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PROFESSIONAL SERVICES AGREEMENT
This PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into by
and between the CITY OF FORT WORTH (the "City"), a home rule municipal corporation situated in
portions of Tarrant, Denton and Wise Counties, Texas, acting by and through Karen L. Montgomery, its
duly authorized Assistant City Manager, and Micro Focus (US), Inc. ("Consultant'), a Delaware
corporation.
CONTRACT DOCUMENTS.
The Contract Documents for this Agreement shall consist of the following:
A. This Professional Services Agreement
B. Exhibit A - Statement of Work
C. Exhibit B - Network Access Agreement
D. Exhibit C — Non -Disclosure Agreement
All exhibits are attached hereto, incorporated herein, and made a part of this Agreement for all
purposes. In the event of a conflict between the documents, the order of precedence shall be (1)
Professional Services Agreement, (2) the Statement of Work, (3) Non -Disclosure Agreement, and (4)
Network Access Agreement.
1. SCOPE OF SERVICES.
Consultant hereby agrees to provide the City with professional consulting services for the
purpose of Mainframe Migration Assessment. Attached hereto and incorporated for all purposes
incident to this Agreement is Exhibit "A," Statement of Work, more specifically describing the services
to be provided hereunder.
2. TERM.
This Agreement shall commence upon the last date that both the City and Consultant have
executed this Agreement ("Effective Date") and shall continue in full force and effect until completion of
all services contemplated herein but no later than July 29, 2010, unless terminated earlier in accordance
with the provisions of this Agreement.
3. COMPENSATION.
The City shall pay Consultant an amount not to exceed $24,000 in accordance with the
provisions of this Agreement and the Statement of Work. This amount shall include all travel and related
expenses. Consultant shall not perform any additional services for the City not specified by this
Agreement unless the City requests and approves in writing the additional costs for such services. The
City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless
the City first approves such expenses in writing.
4. TERMINATION.
4.1. Written Notice.
The City or Consultant may terminate this Agreement at any time and for any reason by providing
the other party with 30 days written notice of termination. Either party may, by giving written
notice to the other, terminate this Agreement if the other party commits a material breach of any of
OFFICIAL RECORD
Professional Services Agreement CITY SECRETARY i
Micro Focus (US), Inc.
Page 1 of 17 FT. WORTH, TX
its terms and conditions and, in the case of a breach capable of being remedied, fails to remedy
the same within fifteen (15) business days of a written request to do so.
4.2 Non -appropriation of Funds.
In the event no funds or insufficient funds are appropriated by the City in any fiscal
period for any payments due hereunder, City will notify Consultant of such occurrence and this
Agreement shall terminate on the last day of the fiscal period for which appropriations were
received without penalty or expense to the City of any kind whatsoever, except as to the portions
of the payments herein agreed upon for which funds shall have been appropriated.
4.3 Duties and Obligations of the Parties.
In the event that this Agreement is terminated prior to the Expiration Date, the City shall
pay Consultant for services actually rendered up to the effective date of termination and
Consultant shall continue to provide the City with services requested by the City and in
accordance with this Agreement up to the effective date of termination.
5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION.
5.1 Consultant hereby warrants to the City that Consultant has made full disclosure in writing of
any existing or potential conflicts of interest related to Consultant's services under this Agreement. In the
event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby
agrees immediately to make full disclosure to the City in writing. Each party, for itself and its officers,
agents and employees, further agree that it shall treat all Confidential Information in accordance with the
Nondisclosure Agreement attached hereto as Exhibit "C."
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 the
performance of services under the 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 reasonable advance 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.
8. LIABILITY, WARRANTY AND INDEMNIFICATION.
8.1 THE TOTAL LIABILITY OF CONSULTANT IN CONNECTION WITH THIS
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Micro Focus (US), Inc.
