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1998-177AN 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 ~ That the City Manager is hereby authorized to execute a ProfasBlonal Servmes Agreement with Castlemark Consultmg, Inc perta~mng to perfortmng on-site ass~stenee, trammg and problem resolutton for m0mframe apphcat~on systerrls and to perform consulting sarvlees related to the following apphcatlon soi~cware products on the mamframe computer system Tax Documentation, Mumclpal Court - T~me-To-Pay $25 00 Fee, Tax - Year 2000 Comphance, and Tax - Multiple Entxty Research, a copy of wbach Agreement is attached hereto and incorporated herem by reference ~ That the expenditure of funds as prowded m the attached agreement ~s hereby anthonzed ~ That this ordinance shall become effective ~mmedlately upon ~ts passage and approval ' PASSED AND APPROVED th~s the /&~ dayof ~ ,1998 , ATTEST JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY 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 l/,,-'t~ day of "-~m--~- , 19 q~ , by and between the City of Denton, Texas, a Texas municipal corporation, w~th its pnnc~pal office at 215 East McKmney 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 m consideration of the covenants and agreements herein contained, the part,es hereto do mutually agree as follows EMPLOYMENT OF CONSULTANT The OWNER hereby contracts with the CONSLrLTANT, as an independent contractor, and the CONSULTANT hereby agrees to perform the services herein ~n connection w~th the ProJect as stated in the sections to follow, w~th dthgence and in accordance wrth the tughest professional standards customarily obtained for such services in the State of Texas The professional services set out here~n are in connection with the following desenbed project To perform consulting services related to the following application software products on the mtunf~ame computer system as further detailed ~n the scope of services set out below Tax Documentation, Mumclpal Court - T~me to Pay $25 00 fee, Tax - Year 2000 Compat~b~hty, and Tax - Multiple Entity Research ARTICLE II SCOPE OF SERVICES The CONSULTANT shall perform the following services ~n a professional manner A Performing on-s~te assistance, tra~mng and problem resolution for mainframe application systems B To perform consulting services related to the following apphcat~on software products on the mainframe computer system 1 T Do en Consultant shall put into writing the process and function of each apphcatlon program in the current tax system 2 MUmcloal Court - Time-To-Pay $25 00 Fee. Consultant shall modify the current Mumc~pal Court apphcat~on 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 3 Tax - Year 2000 Comnhance. Consultant shall review the current installed tax system for tracking, calculating and processmg ad valorem tax obhgatlons He shall propose solutions for assuring compat~blhty and proper operation of the software beyond the year 2000 Next, he shall modify the code in the apphcation programs to achieve proposed solutions He then shall test the modifications to aclueve Year 2000 compliance and warrant proper operation of the sol.are after mothficatlon 4 TN - Multmle 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 entitles C Avmlablhty of City Resources City will make available to Consultant the use of the terminal for access program hbranes and files to allow problem resolution and implementation of enhancements PERIOD OF SERVICE This Agreement shall become effective upon March 3, 1998 and shall continue until all tasks set forth m Article II are completed Th~s Agreement may be sooner termmated m accordance with the provisions hereof INDEPENDENT CONTRACTOR CONSULTANT shall prowde services to OWNER as an independent contractor, not as an employee of the OWNER CONSULTANT shall not have or clmm any right arising from employee status aaT CLE 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 estxmate detml at an hourly rate shown m Exhlbxt "A" which is attached hereto and made a part of th~s Agreement as xf written word for word herein, a total fee, including rexmbursement for direct non-labor expenses not to exceed Thirty-Five Thousand Two Hundred Dollars ($35,200 00) Partial payments to the CONSULTANT wxll be made on the basis of detmled 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 t~me a statement is rendered Castlemark Agreement - Page 2 of 9 Nothing contmned m this Article shall reqmre the OWNER to pay for any work which ~s unsatisfactory, as reasonably determined by the C~ty Manager or h~s designee, or which ~s not submitted m comphance with the terms of thru Agreement The OWNER shall not be reqmred to make any payments to the CONSULTANT when the CONSULTANT ~s m default under this Agreement It ~s spemfically understood and agreed that the CONSULTANT shall not be anthonzed to undertake any work pursuant to th~s Agreement which would reqmre additional payments by the OWNER for any charge, expense, or reimbursement above the maximum not to exceed fee as stated, w~thout first hawng obtmned written authonzataon from the OWNER B PAYMENT If the OWNER fiuls to make payments due the CONSULTANT for services and expenses within sixty (60) days after receipt of the CONSULTANT's undisputed statement thereof, the mounts due the CONSULTANT will be increased by the rate of one percent (1%) per month from the smd s~xt~eth (60th) day, and, ~n addition, the CONSULTANT may, after giving seven (7) days' wntten notice to the OWNER, suspend services under this Agreement until the CONSULTANT has been prod m full all amounts due for services, expenses, and charges, prowded, however, nothing hereto shall reqmre the OWNER to pay the late charge of one percent (1%) set forth hereto ~fthe OWNER reasonably determines that the work ~s unsatisfactory, m accordance w~th th~s Artmle 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 Casflemark Agreement - Page 3 of 9 ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The part, es may agree to settle any d~sputes under th~s Agreement by submitting the d~sput¢ to arbitration or other means of alternate dispute resolution, such as medlat~un No arbitration or alternate dispute resolution arising out of or relating to th~s Agreement, involving one party's disagreement, may include