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HomeMy WebLinkAboutContract 42442 CITY SECRETARY CONTRACT No. o CONTRACT FOR PROFESSIONAL SERVICES This contract is made by and between the City of Fort Worth, Texas, a home rule municipal corporation situated in portions/of Tarrant, Denton and Wise Counties, Texas, hereinafter called "City," acting herein by and through , its duly authorized Assistant City Manager, and Larry Robert Heath, an individual, hereinafter called "Consultant." 1. SCOPE OF SERVICES. Consultant hereby agrees to perform in accordance with the highest professional industry standards professional auditing and accounting services as assigned. Attached hereto and incorporated for all purposes incident to this contract is Exhibit"A," Statement of Work, more specifically describing the services to be provided hereunder. 2. TERM. Unless terminated pursuant to section 4, this contract shall be effective upon the date of execution and shall expire upon completion of all work contemplated herein, but not later than February 29, 2012. 3. COMPENSATION. The City shall pay Consultant an amount not to exceed $19,200.00 in accordance with the provisions of this Agreement and the Payment Schedule attached as Exhibit "B," which is incorporated for all purposes herein. Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. Notwithstanding anything to the contrary in this Agreement: (i) Consultant shall have no obligation to continue performance of the services once the Not-to-Exceed Amount has been attained; (ii) City shall have sole responsibility for monitoring fees charged in relation to the Not-to-Exceed Amount; and (iii) City will either terminate the assignment or increase the Not-to-Exceed Amount prior to attainment of the Not- to-Exceed Amount. 4. TERMINATION. 4.1. Written Notice. The City or Consultant may terminate this Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. 4.2 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 4.3 Duties and Obli ations of the Parties. In the event that this Agreement is terminated prior to the Exp r t ll pay Consultant for services actually rendered up to the effective CW[F% d Consultant shall continue to provide the City with services reque t4Mjy MRSTAPW i accordance with this Agreement up to the effective date of termination. FT, WORTH, TIC Contract for Professional Services Larry Robert Heath 1 City of Fort Worth Page 1 of 14 10-12-1 1 P 0 3 : 3 3 1 N 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. Consultant hereby warrants to the City that consultant has made full disclosure in writing of any existing or potential conflicts of interest related to consultant's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the city in writing. Consultant, for itself and its officers, agents and employees, further agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the city. Consultant's obligations to maintain confidentiality of information provided to it by the city shall be further set forth in Exhibit "C," Non-Disclosure Agreement, which is attached hereto and incorporated herein for all purposes. Consultant shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. consultant shall notify the City immediately if the security or integrity of any city information has been compromised or is believed to have been compromised. City will maintain the confidentiality of information provided to it by consultant to the extent permitted by applicable law. However, Consultant understands and acknowledges that the city is a public entity under the laws of the State of Texas, and as such, all documents held by the city are subject to disclosure under chapter 552 of the Texas Government Code. 6. RIGHT TO AUDIT. Consultant agrees that the city shall, until the expiration of three (3) years after final payment under this contract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the consultant involving transactions relating to this contract at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The City shall give Consultant reasonable advance notice of intended audits. Consultant further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the city shall, until expiration of three (3) years after final payment of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. city shall give subcontractor reasonable notice of intended audits. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that consultant shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants, employees, contractors and subcontractors. consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between city and Consultant. As an independent Contractor for the City of Fort Worth Internal Audit Department, consultant Contract for Professional Services Larry Robert Heath 1 City of Fort Worth Page 2 of 14 r shall perform all work assignments without direct supervision from the Internal Audit Department staff and/or management. However, in order to ensure the work will meet required auditing and Internal Audit Department standards, along with meeting previously established deadlines, Internal Audit management shall be provided with periodic status updates of the respective project. Additionally, should any significant issues and/or problems arise, Consultant shall timely notify Internal Audit management of these issues and/or problems, and obtain applicable input from the City prior to completion of the work to ensure the City receives the desired end product contracted pursuant to this agreement 8. LIABILITY AND INDEMNIFICATION. CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE A NDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S),, MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT, ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES. CONSULTANT COVENANTS AND AGREES TO, AND DOES HEREBY, INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS FOR EITHER PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) A NDIOR PERS DNA L 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 DR 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 IN TEN TIONA L MISCONDUCT OF THE CITY, ITS OFFICERS, SERVANTS, OR EMPLOYEES. 