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Home My WebLink AboutContract 50036-A2 CSC No. 50036-A2 SECOND AMENDMENT TO FORT WORTH CITY SECRETARY CONTRACT NO. 50036 Professional Services Agreement—MRSP,LLC This Amendment is entered into by and between the City of Fort Worth(hereafter"City"),a home rule municipal corporation situated in portions of Tarrant, Denton, Parker and Wise counties, Texas, and MRSP, LLC, Inc, (hereafter "Consultant"), a Texas Corporation located in Collin County, acting by and through Philip J. Masters, its duly authorized Chief Financial Officer, each individually referred to as a"party"and collectively referred to as the "parties." WHEREAS,the City and Communication Leasing Corporation dba Datamatic, Inc, entered into an Agreement identified as Fort Worth City Secretary Contract No. 50036 on December 11, 2017; and WHEREAS, Communication Leasing Corporation(Datamatic, Inc), hereby assigns to MRSP, LLC all of its right,title and interest under City Secretary Contract No. 50036 on April 2, 2020; and WHEREAS, the purpose of the Agreement is to provide the City with professional consulting services for specific description of services. Specifically, Consultant will perform all duties for support and maintenance of MRSP, LLC software license, a nontransferable and nonexclusive license for use and possession of the software in objective code form only; and WHEREAS,the parties now wish to amend the Agreement to include the SPMR Validation Bundle to maintain of validation tools through the completion of MyH2O installations and revise Exhibit 1 to include cost of the validation bundle, to the Agreement, "System Maintenance Breakdown and Annual Payment Schedule, SmartPhone Meter Reading (SPMR) Services Payment Schedule for annual payment periods following the later of the Activation Date or the end of the then current contract year; and WHEREAS,the City is exercising its right to renew City Secretary Contract No. 50036 for an additional one year period which will begin October 1, 2021 and terminate on September 30, 2022. NOW,THEREFORE,for and in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed,the parties hereto agree as follows: I. Exhibit 1. Exhibit 1, as amended, shall be further amended to be as shown in Attachment A to this Amendment and incorporated as Revised 2021, Systems Maintenance Breakdown and Annual Payment Schedule to now include the cost to the City for the SPMR SmartPhone Validation Bundle in the amount of$10,149.48. OFFICIAL RECORD CFW/[AMENDMENT NO.2 MRSP LLC 500361 CITY SECRETARY Page 1 of 4 FT. WORTH, TX II. Other Terms and Conditions. All other terms and conditions of the Agreement shall remain the same. This Amendment shall be effective on the date signed by the City Secretary as shown below. APPROVED FOR APPROVED FOR CITY OF FORT WORTH: MRSP, LLC Dana Burghdoff(Oct 11,20 10:47 CDT661/ 'x Dana Burghdoff Philip J. 1kader Assistant City Manager CFO APPROVAL RECOMMENDED: Kar (Oct 8,202116:32 CDT) Kara Shuror Deputy Director, Water Department APPROVED AS TO FORM AND LEGALITY: Christa R. Lopez-Remo%ls Christa R.Lopez-Reynolds(Oct 13,202114:38 CDT) Christa R. Lopez-Reynolds Senior Assistant City Attorney ATTEST: FOR T ° ° Ronald Gonzales d� o° °� �� °° o ,d Acting City Secretary °°°°°°°° a ��SEX Asap Contract Authorization: M&C: No M&C Required OFFICIAL RECORD HR 1295:N1A CITY SECRETARY FT. WORTH, TX CFW/[AMENDMENT NO.2 MRSP LLC CSC 500361 Page 2 of 4 CONTRACT COMPLIANCE MANAGER: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. fI�wwy sgl'�ne Homero Beltran(Oct 8,2021 14:57 CDT) Homero Beltran Water Systems Superintendent OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX CFW/[AMENDMENT NO.2 MRSP LLC CSC 500361 Page 3 of 4 ATTACHMENT A Exhibit 1 Revised 2021—SPMRTM Services Payment Schedule Effective Description-Recurring Fees Rate per MY Oct-21 ...Mon#h> SPMR SmartPhone: License/Support,per Active Phone Seat NA Unlimited SPMR SmartPhone: Data Hosting per Phone NA Unlimited SPMR Web: License/Support per Seat PREMIUM NA Unlimited $ 83,421.08 SPMR Web: License/Support additional Seats NA Unlimited Annual Hosting Charge $ 4,200.00 SPMR SmartPhone: Validation Bundle $ 10,149.48 _ $ 97,770.56 CFW'[AMENDMENT NO.2 MRSP LLC CSC 50036] Page 4 of 4 �jEcENED CITY SECRETARY APR 10 2020 -%1TTRA.GT No. 5c) b-Glut CI C H ITY SECRETARY � CITY OF FORT WORTH ASSIGNMENT For value received, Communication Leasing Corporation ("Assignor"), hereby assigns to MRSP, LLC ("Assignee"), all of its right, title and interest in and to any and all sums of money now due or to become due from the City of Fort Worth to Assignor under PSK 8295/CSCO 50036 (the "Contracts") and Assignee agrees to assume and perform all duties and obligations required by Assignor under the terms of the Contracts. This Assignment constitutes the entire agreement between Assignor and Assignee with respect to the subject matter hereof. No modification of any provision of this Assignment shall be effective unless in writing and signed by Assignor and Assignee. This Assignment shall inure to the benefit of and be binding upon Assignor and Assignee and their respective successors and assigns. This Assignment shall be governed by the terms of the original Contracts between Assignor and various other entities and the City of Fort Worth and the laws of the State of Texas, without application of principles of conflicts of law. This Assignment may be executed in one or more counterparts each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Signed signature pages may be transmitted by facsimile or e-mail, and any such signature shall have the same legal effect as an original. Dated the 2 Nn day of k N•`-- 2020. Communicatio easing Corpora '$n (Assignor) By: Print: r s w C, Kelrovil, Title: Chief Oper ting Officer MRSP,LLC (Assignee) By: Print: Pl}tt.sAf, �tASt�+�-s Title: Chief Financial Officer Y I. Assignment Pagel of3 NOTARY ACKNOWLEDGEMENT On the 220"o day of A"'P*1e t t 2020, personally appeared k�-'A�-(KL,yzc e( , who acknowledged to me that (s)he is the Chief Operating Officer of Communication Leasing Corporation,and that(s)he executed this document for the purposes and consideration contained herein. Communicatio asin Corporatio By: Print: A'Aalto Title: Chief Operating Officer SUBSCRIBED TO before me on this day of , ! , 2020. iZ LINDA ly}, Notary Public in and for the State of N_Notary Public,State EofLTexaa My commission Expires: , p �i Comm.EkPlrea 06-27.2023 i Notary ID 432068467 N ARY ACKNOWLEDGEMENT On the day of Ajofi., 2020, personally appeared I0/4 z I ea J1 who acknowledged to me that (s)he is the Chief Financial Officer of MRSP, LLC, and that(s)he executed this document for the purposes and consideration contained herein. MRSP,LLC By: R- Print: NKA,p j- rV�c��yrt s Title: Chief Financial Officer SUBSCRIBED TO before me on this `i°f day of , l , 2020. Y P!.. t