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HomeMy WebLinkAboutContract 47444 CITY SECRETARY ` CONTRACT 140. y yyy- AGREEMIENT BETWEEN THE CITY OF FORT WORTH AND MELODY MITCHELL This AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("City"), a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and MELODY MITCHELL ("Consultant"), an individual,each individually referred to as a"party"and collectively referred to as the"parties." WHEREAS, City desires to contract with Consultant to develop a policy for restroom facilities at City of Fort Worth competition athletic complexes in accordance with the terms of this Agreement; and NOW, THEREFORE, in consideration of the mutual covenants herein expressed, the parties agree as follows: 1. SCOPE OF AGREEMENT. 1.1 Consultant hereby agrees to develop a policy for restroom facilities at City of Fort Worth competition athletic field complexes in accordance with the terms of this Agreement and the scope set forth in Exhibit "A," which is attached hereto and incorporated herein for all purposes incident to this Agreement("Services"). 2. TERM. 2.1 This Agreement shall commence upon the date that both the City and Consultant have executed this Agreement("Effective Date")and shall continue in full force and effect for six(6)months, unless terminated earlier in accordance with the provisions of this Agreement. 3. COMPENSATION. 3.1 Upon the completion of all Services to be performed by Consultant under this Agreement, the City shall pay Consultant an amount not to exceed Three Thousand Seven Hundred Fifty Dollars and No Cents($3,750.001 in accordance with the Texas Prompt Payment Act.Consultant shall not perform any additional services for the City not specified by this Agreement unless the City requests and approves in writing the additional costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Agreement unless the City first approves such expenses in writing. 4. TERMINATION. 4.1. Termination for Convenience. 4.1.1 The City may terminate this Agreement for its convenience upon ten (10) calendar days written notice to Consultant. Upon receipt of such notice, Consultant shall immediately discontinue all Services and work and the placing of all orders or the entering into of contracts for all supplies, assistance, facilities and materials in connection with the performance of this Agreement and shall proceed to cancel promptly all existing contracts insofar as they are chargeable to this Agreement. If the OFFICIAL RECORD Agreement with Melody Mitchell CITY SECRETARY i of 10 FT.WORTH,TX City terminates this Agreement under this section, the City shall pay Consultant for Services actually performed in accordance herewith prior to such termination, less such payments as have been previously made, in accordance with a final statement submitted by Consultant documenting the performance of such Services. 4.1.2 Consultant may, for any reason, terminate this Agreement upon thirty (30) calendar days written notice to the City. Consultant shall provide the City with copies of all completed or partially completed documents prepared under this Agreement on or before the effective date of termination. If the Consultant terminates this Agreement under this section, the City shall pay Consultant for Services actually performed in accordance herewith prior to such termination, less such payments as have been previously made, in accordance with a final statement submitted by Consultant documenting the performance of such Services. 4.2 Termination for Cause. The City may terminate this Agreement for cause in the event Consultant fails to perform in accordance with the terms and conditions contained herein. In such event, the City shall give Consultant written notice of Consultant's failure to perform, giving Consultant fourteen (14) calendar days to come into compliance with the Agreement's requirements. If Consultant fails to come into compliance with this Agreement, City shall notify Consultant, in writing, and this Agreement shall be terminated as of the date of such notification. Termination of this Agreement under this provision shall not relieve the Consultant of any damages resulting from a breach or a violation of the terms of this Agreement. 4.3 Non-appropriation of Funds. In the event no funds or insufficient funds are appropriated by the City in any fiscal period for any payments due hereunder, City will notify Consultant 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 City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 4.4 Upon termination of this Agreement for any reason, Consultant shall provide the City with originals and copies of all completed or partially completed work prepared under this Agreement within thirty (30) calendar days after the effective date of termination, unless otherwise stated in this Agreement. 5. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 5.1 City shall own all right, title, and interest in the work produced by Consultant under this Agreement (collectively, "Work Product") at all times throughout the world. Further, City shall be the sole and exclusive owner of all copyright, patent, trademark, trade secret and other proprietary rights in and to the Work Product. Ownership of the Work Product shall inure to the benefit of the City from the date of conception, creation or fixation of the Work Product in a tangible medium of expression (whichever occurs first). Each copyrightable aspect of the Work Product shall be considered a "work- made-for-hire" within the meaning of the Copyright Act of 1976, as amended, and City will be considered the author of the Work Product,with all rights appurtenant thereto. If, and to the extent such Work Product, or any part thereof, is not considered a "work-made-for-hire" within the meaning of the Copyright Act of 1976, as amended, Consultant hereby expressly assigns, sells, and transfers, and to the extent any such assignment, sale, or transfer cannot be made at the present time to City,agrees to assign, sale, and transfer, all exclusive right, title and interest in and to the Work Product, and all copies thereof, and in and to the copyright, patent, trademark, trade secret, and all other proprietary rights therein, that the City may have or obtain, without further consideration, free from any claim, lien for balance due, or Agreement with Melody Mitchell 2 of 10 rights of retention thereto on the part of the City. Consultant shall have no copyright or other intellectual property interest in the Work Product. 5.2 The City shall have access to and be entitled to review and copy any portion of the Work Product at any time. 6. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 6.1 Disclosure of Conflicts. Consultant hereby warrants to the City that Consultant has made full disclosure in writing of any existing or potential conflicts of interest related to Consultant's Services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Consultant hereby agrees immediately to make full disclosure to the City in writing. 6.2 Confidential Information. Consultant, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by the City as confidential and shall not disclose any such information to a third party without the prior written approval of the City. 7. RIGHT TO AUDIT. 7.1 Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this contract, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the consultant involving transactions relating to this Contract at no additional cost to the City. Consultant agrees that the City shall have access during normal working hours to all necessary Consultant 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 Consultant reasonable advance notice of intended audits. 7.2 Consultant 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, or the final conclusion of any audit commenced during the said three years 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 reasonable notice of intended audits. 8. INDEPENDENT CONTRACTOR. 8.1 It is expressly understood and agreed that Consultant shall operate as an independent contractor as to all rights and privileges and Services performed under this agreement, and not as agent, representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement, Consultant shall have the exclusive right to control the details of its operations and activities and be solely responsible for the acts and omissions of its officers, agents, servants,employees, contractors and subcontractors. Consultant acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, contractors and subcontractors. Consultant further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Consultant. It is further understood that the City shall in no way be considered a Co-employer or a Joint employer of Agreement with Melody Mitchell 3 of 10 Consultant or any officers, agents, servants, employees or subcontractors of Consultant. Neither Consultant, nor any officers, agents, servants,employees or subcontractors of Consultant shall be entitled to any employment benefits from the City. Consultant shall be responsible and liable for any and all payment and reporting of taxes on behalf of itself, and any of its officers, agents, servants, employees or subcontractors. 9. LIABILITY AND INDEMNIFICATION. 9.1 LIABILITY - CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR CHARACTER,WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. 9.2 INDEMNIFICATION-CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, SERVANTS, REPRESENTATIVES, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS) AND PERSONAL INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CAUSED BY THE ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT, ITS OFFICERS, AGENTS, SERVANTS,CONTRACTORS,OR EMPLOYEES. 10. ASSIGNMENT AND SUBCONTRACTING. Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of the City. If the City grants consent to an assignment,the assignee shall execute a written agreement with the City and the Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. The Consultant and Assignee shall be jointly liable for all obligations of the Consultant under this Agreement prior to the effective date of the assignment. If the City grants consent to a subcontract,the subcontractor shall execute a written agreement with the Consultant referencing this Agreement under which the subcontractor shall agree to be bound by the duties and obligations of the Consultant under this Agreement as such duties and obligations may apply. The Consultant shall provide the City with a fully executed copy of any such subcontract. 11. INSURANCE. 11.1 Consultant shall provide the City with certificate(s) of insurance documenting policies of the following minimum coverage limits that are to be in effect prior to commencement of any Services pursuant to this Agreement: 11.1.