcontractors and successors in
interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and
obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group
of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-
discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or successors
in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the
City harmless from such claim.
13. NOTICES.
Notices required pursuant to the provisions of this Agreement shall be conclusively determined
to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants ar
representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3)
received by the other party by United States Maii, registered, return receipt requested, addressed as
follows:
To The CITY:
City of Fort Worth
Attn: Charles W. Daniels
1000 Throckmorton
Fort Worth TX 76102
Facsimile: (817) 392-3942
To CONSULTANT:
MDE Inc
Attn: Lisa Reaver
14502 Greenview Dr Suit620
Laurel, MD 20�08
Phone: (301) 497-9508
14. SOLICITATION OF EMPLOYEES.
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 priar written consent of the person's employer.
15. GOVERNMENTAL POWERS.
It is understood and agreed that by execution of this Agreement, the City does not waive or
surrender any of its governmental powers.
16. NO WAIVER.
The failure of the City ar 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.
Maintenance Agreement
CFW and MdE, Inc. Page 5 of 10
17. 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 shalllie in state courts located in Tarrant County, Texas or the United States District Court
for the Northern District of Texas, Fort Worth Division.
18. 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.
19. 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 ar 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.
20. 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.
21. REVIEW OF COUNSEL.
The parties acknowledge that each party and its counsel have had the opportunity to review and
revise 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.
22. AIVIENDMENTS / MODIFICATIONS / EXTENSIONS.
No extension, modification or amendment of this Agreement shall be binding upon a party hereto
unless such extension, modification, or amendment is set forth in a written instrument, which is executed
by an authorized representative and delivered on behalf of such party.
��c�� [!��[Y-1�117-�ItiJ1 Y. [�J.7 �1��
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. ENTIRETY OF AGREEMENT.
This Agreement, including the schedule of e�ibits 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
Maintenance Agreement
CFW and MdE, Inc. Page 6 of 10
contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict
with any provision of this Agreement.
� r
IN W�'NESS WHEREOF, the parties hereto have executed this Agreement in multiples this �� day
of ��2013.
/�
CITY OF FORT WORTH:
By: ,
Char
Assistant City Manager
Date: a6 . d 6 . /,�
APPROVAL RECOMMENDED:
By: l.c�
Jeffrey . als ead
Chief of Police
Date: 6 • �-f -� 3
APPROVED AS TO FORM
AND LEGALI
By:
Denis roy
Assistant City Att ey
Contract Authorization:
No M&C Required ,�
� p�
E�7'TES . : � � �/
By: �� � -�
Mary J. Kayse ¢�
City Secretary ���
Maintenance Agreement
CFW and MdE, Inc.
Md
B y:
Lis�
President and CEO
Date: S�'��� ��
� ` ,� . �
,,
1 � ".�. . �
� �..-
"Exhibit A"
Statement of Work
MdE, Inc. Maintenance Plan
TechnicaUClient Support
MdE, Inc. (Consultant) will provide client support from 8:00 a.m. to 6 p.m. EST, Monday through
Thursday; from 8:00 a.m. to 5 p.m. EST on Friday; and by appointment 24 hours/day, 7 days/week. This
Plan does not constitute a warranty but provides for problem resolutions and answers to user's questions
during normal business hours, EST. Consultant does not warrant third party software applications used
by Consultant products and provided by customers, e.g. Microsoft Word. The purpose of this plan is to
provide the necessary technical assistance to ensure timely problem resolution and answers to user's
questions.
For items covered under this Plan, Consultant will provide the following:
• Acknowledgement of request within 1 business day
• Unlimited number of phone calls
• Unlimited number of email correspondence
On-Site Visit (if included)
If an on-site visit is included with the maintenance plan purchased, Consultant will provide a one-day site
visit during the active maintenance contract. The scope of the training and scheduling of such shall be
coordinated a minimum of 3 weeks in advance of training. Consultant will contact the client a minimum
of three times during the last 6 months of the maintenance contract to coordinate this scheduling. If
scheduling of training does not occur during the active maintenance period, Consultant is not obligated to
provide the on-site visit once the maintenance term expires.
Program Updates
Program updates are provided by Consultant as new updates, fixes and features are added. Updates will
be provided electronically at no additional costs to the client.
Company will provide City with advance notice of release of a new version. In the event that a new
version is released, company will continue to support the current version throughout the life of the
maintenance agreement.
Third Party
If, at any time, an upgrade of a third party's software or the operating system is required, Consultant will
not incur the cost of such upgrade.
System Administrator
The client agrees to have a designated system administrator (primary contact for support and update
issues) as well as a designated program administrator (primary contact for software usage issues). While
it is highly desirable that the system administrator be knowledgeable in networking and Windows
operating systems, it is not necessary for the program administrator to have this knowledge.
Virus Statement
The client agrees to have virus protection software loaded on each machine and agrees to perform weekly
updates. (Consultant recommends updating your virus protection so$ware on each machine daily.) This
Plan does not cover assistance in the recovery of damage caused by viruses.
Maintenance Agreement
CFW and MdE, Inc. Page 8 of 10
Items Not Covered
• On-site reinstallation of Consultant, Inc. software products or installation/reinstallation of third
party software/products.
• Replacement of previous version software
Maintenance Agreement
CFW and MdE, Inc. Page 9 of 10
"Exhibit B"
Yearly Maintenance Plan - ADORE software - Includes One Day On-Site Training Visit
- Web-based - 170 Users
Maintenance agreement allows for Unlimited Tech Support for one year, along with any Version
Updates for the software.
TOTAL AMOUNT: $5,910.00
Maintenance Agreement
CFW and MdE, Inc. Page 10 of 10