t� LINDA M. CAMERI otary Public in and for the State of a 71 Notary Public,state of texas My commission Expires: - ,Z 7�� 3 Comm. ExPlrei 09.27-+�023. Note►v ID 9'320884 1 MY E((':ETARV Assigament Page 2 of 3 CONSENT TO ASSIGNMENT The City of Fort Worth consents to the assignment of Communication Leasing Corporation ("Assignor") to MRSP, LLC ("Assignee"), of all its rights, title, and obligation owing and all funds due or to become due to Assignor under PSK 8295/CSCO 50036, as long as all terms required of Assignor in said contracts are met by Assignee. CITY OF FORT WORTH M"� — 4/1 p Zdw Dana Burghdoff, 4&&sista#tNity Manager Date Cynthia Gar ia,Assistant Director-Purchasing Date .'j. ATTESTED BY: T ,.si ': ...... . �• f 11�1 � s Mary Kayse , ty ecretafy Ti_Dit` , Date; APPROVED AS TO FORM AND LEGALITY: John B. Strong, Assistant City Attorney i i Assignment Page of RECEIVE- CITY SECRETARY JUL- $ 2015 CONTRACT NO. 5003b-ft l CIN OF FORT\PIC, FIRST AMENDMENT TO � CITY FORT WORTH CITY SECRETARY CONTRACT NO. 50036 `9S Professional Services Agreement—Datamatic, Inc. This Amendment is entered into by and between the City of Fort Worth(hereafter"City"), a home rule municipal corporation situated in portions of Tarrant, Denton, Parker and Wise counties, Texas,and Datamatic,Inc,(hereafter"Consultant"),a Texas Corporation located in Collin County, acting by and through Philip J. Masters, its duly authorized Chief Financial Officer, each individually referred to as a"party' and collectively referred to as the "parties." WHEREAS, the City and Datamatic Inc. entered into an Agreement identified as Fort Worth City Secretary Contract No. 50036 on December 11, 2017; and WHEREAS, the purpose of the Agreement is to provide the City with professional consulting services for specific description of services. Specifically, Consultant will perform all duties for support and maintenance of Datamatic software license, a nontransferable and nonexclusive license for use and possession of the Datamatic software in objective code form only; and WHEREAS, the parties now wish to amend the Agreement to delete Exhibit 1, to the Agreement, "System Maintenance Breakdown and Annual Payment Schedule and replace with a revised Exhibit 1, SmartPhone Meter Reading (SPMR) Services Payment Schedule for annual payment periods following the later of the Activation Date or the end of the then current contract year; and WHEREAS, the parties now wish to amend the agreement to delete EXHIBIT 2, "ROADRUNNER Check Sheet" since ROADRUNNER hardware is no longer maintained; and WHEREAS, the parties wish to amend the agreement to delete EXHIBIT 3, Maintenance Supplies, Accessories and Hourly Charges to be replaced by a revised EXHIBIT 3, "SPMR Systems Subscription Agreement". NOW,THEREFORE, for and in consideration of the mutual covenants contained herein, and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged and confessed, the parties hereto agree as follows: I. Exhibit 1. Exhibit 1, Systems Maintenance Breakdown and Annual Payment Schedule shall be deleted in its entirety and replace with Exhibit 1 Revised, SPMR Services Payment Schedule for annual payment periods following the later of the Activation Date or the end of the then current contract year, which is attached to this amendment; and II. Exhibit 2. Exhibit, ROADRUNNER Check Sheet, is deleted in its entirety. CFW/[AMENDMENT NO. I DATAMATIC INC.CSC 500361 Page I of 8 III. Exhibit 3. Exhibit 3, Maintenance Supplies, Accessories, and Hourly Charges shall be deleted in its entirety and replaced by Exhibit 3 Revised, Smartphone Meter Reading (SPMR) System Subscription Agreement. Other Terms and Conditions. All other terms and conditions of the Agreement shall apply. IN WI -SS WH�EOF, parties hereto have executed this Agreement in multiples this day o 2019. APPROVED FOR APPROVED FOR CITY OF FORT WORTH: Datamatic, Inc. KP&z., By: Kd" By: a x.n Philip J. Mas r Assistant City riq anager CFO Date: �" Date: 3ti 22 22%9 APPROV L RECOMMENDED: B By: Kar Stirector, or Chris Harder, PE Deputy Water Department Fort Worth Water Department Director APPROVED AS TO FORM ANZ� LEGALITY: By: I Christa Lopez-Re7ol s Senior Assistant City At ATTES ®F FOz� y: , Mary J. Ka .�! City Secretary CFW/[AMENDMENT NO. 1 DATAMATIC INC.CSC 500361 Page 2 of 8 Contract Authorization: M&C: No M&C Required HR 1295: NSA CONTRACT COMPLIANCE MANAGER: By signing, I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all erformance and reporting requirements. E H ero Beltran Fi ld Operations Superintendent CFW/[AMENDMENT NO. I DATAMATIC INC.CSC 500361 Page 3 of 8 Exhibit 1 Revised—SPMRTM Services Payment Schedule Effective July thru Description-Recurring Fees Rate per Qty . October 2019 October 2020 October 2021 Month September 2019 SPMR SmartPhone: License/Support,per Active Phone Seat NA Unlimited SPMR SmartPhone: Data Hosting per Phone NA Unlimited SPMR Web: License/Support per Seat PREMIUM NA Unlimited $ 68,943.05 $ 75,837.33 $ 83,421.08 SPMR Web: License/Support additional Seats NA Unlimited Annual Hosting Charge $ 1,050.00 $ 4,200.00 $ 4,200.00 $ 4,200.00 *Start of Amendment is ProRated Other User Fees and One-Time Service Fees Cost Qty One Time Fees Setup-Web Server,Web Seat(s),Phone(s),Users* $ 799.00 1 $ 799.00 Training-SPMR WEB,SPMR SmartPhone* $1,499.00 1 $ 1,499.00 *One time fee for the life of the agreement TOTAL $ 3,348.00 '$ 73,143.05 $ 80,03733 $ 87,621.08 CFW/[AMENDMENT NO. 1 DATAMATIC INC.CSC 50036] Page 4 of 8 Exhibit 3 Revised SmartPhone Meter Reading (SPMR) System Subscription Agreement This SPMR System Subscription Agreement ("Agreement") is made by and between CLC dba Datamatic, Inc., a Texas corporation, located at 840 Avenue F, Suite 100, Plano, Texas 75074 (hereinafter "DI"), and The City of Fort Worth, TX doing business at 200 Texas Street, Fort Worth, Texas 76102 ("Subscriber"). RECITALS A. WHEREAS DI licenses, in object form only, proprietary computer software ("Software") as an application for smart phones, or similar devices, to record utility meter data and to communicate such data to its remote server ("Application"); B. WHEREAS DI hosts the utility meter data on its remote server for retrieval by Subscriber ("Hosting") and collectively, the Application, Hosting and any other services such as training or set-up shall constitute "Services"; and C. WHEREAS Subscriber desires to use the Services; IN CONSIDERATION of the terms and conditions of this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: ARTICLE 1 - GENERAL TERMS 1. ENTIRE AGREEMENT. It is agreed that this Agreement and any EXHIBIT(S) attached hereto and made a part hereby embody the entire agreement of the parties in relation to the subject matter hereunder, and that there is no other oral or written agreement or understanding between the parties at the time of execution pertaining to the subject matter of this Agreement. This Agreement shall not be modified except by the written agreement of all parties hereto. 