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $2,000,000 Aggregate Agreement with Melody Mitchell 4 of 10 11.1.2 Miscellaneous. (a) Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any Services pursuant to this Agreement. (b) All policies shall contain a Waiver of Subrogation for the benefit of the City of Fort Worth. (c) The term City shall include its employees, officers, officials, agent, and volunteers in respect to the contracted Services. (d) Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. (e) A minimum of thirty (30) days' notice of cancellation or reduction in limits of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable in the event of non-payment of premium. (f) The insurance requirements set forth in this section and any recovery by the City of any sum by reason of any insurance policy required under this Agreement shall in no way be construed or affected to limit or in any way affect Consultant's liability to the City or other persons as provided by this Agreement or law. (g) The City, its officers, employees and volunteers shall be named as an additional insured on the automobile and commercial general liability policies. (h) The insurers for all policies must be licensed and approved to do business in the State of Texas. Except for workers' compensation, all insurers must have a minimum rating of A: VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. If the rating is below that required, prior written approval of the City's Risk Management Division is required. (i) Such terms shall be endorsed onto Consultant's insurance policies. Notice shall be sent to the Risk Manager, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City Attorney at the same address. 12. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS. 12.1 Consultant agrees that in the performance of its obligations hereunder, it will comply with all applicable federal, state and local laws, ordinances, rules and regulations and that any work it produces in connection with this Agreement will also comply with all applicable federal, state and local laws, ordinances, rules and regulations. If the City notifies Consultant of any violation of such laws, ordinances, rules or regulations, Consultant shall immediately desist from and correct the violation. 13. NON-DISCRU14MATION COVENANT. Agreement with Melody Mitchell 5 of 10 13.1 Consultant, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein, agrees that in the performance of Consultant'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 Consultant, its personal representatives, assigns, subcontractors or successors in interest, Consultant agrees to assume such liability and to indemnify and defend the City and hold the City harmless from such claim. 14. NOTICES. 14.1 Notices required pursuant to the provisions of this Agreement shall be conclusively determined to have been delivered when (1) hand-delivered to the other party, its agents, employees, servants or representatives, (2) delivered by facsimile with electronic confirmation of the transmission, or(3) received by the other party by United States Mail, registered, return receipt requested, addressed as follows: City of Fort Worth Melody Mitchell Attn: Assistant City Manager P.O.Box 1729 1000 Throckmorton Dripping Springs, Texas Fort Worth TX 76102-6311 With Copy to the City Attorney At same address 15. SOLICITATION OF EMPLOYEES. Neither the City nor Consultant shall, during the term of this agreement and additionally for a period of one year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by the other during the term of this agreement, without the prior written consent of the person's employer. Notwithstanding the foregoing, this provision shall not apply to an employee of either party who responds to a general solicitation of advertisement of employment by either party. 16. GOVERNMENTAL POWERS/1 V MUNITIES It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers or immunities. 17. NO WAIVER The failure of the City or Consultant 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 City's or Consultant's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 18. GOVERNING LAW/VEP.rUE. This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement,venue for such Agreement with Melody Mitchell 6 of 10 action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas,Fort Worth Division. 19. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. 20. FORCE MAJEURE. The City and Consultant shall exercise their best efforts to meet their respective duties and obligations as set forth in this Agreement, but shall not be held liable for any delay or omission in performance due to force majeure or other causes beyond their reasonable control, including, but not limited to,compliance with any government law, ordinance or regulation, acts of God, acts of the public enemy, fires, strikes, lockouts, natural disasters, wars, riots, material or labor restrictions by any governmental authority,transportation problems and/or any other similar causes. 21. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only, shall not be deemed a part of this Agreement, and are not intended to define or limit the scope of any provision of this Agreement. 22. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised 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. 23. AMENDMENTS. No amendment of this Agreement shall be binding upon a party hereto unless such amendment is set forth in a written instrument,which is executed by an authorized representative of each party. 24. COUNTERPARTS. This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. 