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HomeMy WebLinkAboutContract 55280 CSC No.55280 AGREEMENT FOR SERVICES RELATED TO EDUACTION, OUTREACH AND IMPLEMENTATION FOR WATER CONSERVATION This AGREEMENT FOR SERVICES RELATED TO EDUCATION, OUTREACH AND IMPLEMENTATION FOR WATER CONSERVATION("Agreement") is made and entered into by and between the CITY OF FORT WORTH(the"City"),a home rule municipal corporation situated in portions of Tarrant, Parker, Denton, and Wise Counties, Texas, as executed by Dana Burghdoff, its duly authorized Assistant City Manager, and Rooted In,LLC("Provider"), a Texas Corporation,as executed by Clint Wolfe, its duly authorized Owner, each individually referred to as a "party" and collectively referred to as the "parties." CONTRACT DOCUMENTS: The Contract documents shall include the following: 1. This Agreement for Services 2. Exhibit A—Scope of Services,Payment Schedule and Rates for Services All Exhibits attached hereto are incorporated herein and made a part of this Agreement for all purposes.In the event of any conflict between the documents,the terms and conditions of this Agreement shall control. 1. SCOPE OF SERVICES. Provider hereby agrees to provide the City with services related education, outreach and implementation of water conservation measures.Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit "A," Scope of Services, more specifically describing the services to be provided hereunder. Provider warrants that it will exercise reasonable skill, care and diligence in the performance of its services and will carry out its responsibilities in accordance with customarily accepted professional practices and applicable laws. Except for the express representations and warranties set forth hereinabove and otherwise in this Agreement,Provider does not make any other express or implied warranties or representations of any kind whatsoever relating to this Agreement or the Services,including any implied warranty of merchantability or fitness for a particular purpose. 2. TERM. This Agreement shall commence upon the date of full execution as shown by the City Secretary's date of signature("Effective Date")and shall be for a term on one(1)year,unless terminated earlier or extended in accordance with the provisions of this Agreement or agreed upon by written amendment to this Agreement by both parties. There shall be three(3)one-year options to renew at the discretion of the City. 3. COMPENSATION. The City shall pay Provider an amount not to exceed$75,500 in accordance with the provisions of this Agreement and the Payment Schedule shown in Exhibit "A,"which is incorporated for all purposes herein. Provider shall not perform any additional services for the City not specified by this Agreement unless the City requests and both parties approve in writing the additional scope,schedule,and costs for such services. Either party may seek a change order for a change in scope schedule and costs related thereto,which must be agreed OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX upon by both parties by a written amendment to this Agreement. The City shall not be liable for any additional expenses of Provider not specified by this Agreement unless the City first approves such expenses in writing. 4. TERMINATION. 4.1. Written Notice. The City or Provider may terminate this Agreement at any time and for any reason by providing the other party with 30 days written notice of termination. 4.2 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 Provider of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penalty or expense to the City of any kind whatsoever,except as to the portions of the payments herein agreed upon for which funds shall have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date,the City shall pay Provider for services actually rendered up to the effective date of termination and Provider shall continue to provide the City with services requested by the City and in accordance with this Agreement up to the effective date of termination. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. Provider hereby warrants to the City that Provider has made full disclosure in writing of any existing conflicts of interest related to Provider's services under this Agreement. In the event that any conflicts of interest arise after the Effective Date of this Agreement, Provider hereby agrees promptly to make full disclosure to the City in writing upon its first knowledge of such conflict. Provider, for itself and its officers, agents and employees,further 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, except to the extent that such disclosure is required by applicable law or court order and then only after prior notice to and consultation with the City.Provider shall store and maintain City Information in a secure manner and shall not allow unauthorized users to access,modify, delete or otherwise corrupt City Information in any way. Provider shall notify the City promptly if the security or integrity of any City information has been compromised or is believed to have been compromised. 