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HomeMy WebLinkAboutContract 61588CSC No. 61588 FWA 69 SERVICE AGREEMENT This Service Agreement ("Agreement") is entered into as of the Effective Date (defined below) by and between Virtual Project Manager LLC, an Oregon limited liability company ("VPM"), whose address is P.O. Box 8127 Bend, Oregon 97701, and the person or entity identified below ("Customer"). VPM agrees to make its web -based project management system known as Virtual Project Manager and related services available to Customer, on and subject to the terms and conditions of this Agreement. This Agreement consists of the Specific Terms listed below and the Standard Terms and Conditions attached hereto for Virtual Project Manager. SPECIFIC TERMS Customer: City of Fort Worth, TX Effective Date: 06/10/2024 Fees (see breakdown): Service Fee: $21,000 per year, with payments due thirty (30) days after receipt of invoice. Optimization Fee: $3,000 - one time fee with payments due thirty (30) days after optimization is complete and receipt of invoice. (See optimization section below for scope). Implementation/Training Fee: $7,500 — one-time fee payable 30 days from date of invoice to issue upon execution of this Agreement. Guarantee/Refunds: If Customer is not satisfied with the VPM Service for any reason, Customer may terminate this Agreement by written notice given to VPM within sixty (60) days after the Effective Date and all previously paid Service Fees will be refunded. If no such termination notice is given, all fees are nonrefundable. Additional Fees: The above fees are for one Customer location. Customer location is defined as all projects that are funded in whole or in part by the customer. Additional locations are subject to additional fees. OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 1 P.O. Box 8127 Bend, OR, 97708 760.881.6627 www.virtual-pm.com Term of Agreement: One year after the Effective Date, subject to renewal or termination as provided in this Agreement. Optimization: VPM shall add SSO using SAML or OpenlD Connect as a way for users with the customers domain to access VPM. This will be compatible with Okta and completed within one year of effective date. This is the customers Cloud Management System. VPM Service: VPM's Web -based project management system known as Virtual Project Manager, which consists of the modules/features from time to time listed on the VPM website. The VPM Service will also include new modules/features added to the VPM Service by VPM from time to time, provided such new modules/features are generally made available at no additional charge to customers of the VPM Service. Statement of Work: VPM shall provide a cloud -based project management system to the customer as provided in this Agreement. VPM shall provide training virtually in six (6) one and one-half hour sessions. The parties' duly authorized representatives have executed this Agreement (including the Standard Terms and Conditions on the following pages) effective as of the date set forth above. VPM: VIRTUAL PROJECT MANAGER, LLC By: Lex e2Gb r J.W1 10, 2024 20:17 PDT) Lex Zuber, President/CEO Customer Invoice Information Preferred Invoicing Method: ❑ Email ❑ Mail How would you like to be billed? ❑ Annually X Monthly CUSTOMER: City of Fort Worth, TX Tyson I son (Jun 10, 202422:23 CDT) By: Name: Tyson Thompson Title: Assistant Director, Development Servi Email: supplierinvoices@fortworthtexas.gov (Please provide the email address where to send invoices) Mail: (Please provide the mailing address where to send invoices) Name: City of Fort Worth Attn: Development Services/Business Support Address: 200 Texas St. City: Fort Worth State: Texas Zip Code: 76102 Direct Phone Number: 817-392-6290 Page 2 P.O. Box 8127 Bend, OR, 97708 760.881.6627 www.virtual-pm.com VIRTUAL PROJECT MANAGER STANDARD TERMS AND CONDITIONS These Standard Terms and Conditions, together with the above Specific Terms for the VPM Service, govern Customer's use of the VPM web -based project management system and associated services (the "VPM System"). 1. Use of VPM System. Subject to the terms of this Agreement, VPM hereby grants Customer and its authorized employees and consultants, as well as Customer's contractors and their respective employees to the extent authorized by Customer (each, an "Authorized User"), the right to access and use the VPM System via the Internet for Customer's customary and ordinary project management purposes (the "Permitted Use"), to enter into the VPM System data and information regarding Customer projects ("Customer Data"), to have the Customer Data stored on servers owned or leased by VPM, and to use the Customer Data available through the VPM System for the Permitted Use. Customer shall be solely responsible for determining the Authorized Users who have access to the VPM System, and VPM shall have no liability to Customer, any Authorized User, or any third party arising out of any use of the VPM System by any Authorized User. 2. Restrictions. Customer understands and agrees that it is not being granted the right to use the VPM System or any software associated with it except by accessing the VPM System website through VPM- provided Web interfaces as described above. Customer shall not: (a) copy, reproduce or duplicate the VPM System or website or any software related thereto for any purposes; (b) modify, disassemble, reverse engineer, decompile or prepare derivative works of the VPM System or website or any software related thereto, or in any way use the VPM System to assist in developing any competing product or service; (c) rent, sublicense, assign, transfer, or grant any third party any rights in the VPM System or website or any software related thereto; or (d) use, adopt or attempt to register anywhere in the world, whether alone or together with any other mark, symbol or name, "Virtual Project Manager." The VPM Service is intended for access and use by means of Web browsing software, and VPM does not commit to support Web browsing platforms or guarantee that the VPM System will be compatible with all browsing platforms. 