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AGREEMENT FROM ALL CAUSES OF ACTION OF ANY KIND OR IN CONNECTION WITH
ANY APPLICABLE REMEDY HEREUNDER SHALL BE LIMITED TO THE AMOUNTS PAID BY
CITY TO CONSULTANT HEREUNDER (EXCLUDING REIMBURSED EXPENSES).
8.2 NOTWITHSTANDING THE ABOVE, THE LIMITATIONS SET FORTH IN 8.1 SHALL NOT
APPLY TO Sections 8.4 and 8.5 below.
8.3 IN NO EVENT SHALL EITHER PARTY OR ITS AGENTS, EMPLOYEES OR
REPRESENTATIVES BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL,
EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER RELATED TO, OR AS A
RESULT OF, THIS AGREEMENT INCLUDING LOSS OF DATA OR PROFITS.
8.4 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 THIRD PARTY CLAIMS OR LAWSUITS
ASSERTED AGAINST THE CITY TO THE EXTENT THAT SUCH CLAIM OR LAWSUIT IS
BASED ON REAL PROPERTY OR TANGIBLE PERSONAL PROPERTY DAMAGE OR LOSS
ANDIOR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY
KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE NEGLIGENT
ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS,
SERVANTS OR EMPLOYEES. PROVIDED: (1) CONSULTANT RECEIVES PROMPT WRITTEN
NOTICE OF THE APPLICABLE CLAIM; (II) CONSULTANT HAS SOLE CONTROL OVER THE
DEFENSE OR SETTLEMENT OF SUCH CLAIM; AND (III) CONSULTANT RECEIVES
REASONABLE COOPERATION FROM CITY IN ITS DEFENSE OF SUCH CLAIM.
8.5 Consultant agrees to indemnify and hold harmless the City for, and to pay the City the
amount of, any damages incurred or suffered by the City arising out of or resulting from
any action brought against the City by a third party to the extent that it is based on a claim
that any services or materials infringe any U.S. copyright or issued U.S. patent or that the
materials incorporate any U.S. misappropriated trade secrets. Consultant's
indemnification obligation under this Section 8.5 is only applicable to materials that have
not been modified or modified by Consultant or its authorized agents/contractors, and
only applicable if (i) Consultant has 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, and City agrees to cooperate with it in doing so, and (ii)
City agrees to give Consultant timely written notice of any such claim or action, with
copies of all papers City may receive relating thereto. If the material 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 material; or (b) modify the material to make it non -infringing, provided that such
modification does not materially adversely affect City's authorized use of the material; or
(c) replace the materials with functionally equivalent non -infringing material at no
additional charge to City; or (d) if none of the foregoing alternatives is reasonably
available to Consultant, terminate this agreement and refund to City the payments actually
made to Consultant under this Agreement for the infringing materials
8.6 TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE
WARRANTIES SET FORTH IN SECTION 5 AND IN SECTION 24, ALL OTHER WARRANTIES
OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
ARE HEREBY DISCLAIMED WITH RESPECT TO THE SERVICES.
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Micro Focus (US), Inc.
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9. ASSIGNMENT AND SUBCONTRACTING.
Consultant's use of subcontractors for the performance of services is authorized provided that
the subcontractors are under the direct supervision and control of Consultant and Consultant
shall cause its subcontractors to comply with this Agreement and shall be responsible for its
subcontractors' acts and omissions as if the subcontractor were a Consultant employee.
Consultant shall assume the same liability and responsibility for that subcontractor's conduct and
performance as if Consultant performed all of the subcontractor's Services. Subcontractor shall:
(a) comply with all federal, state and local laws, ordinances, rules and regulations issued that are
applicable to Consultant and such subcontractor's performance of the services; and (b) abide by
all of the terms and conditions of this Agreement and the Statement of Work. Consultant shall
not assign any of its duties, obligations or rights under this Agreement without the prior written
consent of the City except to an affiliate or a purchaser of all or substantially all of Consultants
assets. 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.