2. GOVERNING LAW AND CHOICE OF VENUE. This agreement shall be construed, interpreted and enforced under the laws and statutes of the State of Texas without regard for any of said state's conflicts of law provisions. Any legal actions relating to this Agreement shall be brought in either a state court in Collin County, Texas or in a Federal court in the Northern District of Texas, Dallas Division. 3. TAXES. Subscriber shall pay all taxes arising out of this Agreement, except for taxes levied upon the net income of DI. Subscriber agrees to provide an exemption certificate with this contract if Subscriber is an exempt organization for state sales and use tax purposes. ARTICLE 2 —PAYMENTS 1. APPLICATION AND OTHER SERVICES. Subscriber shall pay DI for the fees described in EXHIBIT 1 for the Services. Payment shall be made as follows: A. Subscriber will have access to Services when Services are activated ("Activation Date"). The parties agree that initial payment of service fees for the period beginning with the Activation Date and ending September 30, 2019 shall have been satisfied by Subscriber's payment for the current year in the un-amended Agreement. Subsequent CFW/[AMENDMENT NO. I DATAMATIC INC.CSC 500361 Page 5 of 8 payments shall be for an entire annual period and shall be made each October lst until the Agreement is terminated. B. Subscriber shall pay DI for any support or training at DI's quoted price thirty (30) days after the invoice date. C. Ongoing fees are subject to change on subsequent October 1st at the rate of ten (10) percent. D. Additional Hosting Fees. Subscriber shall pay$4,200 per year for taking approximately one (1) picture and up to three (3) pictures per meter reading. This fee shall be invoiced together but itemized separately, due each October 1st and not subject to the 10% increase described in I.C. Subscriber agrees to pay a prorate amount of the $4,200 annual fee for the period beginning with the Activation Date and ending September 30, 2019. E. Subscriber shall receive a credit of$100 per handheld device from Consultant to be applied to a future invoice. 2. Subscriber's rights to use the Application or Hosting are expressly conditioned on the timely prepayment of the fees described in EXHIBIT 1. DI reserves the right to suspend Subscriber's use of Hosting Services for non-payment without notice to Subscriber, provided that Subscriber's use will be immediately restored upon full payment of such fees. Subscriber's ritn ghts to use the Application and Hosting will terminate effective the date any prepayment was due if not paid. ARTICLE 3—SOFTWARE 1. SOFTWARE LICENSE GRANT. DI hereby grants to Subscriber a nontransferable and nonexclusive license for the use and possession of the SPMR Software in object code form only. Said license is granted under the terms and conditions set forth herein. 2. Subscriber agrees that DI retains ownership rights to the Software, and that Subscriber acquires no title to the Software, nor any other interest in the Software, other than the right to use and possess the Software in accordance with the terms and conditions of this Agreement. All rights not explicitly granted to Subscriber are retained by DI. 3. Subscriber may not copy, decompile, reverse-engineer, disassemble, nor attempt to derive the source code of, modify or create derivative works of the Application or any part thereof. 4. Subscriber agrees that it shall not attempt to or actually sell, give, lend, lease, convey, transfer, license, sublease, provide, or in any other manner transfer any of its rights in the Software, whether or not modified. CFW/[AMENDMENT NO. 1 DATAMATIC INC.CSC 50036] Page 6 of 8 ARTICLE 4—SERVICES l. Consultant shall provide Subscriber with the Services described on the attached EXHIBIT(S). 2. Services include those specifically described on the attached EXHIBIT(S) and Subscriber agrees that any services not described such as supplemental training or consulting and any related travel and living expenses are not included and Subscriber agrees to pay such charges and expenses within thirty (30) days of DI's invoice. User-specific third-party charges for excessive usage, e.g. data storage volumes or mapping requests that cannot be quantified at the Activation Date may be invoiced separately to Subscriber. ARTICLE 5—WARRANTIES 1. DI warrants that the System shall operate substantially in accordance with the on-line User Manual. The exclusive remedy for any valid warranty claim shall be the provision of conforming software. 2. DISCLAIMER OF WARRANTY AND LIMITATIONS OF REMEDIES. TO THE EXTENT ALLOWED BY LAW, SUBSCRIBER UNDERSTANDS AND AGREES AS FOLLOWS: A. THE EXPRESS WARRANTIES AS SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING,WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,AND ALL SUCH OTHER WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED BY DI. B. DI SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING SOFTWARE, SERVICES OR ANY OTHER PERFORMANCE UNDER OR PURSUANT TO THIS AGREEMENT. C. DI DOES NOT WARRANT THE OPERATION OF SOFTWARE OR SERVICES INCLUDED IN THE SYSTEM TO BE ERROR FREE. D. THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF ANY AND ALL WARRANTIES AND THE SOLE REMEDIES FOR DI'S LIABILITY OF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCE)WITH RESPECT TO THE SOFTWARE OR SERVICES COVERED BY THIS AGREEMENT OR ANY PERFORMANCE BY DI UNDER OR PURSUANT TO THIS AGREEMENT, WILL BE LIMITED TO THE REMEDIES SET FORTH IN THIS ARTICLE AND IN NO EVENT SHALL EXCEED THE AGGREGATE CONSIDERATION PAID BY SUBSCRIBER FOR THE SERVICES. E. IN NO EVENT SHALL DI'S LIABILITY OF ANY KIND INCLUDE ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF DI SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. ARTICLE 6—TERM and TERMINATION 1. The initial term of this Agreement ("Subscription Year") shall be from the Activation Date through the one-year anniversary of that date, except that if the Activation Date is not on the first day of a calendar month, then the first anniversary and all subsequent anniversaries of the Activation Date shall be the first day of the following month. This Agreement shall automatically renew each Subscription year unless the Subscriber provides DI with written CFW/[AMENDMENT NO. 1 DATAMATIC INC.CSC 500361 Page 7 of 8 notice of termination at least one hundred and twenty(120) days prior to the beginning of the upcoming Subscription Year. 2. If Subscriber defaults on any obligation in accordance with the terms and conditions of this Agreement and DI notifies Subscriber in writing of the details of said failure of performance, then DI may, at its option, terminate this Agreement without notice to Subscriber. 