3. Passwords and Login. All access to the VPM System shall be by password, and each Authorized User shall have his or her own uniquely identifiable login and password. Authorized Users shall not share their logins or passwords with other persons or provide online access to VPM for any other person without VPM's prior written consent. Customer agrees to notify VPM promptly if it has any reason to believe that any third party has unauthorized access to such information. Customer shall be solely responsible for any and all use of the VPM System occurring under its Authorized Users' logins and passwords and for each Authorized User's compliance with the terms of this Agreement and the TOS. VPM reserves the right to suspend or terminate an Authorized User's access to the VPM System if such Authorized User violates any of the terms of this Agreement or the TOS. 4. Terms of Service. The VPM System is provided subject to the terms and conditions of this Agreement. 5. Customer Data; No Loading of Personal Information. All Customer Data shall be owned by Customer. Customer and its Authorized Users are solely responsible for any Customer Data posted or uploaded into the VPM Service or transmitted via the VPM System. VPM does not control and does not make any representations or warranties whatsoever regarding the Customer Data. Customer agrees that it shall be responsible for and bear all risks associated with the accuracy, integrity, completeness, or quality of Customer Data. Neither Customer nor any Authorized User shall load into the VPMSystem any "personally identifiable information" or "sensitive personal information" as such terms are defined in applicable state or Federal privacy laws or any "personal information" as defined in the EU General Data Protection Regulation (to the extent it is applicable). VPM reserves the right to delete from the VPM System any Customer Data that violates the terms of this Agreement. Page 3 P.O. Box 8127 Bend, OR, 97708 760.881.6627 www.virtual-pm.com 6. Representations and Warranties; Indemnification. Each parry represents and warrants that (a) the making, execution and performance of this Agreement on behalf of such parry has been duly authorized by all necessary company or governmental action, and no consent from any third parry is required for such party to enter into this Agreement or perform its obligations hereunder, and (b) the individual executing this Agreement on behalf of such party has been duly authorized to do so. VPM represents and warrants to Customer that it has the right to grant Customer access to the VPM System as contemplated in this Agreement, and the VPM System does not infringe the Intellectual Property Rights (as defined below) of any third parry. Customer represents and warrants to VPM that it has all required legal and other rights to load Customer Data into the VPM System and otherwise use such date in connection with the VPM System, that such actions will not violate any applicable laws or infringe the Intellectual Property Rights or privacy or other rights of any third parry. Subject to and within the defenses, immunities and limitations available to the Customer under the Oregon Tort Claims Act, 14 M.R.S.A. Sec. 1801, et seq. or other applicable law, each party ("Indemnifying Party") agrees to indemnify, defend and hold harmless the other party and its owners, members, managers, directors, employees and agents from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, arising out of third party claims alleging or based on the breach of any representation or warranty made in this Paragraph 6 by the Indemnifying Parry hereunder. 7. Modifications of VPM System. VPM reserves the right at any time to revise and modify the VPM System and alter its features, specifications, capabilities and/or functions, without the consent of or notice to Customer or any Authorized User. 8. System Maintenance; Downtime. Customer acknowledges and agrees that (i) it may be necessary to take down the VPM System and Website from time to time or on a periodic basis for maintenance or to resolve technical problems, upgrade software, or otherwise help ensure the reliable and efficient operation of the VPM System, and (ii) due to the foregoing or due to power interruptions, communication systems failures or other conditions outside VPM's control, the VPM System may occasionally be unavailable. Customer waives any and all claims against VPM arising from any such availability. VPM will use reasonable efforts to minimize the time during which the VPM System is down for such reasons. 9. Payment of Fees; Taxes. In consideration of the rights granted by VPM under this Agreement, Customer agrees to pay VPM the fees set forth in the Specific Terms or otherwise agreed to by the parties. All fees are due within 30 days of receipt of an invoice. All fees are deemed fully earned when due or upon invoicing and will not be prorated or refunded if this Agreement is terminated or expires except as expressly set forth in the Specific Terms. Overdue amounts shall, at VPM's option, accrue interest at the rate of 1.5% per month. Fees payable under this Agreement are net amounts and do not include sales, use, value-added, or any other taxes except for income taxes levied on VPM with respect to such fees. All such taxes will be the responsibility of and paid or reimbursed by Customer. 