25. WARRANTY OF SERVICES. Consultant warrants that its Services will be of a professional quality and conform to generally prevailing industry standards. City must give written notice of any breach of this warranty within thirty (30) business days from the date that the Services are completed. In such event, at Consultant's option, Consultant 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 City to Consultant for the nonconforming Services. 26. ENTIRE 1 OF AGREEMENT. Agreement with Melody Mitchell 7 of 10 This Agreement, including the schedule of exhibits attached hereto and any documents incorporated herein by reference,contains the entire understanding and agreement between the City and Consultant, their assigns and successors in interest, as to the matters contained herein. Any prior or contemporaneous oral or written agreement is hereby declared null and void to the extent in conflict with any provision of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in Tarrant County, Texas to be effective as of the Effective Date. CITY OF FORT WORTH MELODY MITCHELL c By: Ausau)Alanis Assistant City Manager Date: l�_I (p Date: J4W 6f'&W APPROVED AS TO FORM AND LEGALITY: By:<�- 1 Tyl .Wallach �0 AAIstant City Attorney �a ATTE $° �8w = By: yer .°°moo°° ly CONTRACT AUTHORIZATION: No M&C Necessary OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX Agreement with Melody Mitchell 8 of to EXHIBIT A SCOPE OF SERVICES A. Proposal: Consultant shall develop a written Policy for Restroom Facilities at City of Fort Worth Competition Athletic Field Complexes("Policy"). B. Purpose of the Policy: To provide guidance criteria for prioritizing amenity location, design and funding for maintenance of restroom and concession facilities at athletic field complexes and other special use park facilities managed by the City of Fort Worth Park and Recreation Department. C. Responsibilities of Consultant: 1. Research other cities' practice and experience with public restroom facilities and develop options for City staff to consider for use by City. 2. Create pricing plan for both capital and operating budget for the various levels of restroom facilities, including,but not limited to,portables,restroom trailer,permanent restroom building, and permanent restroom and concession building). 3. Develop operational guidelines for continuous maintenance and operation of the facilities. 4. Develop criteria for the provisions of restroom facilities, including,but not limited to, determining the feasibility of permanent facilities versus portable facilities in accordance with the size and use of athletic field complexes. 5. Provide City with a detailed outline draft of the Policy and information gathered prior to final development of the Policy within two weeks of the execution of this agreement 6. Provide the City with a draft of the Policy by February 12,2016 for comment and review by the City. 7. Provide the City with the final Policy to be delivered two weeks after receiving input and instruction from City to move forward. D. Review and Revisions to the Policy: 1. The Policy delivered by the Consultant will be in a form and content satisfactory to the City. Consultant will consult City sufficiently in advance of all delivery dates regarding style, format, content, and other delivery requirements to ensure that the Policy, when delivered, will meet City's specifications. Consultant will adhere to any further reasonable schedule and process requirements established by City for the submission, review, and revision by Consultant of the Policy, and preliminary, draft, and page proof versions of the Policy. Consultant will make any additions to, deletions from, alterations of or revisions to the Policy that the City determines are necessary to render the Policy satisfactory to the City. If the Consultant is unwilling or unable to make the revisions on the schedule required by the City for any reason, then City may make such revisions itself or have another person make such revisions. D. Responsibilities of City: 1. Upon request by the Consultant and to the extent that the same is available,the City will provide Consultant with the following: a. A list of athletic field complexes and locations,both a listing and geographically by provision of a map. L Number of user groups and teams utilizing each location by sport. Agreement with Melody Mitchell 9 of 10 ii. Number of seasons and the length of each season for each sport by user group. iii. Days used each week(i.e.,6 or 7 days per week at what complex)and any use on Sunday. iv. Number of portable toilets currently in use at each location. 1. Individual cost for a toilet, both basic and handicap accessible 2. Annual cost for toilets by location b. Average staff hours currently utilized by athletics maintenance staff to travel to each athletic complex(by area of the City if maintenance operations is decentralized). i. Average hourly rate for general maintenance employee, including benefits cost. ii. Number of visits by maintenance staff to each location during league playing seasons, by location. iii. Any utilization of seasonal staff and associated costs. iv. City's opinion for the potential to use community service workers to perform all or a portion of the cleaning duties associated with c. The sample floor plan designs and cost per square foot price for inclusion in the Policy. d. Sample template for Parks and Recreation Department Policy. Agreement with Melody Mitchell 10 of 10