HomeMy WebLinkAboutContract 46463 CITY SECKEtAft
COWRACT NO. �03
AGREEMENT FOR TECHNOLOGY SERVICES
This Agreement for Technology Services (the Agreement") is effective as of Jan 1,2015 (the"Effective
Date").
BETWEEN: Athena Advanced Networks,Inc. (the"Service Provider" or"Contractor"),an
entity organized and existing under the laws of the state of Oregon, with its office
located at:
4497 Brownridge Terrace, Suite 107
Medford, OR 97504
AND: City of Fort Worth (the"Client " or"City")
1000 Throckmorton Street
Fort Worth Texas 76102
RECITALS
WHEREAS,the Service Provider is in the business of supplying services relating to the management of
computer and network facilities and operating software;
WHEREAS,the Client is desirous of engaging the Service Provider and the Service Provider is willing to
accept such engagement,to provide services hereunder to the Client as more fully described in Section 2.
NOW,THEREFORE, in consideration of the mutual covenants and agreements herein contained, the
Parties hereto, intending, to be legally bound, agree as follows:
1. TERM
The term of this Agreement shall be for a period of one(1)year commencing on Jan 1, 2015 and
terminating on December 31,2015 subject to any renewal of the Agreement pursuant to Section 6 hereof
and subject to earlier termination of this Agreement pursuant to Section 11 hereof(the"Term").
2. RESPONSIBILITIES OF THE SERVICE PROVIDER
The Client hereby engages Service Provider to provide services in accordance with the attached
Exhibit A, which is incorporated herein,and as noted below:
a. Maintain a Site Reference Manual
b. Establish a secure link between Client network and Service Provider for the specific
purpose of monitoring system usage and performance and error conditions
c. Provide Help Desk services to answer questions and assist Client personnel
d. Monitor and analyze system performance and status on a weekly basis and report
rn problems as they are detected
C7
m e. Provide a quarterly review report that includes problems detected, actions taken, system
mperformance and disk usage trends
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,T f. Provide On-Request services pursuant to Section 4 hereof
Cn
;p City of Fort Worth and Athena Advanced 40MCIAL RE n Copy 2/9/15 Page 1 of 1.4
CITY SECRETARY
FT.WORTH,TX
3. RESPONSIBILITIES OF THE CLIENT
a. Designate primary and secondary contacts and provide appropriate information for these
individuals.
b. Select and purchase all Client hardware and software components
c. Provide licenses for all software running on the Client servers and programmable
devices.
d. Coordinate any installation,testing or changes with Service Provider to maintain system
integrity
e. Provide end user support as may be required.
f. Client shall be responsible for maintaining the network including all maintenance and
security functions for the network used by all Client servers.
g. Be responsible for application life—cycle in order to retain Vendor support.
h. Arrange remote access for Service Provider via VPN facilities to network and servers for
monitoring and support activities.
i. Arrange for replacement hardware components should a failure occur.
j. Work with Service Provider on a mutually agreed schedule to allow required
maintenance services to be performed in a timely manner.
k. Provide physical access to server equipment and facilities in accordance with the attached
Exhibit B,Network Access Agreement,which is incorporated herein,as needed to
perform its duties under this Agreement.
4. ON-REQUEST SERVICES
Client may desire services from Service Provider that are outside of the system monitoring,support
and reporting tasks as described in Section 2 above. Examples of these services include but are not
limited to planning and design,adding or replacing equipment,training, back-up for in-house staff,
and disaster recovery. Such services may be handled on an On-Request basis.
This agreement includes a provision for On-Request services at a preferred rate of$150.00 per hour
with a minimum of 4 hours per request unless an on-site visit is required. In the case of an on-site
request the minimum is 8 hours. Service Provider will respond within 24 hours to requests from the
primary or secondary contact with an estimated level of effort. Based upon agreement between the
Service Provider and Client on a level of effort and time frame,the Service Provider will commence
work.
5. CHANGE ORDERS
Changes to the Agreement are valid only if in writing and signed by both parties. The Change Order
document must clearly define changes in schedule,scope,deliverables and cost.
6. RENEWAL
This Agreement may be renewed for up to three(3)one-year periods by mutual, written consent of
both parties. The Service Provider will forward a renewal notice to Client in a timely manner.