9. ASSIGNMENT AND SUBCONTRACTING. Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment, the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant and Assignee shall be jointly liable for all obligations under this Agreement prior to the assignment. If the City grants consent to a subcontract, the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. The Consultant shall be liable for actions of the subcontractor as if such services were performed by Consultant. 10. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. w � Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations, to the extent required by applicable law, Consultant shall immediately desist from and correct the violation. 11. NON-DISCRIMINATION COVENANT. Contract for Professional Services Larry Robert Heath/City of Fort Worth Page 3 of 14 Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non- discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 12. NOTICES. Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: To The CITY: To CONSULTANT: City of Fort Worth Larry R. Heath Attn: [internal Audit department/Darlene Allen] 4323 Rambling Creek Dr. 1000 Throckmorton Arlington, Tx. 76016 Fort Worth TX 76102-6311 Facsimile: (517) 392-8654 13. 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 prior written consent of the person's employer. For the purpose of this Agreement, "solicit" does not include contact resulting from indirect means such as public advertisement, placement firm searches or similar means not directed specifically to an individual. 14. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. 15. NO WAIVER. The failure of the City or Consultant to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 16. GOVERNING LAW 1 VENUE. This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 17. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, Contract for Professional Services Larry Robert Heath 1 City of Fort Worth Page 4 of 14 r legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 18. FORCE MAJEURE. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 19. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 20. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or exhibits hereto. 21. AMENDMENTS/MODIFICATIONS/EXTENSTIONS. No extension, modification or amendment of this Agreement shall be binding upon either party hereto unless such extension, modification, or amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of each party. 22. ENTIRETY OF AGREEMENT. This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference, contains the entire understanding and agreement between the City and Consultant, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement regarding the subject matter herein is hereby declared null and void to the extent in conflict with any provision of this Agreement. 23. SIGNATURE AUTHORITY. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party, and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. [SIGNATURE PAGE FOLLOWS] Contract for Professional Services Larry Robert Heath/City of Fort Worth Page 5 of 14 r in multiples this 3rda of IN WITNESS WHEREOF, the parties hereto have executed this Agreement p � y 201,. . CITY OF FORT WORTH: LARRY ROBERT HEATH: r' f By. By. R A^ �, ��s Name: Larry bert Heath sistant City Manager � � Address: 4323 Rambling Creek Dr. Arlington, Texas 76016 Date: t Title: Consultant Date: `~1 �G ATTE Marty Hendrix , . on '°� ( �°�°0000000°C I Secretary a s 0 a� a Oj 0 %0Date: 4 U a a6 0 a) APPROVED AS To FORM AND LE ALIT o sa o 00 ss Q 0 oa � 1tva. # By.CANC MalesRa Farmer Assistant City Attorney Date: o No M&C Required OFFICIAL RECORD CITY SECRETARY FT, WORTH, TX Contract for Professional Services Larry Robert Heath 1 City of Fort Worth Page 6 of 15 M EXHIBIT A STATEMENT of WORK Consultant agrees to perform in accordance with the highest professional industry standards the following professional auditing and accounting services as assigned: 1.1 Conducting various Construction Contract Audits to be assigned from 2012 work plan. 1.2 Conducting various parts of 2012 city wide inventory audits. 1.3 Conducting HUD grant audits. 