10. Limitation on Warranties. THE VPM SYSTEM AND WEBSITE, AND THE SERVICES AND CUSTOMER DATA AVAILABLE THERE, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VPM DOES NOT WARRANT THAT THE VPM SYSTEM OR ANY VPM DATA OR CUSTOMER'S ACCESS THERETO WILL BE ERROR -FREE OR UNINTERRUPTED, OR THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, ERROR -FREE OR UNCORRUPTED, AND HEREBY DISCLAIMS ANY AND ALL LIABILITY ON ACCOUNT THEREOF. Page 4 P.O. Box 8127 Bend, OR, 97708 760.881.6627 www.virtual-pm.com 11. Limitation of Liability. IN NO EVENT SHALL VPM, ITS MEMBERS, MANAGERS, EMPLOYEES, CONTRACTORS OR OTHER REPRESENTATIVES BE LIABLE UNDER ANY THEORY, INCLUDING BUT NOT LIMITED TO CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR PRODUCT LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS), ARISING FROM OR RELATING TO THE USE OF OR INABILITY TO USE THE VPM SYSTEM OR ANY VPM DATA OR FROM ERRORS, OMISSIONS OR OTHER INACURRACIES IN ANY VPM DATA ACCESSED THROUGH THE VPM SYSTEM, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT PREJUDICE TO THE FOREGOING LIMITATIONS, THE AGGREGATE LIABILITY OF VPM TO CUSTOMER UNDER THIS AGREEMENT UNDER ANY AND ALL THEORIES, INCLUDING BUT NOT LIMITED TO CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR PRODUCT LIABILITY, SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO VPM UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD. 12. Intellectual Property Ownership. VPM and its licensors, where applicable, own all right, title and interest, including all Intellectual Property Rights, in and to the VPM System, all content provided on the VPM System website and all underlying software used in connection with the VPM System. This Agreement is not a sale and does not convey you any rights of ownership in any of the foregoing. The "VPM" and "Virtual Project Manager" name, logo and taglines, including but not limited to "Built by Cities for Cities" and "Built for Municipalities by Municipalities" are trademarks of VPM and no right or license is granted to use them. If Customer or any Authorized User gives VPM verbal or written feedback regarding the VPM System, Customer agrees that VPM will have a perpetual, unrestricted, assignable and royalty -free license and right to use and incorporate some or all of such feedback into the VPM System or other product or service offered by VPM. As used herein, "Intellectual Property Rights" means all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights. 13. Term and Termination. The initial term of this Agreement is set forth on the Specific Terms. Unless otherwise provided in the Specific Terms, the term shall automatically renew for successive periods equal to the initial term; provided, however, either party may terminate this Agreement at any time for any reason by giving the other party at least sixty (60) days prior written notice. This Agreement may also be terminated by either party if the other party breaches any provision of this Agreement and does not cure the breach, if curable, within twenty (20) days after written notice thereof specifying the default. 14. Effect of Termination. Upon termination or expiration of this Agreement for any reason, all rights granted by VPM under this Agreement, including the right to access the VPM System, will immediately cease. Upon termination or expiration of this Agreement, all unpaid fees invoiced and owed by Customer shall be due and payable immediately, and no prepaid fees shall be refunded except as expressly provided in the Specific Terms. In addition, following termination or expiration of this Agreement, VPM shall maintain all Customer Data for at least ninety (90) days to allow Customer to retrieve all data prior to deleting some or all Customer Data from its systems. 15. Use of Customer Name. VPM shall have the right to identify Customer as a customer of the VPM System, and use Customer's name and logo, on VPM's website and in other marketing materials pertaining to the VPM System. 16. Communications with Users; Marketing. Subject to VPM's privacy policy in effect from time to time and applicable law, unless Customer has opted out of receiving such communications, Customer Page 5 P.O. Box 8127 Bend, OR, 97708 760.881.6627 www.virtual-pm.com agrees that VPM will have the right to (a) transmit or cause to be transmitted to Customer and its Authorized Users (unless they have opted out) marketing and related communications from VPM relating to its products and services, and (b) transmit or permit to be transmitted to Customer and its Authorized Users (unless they have opted out) marketing and related communications from VPM's affiliates and/or business partners relating to their products and services. Customer and its Authorized Users may opt out of receiving some or all of these communications at that time by changing preferences or through email notification of VPM. Because the VPM System is a hosted, online application, VPM may occasionally need to communicate with all Authorized Users, whether or not they have opted out, due to important announcements regarding the operation of or modifications to the VPM System. 