3. In the event either party terminates this Agreement or the license of Software, or should Subscriber fail to timely make any payment for the services, all licenses granted under this Agreement shall be terminated, and Subscriber shall, immediately, on the termination date, erase the Software in whatever form retained, and return or destroy any copies of Software documentation. Subscriber shall certify in writing to DI that Subscriber has so returned and/or destroyed the Software and SPMR Documentation. CFW/[AMENDMENT NO. I DATAMATIC INC.CSC 500361 Page 8 of S City Secretary Contract No.am� FORTWOUTH, �J PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH (the"City"or "Client"), a home-rule municipal corporation situated in portions of Tarrant,Denton,Johnson and Wise Counties,Texas,acting by and through its duly authorized Assistant City Manager, and DATAMATIC, INC ("Consultant'), and acting by and through Philip J. Masters, its duly authorized Chief Financial Officer. City and Consultant are each individually referred to herein as a"party" and collectively referred to as the `parties." The term "Consultant" shall include the Consultant,its officers,agents, employees,representatives, contractors or subcontractors.The term"City"shall include its officers,employees,agents,and representatives. CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Professional Services Agreement; 2. Appendix A, Additional Terms and Conditions 3. Exhibit 1,System Maintenance Breakdown and Annual Payment Schedule 4. Exhibit 2,ROADRUNNER Check Sheet 5. Exhibit 3,Maintenance Supplies,Accessories and Hourly Charges 6. Exhibit4,Registered Agents 7. Exhibit 5,Signature Verification Form All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes.In the event of any conflict between the documents, the terms and conditions of this Professional Services Agreement shall control. The term"Consultant"or"Contractor"shall include the Consultant or Contractor,and its officers,agents, employees,representatives,servants,contractors or subcontractors. The term"City"shall include its officers,employees,agents,and representatives. 1. Scope of Services. Consultant hereby agrees, with good faith and due diligence, to provide the City with professional consulting services for specific description of services. Specifically, Consultant will perform all duties outlined and described in the Additional Terms and Conditions which is attached hereto as Appendix"A" and incorporated herein for all purposes, and further referred to herein as the"Services."Consultant shall perform the Services in accordance with standards in the industry for the same or similar services. In addition, Consultant shall perform the Services in accordance with all applicable federal, state, and local laws, rules, and regulations. If there is any conflict between this Agreement and Appendix A,the terms and conditions of this Agreement shall control. 2. Term. This Agreement shall commence upon the date the Agreement is fully executed ("Effective Date's and shall expire on September 30,2018 ("Expiration Date"), unless terminated earlier Professional Services Agreement-Technology Rev.92017 Page 1 of 19 City Secretary Contract No. in accordance with the provisions of this Agreement or otherwise extended by the parties.This Agreement may be renewed for a one(1)year term for up to four(4)renewals.Notwithstanding any other provision in this Agreement, the City agrees that it will enter into at least two (2) annual renewal periods. Thereafter, the parties agree that the Agreement may be renewed for a shorter period or on a month to month basis in accordance with Appendix'W'.The City shall provide Consultant with written notice of its intent to renew at least sixty (60) days prior to the end of each term. All terms and conditions shall remain the same unless amended by written agreement signed by both parties. 3. Compensation. For each contract year that the City exercises its renewal option,the City shall pay Consultant a non-refundable annual payment for the services provided herein as indicated on EXHIBIT 1,which is attached hereto and incorporated herein for all purposes.The parties agree that the Consultant shall not be entitled to any additional increase in the annual payment for the four(4)renewal options. The annual payment shall be due October 1 of each contract year and the City shall make payment by October 31. 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. The City shall pay Consultant$51,609.89 for the first contract year within ten(10)business days after full execution of this Agreement.The Consultant agrees that upon payment for the first contract year, all claims for any amount past due for Consultant's services shall be satisfied and paid. 4. Termination. 4.1. Convenience. Either the City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with thirty (30) days written notice of termination. 4.2. Breach. If either party commits a material breach of this Agreement, the non- breaching Party must give written notice to the breaching party that describes the breach in reasonable detail. The breaching party must cure the breach ten(10)calendar days after receipt of notice from the non-breaching party, or other time frame as agreed to by the parties. If the breaching party fails to cure the breach within the stated period of time, the non-breaching party may, in its sole discretion,and without prejudice to any other right under this Agreement, law, or equity,immediately terminate this Agreement by giving written notice to the breaching party. 4.3. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder,the 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 have been appropriated. 4.4. 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. Upon termination of this Agreement for any reason, Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement. In the event Consultant has received access to City information or data as a Professional services Agreement-Technology Rev.9/2017 Page 2 of 19 City Secretary Contract No. requirement to perform services hereunder, Consultant shall return all City provided data to the City in a machine readable format or other format deemed acceptable to the City. 5. Disclosure of Conflicts and Confidential Information. 5.1. Disclosure of Conflicts. 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. 5.2. Confidential Information. The City acknowledges that Consultant may use products, materials,or methodologies proprietary to Consultant.The City agrees that Consultant's provision of services under this Agreement shall not be grounds for the City to have or obtain any rights in such proprietary products,materials,or methodologies unless the parties have executed a separate written agreement with respect thereto. Consultant, for itself and its officers, agents and employees,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. 5.3. Unauthorized Access. 