1.4 Documenting the results of their audit work in conformance with City of Fort Worth Internal Audit Department standards; along with Generally Accepted Auditing Standards. This effort will include completion of the program steps through fieldwork and audit draft stage. Internal Audit personnel will make all data and information available to Consultant for this project through read only access and/or downloads of accounts and files. This effort will also include documenting the results of Consultant's audit work in conformance with City of Fort Worth Internal Audit Department standards and Generally Accepted Auditing Standards. Periodic, scheduled reports of audit work will be submitted to the City at designated milestones to ensure continued and satisfactory progression of work. City will provide "boilerplate" programs that are used for similar engagements. Consultant is expected to adjust the audit program and audit steps (adding steps or deleting steps) based upon the situations encountered during the audit. Any changes should also be discussed with Internal Audit Management to ensure the City receives the end product contracted for pursuant to this Agreement. Consultant may work whatever work schedule each day and whatever days of the week deemed necessary to complete the audit project by the mutually established deadline and subject to the Payment Schedule and Rates as set forth in Exhibit B. In order to ensure the confidentiality of City owned data and information, Consultant shall utilize an Internal Audit Department laptop computer for preparing and storing electronic work papers. These computers do not allow for"wireless" Internet capabilities and all data will be encrypted to protect the data and information. It is understood that all information and data collected and utilized during the audit project is the property of the City of Fort Worth Internal Audit Department; therefore, it may not be used for any personal use; nor disclosed to anyone other than City of Fort Worth Internal Audit management. Contract for Professional Services Larry Robert Heath/City of Fort Worth Page 7 of 14 EXHIBIT B PAYMENT SCHEDULE 3.1 The maximum amount to be paid to Consultant for all services performed hereunder shall be $19,200.00, which shall include all expenses incurred by Consultant, 3.2 Payment shall be made based on an hourly rate of$30.00 per hour worked on the listed scope of services, hereinafter"Consultant's Fee", and mileage reimbursement of$0.50 per mile. 3.3 Consultant shall submit a monthly invoice to the City for payment of the sums referenced in section 3.2. This invoice shall include the City's contract number and contract purchase order number, the quantity of hours worked and the dates work was performed. Time sheets covering invoiced timeframes shall be submitted with the invoices, and shall include the signature of the Assistant City Auditor attesting to the hours worked. 3.4 It is understood that this Contract contemplates the provision of full and complete consulting services for this project, including any and all necessary changes or contingencies to complete the work as outlined in Exhibit A, "Statement of Work," for the fee described in Section 3.2. Contract for Professional Services Larry Robert Heath 1 City of Fort Worth Page 8 of 14 EXHIBIT C NON-DISCLOSURE AGREEMENT THIS AGREEMENT is entered into and effective as of the date of contract execution between CITY OF FORT WORTH ("CITY") a home rule municipal corporation organized under the laws of the state of Texas, and Larry Robert Heath, an individual, hereinafter called "Consultant", and collectively referred to as the`parties" and individually as a"party." 1. City and Consultant intend to disclose to each other information, which may include confidential information, for the purpose of providing staffing augmentation services. The term"Confidential Information"will mean any information or data which is disclosed by a party to the other party under or in contemplation of the stated purpose and which (a) if in tangible form or other media that can be converted to readable form, is clearly marked as proprietary, confidential or private when disclosed, or(b) if oral or visual, is identified as proprietary, confidential or private at the time of disclosure. 2. For all Confidential Information, the recipient will: (a) use the Confidential Information only for the stated purpose; (b) restrict disclosure of the Confidential Information solely to those employees, consultants or agents of such party with a"need to know" and not disclose it to third parties without the prior written consent of the disclosing party; (c) advise those employees, consultants or agents who gain access to Confidential Information of their obligations regarding the Confidential Information; (d) make only the number of copies of the Confidential Information necessary to disseminate the information to those employees who are entitled to have access to it, and ensure that all confidentiality notices set forth on the Confidential Information are reproduced in full on such copies; (e) safeguard the Confidential Information with the same degree of care to avoid unauthorized disclosure as recipient uses to protect its own confidential and private information; and M notify disclosing party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by recipient, its employees, consultants or agents and will cooperate with disclosing party in every reasonable way to help disclosing party regain possession of the Confidential Information and prevent its further unauthorized disclosure or use. For purposes of this Agreement a "need to know" means that the employee, consultants or agents requires the Confidential Information in order to perform his or her responsibilities in connection with the stated purpose. 