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HomeMy WebLinkAboutContract 48113 J - REMVED CITY SECRETARY '...111. �_.__. tACT NO. ` AUG 2 41016 CONTR �YS1 PROFESSIONAL SERVICES AGREEMENT BETWEEN THE RTU CITY OF FORT WORTH AND BRANDERA INC This PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into on this 18fl' of August, 2016 ("Effective Date") by and between the City of Fort Worth (the"City"), a home-rule municipal corporation, acting by and through its duly authorized Assistant City Manager, and Brandera, Inc. ("Consultant'), a Texas for profit corporation, acting by and through its duly authorized representative. WHEREAS, the City is currently constructing Victory Forest Community Center located at 3427 Hemphill Street, Fort Worth, Texas 76110("Center"); WHEREAS, the Center will provide amenities for kids and adults of all ages, including, but not limited to, a full-size gymnasium, state-of-the-art fitness room, aerobics and dance rooms, meeting rooms, an outdoor patio, and a commercial kitchen; WHEREAS,the City anticipates hosting a grand opening event for the Center; WHEREAS, the City wishes to hire a professional marketing consultant to conduct market research for the purpose of gathering information concerning the collective experiences and opinions of the Center; WHEREAS, the Consultant is a marketing and promotions firm that provides such professional marketing services; and WHEREAS, the City wishes to engage the Consultant to provide marketing services for the Center. In consideration of the promises and of the mutual covenants contained herein, City and Consultant hereby agree as follows: 1. SCOPE OF SERVICES. 1.1 Consultant hereby agrees to provide the City with professional consulting services for the purpose of providing the City with professional services to conduct market research for the purpose of gathering information concerning the collective experiences and opinions of the Center. Attached hereto and incorporated for all purposes incident to this Agreement is Exhibit A, which more specifically describes the services to be provided hereunder ("Services"). Consultant agrees to perform all Services in accordance with the highest professional industry standards. 2. TERM AND TERMINATION. 2.1 Term. Unless terminated earlier pursuant to the terms of this Agreement, this Agreement shall commence upon the Effective Date and terminate upon completion of the Services specified or December 31, 2016, whichever is earlier. Articles 6, 7, and 8 herein shall survive the term of this Agreement. OFFICIAL RECORD CITY SECRETARY Professional Services Agreement with Brandera,Inc. FT. WORTH, TX I of 10 #KP7XLY7XOD143Dv2 2.2 Termination for Convenience. 2.2.1 The City may terminate this Agreement for its convenience upon ten (10) business 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 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 work. 2.2.2 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. 2.3 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, 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 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. In such event, Consultant shall not be entitled to any compensation and shall repay all sums paid to Consultant pursuant to this Agreement as full satisfaction and discharge of all of City's obligations and liabilities under this Agreement. Any repayment must be made within thirty(30)days after written request by the City. 2.4 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. 2.5 Upon termination of this Agreement for any reason, Consultant shall provide the City with originals and copies of all completed or partially completed Work Product prepared under this Agreement within thirty(30)calendar days after the effective date of termination. 3. COMPENSATION. 3.1. This is a fixed price agreement. The City shall pay Consultant an amount not to exceed Seven Thousand Fifty Dollars and No Cents ($7,050.00) in accordance with the provisions of this Agreement, which shall constitute full compensation for all Services to be performed and materials to be furnished by Consultant under this Agreement. 3.2 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 services and costs for such services. The City shall not be liable for any additional expenses of Consultant not specified by this Page 2 of 10 Agreement unless the City first duly approves such expenses in writing. 3.3 City shall make payment within thirty (30) calendar days after acceptance, receipt, and approval by City of the Service or Work Product (as hereinafter defined) and any invoices or progress reports required by the City. In the event of a disputed or contested billing,only that portion so contested may be withheld from payment, and the undisputed portion will be paid. 4. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS 4.1 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 rights of retention thereto on the part of the City. Consultant shall have no copyright or other intellectual property interest in the Work Product. 4.2 The City shall have access to and be entitled to review and copy any portion of the Work Product at any time. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 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. Consultant, 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. Consultant 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. Consultant shall notify the City immediately if the security or integrity of any City information has been compromised or is believed to have been compromised. 6. RIGHT TO AUDIT. 6.1 Consultant agrees that the City shall, until the expiration of three (3) years after final payment under this contract, 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 Agreement 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 Page 3 of 10 City shall give Consultant reasonable advance notice of intended audits. 6.2 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, 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. 7. INDEPENDENT CONTRACTOR. It is expressly understood and agreed that Consultant 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, 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. 8. LIABILITY AND INDEMNIFICATION. 8.1 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 NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL MISCONDUCT OF CONSULTANT,ITS OFFICERS,AGENTS, SERVANTS OR EMPLOYEES. 