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, in which event, Consultant shall, in good faith, use all commercially reasonable efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and shall fully cooperate with the City to protect such information from further unauthorized disclosure. 6. Rialit to Audit. 6.1. 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 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 not less than 10 days written notice of any intended audits. 6.2. 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 farther 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 not less than 10 days written notice of any intended audits. 7. Independent Contractor. It is expressly understood and agreed that Consultant shall Professional Services Agreement-Technology Rev.92017 Page 3 of 19 i City Secretary Contract No. 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.It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Consultant or any officers, agents, servants, employees or subcontractors of Consultant.Neither Consultant,nor any officers, agents, servants, employees or subcontractors of Consultant shall be entitled to any employment benefits from the City. Consultant shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. 8. LIABILITY AND INDEMNIFICATION. 8.1. LIABILITY - CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY IQNND 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. 8.2. INDEMNIFICATION - CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS,AGENTS,SERVANTS AND EMPLOYEES,FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY HIND OR CHARACTER,WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS, AND ANY RESULTING LOST PROFITS) PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, AND DAMAGES FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS OF CONSULTANT,ITS OFFICERS,AGENTS, SUBCONTRACTORS,SERVANTS OR EMPLOYEES. 83. INTELLECTUAL PROPERTY INFRINGEMENT. 8.3.1. The Consultant warrants that all Deliverables, or any part thereof, furnished hereunder, including but not limited to: programs, documentation, software, analyses, applications, methods, ways, and processes (m this Section 8C each individually referred to as a "Deliverable" and collectively as the "Deliverables,")do not infringe upon or violate any patent,copyrights,trademarks, service marks, trade secrets,or any intellectual property rights or other third party proprietary rights,in the performance of services under this Agreement. 83.2. Consultant shall be liable and responsible for any and all claims made against the City for infringement of any patent,copyright,trademark,service mark,trade secret,or other intellectual property rights by the use of or supplying of Professional Services Agreement-Technology Rev.9/2017 Page 4 of 19 City Secretary Contract No. any Deliverable(s) in the course of performance or completion of, or in any way connected with providing the services, or the City's continued use of the Deliverable(s)hereunder. 8.3.3. Consultant agrees to indemnify,defend,settle,or pay,at its own cost and expense, including the payment of attorney's fees, any claim or action against the City for infringement of any patent,copyright,trade mark,service mark,trade secret, or other intellectual property right arising from City's use of the Deliverable(s), or any part thereof, in accordance with dds Agreement, it being understood that this agreement to indemnify,defend,settle or pay shall not apply if the City modifies or misuses the Deliverable(s).So long as Consultant bears the cost and expense of payment for claims or actions against the City pursuant to this section 8,Consultant shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim;however,City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest, and City agrees to cooperate with Consultant in doing so. In the event City,for whatever reason,assumes the responsibility for payment of costs and expenses for any claim or action brought against the City for infringement arising under this Agreement, the City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim;however,Consultant shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give Consultant timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of costs or expenses shall not eliminate Consultant's duty to indemnify the City under this Agreement. If the Deliverable(s), or any part thereof,is held to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or compromise, such use is materially adversely restricted, Consultant shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the Deliverables) to make thereat non-infringing,provided that such modification does not materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the Deliverable(s) with equally suitable, compatible, and functionally equivalent non-infringing Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Consultant, terminate this Agreement,and refund all amounts paid to Consultant by the City,subsequent to which termination City may seek any and all remedies available to City under law. CONSULTANT'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH IN SECTION 10 OF THIS AGREEMENT. 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 Professional Services Agreement-Technology Rev.9M 17 Page 5 of 19 i City Secretary Contract No. referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply.The Consultant shall provide the City with a fully executed copy of any such subcontract. 10. Insurance. 10.1. The Consultant shall carry the following insurance coverage with a company that is licensed to do business in Texas or otherwise approved by the City: 10.1.1. Commercial General Liability: 10.1.1.1. Combined limit of not less than $2,000,000 per occurrence;$4,000,000 aggregate;or 10.1.1.2. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000. Umbrella policy shall contain a follow-form provision and shall include coverage for personal and advertising injury. 10.1.1.3. Defense costs shall be outside the limits of liability. 10.1.2. Automobile Liability Insurance covering any vehicle used in providing services under this Agreement, including owned, non-owned, or hired vehicles, with a combined limit of not less than$1,000,000 per occurrence. 10.2. General Insurance Requirements: 10.2.1. All applicable policies shall name the City as an additional insured thereon, as its interests may appear. The term City shall include its employees, officers, officials,agents,and volunteers in respect to the contracted services. 10.2.2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery)in favor of the City of Fort Worth. 10.2.3. 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. 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. 10.2.4. The insurers for all policies must be licensed and/or approved to do business in the State of Texas. All insurers must have a minimum rating of A VII in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, written approval of Risk Management is required. 