Resolution No. 20-____
Approved on December 9, 2020 Contract No. FHO-2020-00014796
STATE OF TEXAS §
§
COUNTY OF DALLAS §
INTERLOCAL AGREEMENT between
DALLAS INDEPENDENT SCHOOL DISTRICT and
CITY OF DALLAS
REGARDING OPERATION CONNECTIVITY PILOT PRIVATE CELLULAR NETWORK INFRASTRUCTURE PROJECT
THIS INTERLOCAL AGREEMENT FOR OPERATION CONNECTIVITY PILOT PRIVATE CELLULAR NETWORK INFRASTRUCTURE PROJECT (“Project”) (this “Agreement”) is made and entered into by and between the CITY OF DALLAS, a Texas municipal corporation (“City”), acting by and through its duly authorized officers, and DALLAS INDEPENDENT SCHOOL DISTRICT (“the District”), a public educational system, organized and existing under the laws of the State of Texas, acting by and through its Board of Trustees ("the Board"). City and District may be referred to individually as a “Party” and jointly as “the Parties.”
WITNESSETH
WHEREAS, on March 27, 2020, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Public Law 116-136, was signed establishing $150 billion in coronavirus relief fund (“CRF”); and
WHEREAS, the CARES Act requires that payments from the CRF only be used to cover expenses that: (1) are necessary expenditures incurred due to the public health emergency with respect to the Coronavirus Disease 2019 (“COVID-19”); (2) were not accounted for in the budget most recently approved as of March 27, 2020 for the state or government; and (3) were incurred during the period that begins on March 1, 2020, and ends on December 30, 2020; and
WHEREAS, on April 22, 2020, Dallas City Council authorized the City Manager to accept funding from the United States Department of Treasury (“Treasury”) for the CRF in the amount of $234,443,127.60 and to expend funds in compliance with the CARES Act in accordance with guidance from the Treasury for the CRF by Resolution No. 20-0644; and
WHEREAS, the Board File No. X.XX-11192020 supports the development and operation of a pilot infrastructure to facilitate Internet access for the benefit of the District's economically disadvantaged students, with the aim of technological facilitation of distance learning, in response to the COVID-19 crisis (“Services”); and
WHEREAS, on December 9, 2020, Dallas City Council authorized the City Manager to execute an Interlocal Agreement with Dallas Independent School District in an amount not to exceed $500,000.00; to cover expenses incurred for the design, construction and support of one pilot site for a private cellular network infrastructure to facilitate distance learning to students residing in the City of Dallas, by Resolution No. 20-____; and
WHEREAS, the governing bodies of the Parties accordingly desire that City reimburse District from City's local CRF for District's acquisition of aforementioned services and equipment , in an amount not to exceed $500,000.00, thereby covering 100% of the District's costs for one pilot site under the Interlocal , as identified therein, subject to the provisions stated herein below; and
WHEREAS, the Parties further desire to memorialize the aforementioned arrangement and make this Agreement pursuant to Chapter 791 of the Texas Government Code (lnterlocal Cooperation Act) with respect to governmental functions in which the contracting parties are mutually interested.
NOW THEREFORE, in consideration of the mutual covenants and obligations contained herein, the Parties agree as follows:
SECTION 1. DEFINITIONS. In addition to terms defined in the body of this Agreement, the terms set forth below shall have the definitions ascribed to them as follows:
Chief means the Chief of Equity and Inclusion of the Office of Equity and Inclusion, or the Chief of Equity and Inclusion’s designee.
Eligible Expenses shall mean expenses detailed in the Budget included in Exhibit A that are actual, allowable, and allocable disbursements and supported by adequate documentation.
Regulations means all applicable federal laws and regulations, including, but not limited to Section 601(d) of the Social Security Act, as added by Section 5001 of the CARES Act, the CARES Act, 2 CFR Part 200, 2 CFR § 200.303, and 2 CFR §§ 200.330 through 200.332, as amended.
Request for Reimbursement/Payment shall mean requests by District for reimbursement or payment of Services, as defined herein. Requests for Reimbursement/Payment must be submitted in conformance with the procedures herein.
within the service area who would not otherwise have access, as further detailed herein (the “Services”). The Services are to be performed by District and shall conform in every respect to the following:
A. Board File No. X.XX-11192020 for the design, construction and support of a pilot private cellular network infrastructure in conjunction with Operation Connectivity , attached as Exhibit A (“Board File”); and
B. Installation of rooftop antennas and/or poles and/or cellular towers used to host the necessary private cellular network equipment. The City will have use of the District's private cellular infrastructure for the hosting of its own equipment for the purposes of providing City services, such as community wi-fi radios and antennas, emergency communications equipment, smart city equipment and other similar equipment. District would provide no-cost access to the infrastructure, as available. City will install and maintain its own equipment. This right will continue after the Agreement terminates for so long as the District continues to utilize the private cellular infrastructure described in this Agreement.