6. RIGHT TO AUDIT. Provider agrees that the City shall,until the expiration of three(3)years after final payment under this Agreement, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of the Provider involving transactions relating to this Agreement at no additional cost to the City. Provider agrees that the City shall have access during normal working hours to all necessary Provider facilities and shall be provided adequate and appropriate workspace in order to conduct audits in compliance with the provisions of this section. The City shall give Provider at least five(5)business days' advance notice of intended audits. Provider further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the City shall,until expiration of three(3)years after final payment of the subcontract, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records of such subcontractor involving transactions related to the subcontract, and Page 8 of 8 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. The audit rights conferred by this section shall not permit the City to access records related to the pricing of fixed-price or lump sum amounts, the build-up of agreed rates or unit prices, or Provider's estimating records. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Provider shall operate as an independent contractor as to all rights and privileges granted herein, and not as agent,representative or employee of the City. Subject to and in accordance with the conditions and provisions of this Agreement,Provider 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. Provider acknowledges that the doctrine of respondeat superior shall not apply as between the City, its officers, agents, servants and employees, and Provider,its officers,agents,employees, servants,contractors and subcontractors.Provider further agrees that nothing herein shall be construed as the creation of a partnership or joint enterprise between City and Provider. 8. LIABILITY AND INDEMNIFICATION. PROVIDER SHALL RELEASE,DEFEND,INDEMNIFY AND HOLD HARMLESS CITY AND ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL DAMAGES, CLAIMS, LOSSES, DEMANDS, SUITS, JUDGMENTS AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES AND EXPENSES, FOR PERSONAL INJURIES (INCLUDING DEATH) AND THIRD-PARTY PROPERTY DAMAGE TO THE EXTENT CAUSED BY THE NEGLIGENT ACT OR OMISSION OF PROVIDER, ITS OFFICERS, AGENTS, EMPLOYEES, OR SUBCONTRACTORS IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT.THE PROVIDER SHALL NOT BE OBLIGATED OR LIABLE TO THE CITY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT EXCEPT ITS OWN NEGLIGENCE THAT IS THE FAULT OF THE PROVIDER, AND/OR ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS,OR OTHERS FOR WHOM PROVIDER IS LEGALLY RESPONSIBLE. NOTWITHSTANDING THE FOREGOING, PROVIDER AGREES, TO THE FULLEST EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD HARMLESS CITY AND ITS OFFICERS, AGENTS AND EMPLOYEES AGAINST COSTS, DAMAGES, OR LOSSES, INCLUDING REASONABLE ATTORNEYS'FEES AND EXPENSES,RESULTING FROM CLAIMS BY THIRD PARTIES FOR PERSONAL INJURIES (INCLUDING DEATH) OR PROPERTY DAMAGE TO THE EXTENT CAUSED BY THE NEGLIGENT ACTS OR OMISSIONS OF PROVIDER, ITS OFFICERS, AGENTS, EMPLOYEES, OR SUBCONTRACTORS IN THE PERFORMANCE OF SERVICES UNDER THIS AGREEMENT. PROVIDER SHALL NOT BE OBLIGATED TO DEFEND OR INDEMNIFY CITY AND ITS OFFICERS, AGENTS AND EMPLOYEES FOR THEIR RESPECTIVE NEGLIGENCE OR WILLFUL MISCONDUCT. 9. ASSIGNMENT AND SUBCONTRACTING. Provider 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 Provider under which the assignee agrees to be bound by the duties and obligations of Provider under this Agreement, and Provider shall have no further liability or obligations under the assigned portion of the Agreement. If the City grants consent to a subcontract, the Page 8 of 8 Provider shall require such subcontractor to execute a written agreement with the Provider referencing this Agreement and requiring subcontractor to be bound by duties and obligations substantially similar to those of the Provider under this Agreement as such duties and obligations may apply to the subcontractor's scope of services.The Provider shall provide the City with a fully executed copy of any such subcontract upon request, with any financial and proprietary information redacted. 