10. INSURANCE.
Consultant shall provide the City with certificate(s) of insurance documenting policies of the
following minimum coverage limits that are to be in effect prior to commencement of any work pursuant
to this Agreement:
10.1 Coverage and Limits
(a) Commercial General Liability
$1,000,000 Each Occurrence
$1,000,000 Aggregate
(b) Automobile Liability
$1,000,000 Each occurrence on a combined single limit basis
Coverage shall be on any vehicle used by the Consultant, its employees, agents,
representatives in the course of the providing services under this Agreement. "Any vehicle" shall
be any vehicle owned, hired and non -owned
(c) Worker's Compensation - Statutory limits
Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease - per each employee
$500,000 Disease - policy limit
This coverage may be written as follows:
Workers' Compensation and Employers' Liability coverage with limits consistent with statutory
benefits outlined in the Texas workers' Compensation Act (Art. 8308 — 1.01 et seq. Tex. Rev.
Civ. Stat.) and minimum policy limits for Employers' Liability of $100,000 each
accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per disease per
employee
(d) Technology Liability (Errors & Omissions)
$1,000,000 Each Claim Limit
$1,000,000 Aggregate Limit
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Technology coverage may be provided through an endorsement to the Commercial General
Liability (CGL) policy, or a separate policy specific to Technology E&O. Either is acceptable if
coverage meets all other requirements. Coverage shall be claims -made, and maintained for the
duration of the contractual agreement and for two (2) years following completion of services
provided. A certificate of insurance shall be submitted to the City to evidence coverage.
10.2 General Reouirements
(a) The commercial general liability and automobile liability 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.
(b) The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in
favor of the City of Fort Worth.
(c) Consultant shall endeavor to provide Thirty (30) days notice of cancellation or reduction in limits
of coverage 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.
(d) 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.
(e) Any failure on the part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirement.
(f) Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall
be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement.
11. COMPLIANCE WITH LAWS, ORDINANCES. RULES AND REGULATIONS.
Consultant agrees to comply with all applicable federal, state and local laws, ordinances, rules
and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or
regulations, Consultant shall immediately desist from and correct the violation.
12. NON-DISCRIMINATION COVENANT.
Consultant, for itself, its personal representatives, assigns, subcontractors and successors in
interest, as part of the consideration herein, agrees that in the performance of Consultant's duties and
obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group
of individuals on any basis prohibited by law. If any claim arises from an alleged violation of this non-
discrimination covenant by Consultant, its personal representatives, assigns, subcontractors or
successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City
and hold the City harmless from such claim provided: (i) Consultant receives prompt written notice of the
applicable claim; (ii) Consultant has sole control over the defense or settlement of such claim; and (iii)
Consultant receives reasonable cooperation from City in its defense of such claim.
13. NOTICES.
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Micro Focus (US), Inc.
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Notices required pursuant to the provisions of this Agreement shall be conclusively determined
to have been delivered when (1) hand -delivered to the other party, its agents, employees, servants or
representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or (3)
received by the other party by United States Mail, registered, return receipt requested, addressed as
follows:
To The CITY:
City of Fort Worth/IT Solutions
1000 Throckmorton
Fort Worth TX 76102-6311
Facsimile: (817) 392-8654
14. SOLICITATION OF EMPLOYEES.
To CONSULTANT:
Micro Focus (US), Inc.
9420 Key West Avenue, Suite 320
Rockville, MD 20850
Facsimile: 301-838-5034
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.
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.
17. GOVERNING LAW / VENUE.
This Agreement shall be construed in accordance with the internal laws of the State of Texas. If
any action, whether real or asserted, at law or in equity, is brought on the basis of this Agreement, venue
for such action 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.
18. SEVERABILITY.
If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
19. FORCE MAJEURE.
The City and Consultant shall exercise all commercially reasonable 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
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Micro Focus (US), Inc.
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deemed a part of this Agreement
21. 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.