8.2 INDEMNIFICATION. CONSULTANT COVENANTS AND AGREES TO AND DOES HEREBY INDEMNIFY, HOLD HARMLESS, AND DEFEND, AT ITS OWN EXPENSE, CITY FROM AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS,ACTIONS, CAUSES OF ACTION, LIENS, LOSSES, EXPENSES, COSTS, FEES (INCLUDING, BUT NOT LIMITED TO,ATTORNEY'S FEES AND COSTS OF DEFENSE),PROCEEDINGS,DEMANDS, DAMAGES, LIABILITIES, AND SUITS OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY LOSS (INCLUDING, BUT NOT LIMITED TO, WORKERS' COMPENSATION ACT LIABILITY, LOST PROFITS, AND PROPERTY DAMAGE) AND PERSONAL INJURY (INCLUDING, BUT NOT LIMITED TO, DEATH) TO ANY AND ALL PERSONS, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS SOUGHT, OF WHATSOEVER KIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING OUT OF OR RESULTING FROM ANY ACTS, ERRORS, OR OMISSIONS OF CONSULTANT OR CONSULTANT'S CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, DIRECTORS, MEMBERS, PARTNERS, AND REPRESENTATIVES IN CONNECTION WITH THE EXECUTION, PERFORMANCE, ATTEMPTED PERFORMANCE, OR NONPERFORMANCE OF THIS CONTRACT, EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY Page 4 of 10 RESULTING FROM THE SOLE GROSS NEGLIGENCE OF THE CITY. 8.3 IF ANY ACTION OR PROCEEDING SHALL BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH LIABILITY OR CLAIM, CONSULTANT,ON NOTICE FROM CITY, SHALL DEFEND SUCH ACTION OR PROCEEDING, AT CONSULTANT'S EXPENSE, BY OR THROUGH ATTORNEYS REASONABLY SATISFACTORY TO CITY. 8.4 Consultant shall require all of its subcontractors to include in their subcontracts a release and indemnity in favor of City in substantially the same form as above. 9. 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 under this Agreement prior to 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. 10. INSURANCE. 10.1 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 work pursuant to this Agreement: 10.1.1 Covera a and Limits (a) Commercial General Liability $1,000,000 Each Occurrence $1,000,000 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 person per occurrence $100,000 Property damage Coverage shall be on any vehicle used by the Consultant, 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. Such coverage shall also include a waiver of subrogation in favor of the City. (c) Worker's Compensation Statutory limits Page 5of10 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 minimum 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. Such coverage shall also include a waiver of subrogation in favor of the City. (d) Errors &Omissions(Professional Liability): $1,000,000 Per Claim and Aggregate If coverage is written on a claims-made basis,the retroactive date shall be coincident with or prior to the date to the contractual agreement. The certificate of insurance shall state that the coverage is claims-made and include the retroactive date. The insurance shall be maintained for the duration of the contractual agreement and for five (5)years following completion of the services provides under the contractual agreement or for the warranty period, whichever is longer. An annual certificate of insurance submitted to the City shall evidence coverage. 10.1.2 Certificates. Certificates of Insurance evidencing that the Consultant has obtained all required insurance shall be delivered to the City prior to Consultant proceeding with any work pursuant to this Agreement. All applicable policies shall be endorsed to name the City as an additional insured thereon, as its interests may appear. 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. The City reserves the right to make reasonable requests or revisions pertaining to the types and limits of that coverage. 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. 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. 11. COMPLIANCE WITH LAWS,ORDINANCES,RULES AND REGULATIONS. Consultant agrees to 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. Page 6 of 10 12. NON-DISCRIMINATION COVENANT. 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. 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, (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 CITY: To CONSULTANT: City of Fort Worth Brandera, Inc. Parks and Recreation Department Attn: Beth Owens, President and Director Attn: Director 219 South Main Street, Suite 301 4200 South Freeway, Suite 2200 Fort Worth, TX 76104 Fort Worth, TX 76115 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 AND SEVERABILITY. 15.1 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. 15.2 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. 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. Page 7 of 10 17. 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 (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. 18. HEADINGS NOT CONTROLLING. Headings and titles used in this Agreement are for reference purposes only and shall not be deemed a part ofthis Agreement. 19. REVIEW OF COUNSEL AND SIGNATURE AUTHORITY. 19.1 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. 19.2 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. 20. AMENDMENTS/ MODIFICA"'IONS/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. 21. ENTIRETY OF AGREEMENT. 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, Fort Worth Texas to be effective as of the Effective Date. CIT WORTH: BRANDERA, INC. By: By: ut- Assistant san Alanis h ens City Manager irec r and President Date: Date: N IAL RECORD Page 8 of 10 SECRETARY ORTH, TX APPROVED AS TO FORM AND LEGALITY: By: _ Tyler F. W a Assista Attorney FORT ATTEST: V �1 By: ? ttyKaye Secre No M&C required t IAL RECORD SECRETARY WORTH, TX Page 9 of 10 EXHIBIT A SCOPE OF WORK AND FEE SCHEDULE Market Research — Consultant shall conduct one l to l '/z hour focus $7,050.00 group session of 8-12 stakeholders for the purpose of gathering information concerning collective experiences and opinions of the Center, evaluate the findings, and prepare summary report of findings. Prepare and distribute an online survey aimed at a larger target audience soliciting opinions of the Center, evaluate findings, and prepare a report of the findings. Consulting time for coordination and presentation of findings will includes printing, evaluating, editing, and segmenting populations and findings. Also included is mileage, hospitality,table tents,and supplies for the focus group. All Services and Work Product under this Agreement shall be subject to review and approval by the Director of the Park and Recreation Department or that person's designee ("Director"). All Services and Work Product will be in a form and content satisfactory to the Directory. Consultant will adhere to any schedule and process requirements established by the Director for the submission, review, and revision by Consultant of the Services and Work Product. Consultant will make any additions to, deletions from, alteration of, or revisions to the Services or Work Product("Revisions")that the Director determines are necessary to render the Services or Work Product satisfactory to the Director. If the Consultant is unable or unwilling to make the Revisions on the schedule required by the Director for any reason, then the Director may make such Revisions or have another person or entity make the revisions. 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