10. INSURANCE. Provider shall provide the City with certificate(s) of insurance documenting policies of the following coverage limits that are to be in effect prior to commencement of any services pursuant to this Agreement: 10.1 Coverage and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $2,000,000 Aggregate (b) Automobile Liability $1,000,000 Each accident on a combined single limit basis or $250,000 Bodily injury per person $500,000 Bodily injury per occurrence $100,000 Property damage Coverage shall be on any vehicle used by the Provider, its employees, agents, representatives in the course of the providing services under this Agreement. "Any vehicle" shall be any vehicle owned,hired and non-owned. (c) Worker's Compensation Statutory limits Employer's liability $100,000 Each accident/occurrence $100,000 Disease-per each employee $500,000 Disease-policy limit This coverage may be written as follows: Workers' Compensation and Employers' Liability coverage with limits consistent with statutory benefits outlined in the Texas workers' Compensation Act(Art. 8308— 1.01 et seq., Tex. Rev. Civ. Stat.) and policy limits for Employers' Liability of $100,000 each accident/occurrence,$500,000 bodily injury disease policy limit and$100,000 per disease per employee. (d) Professional Liability(Errors&Omissions) $1,000,000 Each Claim Limit $1,000,000 Aggregate Limit Professional Liability coverage may be provided through an endorsement to the Commercial General Liability (CGL) policy, or a separate policy specific to Professional E&O. Either is acceptable if coverage meets all other requirements. Page 8 of 8 Coverage shall be claims-made, and maintained for the duration of the contractual agreement and for two(2)years following completion of services provided.An annual certificate of insurance shall be submitted to the City to evidence coverage. 10.2 Certificates. Certificates of Insurance evidencing that the Provider has obtained all required insurance shall be delivered to the City prior to Provider proceeding with any services pursuant to this Agreement.All policies except Workers'Compensation and Professional Liability shall be endorsed to name the City as an additional insured thereon,as its interests may appear. All policies except Professional Liability and Employer's Liability shall contain a Waiver of Subrogation for the benefit of the City of Fort Worth.The term City shall include its employees, officers, officials, agent, and volunteers in respect to the contracted services. Any failure on the part of the City to request required insurance documentation shall not constitute a waiver of the insurance requirement. A minimum of thirty (30) days' notice of cancellation of coverage shall be provided to the City. Ten(10)days' notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto Provider'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. 10.3 Waiver of Subrogation for Property Insurance. The City and Provider waive all rights against each other and their officers, officials, directors, agents, or employees for damage covered by builder's risk insurance during and after the completion of Provider's services. If the services result in a construction phase related to the project, a provision similar to this shall be incorporated into all construction contracts entered into by the City,and all construction contractors shall be required to provide waivers of subrogation in favor of the City and Provider for damage or liability covered by any construction contractor's policy of property insurance, including builder's risk provided by such contractor,if applicable. 11. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS. Provider agrees to comply with all applicable federal, state and local laws, ordinances, rules and regulations.If the City notifies Provider of any violation of such laws,ordinances,rules or regulations,Provider shall promptly desist from and correct the violation. 12. NON-DISCRIMINATION COVENANT. Provider, for itself, its personal representatives, assigns, subcontractors and successors in interest, as part of the consideration herein,agrees that in the performance of Provider's duties and obligations hereunder, it shall not discriminate in the treatment or employment of any individual or group of individuals on any basis prohibited by law. 13. NOTICES. 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, Page 8 of 8 (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: To The CITY: To PROVIDER: City of Fort Worth Rooted In,LLC Christopher Harder,PE Clint Wolfe Water Department Director Owner 200 Texas Street 621 Horseshoe Ct. Fort Worth TX 76102-6311 Prosper,TX 75078 14. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement,the City does not waive or surrender any of its governmental powers. 15. NO WAIVER. The failure of the City or Provider to insist upon the performance of any term or provision of this Agreement or to exercise any right granted herein shall not constitute a waiver of the City's or Provider's respective right to insist upon appropriate performance or to assert any such right on any future occasion. 16. GOVERNING LAW/VENUE. This Agreement shall be construed in accordance with the internal laws of the State of Texas. If any action,whether real or asserted, at law or in equity, is brought on the basis of this Agreement,venue for such 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. 17. 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. 18. FORCE NUJEURE. The City and Provider 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 (force majeure), 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. 19. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. 20. REVIEW OF COUNSEL. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement Page 8 of 8 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. 21. AMENDMENTS/MODIFICATIONS/EXTENSIONS. No extension, modification or amendment of this Agreement shall be binding upon a party hereto unless such extension, modification, or amendment is set forth in a written instrument, which is executed by an authorized representative and delivered on behalf of such party. 22. ENTIRETY OF AGREEMENT. This Agreement contains all of the covenants, statements, representations and promises agreed to by the parties. To the extent of any conflict,this Agreement supersedes the terms,conditions,and representations set forth in the City's Request for Proposals, Provider's Proposal and revised cost. No agent of either party has authority to make, and the parties shall not be bound by, nor liable for, any covenant, statement, representation or promise not set forth herein. The parties may amend this Agreement only by a written amendment executed by both parties. 23. SIGNATURE AUTHORITY. The person signing this agreement hereby warrants that he/she has the legal authority to execute this agreement on behalf of the respective party,and that such binding authority has been granted by proper order, resolution, ordinance or other authorization of the entity. The other party is fully entitled to rely on this warranty and representation in entering into this Agreement. 24. LIMITATION OF LIABILITY. NEITHER THE CITY NOR PROVIDER SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, LOSS OF PRODUCTION, COSTS OF CAPITAL NON-OPERATION OR INCREASED EXPENSE OF OPERATION OF OTHER EQUIPMENT OR SYSTEMS, INJURED REPUTATION, COSTS OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS BY CUSTOMERS, WHETHER LIABILITY IS BASED ON CONTRAT, WARRANTTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. SUCH WAIVER SHALL NOT INCLUDE PENALTIES ENFORCED BY GOVERNMENTAL OR REGULATORY AGENCIES WITH JURISDICTION, SUCH AS THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY (TCEQ), TO THE EXTENT CAUSED BY PROVIDER'S NEGLIGENT PERFORMANCE OF SERVICES UNDER THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE TOTAL LIABILITY, IN THE AGGREGATE, OF PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND SUBPROVIDERS, OR ANY OF THEM, TO THE CITY AND ANYONE CLAIMING BY, THROUGH OR UNDER THE CITY, FOR ANY AND ALL CLAIMS, LOSSES, LIABILITIES, COSTS OR DAMAGES WHATSOEVER ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATED TO THE SERVICES OR THIS AGREEMENT FROM ANY CAUSE INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE,PROFESSIONAL ERRORS OR OMISSIONS,STRICT LIABILITY,BREACH OF CONTRACT, OR WARRANTY (EXPRESS OR IMPLIED) OF PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR SUBPROVIDERS, OR ANY OF THEM, SHALL NOT EXCEED ONE MILLION DOLLARS ($1,000,000). THE PARTIES AGREE THAT SPECIFIC Page 8 of 8 CONSIDERATION HAS BEEN GIVEN BY THE PROVIDER FOR THIS LIMITATION AND THAT IT IS DEEMED ADEQUATE. IN WITNESS WHEREOF,the parties hereto have executed this Agreement on the date signed by the City Secretary as shown below. CITY OF FORT WORTH ROOTED IN, LLC A znwq Dana Burghdoff(Fe66,2021 07'07 CST) Dana Burghdoff Clint Wolfe Assistant City Manager Owner Date: RECOMMENDED BY: Witness: chd"o her ffarder Christopher Harder(Feb 5,202107:25 CST) Christopher Harder, P.E. T t e T-!t Water Department Director ATTEST: pf 0 0000000. 