7. PAYMENT TERMS
Client shall pay monthly System Monitoring and Support fee of$1,200.00. Service Provider will
invoice Client annually.
City of Fort Worth and Athena Advanced Networks,Inc. Execution Copy 2/9/15 Page 2 of 14
Service Provider shall provide On-Request services at a fee of$150.00 per hour plus expenses.
Service Provider shall submit invoices monthly to Client detailing all agreed upon charges.
Service Provider will not exceed $50,000 in fees without first notifying Client in writing so that
Client may obtain additional approval that is required. If Service Provider fails to provide advance
notice,Client may not be required to pay the additional fees.
8. ANNUAL PRICE INCREASE
Service Provider's annual fee shall not increase by more than five percent(5%)over the previous
year's fee. Such price increase will become effective only at the end of the contract period as the
agreement is renewed or extended.
9. INDEPENDENT CONTRACTOR
Service Provider is an independent contractor,not an employee or agent of the Client. Service
Provider shall be solely responsible for payment of Service Provider's employees,withholding and
paying appropriate state and federal income taxes on Service Provider's payroll,paying any
unemployment taxes and maintaining any worker's compensation coverage required by law.
10. NON-SOLICITATION
Both parties acknowledge that each has a substantial investment in their respective employees and
consultants. In consideration of this investment,the parties agree that during the term of this
Agreement,and for a six month period thereafter(regardless of the reason for termination)neither
party may solicit for employment,retain, employ or contract with any employee or consultant of the
other,or with any subsequent employer,who is currently providing, may provide,or has provided
services related to this Agreement,without first receiving written consent from the employing party
(as defined below). For purposes of this paragraph"Employing Party"shall mean the party
employing an individual or consultant during the term of this Agreement and"Soliciting Party"shall
mean the party seeking to retain,employ or contract such individual or consultant.
11. TERMINATION
a. Either party shall have the right to terminate this Agreement if the other party is in default of
any material obligation hereunder,other than payment,and such default is not cured within
thirty(30)days of receipt of a notice from the non-defaulting party specifying such default.
b. Notwithstanding anything contained herein,the Client reserves the right to terminate this
Agreement, or any part thereof, upon thirty(30)days written notice. In case of such
termination,the Service Provider shall be entitled to receive payment from the Client for
services provided or work completed to date in accordance with the terms and conditions of
this Agreement.
c. In the event that no funds or insufficient funds are appropriated by the Client in any fiscal
period for any payments due hereunder, Client will notify Service Provider 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 Client of any kind
whatsoever,except as to the portions of the payments herein agreed upon for which funds
have been appropriated.
12. INSURANCE
12.1 Service Provider shall carry the following insurance coverage with a company that is licensed to do
business in Texas or otherwise approved by the Client:
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1. Commercial General Liability
a.Combined limit of not less than$2,000,000 per occurrence;$4million aggregate or
b. Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and Umbrella
Coveraee in the amount of$4,000,000. Umbrella policy shall contain a follow-form provision and shall
include coverage for personal and advertising injury.
c.Defense costs shall be outside the limits of liability.
2. Automobile Liability Insurance covering any vehicle used in providing services under this Agreement,
including owned, non-owned, or hired vehicles, with a combined limit of not less than $1,000,000 per
occurrence.
3. Professional Liability (Errors & Omissions) in the amount of $1,000,000 per claim and $1,000,000
aggregate limit.
4. Statutory Workers' Compensation and Employers' Liability Insurance requirements per the amount
required by statute.
5. Technology Liability(Errors&Omissions)
a. Combined limit of not less than$2,000,000 per occurrence;$4million aggregate or
b_ Combined limit of not less than $1,000,000 per occurrence; $2,000,000 aggregate and Umbrella
Coveraee 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.
(a) Coverage shall include,but not be limited to,the following:
(i)Failure to prevent unauthorized access
(ii)Unauthorized disclosure of information
(iii)Implantation of malicious code or computer virus
(iv)Fraud,Dishonest or Intentional Acts with final adjudication language
(v) 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 Client for use of Deliverables, Software or Services provided by
Service Provider under this Agreement.