3. The obligations of Paragraph 2 will not apply to any Confidential Information which: (a) s or becomes available to the public through no breach of this Agreement: (b) was previously known by the recipient without any obligation to hold it in confidence (c) is received from a third party free to disclose such information without restriction; (d) is independently developed by the recipient without the use of Confidential Information of the disclosing party; (e) is approved for release by written authorization of the disclosing party, but only to the extent of and subject to such conditions as may be imposed in such written authorization; or (f) is required to be disclosed pursuant to applicable law, rule, regulation or court order as set forth in section 12 below. 4. If the disclosing party inadvertently fails to mark as proprietary, confidential or private information for which it desires confidential treatment; it will so inform the receiving party. The receiving party thereupon will return the unmarked information to the disclosing party and the disclosing party will 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 Contract for Professional Services Larry Robert Heath 1 City of Fort Worth Page 9 of 14 Y it desires confidential treatment, it will so inform the receiving party. The receiving party's obligations under Paragraph 2 in 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. 5. Each party acknowledges its obligation to control access to and/or exportation of technical data under the applicable export laws and regulations of the United States, and each party agrees to adhere to and comply with the laws and regulations governing any technical data received under this Agreement. 6. Confidential Information, including permitted copies, will be deemed the property of the disclosing party. The receiving party, will, within ten (10)calendar days of a written request by the disclosing party, return all Confidential Information, including all copies, to the disclosing party or, if so directed by the disclosing party, destroy all such Confidential Information. The receiving party will also, within ten (10) calendar days of a written request by the disclosing party, certify in writing that it has satisfied its obligations under this Paragraph 6. The receiving party's obligations under Section 2 will expire two (2) years after return or destruction of the disclosing party's Confidential Information. 7. Both parties agree that an impending or existing violation of any provision of this Agreement would cause the disclosing party irreparable injury for which it would have no adequate remedy at law, and that the disclosing party will be entitled to seek immediate injunctive relief prohibiting such violation, in addition to any other rights and remedies available to it. 8. Nothing contained in this Agreement or in any discussions undertaken or disclosures regarding the expiration of the confidentiality period stated in Section 6. stated purpose will be deemed a commitment to engage in any business relationship, contract or dealing with the other party. The parties acknowledge that in the event that they develop, market and sell similar products and services nothing contained herein is intended to limit a party's activities or dealings except as expressly provided herein with respect to the disclosing party's Confidential Information 9. No patent, copyright, trademark or other proprietary right is licensed, granted or otherwise transferred by this Agreement or any disclosure hereunder, except for the right to use such information in accordance with this Agreement. No warranties of any kind are given for the Confidential Information disclosed under this Agreement. 10. The term of this Agreement shall commence on the Effective Date. 11. This Agreement may not be assigned by either party without the prior written consent of the other party. Any assignment in violation of this Paragraph will be void. This Agreement will be binding upon the parties and their respective successors and assigns. 12. The provisions of this Agreement shall not prohibit a disclosure required by law or any court of competent jurisdiction or any investigation of a governmental or regulatory body which is lawfully entitled to require any such disclosure; provided that prior to such disclosure the receiving party shall promptly notify the disclosing party of such requirement so that the disclosing party may contest such disclosure and otherwise protect its interests in the timing and content of such disclosure. The receiving party will exercise reasonable efforts to help disclosing party obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information. If a protective order or other remedy is not obtained, the receiving party will furnish only that portion of the Confidential Information that the receiving party is legally required to disclose. 13. If any provision of this Agreement will be held invalid or unenforceable, such provision will be deemed deleted from this Agreement and replaced by a valid and enforceable provision which so far as possible achieves the parties' intent in agreeing to the original provision. The remaining provisions of this Agreement will continue in full force and effect. Contract for Professional Services Larry Robert Heath 1 City of Fort Worth Page 10 of 14 r 14. If either party employs attorneys to enforce any rights arising out of this Agreement, each party will be responsible for the payment of its own attorney's fees. 15. Each party warrants that it has the authority to enter into this Agreement and to lawfully make the disclosures contemplated hereunder. 