17. Miscellaneous. This Agreement (including the Specific Terms) constitute the entire agreement between the parties regarding the subject matter hereof and supersede all prior or contemporaneous agreements, understandings, proposals, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. This Agreement will be governed by the laws of the Oregon. Any action or proceeding arising from or relating to this Agreement shall be brought in a federal or state court in Deschutes County, Oregon, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys' fees, court costs, and other collection expenses, in addition to any other relief it may receive, in any bankruptcy case, arbitration proceeding or court case. Customer may not assign any of its rights or obligations under this Agreement without VPM's prior written consent. This Agreement may be executed manually or by facsimile in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. The parties agree that the electronic signature of a party to this Agreement shall be as valid as an original signature of such party and shall be effective to bind such party to this Agreement. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a local, regional or national communications or power failure or interruption, labor dispute, shortage of materials, database corruption, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. The parties do not intend by this Agreement to confer any right or remedy on any third party. The provisions of Sections 2, 6, 10, 11, 12, 14 and 16, and any other provisions of this Agreement that should reasonably be expected to survive, shall survive the termination or expiration of this Agreement. Each party acknowledges and agrees that remedies at law for a breach or threatened breach of any of the provisions of this Agreement may be inadequate and, in recognition of this fact, each party agrees that in addition to any remedies at law (including, without limitation, damages), equitable relief in the form of specific performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy shall be available in the event of a breach or threatened breach of this Agreement. Page 6 P.O. Box 8127 Bend, OR, 97708 760.881.6627 www.virtual-pm.com ADDENDUM TO SERVICE AGREEMENT BETWEEN THE CITY OF FORT WORTH AND VIRTUAL PROJECT MANAGER, LLC This Addendum to the Service Agreement ("Addendum") is entered into by and between Virtual Project Manager, LLC ("Vendor") and the City of Fort Worth ("City"), collectively the "parties." The Contract documents shall include the following: 1. The Service Agreement, and 2. This Addendum. Notwithstanding any language to the contrary in the attached Service Agreement (the "Agreement"), the parties stipulate by evidence of execution of this Addendum below by a representative of each party duly authorized to bind the parties hereto, that the parties hereby agree that the provisions in this Addendum below shall be applicable to the Agreement as follows: 1. Term. The Agreement shall commence upon the date signed by the Assistant City Manager below ("Effective Date") and shall expire no later than July 1, 2025 ("Expiration Date"), unless terminated earlier in accordance with the provisions of this Agreement or otherwise extended by the parties. This Agreement may be renewed for two (2) one- year renewal periods at the City's option, each a "Renewal Term." The City shall provide Vendor with written notice of its intent to renew at least thirty (30) days prior to the end of each term. 2. Termination. a. Convenience. Either City or Vendor may terminate the Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. b. Breach. If either party commits a material breach of the 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 the Agreement, law, or equity, immediately terminate the Agreement by giving written notice to the breaching party. C. Fiscal Funding Out. In the event no funds or insufficient funds are appropriated by City in any fiscal period for any payments due hereunder, City will notify Vendor of such occurrence and the Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of Addendum Page 1 of 8 any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. d. Duties and Obligations of the Parties. In the event that the Agreement is terminated prior to the Expiration Date, City shall pay Vendor for services actually rendered up to the effective date of termination and Vendor shall continue to provide City with services requested by City and in accordance with the Agreement up to the effective date of termination. Upon termination of the Agreement for any reason, Vendor shall provide City with copies of all completed or partially completed documents prepared under the Agreement. In the event Vendor has received access to City information or data as a requirement to perform services hereunder, Vendor shall return all City provided data to City in a machine readable format or other format deemed acceptable to City. 3. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties or liquidated damages in any amount, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 4. Law and Venue. The Agreement and the rights and obligations of the parties hereto shall be governed by, and construed in accordance with the laws of the United States and state of Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement shall be in a court of competent jurisdiction in Tarrant County, Texas. To the extent the Agreement is required to be governed by any state law other than Texas or venue in Tarrant County, City objects to such terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 5. Sovereiizn Immunitv. Nothing herein constitutes a waiver of City's sovereign immunity. To the extent the Agreement requires City to waive its rights or immunities as a government entity; such provisions are hereby deleted and shall have no force or effect. 