22. AMENDMENTS / MODIFICATIONS / EXTENSTIONS.
No extension, modification or amendment of this Agreement shall be binding upon a party hereto
unless such extension, modification, or amendment is set forth in a written instrument, which is executed
by an authorized representative and delivered on behalf of such party.
23. 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 is hereby declared null and void to the extent in conflict
with any provision of this Agreement.
24. 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 into this Agreement.
25. INTELLECTUAL PROPERTY.
The ownership of and all intellectual property rights of whatever nature in the services and
deliverables including without limitation all ideas, concepts, methodologies, process, tools (including
computer hardware and software where applicable) provided by Micro Focus, whether created in
connection with this SOW or prior to or independent of the SOW, together with methods and techniques
used by Micro Focus to produce the deliverables ("Micro Focus IPR"), shall at all times belong to Micro
Focus for itself or, as Micro Focus may in its discretion determine, for any supplier on whose behalf Micro
Focus has provided the services to the City. Upon full payment by the City for the services provided by
Micro Focus hereunder, the City shall be granted a non-exclusive, royalty free perpetual licence to use
such Micro Focus IPR incorporated into any deliverable for its own internal purposes provided that the
Micro Focus IPR is not disclosed to any third person, unless required by law, is treated as confidential
information of Micro Focus to the extent permitted by law, and that any Micro Focus standard software
products supplied by Micro Focus as part of the Micro Focus IPR may be used by the City only if the
appropriate end user license agreement has been entered into by the City and license fee paid.
[Signature Page Follows]
Professional Services Agreement
Micro Focus (US), Inc.
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IN WITNESS WHEREOF, this Agreement is executed
parties in multiples this _ day of danwaq, 2010.
CITY OF FORT WORTH:
ByPo�� % 1
Karen L. Montgomery
Assistant
tCCity
/Manager
Date:
ATT T:
By:
Marty Hend
City Secretary
APPROVED AS _ O FORM AN
BAY;
Males is B. Farmer
Assistant City Attorney
Contract Authorization:
MBC: None required
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Micro Focus (US), Inc.
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by the duly authorized representatives of the
Micro Focus (US), Inc.:
Name: Martin M Reed
Title: No Amwile1 Controller
and Aee SUNA Treasurer
Date: Foos (US.), Inc.
ATTEST:
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
EXHIBIT A
STATEMENT OF WORK
Scope Assessment for
Mainframe Migration/Decommission Project
This Statement of Work ("SOW") is issued under and subject to all the terms and conditions of the
Professional Services Agreement to which this SOW is attached and incorporated therein, by and
between Micro Focus (US), Inc. ("Consultant' or "Micro Focus") and the City of Forth Worth (the "City").
This SOW specifies the details and pricing of the proposed assessment engagement.
I. Scope of Services
Micro Focus will assess the City non-ERP applications, and establish an accurate scope and plan for the
migration of these applications from an IBM zSeries platform to a Windows platform.
Assessment will require 10 consultant days to complete over a 3 to 4 week period, allowing for holidays
and research time.
Overview
City wishes to achieve the following objectives:
• Be able to decommission the mainframe in the 2012-2013 timeframe.
• Migrate non-ERP applications, jobs, files, etc. between now and 2012 so that when ERP Phase 2
is complete the mainframe can be decommissioned.
• Execute a phased Mainframe Migration project
• Low risk, low cost migration of City Applications to a distributed platform
• Reduced cost of operations
• Improved application maintenance productivity
City is currently executing and maintaining their COBOL -based solution on the IBM zSeries platform.