10.2.5. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. Professional Servioes Agreement-Teclmology Rev.9/2017 Page 6 of 19 City Secretary Contract No. 10.2.6. Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to and approved by the City's Risk Management Division prior to execution of this Agreement. If. 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 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 DATAMATIC,INC. Attn:Jesus"Jay"Chapa Attn: Philip Masters Assistant City Manager Chief Financial Officer 200 Texas Street -Address- gy.o F AJaNiu£, 5utir Fort Worth TX 76102 Gty,,%te-Zip Fiaesimi-le—fxm}xxx-ixx With Copy to the City Attorney at same address 14. Solicitation of Employees. Neither the City nor Consultant shall,during the term of this Agreement and additionally for a period of one year afterits 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.This provision shall not apply to an employee who responds to a general solicitation or advertisement of employment by either party. 15. Governmental Powers. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 16. No Waiver. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. Professional Services Agreement-Technology Rev,9/2017 Page 7 of 19 City Secretary Contract No. 17. Governing Law and 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 Collin County,Texas or the United States District Court for the Northern District of Texas,Dallas 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 Maieure. 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. 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 reviewed 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. Amendments. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument, and duly executed by an authorized representative of each party. 23. Entirety of Agreement. This Agreement, including any exhibits attached hereto and any documents incorporated herein by reference,contains the entire understanding and agreement between the City and Consultant,their assigns and successors in interest,as to the matters contained herein.Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict wi.h any provision of this Agreement. 24. Counterparts. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument.An executed Agreement, modification, amendment, or separate signature page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e- mail, and reflects the signing of the document by any party. Duplicates are valid and binding even if an original paper document bearing each party's original signature is not delivered. 25. Warranty of Services. 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'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. Federal Law Enforcement Database Access. If Consultant, or any Consultant Personnel, Professional Sefvica Agreement-Technology Rev.9l2017 Page 8 of 19 City Secretary Contract No. requires access to any federal law enforcement database or any federal criminal history record information system, including but not limited to Fingerprint Identification Records System ("FIRS"), Interstate Identification Index System 0'I1I System"), National Crime Information Center ("NCIC") e. National Fingerprint File("NFF"),or Texas Law Enforcement Telecommunications Systems(11METS11), that is governed by and/or defined in Title 28,Code of Federal Regulations Part 20 ("CFR Part 20"),for the purpose of providing services for the administration of criminal justice as defined therein on behalf of the City or the Fort Worth Police Department, under this Agreement, Consultant shall comply with the Criminal Justice Information Services Security Policy and CFR Part 20,as amended, and shall separately execute the Federal Bureau of Investigation Criminal Justice Information Services Security Addendum. No changes, modifications, alterations, or amendments shall be made to the Security Addendum. The document must be executed as is, and as approved by the Texas Department of Public Safety and the United States Attorney General. 27. Immigration Nationality Act. The City of Fort Worth actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Consultant shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Consultant shall complete the Employment Eligibility Verification Form (I-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees,and upon request,provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Consultant shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Consultant shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Consultant shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Consultant. 28. Informal Dispute Resolution. Except in the event of termination pursuant to Section 4.2,if either City or Consultant has a claim, dispute, or other matter in question for breach of duty, obligations, services rendered or any warranty that arises under this Agreement, the parties shall first attempt to resolve the matter through this dispute resolution process. The disputing party shall notify the other party in writing as soon as practicable after discovering the claim,dispute,or breach. The notice shall state the nature of the dispute and list the parry's specific reasons for such dispute. Within ten(10)business days of receipt of the notice,both parties shall commence the resolution process and make a good faith effort,either through email, mail,phone conference,in person meetings,or other reasonable means to resolve any claim,dispute,breach or other matter in question that may arise out of,or in connection with this Agreement. If the parties fail to resolve the dispute within sixty(60)days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non-binding mediation in Tarrant County,Texas,upon written consent of authorized representatives of both parties in accordance with the Industry Arbitration Rules of the American Arbitration Association or other applicable rules governing mediation then in effect.The mediator shall be agreed to by the parties.Each party shall be liable for its own expenses,including attorney's fees;however, the parties shall share equally in the costs of the mediation.If the parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to resolve a dispute in accordance with this informal dispute resolution process, the parties agree to continue without delay all of their respective duties and obligations under this Agreement not affected by the dispute. Either party may, before or during the exercise of the informal dispute resolution process set forth herein, apply to a court having jurisdiction for a temporary restraining order or preliminary injunction where such relief is necessary to protect its interests. 