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HomeMy WebLinkAbout1998-177ORDINANCE NO — / / AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH CASTLEMARK CONSULTING, INC FOR SERVICES RELATING TO THE APPLICATION OF SOFTWARE PRODUCTS ON THE MAIN FRAME COMPUTER SYSTEM, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE, AND PROVIDING AN EFFECTIVE DATE (PURCHASE ORDER # 85608 — CASTLEMARK CONSULTING, INC IN THE AMOUNT OF $35,200 00) THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the City Manager is hereby authorized to execute a Professional Services Agreement with Castlemark Consulting, Inc pertaining to performing on -site assistance, training and problem resolution for mainframe application systems and to perform consulting services related to the following application software products on the mainframe computer system Tax Documentation, Municipal Court — Time -To -Pay $25 00 Fee, Tax — Year 2000 Compliance, and Tax — Multiple Entity Research, a copy of which Agreement is attached hereto and incorporated herem by reference SECTION II That the expenditure of funds as provided in the attached agreement is hereby authorized SECTION III That this ordinance shall become effective immediately upon its passage and approval !- PASSED AND APPROVED this the /(a day of 1998 JA C LLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY BY APPROVED AS TO LEGAL FORM HERBERT L PROUTY,, CITTTY ATTORNEY BY a, i etc vL PO 85608 PROFESSIONAL SERVICES AGREEMENT ORDINANCE PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING STATE OF TEXAS COUNTY OF DENTON § THIS AGREEMENT is made and entered into as of the W 6r� day of 19�f� , by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "OWNER" and CASTLEMARK CONSULTING, INC, hereinafter called "CONSULTANT," acting herein, by and through their duly authorized representatives WITNESSETH, that in consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows ARTICLE I EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSULTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein in connection with the Project as stated in the sections to follow, with diligence and in accordance with the lughest professional standards customarily obtained for such services in the State of Texas The professional services set out herein are in connection with the following described project To perform consulting services related to the following application software products on the mainframe computer system as further detailed in the scope of services set out below Tax Documentation, Municipal Court - Time to Pay $25 00 fee, Tax — Year 2000 Compatibility, and Tax — Multiple Entity Research ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services in a professional manner A Performing on -site assistance, training and problem resolution for mainframe application systems B To perform consulting services related to the following application software products on the mainframe computer system Tax Documentation, Consultant shall put into writing the process and function of each application program in the current tax system Municipal Court — Time -To -Pa $25 00 Fee Consultant shall modify the current Municipal Court application programs and screens to allow and Castlemark Agreement — Page 1 of 9 process an additional $25 00 fee, if the Judge allows a person to have extra time to pay his fine Tax — Year 2000 Comphance. Consultant shall review the current installed tax system for tracking, calculating and processing ad valorem tax obligations He shall propose solutions fQrr assuring compatibility and proper operation of the software beyond the year 2000 Next, he shall modify the code in the application programs to achieve proposed solutions He then shall test the modifications to achieve Year 2000 compliance and warrant proper operation of the software after modification 4 Tax — Multiple Entity Research. Consultant shall put into writing the process and function of each application program and the data files that would need to be modified to allow our current tax system to operate for more entities C Availability of City Resources City will make available to Consultant the use of the terminal for access program libraries and files to allow problem resolution and implementation of enhancements ARTICLE III PERIOD OF SERVICE This Agreement shall become effective upon March 3, 1998 and shall continue until all tasks set forth in Article II are completed This Agreement may be sooner terminated in accordance with the provisions hereof ARTICLE IV INDEPENDENT CONTRACTOR CONSULTANT shall provide services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or claim any right ansing from employee status ARTICLE V COMPENSATION A BILLING AND PAYMENT For and in consideration of the professional services to be performed by the CONSULTANT herein, the OWNER agrees to pay, based on the cost estimate detail at an