Metrics and components of the City Applications application may be summarized as follows:
• Several hundred users of the applications, plus many others users of reports
• Approximately 6 Developers
• Approximately 20 MIPS in use on an 88 MIPS Mainframe
• Mainframe application environment consists of COBOL, CICS, JCL, VSAM
• Approximately 750,000 lines of source code
• Potentially migrate VSAM to SQL Server 2005 (or VSAM to Micro Focus ISAM in EBCDIC)
• Approximately 250 production VSAM files and 6,250 fixed sequential files
• Primary infrastructure and operations solution set for migration includes:
• Some Assembler
• IBM RACF
• Beta42 job scheduler
• Mobius Output Management
City is interested in the scope and cost of migrating the City Applications on to a Micro Focus Server
Enterprise Edition platform, and is requesting that Micro Focus conduct an Application Migration
Assessment to help confirm the options and complexity, scope and resource requirements of such a
migration.
Assessment Approach
The Assessment gathers, reviews and analyzes existing business requirements, technical content and
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Micro Focus (US), Inc.
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data definitions in detail to produce an accurate Application Migration Scope and Plan with supporting
comprehensive Application Documentation.
In summary, the Assessment process is as follows:
Load and analyze an application repository providing comprehensive Application metrics
including:
• Quantity and size of source members
• Application relationships and dependencies
• Interfaces and integration points
• Quantity and size of files and data base tables
• Complexity of data structures
• Data usage, by jobs and programs
Conduct application, infrastructure, operations and 3`d party solution Subject Matter Expert (SME)
interviews to support:
• Expansion and rationalization of knowledge gained through repository analysis
• Accurate estimation of scope of effort
• Project time line determination
• Data management requirement determination
• Skills and training requirement determination
• Application environment and direction definition
• Identification of all components by capability & function, assignment of impact weighting
factor scope estimation
• Migration project task group requirements definition across:
o Training, installation and configuration
o Data file migration
o Development and support system deployment
o Quality assurance and testing system deployment
o Production system deployment
• Risk determination
• Migration project planning
3. Present and discuss assessment results and recommendations
4. Adjust and confirm migration project scope, schedule and plan
Deliverables
The Consultant will provide the following detailed and measureable deliverables. -
Creation of a Micro Focus repository which will be used to perform a source code analysis and
provide the following detailed information;
0 Identify potential migration issues;
0 Identify missing source code;
0 Identify code that is not used;
0 Create System and Application Flowcharts;
0 Create HTML documentation and make this information available on a server system;
➢ A complete, set of linked HTML documents that describe how the application components
connect to each other, and which provides a categorized list of the potential migration issues
found;
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Micro Focus (US), Inc.
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➢ A worksheet which facilitates drill down on the specific detail of each potential issue for further
analysis, and exports the issues found to an Excel spreadsheet, enabling accurate estimations of
effort required to be made;
➢ A findings document detailing the results of the assessment. This document will provide details
on the migration approach to be used by Micro Focus, any issues which were identified,
recommended approaches for addressing the issues, and any other tasks which need to be
performed as part of the migration process. This document will also provide a breakdown of any
tools required for the project, whether provided by Micro Focus or a third party;
➢ A report listing the obsolete transactions, screens, and batch jobs which will not need to be
migrated;
➢ A recommendation of server requirements;
➢ A detailed and measureable project plan detailing the major tasks involved in the migration, the
duration of the tasks, and the estimated resource requirements for both Micro Focus and City;
➢ A proposal for the migration project showing the estimated cost of the migration, Micro Focus
resources, and City resources;
➢ Host a 1/2 day roundtable discussion where Micro Focus mainframe migration experts will explain
the migration process on a step by step basis, with respect to the results of the assessment.
Prerequisites
The following resources are required from City prior to and during the actual execution the
assessment activities:
• Access to Mainframe and/or Windows Systems Administrators;
• Access to Application Subject Matter Experts (SME) during the assessment (this is
particularly important for identifying obsolete transactions and batch jobs);
• Login access to all the necessary environments or available City personnel who have the
necessary login access;
• Availability of networked corporate computer(s) for Consultant use.
o Consultants have their own laptops, however security protocols often do not allow
outside computers to connect to corporate network.
• Availability of appropriate building security badges during the assessment.