District shall only be reimbursed for Eligible Expenses that are actual, allowable, and allocable disbursements supported by adequate documentation, as described in Section 6 herein. District shall be responsible for all other costs not identified as Eligible Expenses described in the Budget included herein as Exhibit A.
All exhibits to this Agreement are incorporated by reference and made a part of this Agreement for all purposes as though each were written word for word in this Agreement; provided, however, that in case of a conflict in the language of the Board File and this Agreement, the terms and conditions of this Agreement shall control and are final and binding on both parties. The Agreement shall control where there is conflict as to how the District shall perform or how the Agreement shall operate. District and City further agree that should any dispute or questions arise respecting the true construction or meaning of any of these documents, the true meaning shall be decided by City and such decision shall be binding and conclusive upon District.
SECTION 3. AGREEMENT ADMINISTRATION. This Agreement shall be administered on behalf of City by its Chief and on behalf of District by its duly authorized officials.
SECTION 4. TERM. The term of this Agreement shall commence on execution of this Agreement and shall terminate on December 30, 2020 (the “Term”), unless sooner terminated in accordance with the provisions of this Agreement.
SECTION 5. DUTIES AND RESPONSIBILITIES OF CITY.
used to reimburse District for Eligible Expenses. Funds may not be used to pay for insurance required by this Agreement as described in Section 6(L).
If any individual has received the Services under a program created or administered by the City or from any other local, state, or federal agency or organization, including any assistance received through the CARES Act, District shall not provide the Services to that individual under this Agreement for the same time period. If Funds are expended, this shall be an ineligible expense and District shall not be reimbursed or paid by the City for this cost.
District shall create and implement procedures to prevent any duplication of assistance provided through this Agreement that include: (1) requiring any individual or entity, whether District or direct beneficiary, to agree to repay Funds that are determined, in City’s sole discretion, to be duplicative; and (2) creating and implementing a method to assess whether the use of Funds will duplicate assistance that is already received or is likely to be received by acting reasonably to evaluate need and resources to meet that need. City reserves the right to review and approve Districts proposed procedures. District agrees to repay Funds that are determined, in City’s sole discretion, to be duplicative.
City will pay District within thirty (30) days upon submission by District of all necessary documentation and evidence as outlined in Section 6. City may, at its option, offset any amounts due and payable under this Agreement against any debt (including taxes) lawfully due to City from District, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court.
City’s obligations are payable solely from CARES Act funds received from the Treasury pursuant to Resolution No. 20-0644 approved on April 22, 2020, and authorized for Operation Connectivity by Resolution No. 20-____ approved on December 9, 2020, by City Council. Under no circumstances shall any payment be paid by the City’s general funds or revenue.
B. Monitor. City will monitor the activities and performance of District and any of its contractors or subcontractors as necessary, but no less than annually. Monitoring may include all phases and aspects of District’s performance to determine compliance with the requirements of this Agreement including the adequacy of District’s records and accounts.
C. Audit Rights. City reserves the right to perform desk reviews or on-site monitoring of District’s compliance with the terms and conditions of this Agreement and Interlocal. After each monitoring visit, City shall provide District with a written report of the monitor’s findings. If the monitoring report notes deficiencies in District’s performance, the report shall include requirements for the timely correction of said deficiencies by District. Failure by District to timely take the action specified in the monitoring report shall constitute an event of default under the Agreement.
A. Program Income. City does not anticipate that program income will be generated by this Agreement, but if such income is generated, District will return all program income balances (including investments thereof) held by District to City within ten (10) business days of District’s receipt of the same.
B. Commingling and Supplanting of Funds. District agrees to utilize the Funds to supplement rather than supplant funds otherwise available. District will not commingle Funds with any other funds in any manner that would prevent City from readily identifying expenditures for provision of the Services and Eligible Expenses.
C. Reimbursement/Payment of Program Cost. Not more than $500,000 of the program costs detailed in District’s Budget will be paid by the City on a reimbursement basis to District for costs incurred and paid. Under no circumstance shall District charge an administrative fee on the Funds. Such costs will not be advanced.