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 Service Provider and may not exceed $50,000 without the written approval of the
Client. 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 Client to evidence coverage.
6. Any other insurance as reasonably requested by Client.
12.2. General Insurance Requirements:
1. All applicable policies shall name the City of Fort Worth as an additional insured thereon, as its interests
may appear. The terms "City" or "City of Fort Worth" shall include its employees, officers, officials,
agents,and volunteers in respect to the contracted services.
2. The workers' compensation policy shall include a Waiver of Subrogation (Right of Recovery) in favor of
the City of Fort Worth.
3. A minimum of Thirty(30)days' notice of cancellation or reduction in limits of coverage shall be provided
to the Client. 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
City of Fort Worth and Athena Advanced Networks,Inc. Execution Copy 2/9/15 Page 4 of 14
copies to the City Attorney at the same address.
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 Client's Risk Management. If
the rating is below that required,written approval of Client's Risk Management is required.
5. Any failure on the part of the Client to request required insurance documentation shall not constitute a
waiver of the insurance requirement.
6. Certificates of Insurance evidencing that the Service Provider has obtained all required insurance shall be
delivered to and approved by the Client's Risk Management Division prior to execution of this Agreement.
13. INDEMNIFICATION
Service Provider agrees to defend, indemnify,and hold harmless Client, its agents,servants,and
employees from and against any and all claims, liabilities,actions,judgments,costs and expenses and
reasonable attorneys fees arising out of any third party claim related to the performance of the
services under this Agreement.
14. CONFIDENTIAL INFORMATION
Service Provider and all of its employees and consultants shall keep Client information confidential
and any information provided Service Provider in hard copy shall be returned at the end of this
Agreement. All confidential information provided electronically to the Service Provider shall be
removed from the electronic media on which it is stored at the end of this Agreement. Service Provider
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. Service Provider shall notify the City
immediately if the security or integrity of any City information has been compromised or is believed to have
been compromised,in which event,Service Provider shall,in good faith,use all commercially reasonable
efforts to cooperate with the City in identifying what information has been accessed by unauthorized means and
shall fully cooperate with the City to protect such information from further unauthorized disclosure.
15. NOTICES
Unless otherwise specified in this Agreement,all notices and other communications permitted or
required by the provisions of this Agreement shall be in writing and shall be deemed given if
delivered personally,telecopied(if confirmed)or delivered by a nationally recognized overnight
delivery service to either party at its address set forth below(or at such other address as such party
shall designate in writing to the other party during the term of this Agreement):
If to the Client:
Fort Worth Police Department
350 West Belknap Street
Fort Worth TX 76102
Attn: Michael Munday
With copies to the City Attorney at
1000 Throckmorton St.
Fort Worth,Texas 76102
If to the Service Provider:
Athena Advanced Networks
4497 Brownridge Terrace, Suite 107
Medford,OR 97504
Attn:Dennis Matzen
Chief Operating Officer(COO)
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16. SEVERABILITY
If one or more of the provisions contained in this Agreement for any reason is held to be invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction, the same shall not affect
any other provision in the Agreement,and this Agreement shall be construed as if the invalid, illegal
or unenforceable provision had never been contained in this Agreement.
17. ASSIGNMENT
Neither Service Provider nor Client will assign,transfer,or subcontract any of its rights,obligations
or duties under this Agreement without prior written consent of the other party. Such consent shall
not be unreasonably withheld.
18. ENTIRE AGREEMENT
This constitutes the entire agreement of the parties with respect to the subject matter of this
Agreement and supersedes all prior and contemporaneous oral or written proposals, negotiations,and
agreements concerning such subject matter,all of which are merged in this Agreement. This
Agreement may not be modified except by a further written agreement signed by the parties to this
Agreement specifically referencing this Agreement.
19. FORCE MAJEURE
Neither party shall be liable for failure or delay in performance of its obligations under this
Agreement when such failure or delay is caused by acts of God, flood,hurricane, extreme weather,
fire or other natural calamity,acts of governmental agencies,or similar causes beyond the control of
such party. If for any of the reasons set forth above either party shall be unable to perform any
obligation when due,such party shall immediately notify the other party of such inability and of the
period over which such inability is expected to continue. Affected obligations of the parties shall be
temporarily suspended during the period of Force Majeure and the time for performance under this
Agreement shall,as applicable, be extended by the duration of any such period;provided,however,
that if the delay continues for a period of 15 days or more, either party may terminate this Agreement
by written notice to the other.