6. Limitation of Liability and Indemnitv. Vendor agrees the exclusions or limits of liability, as may be stated elsewhere in the Agreement, shall not apply to the City's claim or loss arising from any of the following: (a) Vendor's breach of its data security obligations; (b) Vendor's misuse or misappropriation of the City's intellectual property rights, (c) Vendor's indemnity obligations, or (d) any other obligations that cannot be excluded or limited by applicable law. To the extent the Agreement, in any way, requires City to indemnify or hold Vendor or any third party harmless from damages of any kind or character, City objects to these terms and any such terms are hereby deleted from the Agreement and shall have no force or effect. 7. IP Indemnification. Vendor 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 the Agreement, it being understood that the agreement to indemnify, defend, settle or pay shall not apply if City modifies or misuses the Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions Addendum Page 2 of 8 against the City pursuant to this section 9, Vendor 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 Vendor 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 the 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, Vendor shall fully participate and cooperate with the City in defense of such claim or action. City agrees to give Vendor 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 Vendor's duty to indemnify the City under the 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, Vendor 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 Deliverable(s) to make them/it 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 Vendor, terminate the Agreement, and refund all amounts paid to Vendor by the City, subsequent to which termination City may seek any and all remedies available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY. 8. Data Breach. Vendor further agrees that it will monitor and test its data safeguards from time to time, and further agrees to adjust its data safeguards from time to time in light of relevant circumstances or the results of any relevant testing or monitoring. If Vendor suspects or becomes aware of any unauthorized access to any financial or personal identifiable information ("Personal Data") by any unauthorized person or third party, or becomes aware of any other security breach relating to Personal Data held or stored by Vendor under the Agreement or in connection with the performance of any services performed under the Agreement or any Statement(s) of Work ("Data Breach"), Vendor shall immediately notify City in writing and shall fully cooperate with City at Vendor's expense to prevent or stop such Data Breach. In the event of such Data Breach, Vendor shall fully and immediately comply with applicable laws, and shall take the appropriate steps to remedy such Data Breach. Vendor will defend, indemnify and hold City, its Affiliates, and their respective officers, directors, employees and agents, harmless from and against any and all claims, suits, causes of action, liability, loss, costs and damages, including reasonable attorney fees, arising out of or relating to any third party claim arising from breach by Vendor of its obligations contained in this Section, except to the extent resulting from the acts or omissions of City. All Personal Data to which Vendor has access under the Agreement, as between Vendor and City, will remain the property of City. City hereby consents to the use, processing and/or disclosure of Personal Data only for the purposes described herein and to the extent such use or processing is necessary for Vendor to carry Addendum Page 3 of 8 out its duties and responsibilities under the Agreement, any applicable Statement(s) of Work, or as required by law. Vendor will not transfer Personal Data to third parties other than through its underlying network provider to perform its obligations under the Agreement, unless authorized in writing by City. Vendor's obligation to defend, hold harmless and indemnify City shall remain in full effect if the Data Breach is the result of the actions of a third party. All Personal Data delivered to Vendor shall be stored in the United States or other jurisdictions approved by City in writing and shall not be transferred to any other countries or jurisdictions without the prior written consent of City. 9. Insurance. Vendor agrees that insurance coverage provided to City by Vendor is sufficient for purposes of the Agreement only. 10. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is understood and agreed that all obligations of City hereunder are subject to the availability of funds. If such funds are not appropriated or become unavailable, City shall have the right to terminate the Agreement except for those portions of funds which have been appropriated prior to termination. 11. Public Information. City is a government entity under the laws of the State of Texas and all documents held or maintained by City are subject to disclosure under the Texas Public Information Act. To the extent the Agreement requires that City maintain records in violation of the Act, City hereby objects to such provisions and such provisions are hereby deleted from the Agreement and shall have no force or effect. In the event there is a request for information marked Confidential or Proprietary, City shall promptly notify Vendor. It will be the responsibility of Vendor to submit reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by City, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 12. Addendum Controlling. If any provisions of the attached Agreement, conflict with the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or ordinance of City, the terms in this Addendum shall control. 