As noted above, City will need to provide access to a network attached computer during the assessment
that meets one of the following minimum requirements:
A Desktop Computer:
• Pentium Class 2Ghz CPU or equivalent (Dual Core preferred)
• Memory: 1GB or greater (2GB or more preferred)
• Disk space: 60GB or greater
• Operating System: Windows XP Professional
-or-
A Server Computer:
• Pentium Class 2 or more CPU or equivalent
• Memory: 1GB or greater (2GB or more preferred)
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Disk space: 60GB or greater
Operating System: Windows 2003 Server
• Micro Focus agrees to leave intact any results from this engagement on the city -owned
equipment. Micro Focus agrees to notify and gain approval before downloading any new
software or tools from an outside resource apart from the city's network
City must provide all of the necessary source code for all of the items which will be part of the
Assessment on a Microsoft Windows workstation or server.
11. Price City agrees to pay Consultant $24,000, (price includes any travel, living, and out of pocket
expenses incurred by Consultant in performing the services).
Services under this SOW must be scheduled for completion within 30 days of the effective date of
the SOW.
III. Invoices and Payment Micro Focus will provide the Services for a fixed fee not to exceed $24,000.
In consideration for the Services, City agrees to pay Micro Focus upon project completion.
Project is complete when all deliverables outlined in this SOW are delivered to the City.
IV. Start of Enqaqement It is anticipated tha
February, 2010. The actual start date will depend
City's execution of this SOW.
V. Miscellaneous
City Contact: Mr. Dan Allen or Mr. Mark Deboer.
ACCEPTED AND AGREED:
t
Micro Focus will provide the services starting in
on consultant availability, and will be finalized upon
CITY OF FORT WORTH: MICRO FOCUS (US), INC.:
By: l r I IA4 - L'1�
Karen L. Montgomery Name: Moth Q 11,10"
Assistant City Manager Title: NOM Awmft Car"Ier
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OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Professional Services Agreement
Micro Focus (US), Inc.
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EXHIBIT B TO
PROFESSIONAL SERVICES AGREEMENT
Between Micro Focus (US). Inc. and Citv of Fort Worth
Dated .20
NETWORK ACCESS TERMS
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 Mainframe Migration
Assessment as further set forth in the SOW. In order to provide the necessary support, Contractor needs
access to Network systems as determined by the City.
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 the Mainframe Migration Assessment. 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. Services are being provided in accordance with City Secretary Contract
No.
4. Renewal. At the end of the first year and each year thereafter, the Access rights may be
renewed annually if the following conditions are met:
4.1 Contracted services have not been completed.
4.2 Contracted services have not been terminated.
4.3 Within the thirty (30) days prior to the scheduled annual expiration of this Agreement, the
Contractor has provided the City with a current list of its officers, agents, servants, employees or
representatives requiring Network credentials.
Notwithstanding the scheduled contract expiration or the status of completion of services, Contractor
shall provide the City with a current list of officers, agents, servants, employees or representatives that
require Network credentials on an annual basis. Failure to adhere to this requirement may result in denial
of access to the Network and/or termination of this Agreement.
5. Network Restrictions. Contractor officers, agents, servants, employees or representatives may
not share the City -assigned user IDs and passwords. Contractor acknowledges, agrees and hereby gives
its authorization to the City to monitor Contractor's use of the City's Network in order to ensure
Contractor's compliance with this Exhibit B. A breach by Contractor, its officers, agents, servants,
employees or representatives, of this Exhibit B 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.
Professional Services Agreement
Micro Focus (US), Inc.
Page 2 of 17
6. Termination. The City may terminate Contractor's access to preserve the safety or security of
the Network at any time and for any reason with or without notice, and without penalty to the City. Upon
termination or expiration 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
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.
ACCEPTED AND AGREED:
Cl1 Y OFF RT WORTH:
Karen L. Montgomery
Assistant City Manager V
Date:
APPROVED TO FORM AND LEGALITY:
Assists City Attorney
Attested by:
(,Y\ (A' . , I "/K
Marty klendrix, ty Secretary
MICROFOCUS(US), INC.