20. LIMITATION OF LIABILITY
A. LIABILITY—SERVICE PROVIDER SHALL BE LIABLE AND RESPONSIBLE FOR
ANY AND ALL PROPERTY LOSS,PROPERTY DAMAGE AND/OR PERSONAL
INJURY, INCLUDING DEATH,TO ANY AND ALL PERSONS,OF ANY KIND OR
CHARACTER,WHETHER REAL OR ASSERTED,TO THE EXTENT CAUSED BY
THE NEGLIGENT ACT(S)OR OMISSION(S),MALFEASANCE OR INTENTIONAL
MISCONDUCT OF SERVICE PROVIDER,ITS OFFICERS,AGENTS,SERVANTS OR
EMPLOYEES.
B. INDEMNIFICATION—SERVICE PROVIDER HEREBY COVENANTS AND AGREES
TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY,ITS OFFICERS,
AGENTS,SERVANTS AND EMPLOYEES,FROM AND AGAINST ANY AND ALL
CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER,WHETHER REAL OR
ASSERTED,FOR EITHER PROPERTY DAMAGE OR LOSS(INCLUDING ALLEGED
DAMAGE OR LOSS TO SERVICE PROVIDER'S BUSINESS AND ANY RESULTING
LOST PROFITS) AND/OR PERSONAL INJURY,INCLUDING DEATH, TO ANY AND
ALL PERSONS,ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OR
MALFEASANCE OF SERVICE PROVIDER,ITS OFFICERS,AGENTS, SERVANTS OR
EMPLOYEES.
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C. In the event of failure on the part of Service Provider to fulfill any of its obligations under this
Agreement,the exclusive remedy of the Client under this Agreement shall be performance of
such obligation to correct the failure. If such failure cannot be corrected within a reasonable time
as determined by the parties,the Client shall be entitled to refund of fees for such obligation and
shal I have the right to terminate this Agreement without penalty.However, either party shall be
entitled to enforce its rights regarding patents,copyrights,trademarks or trade names or to
indemnifications provided in this Agreement, including actions for damages and equitable relief.
IN NO EVENT SHALL EITHER PARTY HAVE ANY RIGHT UNDER THIS
AGREEMENT AGAINST THE OTHER FOR ANY INDIRECT DAMAGES, LOST
PROFITS OR OTHER CONSEQUENTIAL DAMAGES,EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
D. INTELLECTUAL PROPERTY INFRINGEMENT—(i)The Service Provider warrants
that all Deliverables,or any part thereof, furnished hereunder, including but not limited to:
programs,documentation,software,analyses,applications,methods,ways,and processes
(in this Section 20D each individually referred to as a "Deliverable"and collectively as the
"Deliverables,")do not infringe upon or violate any patent,copyrights,trademarks,service
marks,trade secrets,or any intellectual property rights or other third party proprietary
rights,in the performance of services under this Agreement.(ii)Service Provider shall be
liable and responsible for any and all claims made against the City for infringement of any
patent,copyright,trademark,service mark,trade secret,or other intellectual property
rights by the use of or supplying of any Deliverable(s)in the course of performance or
completion of,or in any way connected with providing the services,or the City's continued
use of the Deliverable(s) hereunder.(iii)Service Provider 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 this Agreement, it being understood
that this agreement to indemnify,defend,settle or pay shall not apply if the City modifies or
misuses the Deliverable(s).So long as Service Provider bears the cost and expense of
payment for claims or actions against the City pursuant to this section 20,Service Provider
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 Service
Provider in doing so. In the event City, for whatever reason,assumes the responsibility for
payment of costs and expenses for any claim or action brought against the City for
infringement arising under this Agreement,the City shall have the sole right to conduct the
defense of any such claim or action and all negotiations for its settlement or compromise
and to settle or compromise any such claim; however,Service Provider shall fully
participate and cooperate with the City in defense of such claim or action. City agrees to
give Service Provider 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 Service Provider's duty to
indemnify the City under this Agreement. If the Deliverable(s),or any part thereof,is held
to infringe and the use thereof is enjoined or restrained or, if as a result of a settlement or
compromise,such use is materially adversely restricted,Service Provider 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
City of Fort Worth and Athena Advanced Networks, Inc. Execution Copy 2/9/15 Page 7 of 14
functionally equivalent non-infringing Deliverable(s)at no additional charge to City; or(d)
if none of the foregoing alternatives is reasonably available to Service Provider,terminate
this Agreement,and refund all amounts paid to Service Provider by the City,subsequent to
which termination City may seek any and all remedies available to City under law.