hourly rate shown in Exhibit "A" which is attached hereto and made a part of this Agreement as if written word for word herein, a total fee, including reimbursement for direct non -labor expenses not to exceed Thirty -Five Thousand Two Hundred Dollars ($35,200 00) Partial payments to the CONSULTANT will be made on the basis of detailed monthly statements rendered to and approved by the OWNER through its City Manager or his designee, however, under no circumstances shall any monthly statement for services exceed the value of the work performed at the time a statement is rendered Castlemark Agreement — Page 2 of 9 Nothing contained in this Article shall require the OWNER to pay for any work which is unsatisfactory, as reasonably determined by the City Manager or his designee, or which is not submitted in compliance with the terms of this Agreement The OWNER shall not be required to make any payments to the CONSULTANT when the CONSULTANT is in default under this Agreement It is specifically understood and agreed that the CONSULTANT shall not be authorized to undertake any work pursuant to this Agreement which would require additional payments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, without first having obtained written authorization from the OWNER B PAYMENT If the OWNER fails to make payments due the CONSULTANT for services and expenses within sixty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the amounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from the said sixtieth (60`h) day, and, in addition, the CONSULTANT may, after giving seven (7) days' written notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been paid in full all amounts due for services, expenses, and charges, provided, however, nothing herein shall require the OWNER to pay the late charge of one percent (1%) set forth herein if the OWNER reasonably determines that the work is unsatisfactory, in accordance with this Article V, "Compensation " ARTICLE VI INDEMNITY AGREEMENT THE CONSULTANT SHALL INDEMNIFY AND SAVE AND HOLD HARMLESS THE OWNER AND ITS OFFICERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, DEMANDS, DAMAGES, LOSSES, AND EXPENSES, INCLUDING, BUT NOT LIMITED TO COURT COSTS AND REASONABLE ATTORNEY FEES INCURRED BY THE OWNER, AND INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BODILY AND PERSONAL INJURY, DEATH AND PROPERTY DAMAGE, RESULTING FROM THE NEGLIGENT ACTS OR OMISSIONS OF THE CONSULTANT OR ITS OFFICERS, SHAREHOLDERS, AGENTS, OR EMPLOYEES IN THE EXECUTION, OPERATION, OR PERFORMANCE OF THIS AGREEMENT NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO CREATE A LIABILITY TO ANY PERSON WHO IS NOT A PARTY TO THIS AGREEMENT, AND NOTHING HEREIN SHALL WAIVE ANY OF THE PARTIES; DEFENSES, BOTH AT LAW OR EQUITY, TO ANY CLAIM, CAUSE OF ACTION, OR LITIGATION FILED BY ANYONE NOT A PARTY TO THIS AGREEMENT, INCLUDING THE DEFENSE OF GOVERNMENTAL IMMUNITY, WHICH DEFENSES ARE HEREBY EXPRESSLY RESERVED Castlemark Agreement — Page 3 of 9 The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation No arbitration or alternate dispute resolution ansmg out of or relating to this Agreement, involving one party's disagreement, may include the other party to the disagreement without the other's approval ARTICLE VIII TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days advance written notice to the other party B This Agreement may be terminated in whole or in part in the event of either party substantially failing to fulfill its obligations under this Agreement No such termination will be effective unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure, and (2) an opportunity for consultation with the terminating party prior to termination C If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the OWNER within thirty (30) days after the date of termination The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article V "Compensation" Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use ARTICLE RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the OWNER for any defect in the design or other work prepared by the CONSULTANT, its employees, subcontractors, agents, and consultants Castlemark Agreement — Page 4 of 9 ARTICLE X NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein Mailed notices shall be deemed communicated as of three (3) days' mailing To CONSULTANT Castlemark Consulting, Inc 8200 Brooknver Dr Suite N508 Lock Box 108 Dallas, Texas 75247 To OWNER City of Denton Kathy DuBose Assistant City Manager, Finance 215 East McKinney Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days' marling ARTICLE X ENTIRE AGREEMENT This Agreement, consisting of eight (8) pages and one (1) exhibit, constitutes the complete and final expression of the agreement of the parties, and is intended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representations, negotiations, discussions, communications, and