1 0 0 0 0 0 00_ 00 0 0 0 0 o 0 0 *060 1000000 Mary Kayser X 0, ' Citv Secretary Date: Feb 10,2021 APPROVED AS TO FORM AND LEGALITY: ,hrista R.Lopez-Reynolds(Feb�5,20010:�T) Christa R. Lopez-11e,,:voids Sr. Assistant City Attorney No M&C Required Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensm-ing all performance and reporting requirements. `"Jt3ee�i Begley Water Conservation Specialist OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX EXHIBIT A Scope of Work F1 1 i ii Task One Plan and present water saving seminars focused on outdoor water use. 1.1 Conduct nine(9)monthly,two-hour 9 @$400 $3,600 sessions delivered each year of the contract on dates(previously for 2021) agreed upon by both parties. 2021 dates are as follows: • March 11,2021 • April 8,2021 • May 13,2021 • June 10,2021 • July 8,2021 • August 12,2021 • September 9,2021 • October 14,2021 • November 11,2021 1.2 Presentations will be in-person from 6-8 p.m. at the Botanical Research Institute of Texas, 1700 University Drive,Fort Worth,Texas 76107 (pending COVID-19 restrictions)and simulcast as webinars on a platform chosen by CFW. (Unless virtual only due to COVID-19 restrictions). 1.2 Develop content for each session with topic approval by CFW. Topics for 2021 are tentatively set as: • March: Spring Clean Up for your Yard • April: Turf and Irrigation Maintenance • May: Plant Combos and Companions • June: Soil Health and Amendments • July: Irrigation 101 • August: Made for the Shade • September: Container& Small Space or Edibles • October: Pollinators • November: Trees Page 8 of 8 Task Two Produce up to 30 minutes of original video content,branded for the City of Fort Worth. 2.1 Determine content for each video in 30 min @ $30,000 consultation with City of Fort Worth staff.All $1,000/min videos will focus on reducing water use. 2.2 Develop storyboards for each video for CFW approval. 2.3 Determine number and length of each video in consultation with CFW staff. Task Three Conduct a pilot outreach campaign focused on regulation of irrigation pressure as an outdoor water conservation strategy. 3.1 Review pressure research compiled by CFW. 3.2 Work with CFW to determine pilot zip code(s)based on research. 3.3 Develop and execute a strategy to reach homeowners with irrigation in high-pressure zip 300 hrs @$100/hr $30,000 codes to inform them of techniques to reduce irrigation system pressure to save water and money. 3.4 Work with irrigation supply houses and retailers to identify supply of pressure reducing 50 hrs @$100/hr $5,000 spray heads. Set up a promotion with at least one supply house or retailer in a targeted zip code. Design signage for this. CFW will do Spanish translation. 3.5 Design a one-page printed collateral explaining the irrigation pressure issue, solutions $2,500 $2,500 and potential savings. CFW will do Spanish translation for side two. 3.6 Consult with CFW to set up a tracking system for customers who install pressure 20 hrs @$100/hr $2,000 regulation(valves, spray heads,etc.)to track water usage(year over year and/or month over month). 3.7 Conduct 2 to 4 irrigation workshops for the 4 custom hands on targeted zip codes. classes @ $2,400 $600/class Total for all contract tasks $75,500 Page 8 of 8 Evidence of Insurance i 0 Texas Farm Bureau Mutual Insurance Company Texas Farm Bureau Casualty Insurance Company 0 Farm Bureau County Mutual Insurance Company of Texas i This serves as evidence that insurance as identified has been issued, is in force, and conveys all the frights and privileges afforded under the following policy. 0 Texas Personal Automobile Policy E) Business Automobile Policy(Six-Month) 0 Business Automobile Policy(Annual)* Named Insured: Rooted In, LLC i Address: 621 Horseshoe Ct. City: Prosper State: TX Zip: 75078 Member No.: 29TXM7 Policy No.: Effective Date: 02/01/21 Expiration Date: 03/17/21 This policy provides at least the minimum amounts of liability insurance required by the Texas Moor Vehicle Safety Responsibility Act for the vehicle(s) and Named Insured(s) and may provide coverage for other ersons as provided by the insurance policy. Veh. Vehicle Identification Number No. Year Make Model ) Lienholder 1 NON-OWNER 2 3 4 For Annual Business Auto Policy,refer to Schedule of Lienholders Annual Business Auto Policy. Personal Automobile Policy Business Automobile Policy Cove rage for Damage to your Auto Physic I Damage Cove rage Other than Specified Collision Comprehensive Collision; Veh. perils Collision Less Specified Less Less No. Less Causes of Loss End. 522 Deductible Deductible Deductible Deductible 1 $1 MILL CSL $1 MILL CSL 2 3 4 *Refer to supplement Vehicles Covered for Annual Business Auto Policy. Agency At: LA SALLE COUNTY(COTULLA) Address: 214 CENTER ST City: COTULLA State:TX Zip: 78014 Phone: By: JULIE WALKER Date: 02/01/21 Licensed Authorized Agent 1