29. No Boycott of Israel. Consultant acknowledges that in accordance with Chapter 2270 of Professional services Agreement-Technology Rev.9/2017 Page 9 of 19 i City Secretary Contract No. the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1)does not boycott Israel;and(2)will not boycott Israel during the term of the contract. The terms"boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract, Consultant certifies that Consultant's signature provides written verification to the City that Consultant. (1)does not boycott Israel;and(2)will not boycott Israel during the term of the contract. 30. 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. This Agreement, and any amendment(s) hereto, may be executed by any authorized representative of Consultant whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as EXHIBIT"0 and incorporate herein by reference.,Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 31. Survival of Provisions. The parties' duties and obligations pursuant to Section 4.4 (Duties and Obligations), 5 (Disclosure of Conflicts and Confidential Information), Section 6 (Right to Audit),and Section 8(Liability and Indemnification)shall survive termination of this Agreement. (signature page follows) Professional Services Agreement-Technology Rev.4/2017 Page 10 of 19 City Secretary Contract No. Executed in multiples this the day of lu ,2017. ACCEPTED AND AGREED: CITY: CITY OF FORT WORTH CONTRACT COMPLIANCE MANAGER By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract,including ensuring all performance and By. — reporting requirements. Jesus"Jay"Chapa Assistant City Manager By: Date: 9 a Title: ✓,� APPROVAL RECOMMENDED: APPROVED AS TO FORM AND LEGALITY: By. �_ rn Water D By. g epartment Director sta Lopez-Reynal ATTEST: Sr.Assistant City Attorney FoR,, By: '`-�`- N® M&C REQUIRED Mary Kaiser ` . City Secretary (� CONSULTANT: "'AS DATAMATIC,INC. ATTEST: Lk- By: By: A. Philip J. ters Name: 6 r—cvj Chief Financial Officer Title: /25;dn-L Date: cc_Y' 5,�-� 5� 20 k 11 Professional Services Agreement-Technology Rev.%2017 Page 11 of 19 i City Secretary Contract No. Appendix A Additional Terms and Conditions 1 SUPPORT AND MAINTENANCE.Purchaser shall pay Datamatic an annual charge for the support and maintenance of the items listed in EXHIBIT I for each contract year.Datamatic acknowledges that it shall not be entitled to any increase in the annual payment except for what is identified in EXHIBIT 1.The recurring maintenance charge is subject to change only if Purchaser purchases additional equipment and/or licenses additional software in accordance with the fees in EXHIBIT 1. Each recurring annual payment shall be due on October 1 of that contract year.Purchaser shall make payment to Datamatic no later than October 31 of each contract year. 2 Notwithstanding any provision in the Agreement,Purchaser agrees to renew this Agreement for at least two (2)annual contract renewal options.Thereafter,Purchaser may renew its option on an annual term or issue notice to Datamatic that it intends to execute its last renewal option for(1)a shorter period and prepay a pro rats portion of the full annual maintenance charge scheduled which shall be an amount calculated by multiplying the full annual charge times a fraction,being the number of months maintenance is to be in effect divided by 12;or(2)on a month to month basis and prepay by the last day of the preceding month an amount calculated as 1/12s'of the full annual maintenance charge.Nothing in this Agreement shall limit Purchaser's option to renew this Agreement on an annual basis for all four(4)renewal terms. 3 LATE CHARGE.Any amounts payable hereunder that remain unpaid after October 31 of the contract year,except for the first contract year,and for any month to month renewal year,shall be subjected to a late charge equal to 1.5%per month from the due date until such amount is paid 4 SPECIFICATIONS.The System shall include the Software identified in EXHIBIT 1 and will meet the specifications in the User Manuals applicable at the time of this Agreement 5 DATAMATIC SOFTWARE LICENSE GRANT.Datamatic hereby grants to Licensee a nontransferable and nonexclusive license for the use and possession of the Datamatic Software in object code form only. Said license is granted under the terms and conditions set forth herein. A. Licensee agrees that Datamatic retains ownership rights to the Software,and that Licensee acquires no title to the Software,nor any other interest in the Software,other than the right to use and possess the Software in accordance with the terms and conditions of this Agreement All rights-not.explicitly granted to Licensee are retained by Datamatic.Licensee also agrees not to make any copies or reproductions'of the Software other than one copy to be used by Licensee as a back-up for emergency situations. B. The Software may be used only in connection with the ROADRUNNER handheld units identified on EXHIBIT 1 and any units purchased from Datamatic in the future. C. For the purpose of inspection to confirm Licensee's compliance with the terms and conditions of this Agreement, Licensee hereby grants Datamatic the right,during regular business hours,and in compliance with established security procedures to enter Licensee's premises where the Software is located and/or to conduct an electronic confirmation of same. D. Licensee shall not use the Software to process accounts or"'records or to generate output data for the direct benefit of,or for purposes of rendering services to,any other non-affiliated business entities or organizations.Licensee shall only use the Software to perform Licensees work;and Licensee shall not permit anyone but Licensee's employ- ces to use the Software. E. Licensee agrees that it shall not attempt to or actually sell,give,lend,lease,convey,transfer,license,sublease, provide,or in any other manner transfer any of its rights in the Software,whether or not modified. 6 Datamatic agrees to provide Support and Maintenance services subject to the terms and conditions set forth herein and upon receipt of the payments as provided for in Section 1. 7 DESCRIPTION. Telephone response time from Datamatic shall be within two hours of a trouble call to Datamatic's designated Call Center number.All maintainable equipment identified in EXHIBIT 1 is to be maintained by Datamatic on a best efforts basis subject to the provisions described below. 8 INCLUSIONS. Datamatic shall keep the Hardware and the Software in good working order. Maintenance services shall include: Professional Services Agreement—'[technology—Exhibit C Rev.9/2017 Page 12 of 19 City Secretary Contract No. A. Preventive Hardware maintenance as is generally described on EXHIBIT 2. B. Software maintenance,including providing Licensee with such revisions in the Software as Datamatic generally makes available to licensees of the Software at no charge;and C. Remedial maintenance of both the Hardware and Software. 