D. Request for Reimbursement/Payment.
i. As part of District’s Request for Reimbursement/Payment to the City, District shall submit reports that shall include information regarding all programmatic activities relating to the delivery and performance of the Services, identify all Eligible Expenses related to the Budget, as well as information regarding the clients served, demographic details, identified project milestones, and updated progress towards project goals, and any other documentation the City may request at its sole discretion. Reports to the City shall be accompanied by invoices, canceled checks, receipts, paid bills, and all necessary documentation to evidence Eligible Expenses were paid by District.
ii. The reports and Request for Reimbursement/Payment must be signed by an authorized signatory of District. By signing the report and Request for Reimbursement/Payment, the signatory is certifying that the costs are valid, eligible and consistent with the terms and conditions of this Agreement and the Regulations and that the data contained in the report is true and correct.
iii. City has no obligation to reimburse District for any expenses incurred by District prior to or after the Term of this Agreement.
iv. City’s reimbursement to District for the Services and Eligible Expenses hereunder shall not exceed the amounts authorized under this Agreement. City’s obligations are payable solely from CARES Act funds received from the Treasury. Under no circumstances shall any reimbursement to District be paid by City’s general funds or revenue.
v. City reserves the right to reallocate Funds to prevent underutilization in the event the City determines, in its sole discretion, that District cannot reasonably utilize all Funds.
vi. If the City terminates this Agreement for convenience, as described in Section 8, City will compensate District in accordance with this Agreement for all Services and Eligible Expenses incurred prior to the effective date of such termination notice.
E. Documentation Requirements. District must maintain records and documentation to demonstrate that Funds are being utilized in accordance with this Agreement, the Board File , and Section 601(d) of the Social Security Act.
F. Budget Revisions. During the Term of this Agreement, District may submit to the Chief a request for a budget revision. Such request shall be accompanied by any necessary documents as requested by the Chief, in his or her sole discretion. District shall clearly identify the cost category that will decrease and the cost category that will increase as a result of the budget revision request as well as an explanation for the change. Whether the request will be approved or not will be within the sole discretion of the Chief. District may not change the budget or expend any funds pursuant to the revised budget until the budget revision request has been approved by the Chief, in writing.
G. Monitoring. District understands and agrees that it will be subject to monitoring by City and any other local, state, and federal agency, including, but not limited to the Inspectors General and the Comptroller General of the United States, for compliance with the Agreement and the Regulations for the term of this Agreement and for 5 years thereafter. District will provide access to all files related to the Services and Eligible Expenses or otherwise related to this Agreement as requested by City or any other local, state, and federal agency, including, but not limited to the Inspectors General and the Comptroller General of the United States, during the Term and for 5 years thereafter.
H. Communications. District shall respond promptly after receiving a telephone call, email, or written correspondence from the City. Written correspondence and telephone calls from the City shall be answered within twenty-four (24) hours.
I. Recordkeeping. Accurate recordkeeping and retention are material to District’s performance of this Agreement. Upon request by City, District shall promptly provide City with information and copies of any documents City deems necessary for the effective fulfillment of City’s monitoring and evaluation responsibilities. District will maintain all records and documentation related to this Agreement for five (5) years after termination of this Agreement. If any claim, litigation, or audit is initiated before the expiration of the 5-year period, the records must be retained until all such claims, litigation or audits have been resolved. District understands and agrees that City, any other local, state, and federal agency, including, but not limited to the Inspectors General and the Comptroller General of the United States, and their representatives shall have access at all reasonable hours to District’s offices and records dealing with the use of the Funds. Records shall also be maintained in conformance with the Regulations.
Principles and Audit Requirements for Federal Awards, including but not limited to 2 C.F.R. Part 200, subpart F. The audit must be prepared by an independent certified public accountant, be completed within six (6) months following the end of the period being audited and be submitted to City within thirty (30) days of its completion. Entities that expend less than $750,000.00 per year in federal funds are exempt from Federal audit requirements for that year, but audited financial statements, including, but not limited to independent auditor’s report, statement of financial position, statement of activities, statement of cash flows, accompanying notes to the financial statements, and statement of functional expenses, are required, but not subject to 2 CFR Part 200. Audited financial statements shall be examined by an independent certified public accountant in order to issue an opinion regarding adherence to generally accepted account principles. This is an external financial audit conducted in accordance with the American Institute of Certified Public Accountants standards by someone not directly connected with the District. Records must be available for review or audit by appropriate officials of the Federal Provider, City and General Accounting Office.