16. This Agreement represents the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior communications: agreements and understandings. The provisions of this Agreement may not be modified, amended or waived: except by a written instrument duly executed by both parties. 17. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original and all of which, when taken together, will be deemed to constitute one and the same agreement. Delivery of an executed counterpart of this Agreement by facsimile or any other reliable means shall be effective for all purposes as delivery of a manually executed original counterpart. Either party may maintain a copy of this Agreement in electronic form. The parties further agree that a copy produced from the delivered counterpart or electronic form by any reliable means (for example, photocopy, facsimile or printed image) shall in all respects be considered an original. Contract for Professional Services Larry Robert Heath 1 City of Fort Worth Page 11 of 14 EXHIBIT D NETWORK ACCESS AGREEMENT This NETWORK ACCESS AGREEMENT("Agreement') is made and entered into by and between the CITY OF FORT WORTH ("City"), a home rule municipal corporation with its principal location at 1 000 Throckmorton Street, Fort Worth, Texas 76102, organized under the laws of the State of Texas and situated in portions of Tarrant, Denton and Wise Counties, Texas, and Larry Robert Heath, an individual, hereinafter called "Consultant", collectively referred to as the 'parties" and individually as a"party." 1 The Network. The City owns and operates a computing environment and network (collectively the "Network"). Contractor wishes to access the City's network in order to provide staff augmentation services. In order to provide the necessary support, Contractor needs access to city's network and Internet, intranet, and email. 2. Grant of Limited Access. Contractor is hereby granted a limited right of access to the City's Network for the sole purpose of providing staff augmentation services. Such access is granted subject to the terms and conditions forth in this Agreement and applicable provisions of the City's Administrative Regulation D-7 (Electronic Communications Resource Use Policy), of which such applicable provisions are hereby incorporated by reference and made a part of this Agreement for all purposes herein and are available upon request. 3. Network Credentials. The City will provide Contractor with Network Credentials consisting of user IDs and passwords unique to each individual requiring Network access on behalf of the Contractor. Access rights will automatically expire one (1) year from the date of this Agreement. If this access is being granted for purposes of completing services for the City pursuant to a separate contract, then, this Agreement will expire at the completion of the contracted services, or upon termination of the contracted services, whichever occurs first. 4. Renewal.This Agreement may be renewed via inclusion in, and acceptance of additional contracts for professional services between the City and Consultant. Notwithstanding the scheduled contract expiration or the status of completion of services, Contractor shall provide the City with a current list of officers, agents, servants, employees or representatives that require Network credentials on an annual basis. Failure to adhere to this requirement may result in denial of access to the Network and/or termination of this Agreement. 3. Network Restrictions. Contractor officers, agents, servants, employees or representatives may not share the City-assigned user IDs and passwords. Contractor acknowledges, agrees and hereby gives its authorization to the City to monitor Contractor's use of the City's Network in order to ensure Contractor's compliance with this Agreement. A breach by Contractor, its officers. agents. servants. employees or representatives, of this Agreement and any other written instructions or guidelines that the City provides to Contractor pursuant to this Agreement shall be grounds for the City immediately to deny Contractor access to the Network and Contractor's Data, terminate the Agreement, and pursue any other remedies that the City may have under this Agreement or at law or in equity. 6. Termination. In addition to the other rights of termination set forth herein, the City may terminate this Agreement at any time and for any reason with or without notice, and without penalty to the City. Upon termination of this Agreement. Contractor agrees to remove entirely any client or communications software provided by the City from all computing equipment used and owned by the Contractor, its officers, agents, servants, employees and/or representatives to access the City's Network 7. Information Security. Contractor agrees to make every reasonable effort in accordance with Contract for Professional Services Larry Robert Heath 1 City of Fort Worth Page 12 of 14 f r 1 accepted security practices to protect the Network credentials and access methods provided by the City from unauthorized disclosure and use. Contractor agrees to notify the City immediately upon discovery of a breach or threat of breach which could compromise the integrity of the City's Network, including but not limited to, theft of Contractor-owned equipment that contains City- provided access software, termination or resignation of officers, agents, servants, employees or representatives with access to City-provided Network credentials, and unauthorized use or sharing of Network credentials. 