9 EXCLUSIONS.Maintenance and repair services shall not apply to the following: A. Batteries,straps,membranes or other coverings,power supplies or any other consumable supply item. B. Electrical work external to the Hardware or maintenance of accessories,alterations,attachments or other devices not furnished by Datamatic; C. Repair of damages or increases in telephone support or service time caused by accident,transportation,neglect, misuse,Customer's employee turnover or alterations(which shall include,but not be limited to,PC hardware and/or operating system changes. D. Repair of damages or increases in telephone support or service time attributable to the use of the System for purposes for other than which it was designed; E. Furnishing supplies or accessories; making specification changes or performing services connected with relocation of machines;or adding or removing accessories,attachments or other devices. A list of these items and pric- es is attached as EXHIBIT 3.Each contract year,Datamatic may request up to a ten percent(105/6)increase of the fees in EXHIBIT 3 by providing sixty(60)days written notice to the City. Such increase must be agreed to by written amendment to this Agreement. 10 Datamatic warrants that the System shall operate substantially in accordance with the User Manuals.The exclusive remedy for any valid warranty claim shall be the repair or replacement of the nonconforming hardware,at Datamatic's option;and the provision of conforming software,to replace nonconforming software. I DISCLAIMER OF WARRANTY AND LIMITATIONS OF REMEDIES. TO THE EXTENT ALLOWED BY LAW, PURCHASER UNDERSTANDS AND AGREES AS FOLLOWS: A. THE EXPRESS WARRANTIES AS SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION,ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH OTHER WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED BY DATAMATIC. B. DATAMATIC SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING HARDWARE, SOFTWARE, SERVICES OR ANY OTHER PERFORMANCE UNDER OR PURSUANT TO THIS AGREEMENT. C. DATAMATIC DOES NOT WARRANT THAT THE OPERATION OF SOFTWARE, HARDWARE OR SERVICES INCLUDED IN THE SYSTEM WILL BE ERROR FREE. D. THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF ANY AND ALL WARRANTIES AND THE SOLE REMEDIES FOR DATAMATIC'S LIABILITY OF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCE)WITH RESPECT TO THE SYSTEM,HARDWARE,SOFTWARE OR SERVICES COVERED BY THIS AGREEMENT OR ANY PERFORMANCE BY DATAMATIC UNDER OR PURSUANT TO THIS AGREEMENT,WILL BE LIMITED TO THE REMEDIES SET FORTH HEREIN AND IN NO EVENT SHALL EXCEED THE AGGREGATE CONSIDERATION PAID BY PURCHASER FOR THE SERVICES. E. IN NO EVENT SHALL DATAMATIC'S LIABILITY OF ANY KIND INCLUDE ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES,EVEN IF DATAMATIC SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. 12 In the event Purchaser defaults on any obligation in accordance with the tams and conditions of this Agreement and Datamatic notifies Purchaser in writing of the details of said failure of performance,then Datatnatic may,at its option,terminate this Agreement if Purchaser fails to cure said deficiencies in performance within ten(10)days of its receipt of said notice. Professional Services Agreement—Technology—Exhibit C Rev.W2017 Page 13 of 19 i City Secretary Contract No. 13 In the event either party terminates this Agreement or the license of Software,or should Purchaser fail to make any payment for maintenance,all licenses granted under this Agreement shall be terminated,and Purchaser shall,within fifteen(15)days following such termination, return to Datamatic the Software in whatever form retained, and all copies of Software documentation.Purchaser shall certify in writing to Datamatic that Purchaser has so returned the Software and Datamatic Documentation to Datamatic. 14 GOVERNING LAW AND CHOICE OF VENUE.This agreement shall be construed,interpreted and enforced under the laws and statutes of the State of Texas without regard for any of said states conflicts of law provisions. Any legal actions relating to this Agreement shall be brought in either a state court in Collin County,Texas or in a Federal court in the Northern District of Texas,Dallas Division. 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Check for and note any extreme physical damage. 2. Check for and note peripheral and/or consumable items. 3. Check main battery voltage and date. 4. Ghost Operating System Image and recharge main battery. 5. Check main battery voltage after recharge. 6. Check communications via cradle and LEMO port. 7. Check settings and functionality: a. Battery set to 5 minutes. b. AC set to 10 minutes. c. Screen set to 180 seconds. d. Recalibrate touch screen. e. Check keyboard for alpha/numeric. f. Test skip and trouble key functions with Function-0 process. g. Check backlight. h. Check sound(key clicks,screen touch,error bells). 8. Keyboard test. 9. Enter test manual reads. 10. Upload test manual reads via cradle. 11. Pressure test. 12. Clean handheld. 13. Check decals. Professional Services Agreement—Technology—Exhibit D Rev.MOO Page I6 of19 City Secretary Contract No. EXHIBIT 3 Maintenance Supplies,Accessories and Hourly Charges Regair Depot Hourly Charge(T& $150 Training Hourly Charge $150 Hand held batteries $84 Hand held hand straps $25 Professional Services Agreement—Technology—Exhibit D Rev.9/2017 Page 17 of 19 i City Secretary Contract No. EXHIBIT 4 Registered Agents COMMUNICATIONS LEASING CORPORATION DB/A DATAMATIC,INC.: Michael J.Wagner 4110 Watersedge Court Rowlett,Texas 75088 CITY OF FORT WORTH: City Secretary 200 Texas Street Fort Worth,Texas 76102 Professional Services Agreement—Technology—Exhibit D Rev.W2017 Page 18 of 19 City Secretary Contract No. EXHIBIT 5 VERIFICATION OF SIGNATURE AUTHORITY DATAMATIC,INC. Full Business Address Services to be Provided Execution of this Signature Verification Form ("Form") hereby certifies that the following individuals and/or positions have the authority to legally bind the Consultant and to execute any agreement, amendment or change order on behalf of Consultant. Such binding authority has been granted by proper order, resolution, ordinance or other authorization of Company. The City is fully entitled to rely on the warranty and representation set forth in this Form in entering into any agreement or amendment with Consultant. Consultant will submit an updated Form within ten (10) business days if there are any changes to the signatory authority. The City is entitled to rely on any current executed Form until it receives a revised Form that has been properly executed by the Consultant. 1. Name: Q t-(t L-%? 3- IWkS fi�-y2 5 Position: CFhrr- 4X Signature —0 2. Name: NNO,26-vi C. l-Ege.iet�-A— Position: PK.CS 10,--Nv Signature v 3. Name: Position: Signature Name: A, 4 a/,L, Signature of President Other Title: Daze: 57 - Professional Services Agreement—Technology—Exhibit E Rev.92017 Page 19 of 19 i