agreements which may have been made in connection with the subject matter hereof ARTICLE SEVERABILITY If any provision of this Agreement is found or deemed by a court of competent jurisdiction to be invalid or unenforceable, it shall be considered severable from the remainder of this Agreement and shall not cause the remainder to be invalid or unenforceable In such event, the parties shall reform this Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressmg the intention of the stricken provision ARTICLE XII COMPLIANCE WITH LAWS The CONSULTANT shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended Castlemark Agreement — Page 5 of 9 ARTICLE XIII DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap ARTICLE XIV PERSONNEL A The CONSULTANT represents that it has or will secure, at its own expense, all personnel required to perform all the services required under this Agreement Such personnel shall not be employees or officers of, or have any contractual relations with the OWNER CONSULTANT shall inform the OWNER of any conflict of interest or potential conflict of interest that may anse during the term of this Agreement B All services required hereunder will be performed by the CONSULTANT or under its supervision All personnel engaged in work shall be qualified, and shall be authorized and permitted under state and local laws to perform such services ARTICLE XV ASSIGNABILITY The CONSULTANT shall not assign any interest in this Agreement, and shall not transfer any interest in this Agreement (whether by assignment, novation, or otherwise) without the prior written consent of the OWNER ARTICLE XVI MODIFICATION No waiver or modificaiton of this Agreement or of any covenant, condition, or limitation herein contained shall be valid unless in writing and duly executed by the party to be charged therewith, and no evidence of any waiver or modification shall be offered or received in evidence in any proceeding arising between the parties hereto out of or affecting this Agreement, or the rights or obligations of the parties hereunder, and unless such waiver or modification is in writing and duly executed, and the parties further agree that the provisions of this section will not be waived unless as set forth herein ARTICLE XVII MISCELLANEOUS A The following exhibits are attached to and made a part of this Agreement Exhibit A — Cost Estimates B CONSULTANT agrees that OWNER shall, until the expiration of three (3) years after the final payment under this Agreement, have access to and the right to examine any directly pertinent books, documents, papers, and records of the CONSULTANT involving transactions relating to this Agreement CONSULTANT agrees that Castlemark Agreement — Page 6 of 9 OWNER shall have access during normal working hours to all necessary CONSULTANT facilities and shall be provided adequate and appropriate working space in order to conduct audits in compliance with this section OWNER shall give CONSULTANT reasonable advance notice of intended audits C Venue of any suit or cause of action under this Agreement shall he exclusively in Denton County, Texas This Agreement shall be construed in accordance with the laws of the State of Texas D For the purpose of this Agreement, the key person who will perform most of the work hereunder shall be Gary Coggms However, nothing herein shall limit CONSULTANT from using other qualified and competent members of his firm to perform the services required herein E CONSULTANT shall commence, carry on, and complete any and all projects with all applicable dispatch, in a sound, economical, and efficient manner and in accordance with the provisions hereof In accomplishing the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being carried by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all available information pertinent to the Project, including previous reports, any other data relative to the Project, and arranging for the access thereto, and make all provisions for the CONSULTANT to enter in or upon public and private property as required for the CONSULTANT to perform services under this Agreement G The captions of tlus Agreement are for informational purposes only, and shall not in any way affect the substantive terms or conditions of this Agreement IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by it duly authorized City Manager, and CONSULTANT has executed this Agreement through its 'duly authorized undersigned officer on � y This the 1day of �� , 19 7 7/ CITY OF DENTON, TEXAS TED BENAVIDES, CITY MANAGER ATTEST JENNIFER WALTERS, CITY SECRETARY / F Castlemark Agreement — Page 7 of 9 APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY WITNESS M/ IAYt',ESLIE HOLDER CASTLEMARK CONSULTING, INC Castlemark Agreement — Page 8 of 9 EXHIBIT "A" COST ESTIMATES Consulted Rate Estimated Hours Estimated FeesMxpenses $55 00 640 $35,200 Castlemark Agreement — Page 9 of 9