8. LIABILITY AND INDEMNIFICATION. CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE FOR ALL DAMAGES THAT THE CITY MAY INCUR DIRECTLY ON ACCOUNT OF ANY BREACH OF THIS AGREEMENT BY CONTRACTOR, ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES. THE CITY, ITS OFFICERS,AGENTS, SERVANTS AND EMPLOYEES, SHALL NOT BE LIABLE FOR ANY DAMAGES THAT CONTRACTOR MAY INCUR AS A RESULT OF THE CITY'S RESTRICTIONS TO OR DENIAL OF ACCESS TO CONTRACTOR'S DATA ON ACCOUNT OF ANY BREACH OF THIS AGREEMENT BY CONTRACTOR, ITS OFFICERS, AGENTS, SERVANTS OR EMPLOYEES, OR FOR ANY REASONABLE SECURITY MEASURES TAKEN BY THE CITY. IN ADDITION, CONTRACTOR SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING DEATH,AND ALL CLAIMS, DEMANDS AND JUDGMENTS THEREFOR,TO THE EXTENT CAUSED BY THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS,AGENTS, SERVANTS AND/OR EMPLOYEES. CONTRACTOR,AT CONTRACTOR'S OWN COST OR EXPENSE, HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS,SERVANTS AND/OR EMPLOYEES FROM AND AGAINST ANY THIRD PARTY CLAIM, LAWSUIT, DEMAND OR OTHER ACTION TO THE EXTENT THAT THE SAME ARISES FROM THE NEGLIGENT ACT(S) OR OMISSION(S) OR INTENTIONAL MISCONDUCT OF CONTRACTOR, ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES. 9. Confidential Information. Contractor, for itself and its officers, agents, employees, and representatives, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. Contractor further agrees that it shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access, modify, delete or otherwise corrupt City Information in any way. Contractor shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. 18. Right to Audit. Contractor agrees that the City shall, during the initial term, any renewal terms, and until the expiration of three (3)years after termination or expiration of this contract, have access to and the right to examine at reasonable times any directly pertinent books, data, documents, papers and records, both hard copy and electronic, of the Contractor involving transactions relating to this Agreement, provided that the audit is performed at City's sole expense. Contractor agrees that the City shall have access during normal working hours to all necessary Contractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section, The City shall give Contractor reasonable advance notice of intended audits. Contractor further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall, during the initial term, any renewal terms, and until expiration of three (3) years after termination or expiration of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, data. documents, papers and records, both hard copy and electronic, of such subcontractor involving transactions related to the subcontract, and further that City shall have access during normal working hours to all subcontractor facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this paragraph. City shall give subcontractor reasonable notice of intended audits. 11. Agreement Cumulative. This Agreement is cumulative of and in addition to any written contracts, Contract for Professional Services Larry Robert Heath 1 City of Fort Worth Page 13 of 14 a r F k agreements, understandings or acknowledgments with the City signed by Contractor. This Agreement and any other documents incorporated herein by reference constitute the entire understanding and Agreement between the City and Contractor as to the matters contained herein regarding Contractors access to and use of the City's Network. 12. Amendments.The terms of this Agreement shall not be waived, altered, modified, supplemented, or amended in any manner except by written instrument signed by an authorized representative of both the City and Contractor. 13. Assignment. Contractor may not assign or in any way transfer any of its interest in this Agreement. Any attempted assignment or transfer of all or any part hereof shall be null and void. 14. 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. 15. Force Ma Each party shall exercise commercially reasonable efforts, consistent with the degree of care that a prudent and competent entity engaged in the same line of business or endeavor would exercise under similar circumstances, to meet its respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control (force majeure), including, but not limited to, compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority, transportation problems and/or any other similar causes. 16. Governing Law I Venue. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas, Fort Worth Division. 17. Si nature Authorit . The signature below of an authorized representative acknowledges that the Contractor has read this Agreement and agrees to be bound by terms and conditions set forth herein. Contract for Professional Services Larry Robert Heath/City of Fort Worth Page 14 of 14