K. District Procurement Standards. District shall comply with local, state and federal procurement requirements related to procurement and cost reasonableness. District shall establish procurement procedures to ensure that materials and services are obtained in a cost-effective manner.
L. Insurance. All applicable insurance coverages shall be maintained by each Party through the course of its performance under this Agreement.
M. Debarred/Suspended. District certifies the following:
i. In accordance with Appendix II to 2 CFR Part 200, District acknowledges and agrees to comply with the requirement of this Section. Pursuant to Executive Orders 12549 and 12689 regarding Debarment and Suspension - A contract award (see 2 CFR 180.220) must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (3 CFR part 1986 Comp., p. 189) and 12689 (3 CFR part 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. District shall not be debarred and/or suspended during the Term of this Agreement.
ii. Prior to or simultaneously with execution of this Agreement, District shall submit to City (i) District's DUNS number and (ii) a printout showing District's current status on www.sam.gov (or any successor thereto), which printout shall verify that District's status is Active, that District has no exclusions, and that District has no delinquent federal debt.
certification or provided false documentation, in addition to the other remedies available to City, City may immediately terminate this Agreement.
Additionally, District agrees to execute the Certification for Agreements, Grants, Loans and Cooperative Agreement, attached hereto as Exhibit B.
N. Reversion of Assets. Upon the expiration of this Agreement, District shall transfer to City any Funds on hand at the time of expiration and any accounts receivable attributable to the use of Funds. Additionally, District shall provide final versions of all financial, performance, and other reports that are required by this Agreement.
O. Compliance with Other Requirements & Laws. District shall comply with all applicable local, state, and federal laws, rules, regulations, national codes including, but not limited to Section 601(d) of the Social Security Act, as added by Section 5001 of the CARES Act, the CARES Act, 2 CFR Part 200, 2 CFR § 200.303, and 2 CFR §§ 200.330 through 200.332, as amended. District shall comply with OMB Circular A-122, “Cost Principles for Non-Profit Organizations” or OMB Circular A-21 “Cost Principles for Educational Institutions,” as applicable, 24 CFR Part 84, “Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations,” as modified by 24 CFR 570.502(b), and OMB Circular A-133, “Audits of States, Local Governments and Non-Profit Organizations.” District shall perform all the Services in compliance with all federal laws and regulations as described in 24 CFR 570 except that: (1) District does not assume the City’s environmental responsibilities as described in 24 CFR 570.604; and (2) District does not assume the City’s responsibility for initiating the review process under the provisions of 24 CFR part 52.
P. Clean Air Act and Federal Water Pollution Control Act. District shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401-7671q) and the Federal Water Pollution Control Act (33 U.S.C. 1251-1387), as amended. Violations must be reported to the Treasury and the Regional Office of the Environmental Protection Agency.
SECTION 7. REPAYMENT OF FUNDS BY DISTRICT. UPON A FINDING FROM THE TREASURY OR OTHER FEDERAL AGENCY, INCLUDING, BUT NOT LIMITED TO THE INSPECTOR GENERAL OR THE GENERAL COMPTROLLER FOR THE UNITED STATES, OR CITY AUDITS OR MONITORING VISITS, DISTRICT SHALL PAY CITY THE AMOUNT OF ANY FINDINGS OR OTHER DISALLOWED COSTS AS DETERMINED BY THE TREASURY OR OTHER FEDERAL OR CITY AUDITS OR MONITORING VISITS CONNECTED WITH THIS AGREEMENT. DISTRICT ACKNOWLEDGES THAT ALL FUNDS ARE SUBJECT TO REPAYMENT IN THE EVENT ANY EXPENSE OR ACTIVITY DOES NOT MEET THE REQUIREMENTS SET FORTH IN THIS AGREEMENT OR IN THE REGULATIONS. THIS SECTION SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
terminate this Agreement at any time if the City determines that the Services are deemed unsatisfactory.