13. Immigration Nationalitv Act. Vendor shall verify the identity and employment eligibility of its employees who perform work under the Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Vendor shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under the Agreement. Vendor shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Vendor employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Vendor, shall have the right to immediately terminate the Agreement for violations of this provision by Vendor. 14. Right to Audit. Vendor agrees that City shall, until the expiration of three (3) years after final payment under the Agreement, have access to and the right to examine any directly Addendum Page 4 of 8 pertinent books, documents, papers and records of Vendor involving transactions relating to the Agreement. Vendor agrees that City shall have access during normal working hours to all necessary Vendor facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable advance notice of intended audits. 15. Insurance. 1.1. The Vendor shall carry the following insurance coverage with a company that is liccnscd to do business in Texas or otherwise approved by the City: 1.1.1. Commercial General Liability: 1.1.1.1. Combined limit of not less than $2,000,000 per occurrence; $4,000,000 aggregate; or 1.1.1.2. 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. 1.1.1.3. Defense costs shall be outside the limits of liability. 1.1.2. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount required by statute. 1.1.3. Technology Liability (Errors & Omissions) 1.1.3.1. Combined limit of not less than $2,000,000 per occurrence; $4million aggregate or 1.1.3.2. 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. The umbrella policy shall cover amounts for any claims not covered by the primary Technology Liability policy. Defense costs shall be outside the limits of liability. 1.1.3.3. Coverage shall include, but not be limited to, the following: 1.1.3.3.1. Failure to prevent unauthorized access; 1.1.3.3.2. Unauthorized disclosure of information; 1.1.3.3.3. Implantation of malicious code or computer virus; 1.1.3.3.4. Fraud, Dishonest or Intentional Acts with final adjudication language; Addendum Page 5 of 8 1.1.3.3.5. Intellectual Property Infringement coverage, specifically including coverage for intellectual property infringement claims and for indemnification and legal defense of any claims of intellectual property infringement, including infringement of patent, copyright, trade mark or trade secret, brought against the City for use of Deliverables, Software or Services provided by Vendor under this Agreement; 1.1.3.3.6. Technology coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, a separate policy specific to Technology E&O, or an umbrella policy that picks up coverage after primary coverage is exhausted. Either is acceptable if coverage meets all other requirements. Technology coverage shall be written to indicate that legal costs and fees are considered outside of the policy limits and shall not erode limits of liability. Any deductible will be the sole responsibility of the Vendor and may not exceed $50,000 without the written approval of the City. Coverage shall be claims -made, with a retroactive or prior acts date that is on or before the effective date of this Agreement. Coverage shall be maintained for the duration of the contractual agreement and for two (2) years following completion of services provided. An annual certificate of insurance, or a full copy of the policy if requested, shall be submitted to the City to evidence coverage; and 1.1.3.3.7. Any other insurance as reasonably requested by City. 1.2. General Insurance Requirements: 1.2.1. 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. 1.2.2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth. 1.2.3. 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. 1.2.4. 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. 1.2.5. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. Addendum Page 6 of 8 1.2.6. Certificates of Insurance evidencing that the Vendor has obtained all required insurance shall be delivered to and approved by the City's Risk Management Division prior to execution of this Agreement. (signature page follows) Addendum Page 7 of 8 [Executed effective as of the date signed by the Assistant City Manager below.] / [ACCEPTED AND AGREED:] CITY OF FORT WORTH bail �r Gtcf0# BY: Dana Burehdoff(Jun 20241L2%CDTI Name: Dana Burghdoff Title: Assistant City Manager Date: Jun 17, 2024 Vendor: VIRTUAL PROJECT MANAGER, LLC By: Lex er J 10, 202� PDT) Name: Lex Zuber Title: President/CEO Date: Jun 10, 2024 CITY OF FORT WORTH INTERNAL ROUTING PROCESS: Approval Recommended: V-- By: Dalton Harrell-Wun 14, 202415:52 CDT) Name: D.J. Harrell Title: Director Development Services Approved as to Form and Legality �� By: Name: Taylor C. Paris Title: Assistant City Attorney II Contract Authorization: M&C: N/A 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. By: Evelyn Ro rts (Jun 11, 202410:10 CDT) Name: Evelyn Roberts Title: Contract Service Administrator City Secretary: oe � p��1F tQO � P°c*oo oo*�d A .�(2�x.0 aaIle h�za54 a bnaoa � By: Name: Jannette S. Goodall Title: City Secretary OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Addendum Page 8 of 8