the other party to the d~sagreement w~thout the other's approval TERMINATION OF AGREEMENT A Notwithstanding any other provision of this Agreement, e~ther party may terminate by g~wng thirty (30) days advance written not,ce to the other party B This Agreement may be terminated ~n whole or ~n part ~n the event of e~ther party substantaally fmlmg to fulfill ~ts obhgat~ons under this Agreement No such termination will be effective unless the other party ~s g~ven (1) written not~ee (dehvered by certified moal, return receipt requested) of ~ntent to terminate and setting forth the reasons speeafymg the non-performance, and not less than thirty (30) calendar days to cure the failure, and (2) an opportumty for consultation w~th the terminating party prior to termination C If the Agreement ~s termmatad prior to completion of the services to be prowded hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for serwces to the OWNER within thlrty (30) days after the date of termmat~on The OWNER shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termmatlon recurred prior to the date of termination, in accordance w~th Article V "Compensation" Should the OWNER subsequently contract w~th a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate m prowdmg reformation 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 tenmnatlon, but may maintain cop~es of such documents for ItS use ARTICLE IX RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsthfl~ty 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 m 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 notmes, commumcattons, and reports required or permitted under tins Agreement shall be personally dehvered or mtuled to the respective parties by depositing same in the Umted States m~ul to the address shown below, certified mini, return receipt requested, unless otherwise specified herexn Marled notices shall be deemed commumcated as of three (3) days' malhng To CONSULTANT To OWNER Castlemark Consultxng, Inc City of Denton 8200 Brookrlver Dr Kathy DuBose Suite N508 Assistant Cxty Manager, Fxnance Lock Box 108 215 East McKanney Dallas, Texas 75247 Denton, Texas 76201 All notices shall be deemed effective upon receipt by the party to whom such nottce ~s given, or within three (3) days' mailing ENTIRE AGREEMENT This Agreement, consisting of e~ght (8) pages and one (1) exinblt, constitutes the complete and final expression of the agreement of the parties, and is ~ntended as a complete and exclusive statement of the terms of their agreements, and supersedes all prior contemporaneous offers, promises, representatmns, negot~atluns, discussmns, commumcations, and agreements which may have been made ~n connection with thc subject matter hereof ARTICLE XI LITY If any provision of tins Agreement ~s found or deemed by a court of competent junsdlcttun to be invalid or unenforceable, ~t shall be considered severable from the remainder of tins Agreement and shall not cause the remainder to be ~nvahd or unenforceable In such event, the parties shall reform tins Agreement to replace such stricken promsmn with a valid and enforceable provision winch comes as close as possible to expressing the intention of the stricken prov~smn COMPLIANCE WITH LAWS The CONSULTANT shall comply w~th all federal, state, and local laws, rules, regulations, and ordinances apphcable to the work covered hereunder as they may now read or hereinafter be amended Casflemark Agreement - Page 5 of 9 DISCRIMINATION PROHIBITED In performing the services required hereunder, the CONSULTANT shall not discriminate aganst any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical hand, cap ARTICLE XIV 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 arise dunng 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 Aa ICLE 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 MODIFICATION No waver or modlficaton 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 exndence of any waiver or modification shall be offered or received in evidence in any proeeexhng ansmg between the parties hereto out of or affecting this Agreement, or the nghis or obligations of the parties hereunder, and unless such waver or mo~hficatlon is in wntmg and duly executed, and the parties further agree that the provisions of this section will not be waved unless as set forth herein EO JS A The followmg exhibits are attached to and made a part of this Agreement Exhibit A - Cost Estmaates 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 dunng normal workmg hours to all necessary CONSULTANT facihtIes and shall be provided adequate and appropriate working space in order to conduct audits an eomphanee with th~s section OWNER shall g~ve CONSULTANT reasonable advance notice of intended audits C Venue of any suit or cause of action under this Agreement shall lie exclusively ~n Denton County, Texas This Agreement shall be construed m 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 Coggins However, nothing herein shall limit CONSULTANT from using other qualified and competent members of h~s firm to perform the services reqmred here~n 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 accomphshmg the projects, CONSULTANT shall take such steps as are appropriate to ensure that the work involved is properly coordinated with related work being earned by the OWNER F The OWNER shall assist the CONSULTANT by placing at the CONSULTANT's disposal all avmlable 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 reqmred for the CONSULTANT to perform services under th~s Agreement G The eaptmns of this Agreement are for mformattonal purposes only, and shall not in any way affect the substantive terms or condmons of this Agreement IN WITNESS HEREOF, the City of Denton, Texas has caused this Agreement to be executed by It duly anthonzed C~ty Manager, and CONSULTANT has executed this Agreement through its duly anthonzed undersigned officer on Tlusthe /~0~2~ dayof ~.~ ,19 ~ ~ CITY OF DENTON, TEXAS TED BENAVIDES, CITY MANAGER ATTEST JENNIFER WALTERS, CITY SECRETARY Casflemark Agreement - Page 7 of 9 APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY CASTLEMARK CONSULTING, INC WITNESS Casflemark Agreement - Page 8 of 9 EXHIBIT "A" COST ESTIMATES ~ ~ Estimated Fees/Expenses $55 00 640 $35,200 Casflemark Agreement - Page 9 of 9