If District fails to comply with federal statutes, regulations, guidance documents from the Treasury or the terms and conditions of this Agreement, City may impose additional conditions, as described in 2 CFR §200.207. Upon receiving a request from the City, District agrees to amend the Agreement to comply with the relevant laws and guidance documents referenced above, as determined in the sole discretion of the City. If City determines that the noncompliance cannot be remedied by imposing additional conditions, then the City may take one or more of the following actions, as appropriate in the circumstances:
A. Temporarily withhold cash payments pending correction of the deficiency by District or more severe enforcement action by the Treasury or the City;
B. Disallow all or part of the cost of the activity or action not in compliance; C. Wholly or partly suspend or terminate this Agreement;
D. Initiate or recommend suspension or debarment proceedings as authorized under 2 CFR part 180 to Treasury;
E. Withhold further allocations of funds to District under the Agreement; F. Take other remedies that may be legally available in law or at equity.
District may terminate this Agreement if City does not provide the Funds substantially in accordance with this Agreement. District may terminate this Agreement after providing written notice to the City setting forth the reason for such termination, the effective date, and in the case of partial termination, the portion to be terminated. City, however, may determine in the case of partial termination that the reduced or modified portion of the Agreement will not accomplish the purpose of the GUIDE, and may terminate the Agreement in its entirety.
Both Parties may terminate this Agreement for convenience so long as the Parties agree to termination conditions, including the effective date of the termination. In the case of partial termination, the portion of the Agreement to be terminated. Regardless of the Party who initiates the termination, both Parties shall remain responsible for compliance with the requirements set forth in 2 CFR §200.343 and §200.344.
Orders 11375, 11478, 12107 and 12086, Executive Order 13279, 67 FR 77141, 3 CFR 2002, and the implementing regulations at 41 CFR chapter 60.
District agrees to comply with the non-discrimination in employment and contracting opportunities laws, regulations, and executive orders referenced in Section 15B-3 of the Dallas City Code. The applicable non-discrimination provisions in Section 109 of the HCDA are also applicable.
District shall comply with all other applicable state, local, and/or federal requirements regarding civil rights.
SECTION 10. LABOR STANDARDS. If applicable, District agrees to comply with the Davis-Bacon Act as amended, the Copeland Anti-Kick Back Act (18 U.S.C. 874 et seq.) and its implementing regulations of the U.S. Department of Labor at 29 CFR Part 5, the Agreement Work Hours and Safety Standards Act (40 U.S.C. 327 et seq.) and all other applicable federal, state and local laws and regulations pertaining to labor standards insofar as those acts apply to the performance of this Agreement. District shall maintain documentation that demonstrates compliance with federal hour and wage requirements. Such documentation shall be made available to City for review upon request.
SECTION 11. WAGE FLOOR. District agrees to adhere to the wage floor requirements as set forth in Resolution No. 15-2141 approved on November 10, 2015 by City Council.
SECTION 12. RELIGIOUS ACTIVITIES. District agrees that Funds provided under this Agreement will not be utilized for inherently religious activities such as worship, religious instruction or proselytization.
SECTION 13. EVENTS OF DEFAULT. The following shall constitute “Events of Default” hereunder:
A. If District shall fail to comply with any of the covenants, duties, requirements or obligations in this Agreement, which shall also include all exhibits and attachments hereto;
B. If at any time any representation or warranty made by District herein shall be incorrect;
C. If District shall (i) apply for or consent to the appointment of a receiver, trustee or liquidator, (ii) be unable, or admit in writing its inability, to pay its debts as they mature, (iii) make a general assignment for the benefit of creditors, (iv) be adjudicated as bankrupt or insolvent, or (v) file a voluntary petition in bankruptcy or file a petition or answer seeking reorganization or an arrangement with creditors or take advantage of any insolvency law or an answer admitting the material allegations of a petition filed against it in any bankruptcy or insolvency proceeding, or any action shall be taken by District for the purpose of effecting any of the foregoing;
liquidator of District or of all or a substantial part of the assets of District, and such order, judgment or decree shall continue unstayed and in effect for a period of thirty (30) consecutive days;
E. If District shall become insolvent, or shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of creditors;
F. If District attempts to assign the Agreement without prior written consent of the City;
G. If District fails to properly and timely pay personnel, suppliers, or other contractors and the failure impacts the City in any manner; or
H. If District shall fail to comply with any requirement of the Regulations or other applicable local, state, and federal laws, rules or statutes.