SERVICE PROVIDER'S OBLIGATIONS HEREUNDER SHALL BE SECURED BY THE
REQUISITE INSURANCE COVERAGE AND AMOUNTS SET FORTH IN SECTION 12
OF THIS AGREEMENT.
21. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas
without regard to any applicable conflict of law.
22. MEDIATION
Except in the event of termination by the City in the event that no funds or insufficient funds are
appropriated by the City in any fiscal period for any payments due hereunder, if either Service
Provider or Client has a claim,dispute,or other matter in question for breach of duty,obligations,
services rendered or any warranty that arises under this Agreement,the parties shall first attempt to
resolve the matter through this dispute resolution process. The disputing party shall notify the other
party in writing as soon as practicable after discovering the claim,dispute,or breach. The notice shall
state the nature of the dispute and list the party's specific reasons for such dispute. Within ten (10)
business days of receipt of the notice, both parties shall commence the resolution process and make a
good faith effort, either through email,mail,phone conference, in person meetings,or other
reasonable,means to resolve any claim,dispute, breach or other matter in question that may arise out
of, or in connection with this Agreement. If the parties fail to resolve the dispute within sixty(60)
days of the date of receipt of the notice of the dispute,then the parties may submit the matter to non-
binding mediation in Tarrant County,Texas,upon written consent of authorized representatives of
both parties in accordance with the Industry Arbitration Rules of the American Arbitration
Association or other applicable rules governing mediation then in effect.The mediator shall be agreed
to by the parties. Each party shall be liable for its own expenses, including attorney's fees; however,
the parties shall share equally in the costs of the mediation. If the parties cannot resolve the dispute
through mediation,then either party shall have the right to exercise any and all remedies available
under law regarding the dispute. Notwithstanding the fact that the parties may be attempting to
resolve a dispute in accordance with this informal dispute resolution process, the parties agree to
continue without delay all of their respective duties and obligations under this Agreement not affected
by the dispute. Either party may, before or during the exercise of the informal dispute resolution
process set forth herein,apply to a court having jurisdiction for a temporary restraining order or
preliminary injunction where such relief is necessary to protect its interests.
23. DULY AUTHORIZED SIGNATURES
Each party represents and warrants that the person signing this Agreement on its behalf has been and
is on the date of this Agreement duly authorized by all necessary corporate or other appropriate action
to execute this Agreement
24. DISCLOSURE OF CONFLICTS
Service Provider hereby warrants to the City that Service Provider has made full disclosure in
writing of any existing or potential conflicts of interest related to Service Provider's services under
this Agreement. In the event that any conflicts of interest arise after the Effective Date of this
Agreement, Service Provider hereby agrees immediately to make full disclosure to the City in
writing.
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24. RIGHT TO AUDIT
Service Provider agrees that the City shall, until the expiration of three (3)years after final payment
under this Agreement, have access to and the right to examine at reasonable times any directly
pertinent books, documents, papers and records of the Service Provider involving transactions
relating to this Agreement at no additional cost to the City. Service Provider agrees that the City
shall have access during normal working hours to all necessary Service Provider 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 Service Provider not less than 10 days written notice
of any intended audits.
Service Provider 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 not less than 10 days written notice of any intended audits.
25. COMPLIANCE WITH LAWS,ORDINANCES, RULES AND REGULATIONS
Service Provider agrees to comply with all applicable federal, state and local laws, ordinances, rules
and regulations. If the Client notifies Service Provider of any violation of such laws, ordinances,
rules or regulations, Service Provider shall immediately desist from and correct the violation.
