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HomeMy WebLinkAboutContract 51073 CITY SECRETARY CONTRACT No. FORTWORTH. PROFESSIONAL SERVICES AGREEMENT This PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and between the CITY OF FORT WORTH ("City), a home-rule municipal corporation situated in portions of Tarrant,Denton,Johnson and Wise Counties,Texas,acting by and through its duly authorized Assistant City Manager, and MARIA HOLMES ("Consultant") a Texas instructor. City and Consultant are each individually referred to herein as a"party"and collectively referred to as the "parties."The term "Consultant" shall include the Consultant, its officers, agents, employees, representatives, contractors or subcontractors. The term"City" shall include its officers,employees,agents, and representatives. 1. SCOPE OF SERVICES. Consultant hereby agrees, with good faith and due diligence, to provide the City with professional consulting services for conversational English classes. Specifically, Consultant will perform all duties outlined and described in the Statement of Work, which is attached hereto as Exhibit A and incorporated herein for all purposes, and further referred to herein as the "Services." Consultant shall perform the Services in accordance with standards in the industry for the same or similar services. In addition, Consultant shall perform the Services in accordance with all applicable federal, state,and local laws,rules, and regulations. If there is any conflict between this Agreement and Exhibit A, the terms and conditions of this Agreement shall control. 2. TERM. This Agreement shall commence upon June 30, 2018 ("Effective Date") and shall expire no later than June 29, 2019 ("Expiration Date"), unless terminated earlier in accordance with the provisions of this Agreement or otherwise extended by the parties. This Agreement may be renewed three times at the City's option. 3. COMPENSATION. The City shall pay Consultant an amount not to exceed $8000.00 in accordance with the provisions of this Agreement. 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. City agrees to pay all invoices of Consultant within thirty (30) days of receipt of such invoice. Consultant may charge interest on late payments not to exceed one percent (1%). L FOFFICIAL REOOP-0 d'S�• 9T //erofessional Services Agreement CITY Page 1 of 10 4. TERMINATION. 4.1. Written Notice. City or Consultant 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 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 City of any kind whatsoever, except as to the portions of the payments herein agreed upon for which funds have been appropriated. 4.3 Duties and Obligations of the Parties. In the event that this Agreement is terminated prior to the Expiration Date, City shall pay Consultant for services actually rendered up to the effective date of termination and Consultant shall continue to provide City with services requested by City and in accordance with this Agreement up to the effective date of termination. Upon termination of this Agreement for any reason, Consultant shall provide City with copies of all completed or partially completed documents prepared under this Agreement. In the event Consultant has received access to City Information or data as a requirement to perform services hereunder, Consultant shall return all City provided data to City in a machine readable format or other format deemed acceptable to City. 5. DISCLOSURE OF CONFLICTS AND CONFIDENTIAL INFORMATION. 5.1 Disclosure of Conflicts. Consultant hereby warrants to 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 City in writing. 5.2 Confidential Information. Consultant, for itself and its officers, agents and employees, agrees that it shall treat all information provided to it by City("City Information")as confidential and shall not disclose any such information to a third party without the prior written approval of City. 5.3 Unauthorized Access. 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 City immediately if the security or integrity of any City Information has been compromised or is believed to have been compromised, in which event, Consultant shall, in good faith, use all commercially reasonable efforts to cooperate with City in identifying what information has been accessed by unauthorized means and shall fully cooperate with City to protect such City Information from further unauthorized disclosure. 6. RIGHT TO AUDIT. Consultant agrees that 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, including, but not limited to, all electronic records, of Consultant involving transactions relating to this Agreement at no additional cost to City. Consultant agrees that 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. City shall give Consultant reasonable advance notice of intended audits. Professional Services Agreement Page 2 of 10 7. INDEPENDENT CONSULTANT. It is expressly understood and agreed that Consultant shall operate as an independent Consultant as to all rights and privileges and work performed under this Agreement, and not as agent, representative or employee of 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, consultants and subContractors. Consultant acknowledges that the doctrine of respondeat superior shall not apply as between City, its officers, agents, servants and employees, and Consultant, its officers, agents, employees, servants, Consultants 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 City shall in no way be considered a Co-employer or a Joint employer of Consultant or any officers,agents, servants,employees or subConsultant of Consultant. Neither Consultant,nor any officers,agents,servants, employees or subConsultant of Consultant shall be entitled to any employment benefits from 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 subConsultant. 8. LIABILITY AND INDEMNIFICATION. 