SECTION 14. RIGHTS AND REMEDIES OF CITY. If an Event of Default is not cured within thirty (30) days of City’s written notice to District (“Uncured Default”), City shall have the right to elect, as determined in City’s sole discretion, to terminate this Agreement effective immediately upon written notice to District, and/or to pursue any other legal remedies available to City at law or in equity. In the event of termination under this Section, all funds awarded but unpaid to District pursuant to this Agreement shall be immediately rescinded and District shall have no further right to such funds. Termination shall not affect or terminate any of the existing rights of City against District, or which may thereafter accrue because of District’s default. Upon the occurrence of an Uncured Default, the obligation of City to disburse the Funds and all other obligations of City hereunder shall, at City’s option, immediately terminate. District agrees that the City shall not be liable to prosecution damages or lost anticipated profits if the City terminates this Agreement. No waiver by City of any of its rights or remedies hereunder shall be considered a waiver of any other or subsequent right or remedy of City; no delay or omission in the exercise or enforcement by City of any rights or remedies shall ever be construed as a waiver of any right or remedy of City; and no exercise or enforcement of any such rights or remedies shall ever be held to exhaust any right or remedy of City. The waiver of a breach of any term, covenant, or condition of this Agreement shall not operate as a waiver of any subsequent breach of the same or any other term, covenant or condition hereof.
SECTION 15. GENERAL PROVISIONS.
A. Waiver. The waiver by either Party or a breach of any provision of this Agreement shall not operate as or be construed as a waiver of any subsequent breach.
B. Expending Funds. No Party shall incur a debt pursuant to this Agreement, and all disbursements shall take place with appropriated funds from current revenues available to the disbursing Party, to the extent permitted by law.
D. Third Parties. This Agreement is intended to inure only to the benefit of the Parties hereto. This Agreement is not intended to create, nor shall be deemed or construed to create, any rights in third parties.
E. District as Independent Contractor. District shall operate hereunder as an independent contractor and not as an officer, agent, servant or employee of City. District shall have exclusive control of, and the exclusive right to control, the details of the work and services performed hereunder, and all persons performing same, and shall be solely responsible for the acts and omissions of its officers, members, agents, servants, employees, contractors, clients, licensees or invitees. District, or its officers, members, agents, servants, employees, contractors, clients, licensees or invitees, and nothing herein shall be construed as creating a partnership or joint enterprise between City and District. City does not have the legal right to control the details of the tasks performed hereunder by District, its officers, members, agents, employees, contractors, licensees or invitees.
F. Venue and Governing Law. Venue for any action, whether real or asserted, at law or in equity, arising out of the execution, performance, attempted performance or non-performance of this Agreement, shall lie in Dallas County, Texas. In any questions involving state law, for any action, whether real or asserted, at law or in equity, arising out of the execution, performance or non-performance of this Agreement, in any issue not governed by federal law, the choice of law shall be the law from the State of Texas.
G. Severability. The provisions of this Agreement are severable, and, if for any reason a clause, sentence, paragraph or other part of this Agreement shall be determined to be invalid by a court or Federal or state District, board or commission having jurisdiction over the subject matter thereof, such invalidity shall not affect other provisions which can be given effect without the invalid provision.
H. Written Agreement Entire Agreement. This written instrument and exhibits attached hereto, which are incorporated by reference and made a part of this Agreement for all purposes, constitute the entire agreement by the Parties hereto concerning the work and services to be performed under this Agreement. Any prior or contemporaneous oral or written agreement, which purports to vary the terms of this Agreement, shall be void. Any amendments to the terms of this Agreement must be in writing and must be executed by each Party to this Agreement.
I. Paragraph Headings. The paragraph headings contained herein are for
convenience in reference to this Agreement and are not intended to define or to limit the scope of any provision of this Agreement.
J. Conflict of Interest.
responsibilities that could reasonably be expected to impair independence of judgment in District’s performance of all of the services under this Agreement. Such disclosures must be made no later than ten (10) days following the event giving rise to the potential or actual conflict of interest for the duration of the Agreement term. A potential or actual conflict of interest exists when commitments and obligations to the City or widely recognized professional norms are likely to be compromised in District’s performance of its duties under this Agreement by the existence of District’s other professional relationships, contracts, obligations, or commitments. Failure to disclose such a conflict of interest may result in the City’s immediate termination of this Agreement.
ii. The following section of the Charter of the City of Dallas shall be one of the conditions of, and a part of, the consideration for this Agreement:
“CHAPTER XXII. SEC. 11. FINANCIAL INTEREST OF EMPLOYEE OR OFFICER PROHIBITED.