26. NON-DISCRIMINATION COVENANT
Service Provider, for itself, its personal representatives, assigns, subcontractors and successors in
interest, as part of the consideration herein, agrees that in the performance of Service Provider'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 Service Provider, its personal representatives,
assigns, subcontractors or successors in interest, Service Provider agrees to assume such liability and
to indemnify and defend the Client and hold the Client harmless from such claim.
27. GOVERNMENTAL POWERS
It is understood and agreed that by execution of this Agreement, the Client does not waive or
surrender any of its governmental powers.
28. NO WAIVER
The failure of the Client or Service Provider 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 Client's
or Service Provider's respective right to insist upon appropriate performance or to assert any such
right on any future occasion.
29. HEADINGS NOT CONTROLLING
Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a
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part of this Agreement.
30. REVIEW OF COUNSEL
The parties acknowledge that each party and its counsel have reviewed this Agreement and that the
normal rules of construction to the effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this Agreement or exhibits hereto.
31. WARRANTY OF SERVICES
Service Provider warrants that its services will be of a professional quality and conform to generally
prevailing industry standards. Client must give written notice of any breach of this warranty within
thirty (30) days from the date that the services are completed. In such event, at Service Provider's
option, Service Provider shall either (a) use commercially reasonable efforts to re-perform the
services in a manner that conforms with the warranty, or (b) refund the fees paid by the Client to
Service Provider for the nonconforming services.
32. FEDERAL LAW ENFORCEMENT DATABASE ACCESS
If Service Provider,or any Service Provider Personnel,requires access to any federal law
enforcement database or any federal criminal history record information system, including but not
limited to Fingerprint Identification Records System("FIRS"), Interstate Identification Index System
("III System"),National Crime Information Center("NCIC")or National Fingerprint File ("NFF"),
that is governed by and/or defined in Title 28,Code of Federal Regulations Part 20 ("CFR Part 20"),
for the purpose of providing services for the administration of criminal justice as defined therein on
behalf of the Client under this Agreement, Service Provider shall comply with the Criminal Justice
Information Services Security Policy and CFR Part 20,and shall separately execute the Federal
Bureau of Investigation Criminal Justice Information Services Security Addendum.
33. REPORTING REQUIREMENTS
For purposes of this section, the words below shall have the following meaning:
Child shal I mean a person under the age of 18 years of age.
Child pornography means an image of a child engaging in sexual conduct or sexual performance as
defined by Section 43.25 of the Texas Penal Code.
Computer means an electronic, magnetic, optical, electrochemical, or other high-speed data
processing device that performs logical, arithmetic, or memory functions by the manipulations of
electronic or magnetic impulses and includes all input, output, processing, storage, or communication
facilities that are connected or related to the device.
Computer technician means an individual who, in the course and scope of employment or business,
installs, repairs, or otherwise services a computer for a fee. This shall include installation of software,
hardware, and maintenance services.
If Service Provider meets the definition of Computer Technician as defined herein, and while
providing services pursuant to this Agreement, views an image on a computer that is or appears to be
child pornography, Service Provider shall immediately report the discovery of the image to the Client
and to a local or state law enforcement agency or the Cyber Tip Line at the National Center for
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Missing and Exploited Children. The report must include the name and address of the owner or
person claiming a right to possession of the computer, if known, and as permitted by law. Failure by
Service Provider to make the report required herein may result in criminal and/or civil penalties.
34. IMMIGRATION NATIONALITY ACT
The Client actively supports the Immigration & Nationality Act (INA) which includes provisions
addressing employment eligibility, employment verification, and nondiscrimination. Service Provider
shall verify the identity and employment eligibility of all employees who perform work under this
Agreement. Service Provider shall complete the Employment Eligibility Verification Form (I-9),
maintain photocopies of all supporting employment eligibility and identity documentation for all
employees, and upon request, provide Client with copies of all 1-9 forms and supporting eligibility
documentation for each employee who performs work under this Agreement. Service Provider shall
establish appropriate procedures and controls so that no services will be performed by any employee
who is not legally eligible to perform such services. Service Provider shall provide Client with a
certification letter that it has complied with the verification requirements required by this Agreement.