8.1 LIABILITY- CONSULTANT SHALL BE LIABLE AND RESPONSIBLE FOR ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL INJURY, INCLUDING 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 GENERAL INDEMNIFICATION - CONSULTANT HEREBY COVENANTS AND AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR LAWSUITS OF ANY KIND OR CHARACTER, WHETHER REAL OR ASSERTED, FOR EITHER PROPERTY DAMAGE OR LOSS(INCLUDING ALLEGED DAMAGE OR LOSS TO CONSULTANT'S BUSINESS AND ANY RESULTING LOST PROFITS)AND/OR PERSONAL INJURY,INCL UDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, TO THE EXTENT CA USED BY THE NEGLIGENT ACTS OR OMISSIONS OR MALFEASANCE OF CONSULTANT,ITS OFFICERS,AGENTS,SERVANTS OR EMPLOYEES. 8.3 INTELLECTUAL PROPERTY INDEMNIFICATION— Consultant agrees to defend, settle, or pay, at its own cost and expense, any claim or action against City for infringement of any patent, copyright, trade mark, trade secret, or similar property right arising from City's use of the software and/or documentation in accordance with this Agreement, it being understood that this agreement to defend, settle or pay shall not apply if City modifies or misuses the software and/or documentation. So long as Consultant bears the cost and expense of payment for claims or actions against City pursuant to this section, Consultant shall have the right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, City shall have the right to fully participate in any and all such settlement, negotiations, or lawsuit as necessary to protect City's interest, and City agrees to cooperate with Consultant in doing so.In the event City,for whatever reason,assumes the responsibility for payment of costs and expenses for any claim or action brought against City for infringement arising under this Agreement, City shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise and to settle or compromise any such claim; however, Professional Services Agreement Page 3 of 10 Consultant shall fully participate and cooperate with City in defense of such claim or action. City agrees to give Consultant timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, City's assumption of payment of costs or expenses shall not eliminate Consultant's duty to indemnify City under this Agreement. If the software and/or documentation or any part thereof is held to infringe and the use thereof is enjoined or restrained or,if as a result of a settlement or compromise,such use is materially adversely restricted, Consultant shall, at its own expense and as City's sole remedy, either: (a) procure for City the right to continue to use the software and/or documentation; or (b) modify the software and/or documentation to make it non-infringing, provided that such modification does not materially adversely affect City's authorized use of the software and/or documentation; or(c) replace the software and/or documentation with equally suitable, compatible, and functionally equivalent non-infringing software and/or documentation at no additional charge to City; or (d) if none of the foregoing alternatives is reasonably available to Consultant terminate this Agreement, and refund all amounts paid to Consultant by City, subsequent to which termination City may seek any and all remedies available to City under law. 9. ASSIGNMENT AND SUBCONTRACTING. 9.1 Assignment. Consultant shall not assign or subcontract any of its duties, obligations or rights under this Agreement without the prior written consent of City. If City grants consent to an assignment, the assignee shall execute a written agreement with City and Consultant under which the assignee agrees to be bound by the duties and obligations of Consultant under this Agreement. Consultant and Assignee shall be jointly liable for all obligations of Consultant under this Agreement prior to the effective date of the assignment. 9.2 Subcontract. if City grants consent to a subcontract,sub Consultant shall execute a written agreement with Consultant referencing this Agreement under which sub Consultant shall agree to be bound by the duties and obligations of Consultant under this Agreement as such duties and obligations may apply. Consultant shall provide City with a fully executed copy of any such subcontract. 12. COMPLIANCE WITH LAWS, ORDINANCES, RULES AND REGULATIONS. Consultant agrees that in the performance of its obligations hereunder, it shall 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 City notifies Consultant of any violation of such laws,ordinances,rules or regulations, Consultant shall immediately desist from and correct the violation. 13. 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, SUBCONTRACTORSS OR SUCCESSORS IN INTEREST, CONSULTANT AGREES TO ASSUME SUCH LIABILITY AND TO INDEMNIFY AND DEFEND CITY AND HOLD CITY HARMLESS FROM SUCH CLAIM. 14. NOTICES. Professional Services Agreeincnt Page 4 of 10 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 Maria Holmes Attn: Jesus J. Chapa, Assistant City Manager _ 200 Texas Street Fort Worth, TX 76102-6314 Facsimile: Facsimile: (817) 392-8654 With copy to Fort Worth City Attorney's Office at same address 15. SOLICITATION OF EMPLOYEES. Neither 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 Consultant , 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. It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. 17. NO WAIVER. The failure of 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 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/VENUE. 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 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. Professional Services Agreement Page 5 of 10 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. 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 A,B, and C. 23. AMENDMENTS/MODIFICATIONS/EXTENSIONS. No amendment, modification, or extension of this Agreement shall be binding upon a party hereto unless set forth in a written instrument, which is executed by an authorized representative of each party. 