(a) No City official or employee shall have any financial interest, direct or indirect, in any Agreement with the City, or be financially interested, directly or indirectly, in the sale to the City of any land, materials, supplies or services, except on behalf of the City as an officer or employee. Any violation of this section shall constitute malfeasance in office, and any City official or employee guilty thereof shall thereby forfeit the City official’s or employee’s office or position with the City. Any violation of this section, with knowledge, express or implied, of the person or corporation contracting with the City shall render the Agreement involved voidable by the City Manager or the City Council.
(b) The alleged violations of this section shall be matters to be determined either by the trial board in the case of employees who have the right to appeal to the trial board, and by the City Council in the case of other employees.
(c) The prohibitions of this section shall not apply to the participation by City employees in federally-funded housing programs, to the extent permitted by applicable federal or state law.
(d) This section does not apply to an ownership interest in a mutual or common investment fund that holds securities or other assets unless the person owns more than 10 percent of the value of the fund.
(e) This section does not apply to non-negotiated, form Agreements for general City services or benefits if the City services or benefits are made available to the City official or employee on the same terms that they are made available to the general public.
member of a City board or commission, including a City appointee to the Dallas Area Rapid Transit Board, must comply with any applicable conflict of interest or ethics provisions in the state law and the Dallas City Code.”
K. Gift to Public Servant. The City may terminate this Agreement immediately if District has offered, conferred, or agreed to confer any benefit upon a City employee or official that the City employee or official is prohibited by law from accepting. For purposes of this section, "benefit" means anything reasonably regarded as economic advantage, including benefit to any other person in whose welfare the beneficiary is interested, but does not include a contribution or expenditure made and reported in accordance with law. Notwithstanding any other legal remedies, the City may require District to remove any employee of District from the project described herein, who has violated the restrictions of this section or any similar state or federal law, and obtain reimbursement for any expenditures made to District as a result of the improper offer, agreement to confer, or conferring of a benefit to a City employee or official.
L. Assignment. District shall not assign all or any part of its rights, privileges, or duties under this Agreement without the prior written approval of Chief. Any attempted assignment of same without approval shall be void and shall constitute an event of default under this Agreement.
M. Force Majeure. If District becomes unable, either in whole or part, to fulfill its obligations under this Agreement due to acts of God or some other reason entirely beyond District’s control (“Force Majeure Event”), the obligations so affected by such Force Majeure Event will be suspended only during the continuance of such event, subject to approval of City. Such extension may, as determined by City, require City Council approval. District will give City written notice of the existence, extent and nature of the Force Majeure Event as soon as reasonably possible after the occurrence of the event. Failure to give notice will result in the continuance of District’s obligation regardless of the extent of any existing Force Majeure Event. District will use reasonable efforts to remedy its inability to perform as soon as possible.
N. INDEMNITY. EXCEPT TO THE EXTENT REQUIRED UNDER THIS
AGREEMENT AND/OR BY LAW, THERE IS NO OBLIGATION ON EITHER PARTY TO INDEMNIFY THE OTHER PARTY UNDER THIS AGREEMENT. THE PARTIES UNDERSTAND AND AGREE THAT A PARTY TO THIS AGREEMENT DOES NOT ASSUME CIVIL LIABILITY UNDER ANY THEORY OF LAW FOR THE ACTIONS OR INACTIONS OF THE OTHER PARTY, WITH RESPECT TO PERFORMANCE AND OBLIGATIONS REQUIRED HEREIN. IN ANY EVENT, EACH PARTY TO THIS AGREEMENT DOES NOT WAIVE OR RELINQUISH ANY LIABILITY CAP, IMMUNITY OR DEFENSE, AVAILABLE TO IT BY LAW, ON BEHALF OF ITSELF, OFFICERS, EMPLOYERS, AGENTS, AND VOLUNTEERS AS A RESULT OF ITS EXECUTION OF THIS AGREEMENT AND THE PERFORMANCE OF THE COVENANTS CONTAINED HEREIN.
by District or City of its governmental immunity or of the governmental immunity of the State of Texas or a waiver of District or City’s right to seek redress in a court of law.
P. Certification Regarding Lobbying. The undersigned representative of District hereby certifies, to the best of his or her knowledge and belief that:
i. No City funds have been paid or will be paid, by or on behalf of District, to any person for influencing or attempting to influence an officer or employee of any local, state or federal government.
ii. No City funds have been paid or will be paid to attempt to influence the passage or defeat of a legislative measure.
iii. No City funds have been paid or will be paid to employ, as a regular or Agreement employee, a person who is required by Chapter 305 of the Government Code to register as a lobbyist.
iv. No City funds have been used or will be used to pay membership dues to an organization that pays part or all of the salary of a person who is required by Chapter 305 of the Government Code to register as a lobbyist.