Service Provider shall indemnify Client from any penalties or liabilities due to violations of this
provision. Client shall have the right to immediately terminate this Agreement for violations of this
provision by Service Provider.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement in multiples,to be effective
as to the rights and obligations of the parties as of January 1, 2015, regardless of the dates of actual
execution.
CITY OF FORT WORTH AT N ED NETWORKS, INC.
t
Rudy Ja'&s& 5cUis I Matzen
Interim Assistant City Manager Chief Operating Officer
l Date: P lot 5
*R,hda Robertson A&-a&—t5
Chief of Police
APPROVED AS TO FORM
AND,LEGALITY:
Jessi angsva g
Assistant City Attorney �� Q��
°" °°°
NO
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M Kayser $°
City Secretary
M&C: N/A rex
City of Fort Worth and Athena Advanced Networks, nc. Execution Co 2/9/15 Page 11 of 14
OFFICIAL RECD
CITY SECRETARY
FT. WORTH,TX
Exhibit A
Monitored Systems
Name Function Model Serial Number
CHRMS01 Primary RMS 8202-E4B 06-8A26R
CHRMS02 Backup RMS 8202-E4B 06-8A27R
CHRMS3500 RMS Storage DS3500 13-D01 W5
CHRMSHMC RMS HMC 7042-CR6 10-70FCC
AS3521 DR RMS 9133-55A 10-F046G
DRRMSHMC DR RMS HMC 7310-CR3 10-EF21A
DRDS4300 DR Storage DS4300 13-G6104
City of Fort Worth and Athena Advanced Networks,Inc. Execution Copy 2/9/15 Page 12 of 14
EXHIBIT B
NETWORK ACCESS AGREEMENT
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 AIX system monitoring services.
In order to provide the necessary support,Contractor needs access the Police Department's Tiburon RMS servers.
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 AIX system monitoring 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. This Agreement
will be associated with the Services designated below.
❑ Services are being provided in accordance with City Secretary Contract No.
❑ Services are being provided in accordance with City of Fort Worth Purchase Order No.
X Services are being provided in accordance with the Agreement to which this Access Agreement is
attached.
❑ No services are being provided pursuant to this Agreement.
4. Renewal. At the end of the first year and each year thereafter,this Agreement 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
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.
5.1 Notice to Contractor Personnel—For purposes of this section, Contractor Personnel shall include
all officers, agents, servants, employees, or representatives of Contractor. Contractor shall be responsible for
specifically notifying all Contractor Personnel who will provide services to the City under this agreement of the
following City requirements and restrictions regarding access to the City's Network:
(a) Contractor shall be responsible for any City-owned equipment assigned to Contractor Personnel,
and will immediately report the loss or theft of such equipment to the City
City of Fort Worth and Athena Advanced Networks, Inc. Execution Copy 2/9!15 Page 13 of 14
(b) Contractor, and/or Contractor Personnel, shall be prohibited from connecting personally-owned
computer equipment to the City's Network
(c) Contractor Personnel shall protect City-issued passwords and shall not allow any third party to
utilize their password and/or user ID to gain access to the City's Network
(d) Contractor Personnel shall not engage in prohibited or inappropriate use of Electronic
Communications Resources as described in the City's Administrative Regulation D7
(e) Any document created by Contractor Personnel in accordance with this Agreement is considered
the property of the City and is subject to applicable state regulations regarding public information
(f) Contractor Personnel shall not copy or duplicate electronic information for use on any non-City
computer except as necessary to provide services pursuant to this Agreement
(g) All network activity may be monitored for any reason deemed necessary by the City
(h) A Network user ID may be deactivated when the responsibilities of the Contractor Personnel no
longer require Network access
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 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:
CITY OF FORT WORTH: ATE D NETWORKS,INC.
By: By:
Interim R4 Jackson Na e:Dennis L.Matzen
Assistant City Man�gge,r Title:Chief Ope tin Officer
Date: .2-.Z G MET
►3 _ft d+Ro� Date:
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By: �-ti // °
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APPROV D TO FORM AND LEG A
By:
Assistant CiAttor ey
M&C: none required
City of Fort Worth and Athena Advanced Networks,InOFF +1cR���� 5 Page 14 of 14
CITY SECRETARY
FT. WORTH,TX