24. ENTIRETY OF AGREEMENT. This Agreement, including Exhibits A, B and C, contains the entire understanding and agreement between 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. 25. 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. 26. 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) 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 City to Consultant for the nonconforming services. 27. IMMIGRATION NATIONALITY ACT. Professional Services Agreement Page 6 of 10 Consultant shall verify the identity and employment eligibility of its employees who perform work under this Agreement, including completing the Employment Eligibility Verification Form (I-9). Upon request by City, Consultant shall provide City with copies of all I-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Consultant shall adhere to all Federal and State laws as well as establish appropriate procedures and controls so that no services will be performed by any Consultant employee who is not legally eligible to perform such services. CONSULTANT SHALL INDEMNIFY CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY CONSULTANT, CONSULTANT'S EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to Consultant, shall have the right to immediately terminate this Agreement for violations of this provision by Consultant. 28. OWNERSHIP OF WORK PRODUCT. City shall be the sole and exclusive owner of all reports, work papers, procedures, guides, and documentation, created, published, displayed, and/or produced in conjunction with the services provided under this Agreement (collectively, "Work Product"). 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 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. 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 to City 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 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 City. 29. 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.This Agreement and any amendment hereto, may be executed by any authorized representative of Consultant whose name, title and signature is affixed on the Verification of Signature Authority Form, which is attached hereto as Exhibit "C". Each party is fully entitled to rely on these warranties and representations in entering into this Agreement or any amendment hereto. 30. CHANGE IN COMPANY NAME OR OWNERSHIP Consultant shall notify City's Purchasing Manager, in writing, of a company name, ownership, or address change for the purpose of maintaining updated City records. The president of Consultant or authorized official must sign the letter. A letter indicating changes in a company name or ownership must be accompanied with supporting legal documentation such as an updated W-9, documents filed with the state indicating such change,copy of the board of director's resolution approving the action,or an executed merger or acquisition agreement. Failure to provide the specified documentation so may adversely impact future invoice payments. 31. PROHIBITION ON CONTRACTING WITH COMPANIES THAT BOYCOTT ISRAEL Professional Services Agreement Page 7 of 10 Consultant acknowledges that in accordance with Chapter 2270 of the Texas Government Code, the City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1)does not boycott Israel;and(2)will not boycott Israel during the term of the contract. The terms "boycott Israel" and"company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this contract, Consultant certifies that Consultant's signature provides written verification to the City that Consultant: (1)does not boycott Israel; and(2)will not boycott Israel during the term of the contract. IN WITNESS WHEREOF,the parties hereto have executed this Agreement in multiples this 28th day of June,2018. (signature page follows) Professional Services Agreement Page 8 of 10 ACCEPTED AND AGREED: CITY OF FORT WORTH: CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of By. vl / y� this contract, including ensuring all performance and Name: Jesus J. Chapa reporting requirements. Title: Assistant City Manager Date: -�� By: Name: Marily arvin APPROVAL RECOMMENDED: Title: Assista t Library Director APPROVED AS TO FORM AND LEGALITY: By: Nam I� i &r V L*1 l Title: si a�� ur r By: Arne: ATTEST: Title: Assistant City Attorney CONTRACT AUTHORIZATION: M&C: By: A4 e: a s f-01?T Title: tty Se eta 0� GJi t -�. O 0 CONSULTANT: ?1�XA� By: Name• aria Holmes Titl Consultant Date: OFFICIAL RECORD CITY SlCRlTARY PT.VIIORTN,TX Professional Services Agreement Page 9 of 10 EXHIBIT A SCOPE OF SERVICES Conversational English-language Classes Purpose: Provide opportunities for non-native English speakers to practice speaking English. Classes will be offered to beginners and those with intermediate English-language skills. All participants' fluency will be assessed to determine the appropriate instruction. Classes will be limited to ten people, with pre-registration required. Instruction will include the following: - Beginners Group: class comprises students who understand the basics of English but lack confidence in their speaking abilities. - Intermediate Group: class includes students with an intermediate understanding of English but lack fluency - Both classes will consist of a series of sixteen (16) sessions of two (2) hours long - Classes will be priced at $25 per hour of classroom instruction - Preparation costs will be priced at $25.00 per hour of classroom instruction - Incidental costs to the instructor such as testing,workbooks, or other instructional materials may be reimbursed with prior approval by Library staff at a cost not to exceed two hundred dollars ($200) per series - Additional series or alternate schedules may be added to this agreement with written approval of both parties. Professional Services Agreement—Exhibit C Page 10 of 10