Q. Litigation and Claims. District shall give City immediate notice in writing of any action, including any proceeding before an administrative body, filed against District in conjunction with this Agreement. District shall furnish immediately to City copies of all pertinent papers received by District with respect to such action or claim. District shall provide written notice to City within ten (10) days upon filing under any bankruptcy or financial insolvency provision of law.
R. Notice of Agreement Claim. This Agreement is subject to the provisions of Section 2-86 of the Dallas City Code, as amended, relating to requirements for filing a notice of breach of Agreement claim against City. Section 2-86 of the Dallas City Code, as amended, is expressly incorporated by reference and made a part of this Agreement as if written word for word therein. District shall comply with the requirements of Section 2-86 as a precondition of any claim relating to this Agreement, in addition to all other requirements in this Agreement related to claims and notice of claims. This Section shall survive termination or expiration of the Agreement.
S. Notice. All notices required or permitted by this Agreement must be in writing and are deemed delivered on the earlier date of the date actually received or the third day following deposit in a United States Postal Service post office or receptacle; with proper postage, certified mail return receipt requested; and addressed to the other Party at the address set out below or at such other address as the receiving Party designates by proper notice to the sending Party.
CITY:
City of Dallas
1500 Marilla St., 4DN Dallas, Texas 75201 DISTRICT:
Jack Kelanic
Chief Technology Officer
Dallas Independent School District 9400 North Central Expressway Dallas, Texas 75231
T. Miscellaneous.
i. Pursuant to Section 2271.002, Texas Government Code, District hereby (i) represents that it does not boycott Israel, and (ii) subject to or as otherwise required by applicable federal law, including without limitation 50 U.S.C. Section 4607, agrees it will not boycott Israel during the term of the Agreement. As used in the immediately preceding sentence, “boycott Israel” shall have the meaning given such term in Section 2271.001, Texas Government Code.
ii. District hereby represents that (i) it does not engage in business with Iran, Sudan or any foreign terrorist organization and (ii) it is not listed by the Texas Comptroller under Section 2252.153, Texas Government Code, as a company known to have contracts with or provide supplies or services to a foreign terrorist organization. As used in the immediately preceding sentence, “foreign terrorist organization” shall have the meaning given such term in Section 2252.151, Texas Government Code. U. Counterparts. This Agreement may be executed, including electronically, in one or more counterparts, each of which when so executed shall be deemed to be an original and constitute one and the same instrument. If this Agreement is executed in counterparts, then it shall become fully executed only as of the execution of the last such counterpart called for by the terms of this Agreement to be executed.
V. Captions. The captions to the various clauses of this Agreement are for informational purposes only and shall not alter the substance of the terms and conditions of this Agreement.
W. Certification of Execution. The person or persons signing and executing this Agreement on behalf of District, or representing themselves as signing and executing this Agreement on behalf of District, do hereby warrant and certify that he, she or they have been duly authorized by District to execute this Agreement on behalf of District and to validly and legally bind District to all terms, performances and provisions herein set forth.
of the Parties, superseding all oral or written previous and contemporary agreements between the parties relating to matters set forth in this Agreement. Except as otherwise provided elsewhere in this Agreement, this Agreement cannot be modified without written supplemental agreement executed by the Parties.
EXECUTED this the _____ day of ________________ 2020, by CITY, signing by and through its City Manager, duly authorized to execute same by Resolution No. 20-____, approved on December 9, 2020, and by DISTRICT, duly authorized to execute same by its governing body. CITY:
CITY OF DALLAS APPROVED AS TO FORM:
T.C. BROADNAX CHRISTOPHER J. CASO
City Manager City Attorney
By: ___________________________ By: ________________________________
Elizabeth Cedillo-Pereira Assistant City Attorney Chief of Equity and Inclusion
RECOMMENDED BY RESILIENCE OFFICER:
Genesis D. Gavino DISTRICT:
DALLAS INDEPENDENT SCHOOL DISTRICT, a public educational system
By: ____________________________ Name: Justin Henry
Title: President, Board of Trustees Date: ___________________________ ATTEST:
By: ____________________________ Name: Karla Garcia
Title: Secretary, Board of Trustees Date: __________________________
APPROVED AS TO FORM FOR DALLAS ISD ONLY: By: ____________________________