By: _,� y�ICL CT 1 )) "_zt
Name: k
Title: r'm Amenme i:WWDNW
$flO Assi =M ltwwlrw
Date: —, 212 , D Focus (U.S.), Inc.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Professional Services Agreement
Micro Focus (US), Inc.
Page 3 of 17
EXHIBIT C
NONDISCLOSURE AGREEMENT
THIS AGREEMENT is entered into and effective as of the day of , 20 ("Effective
Date") between CITY OF FORT WORTH ("CITY") a home rule municipal corporation organized under the laws of the
state of Texas, and MICRO FOCUS (US), INC. ("Company"), a Delaware Corporation, collectively referred to as the
"parties" and individually as a "party." For purposes of this Agreement, the terms City and Company include parent and
subsidiary companies of the party.
1. City and Company intend to disclose to each other information, which may include confidential information,
for the purpose of Mainframe Migration Assessment. 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. Confidential Information may be either the
property of the disclosing party or information provided by a corporate affiliate of the disclosing party or a
third party. Disclosures under this Agreement may be made from the Effective Date of this Agreement until
June 30, 2010, unless extended in a writing signed by both parties. Disclosures and receipt of Confidential
Information will be by authorized representative on behalf of the City and authorized representative on
behalf of Company. The parties may designate others, in writing, to receive and disclose Confidential
Information.
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; and
(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;
(f) notify disclosing party immediately upon discovery of any unauthorized use or disclosure of
Confidential Information or any other breach of this Agreement by recipient, its employees, consultants
or agents and will cooperate with disclosing party in every reasonable way to help disclosing party
regain possession of the Confidential Information and prevent its further unauthorized disclosure or
use.
For purposes of this Agreement, a "need to know" means that the employee, consultants or agents requires the
Confidential Information in order to perform his or her responsibilities in connection with the stated purpose.
3. The obligations of Paragraph 2 will not apply to any Confidential Information which:
(a) is or becomes available to the public through no breach of this Agreement;
(b) was previously known by the recipient without any obligation to hold it in confidence;
(c) is received from a third party free to disclose such information without restriction;
(d) is independently developed by the recipient without the use of Confidential Information of the disclosing
party;
Professional Services Agreement
Micro Focus (US), Inc.
Page 4 of 17
(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 parry and the disclosing party will substitute properly marked
information. In addition, if the disclosing party, at the time of disclosure, inadvertently fails to identify as
proprietary, confidential or private oral or visual information for which it desires confidential treatment, it will
so inform the receiving party. The receiving parry'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 parry, will, within ten (10) calendar days of a written request by the disclosing party, return all
Confidential Information, including all copies, to the disclosing parry 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 parry, certify in writing that it has satisfied its obligations under this
Paragraph 6. The receiving parry'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 parry irreparable injury for which it would have no adequate remedy at law, and that the
disclosing parry 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 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 parry's activities or dealings except as expressly
provided herein with respect to the disclosing parry'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 and shall continue until expiration of the
confidentiality period stated in Section 6.
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.
Professional Services Agreement
Micro Focus (US), Inc.
Page 5 of 17
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.
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 attorneys 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.
18. This Agreement shall be governed by and construed in accordance with the laws of the state of Texas
CITY OF FORT WORTH
E3yt:_
Karen L. Montgomery
Assistant City Manager Title:
Date: a
APPROVED 0 M AND LEGALITY
Assist nt City Attom y
Attey
\sW b
FV\ J-4)
Marty Hendry, ity Secretary
MICRO FOCUS (US), Inc.
By:
Print Name: �Mgj�DrAssd
Controller
snd Asslstsnt Tmsurerr
, 11112 fj1 ro Focus (U.S.), Inc.
Date:
r
r�
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Professional Services Agreement
Micro Focus (US), Inc.
Page 6 of 17